On July 26, 2016 a
Motion,Ex Parte
was filed
involving a dispute between
Devsj Concrete Llc (Derivatively On Behalf Of Texas Conrete Enterprise,
Texas Concrete Enterprise Iv Llc,
Gajarawala, Hemant,
and
Kurre, Somaiah,
for Debt/Contract - Debt/Contract
in the District Court of Harris County.
Preview
CAUSE NO. 2016-49450
HEMANT GAJARAWALA § IN THE DISTRICT COURT OF
§
vs. § HARRIS COUNTY, TEXAS
§
SOMAIAH KURRE § 80th JUDICIAL DISTRICT
MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Defendant / Counter-Plaintiff, SOMAIAH KURRE (“Kurre”), and asks the
Court to render judgment notwithstanding the verdict of the jury, and in support thereof would
respectfully show unto the Court as follows:
L
The Court submitted this case to the jury when it would have been proper to direct or instruct
averdict. Accordingly, judgment should be rendered in favor of Kurre, notwithstanding the verdict
of the jury. Judgment notwithstanding the verdict is proper (1) when the evidence is conclusive, and
one party is entitled to recover as a matter of law; or (2) when a legal principal precludes recovery.
John Masek Corp. v. Davis, 848 S.W.2d 170, 173 (Tex.App.-Houston [1% Dist. 1992, writ denied)].
A. Breach of Agreement as to Personal Guarantee
No contract as to guarantee of loans
Judgment notwithstanding the verdict is proper on Plaintiff HEMENT GAJARAWALA’s
breach of contract claim because there was no contract. The uncontroverted evidence was that
Allegiance Bank required the personal guarantees of both Plaintiff and Kurre as a condition of the
loan. Plaintiff introduced no evidence to contract this conclusive evidence. Thus, Plaintiff failed to
establish consideration for this asserted contract.Conclusive evidence establishes no injury
The Court should grant judgment for Kurre on Plaintiff's breach of contract claim as to
personal guarantee, notwithstanding the jury’s verdict, because the evidence conclusively established
that the two loans were never called, remain outstanding and Plaintiff's personal guarantee was never
trigger by Allegiance Bank. Thus, Plaintiff never suffered any injury. Plaintiff introduced no
evidence to contract this conclusive evidence.
No evidence on damages
Judgment notwithstanding the verdict is proper on Plaintiffs breach of contract claim as to
personal guarantee because there is no evidence to support the jury’s award of damages. Plaintiff
failed to present evidence regarding the specific damages sustained as a result of the alleged breach.
Plaintiff introduced no evidence and did not identify what funds were contributed to satisfy and
resolve the personal guarantee.
Conclusive evidence establishes damages award excessive
The Court should grant judgment for Kurre on the damages awarded on Plaintiffs breach of
contract claim as to personal guarantee, notwithstanding the jury’s verdict, because the evidence
conclusively established that $834,000.00 is excessive. The award is contrary to the undisputed
evidence that the loan balance is $407,096.07 (Plaintiff's Exhibit 125), a sum for which Kurre
remains personally liable pursuant to his personal guarantee. The aware is contrary to the undisputed
evidence that the loan balances were reduced by $90,000.00 for the two mixer trucks removed as
collateral (Defendant’s Exhibit 55) and $30,035.00 in proceeds received to date for the sale of three
(3) mixer trucks which consists of $8,835.00 (Defendant Exhibit 68), $18,200.00 (Defendant’s
Exhibit 70) and $3,000.00 (Defendant’s Exhibit 112). Plaintiff introduced no evidence to contract
this conclusive evidence.B. Breach of Company Agreement
No evidence as to breach
Judgment notwithstanding the verdict is proper on Plaintiff HEMENT GAJARAWALA’s
breach of the Company Agreement contract claim as there was no breach of the Company Agreement
by Kurre. Plaintiff failed to establish a breach of any provision of the Company Agreement.
Conclusive evidence establishes loans were invalid
Judgment notwithstanding the verdict is proper on Plaintiff's breach of contract claim as to
the Company Agreement. The Company Agreement expressly prevents Plaintiff from loaning
money to the LLC without the affirmative vote of the disinterested managers, officers and/or
member. Defendant’s Exhibit 7 at Section 6.04. Kurre did not affirmatively vote to approve the
loans. Plaintiff's loans were improper under the Company Agreement. Plaintiff introduced no
evidence to contract this conclusive evidence.
No evidence on damages
Judgment notwithstanding the verdict is proper on Plaintiff's breach of contract claim as to
the Company Agreement because there is no evidence to support the jury’s award of damages.
Plaintiff failed to present evidence regarding the specific damages sustained as a result of the alleged
breach. Plaintiff introduced no evidence and did not identify what damages were sustained as a
result of the alleged breach of the Company Agreement.
WHEREFORE, PREMISES CONSIDERED, Defendant / Counter-Plaintiff, SOMAIAH
KURRE, requests that the Court, after notice and hearing, to render judgment notwithstanding the
verdict of the jury, and that Plaintiff HEMENT GAJARAWALA take nothing on his claims for
breach of contract, and that the Court grant any further relief both general and special, at law or in
equity, to which Kurre may be entitled.Respectfully submitted,
KOCHMAN & CHARBONNET, PC
By:
JOHN D: CHARBONNET, JR.
TBA NO. 00785758
12012 Wickchester, Suite 150
Houston, Texas 77079
713-871-2490 — phone
713-871-2495 — fax
Email: jdcharbonnet@kdclaw.com
ATTORNEY FOR DEFENDANT / COUNTER-PLAINTIFF
SOMAIAH KURRE
CERTIFICATE OF SERVICE
I do hereby certify that a true and correct copy of the above and foregoing MOTION FOR
JUDGMENT NOTWITHSTANDING THE VERDICT has been forwarded to the following on
February 24 2018:
Isaac Villarreal
Andrew Green
McCathern, PLLC
JOHN D. CHARBONNET, JR.
Document Filed Date
February 28, 2018
Case Filing Date
July 26, 2016
Category
Debt/Contract - Debt/Contract
Status
Case On Appeal - Civil
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CAUSE NO. 2016-49450 HEMANT GAJARAWALA § IN THE DISTRICT COURT OF § vs. § HARRIS COUNTY, TEXAS § SOMAIAH KURRE § 80th JUDICIAL DISTRICT MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, Defendant / Counter-Plaintiff, SOMAIAH KURRE (“Kurre”), and asks the Court to render judgment notwithstanding the verdict of the jury, and in support thereof would respectfully show unto the Court as follows: L The Court submitted this case to the jury when it would have been proper to direct or instruct averdict. Accordingly, judgment should be rendered in favor of Kurre, notwithstanding the verdict of the jury. Judgment notwithstanding the verdict is proper (1) when the evidence is conclusive, and one party is entitled to recover as a matter of law; or (2) when a legal principal precludes recovery. John Masek Corp. v. Davis, 848 S.W.2d 170, 173 (Tex.App.-Houston [1% Dist. 1992, writ denied)]. A. Breach of Agreement as to Personal Guarantee No contract as to guarantee of loans Judgment notwithstanding the verdict is proper on Plaintiff HEMENT GAJARAWALA’s breach of contract claim because there was no contract. The uncontroverted evidence was that Allegiance Bank required the personal guarantees of both Plaintiff and Kurre as a condition of the loan. Plaintiff introduced no evidence to contract this conclusive evidence. Thus, Plaintiff failed to establish consideration for this asserted contract.Conclusive evidence establishes no injury The Court should grant judgment for Kurre on Plaintiff's breach of contract claim as to personal guarantee, notwithstanding the jury’s verdict, because the evidence conclusively established that the two loans were never called, remain outstanding and Plaintiff's personal guarantee was never trigger by Allegiance Bank. Thus, Plaintiff never suffered any injury. Plaintiff introduced no evidence to contract this conclusive evidence. No evidence on damages Judgment notwithstanding the verdict is proper on Plaintiffs breach of contract claim as to personal guarantee because there is no evidence to support the jury’s award of damages. Plaintiff failed to present evidence regarding the specific damages sustained as a result of the alleged breach. Plaintiff introduced no evidence and did not identify what funds were contributed to satisfy and resolve the personal guarantee. Conclusive evidence establishes damages award excessive The Court should grant judgment for Kurre on the damages awarded on Plaintiffs breach of contract claim as to personal guarantee, notwithstanding the jury’s verdict, because the evidence conclusively established that $834,000.00 is excessive. The award is contrary to the undisputed evidence that the loan balance is $407,096.07 (Plaintiff's Exhibit 125), a sum for which Kurre remains personally liable pursuant to his personal guarantee. The aware is contrary to the undisputed evidence that the loan balances were reduced by $90,000.00 for the two mixer trucks removed as collateral (Defendant’s Exhibit 55) and $30,035.00 in proceeds received to date for the sale of three (3) mixer trucks which consists of $8,835.00 (Defendant Exhibit 68), $18,200.00 (Defendant’s Exhibit 70) and $3,000.00 (Defendant’s Exhibit 112). Plaintiff introduced no evidence to contract this conclusive evidence.B. Breach of Company Agreement No evidence as to breach Judgment notwithstanding the verdict is proper on Plaintiff HEMENT GAJARAWALA’s breach of the Company Agreement contract claim as there was no breach of the Company Agreement by Kurre. Plaintiff failed to establish a breach of any provision of the Company Agreement. Conclusive evidence establishes loans were invalid Judgment notwithstanding the verdict is proper on Plaintiff's breach of contract claim as to the Company Agreement. The Company Agreement expressly prevents Plaintiff from loaning money to the LLC without the affirmative vote of the disinterested managers, officers and/or member. Defendant’s Exhibit 7 at Section 6.04. Kurre did not affirmatively vote to approve the loans. Plaintiff's loans were improper under the Company Agreement. Plaintiff introduced no evidence to contract this conclusive evidence. No evidence on damages Judgment notwithstanding the verdict is proper on Plaintiff's breach of contract claim as to the Company Agreement because there is no evidence to support the jury’s award of damages. Plaintiff failed to present evidence regarding the specific damages sustained as a result of the alleged breach. Plaintiff introduced no evidence and did not identify what damages were sustained as a result of the alleged breach of the Company Agreement. WHEREFORE, PREMISES CONSIDERED, Defendant / Counter-Plaintiff, SOMAIAH KURRE, requests that the Court, after notice and hearing, to render judgment notwithstanding the verdict of the jury, and that Plaintiff HEMENT GAJARAWALA take nothing on his claims for breach of contract, and that the Court grant any further relief both general and special, at law or in equity, to which Kurre may be entitled.Respectfully submitted, KOCHMAN & CHARBONNET, PC By: JOHN D: CHARBONNET, JR. TBA NO. 00785758 12012 Wickchester, Suite 150 Houston, Texas 77079 713-871-2490 — phone 713-871-2495 — fax Email: jdcharbonnet@kdclaw.com ATTORNEY FOR DEFENDANT / COUNTER-PLAINTIFF SOMAIAH KURRE CERTIFICATE OF SERVICE I do hereby certify that a true and correct copy of the above and foregoing MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT has been forwarded to the following on February 24 2018: Isaac Villarreal Andrew Green McCathern, PLLC JOHN D. CHARBONNET, JR.