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CAUSE NO. 2016-49450
HEMANT GAJARAWALA § IN THE DISTRICT COURT OF
§
VS. § HARRIS COUNTY TEXAS
§
SOMAIAH KURRE § 80" JUDICIAL DISTRICT
RESPONSE TO MOTION IN LIMINE ON PAROL EVIDENCE
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Defendant / Counter-Plaintiff, SOMAIAH KURRE (hereinafter “Kurre”),
and file this Response to the Motion in Limine on parol evidence of Plaintiff HEMANT
GAJARAWAL (hereinafter “Gajarawala”) and Intervenor Plaintiff, DEVSJ Concrete, LLC and in
support thereof would respectfully show unto the Court as follows:
i
1: In Item 2 of their Motion in Limine, Plaintiff and Intervenor Plaintiff erroneously seek
to prevent the any argument, testimony or evidence concerning the Memorandum of Understanding
(hereinafter “MOU”) that would violate the parol evidence rule. Curiously, but not surprisingly,
none of the cases cited in the Motion in Limine is a case involving usury. Why is this? Simple, with
regard to a contract that is asserted to be usurious, the parol evidence rule is not applicable. Texas
courts do not allow a creditor improperly charging a usurious interest rate to hide behind the parol
evidence rule.
De In his Second Amended Counterclaim, on file herein, Kurre has asserted a cause of
action for Usury asserting that the MOU is a usurious contract and that Gajarawala committed usury.
Specifically, Kurre asserts that: (1) contrary to the MOU, Gajarawala only loaned Kurre $60,000.00;
(2) Kurre has an absolute obligation to repay the principal of $60,000.00; (3) Gajarawala contracted
for and/or charged interest that exceeded the maximum amount allowed by law. Specifically, Kurre
asserts: “While the MOU refers to services paid and provided by Gajarawala, this assertion is
incorrect.” Second Amended Counterclaim at G. Usury. Accordingly, the interest rate charge Kurreby Gajarawala exceeded the lawful 18%.
3
Contracts for usurious interest are contrary to public policy and prohibited by the
Texas Constitution and Texas Finance Code. Sturm v. Meuns, 224 $.W.3d 758, 761 (Tex.App.-
Houston [14th Dist.] 2007, no pet.)(citing TEX. CONST, art. XVI, § 11; TEX. FIN. CODE ANN. §§
302.001(b), 305.001-.008 (Vernon 2006 & Supp. 2006). In Sturm, the creditor, like Gajarawala here,
sought to use the parol evidence rule to prevent the borrower from establishing that the note was
usurious. The Sturm court rejected the application of the parol evidence rule, stating:
because the rule applies only where such evidence is offered for the purpose of
enforcing an inconsistent agreement (ie., determining the terms of an agreement that
is to be enforced), it does not apply to evidence offered for the purpose of showing
that no agreement is to be enforced at all, such as by reason of illegality, fraud,
duress, mistake, lack of consideration, or other invalidating cause. See, Restatement
(Second) of Contracts § 214 (1981). ! Therefore, the parol evidence rule does not
bar evidence offered to show that a loan transaction is usurious. See Smith v. Stevens,
81 Tex. 461, 16 S.W. 986, 987 (1891).
Foomo [6] See generally 6 Arthur Linton Corbin, Corbin on Contracts § 573 (1960)
(recognizing that the parol evidence rule does not apply in determining whether: (1)
the parties made a contract; (2) the contract is void or voidable for any reason; or (3)
the parties assented to a particular writing as the complete and accurate integration of
that contract).
Sturm at 672.
4.
As the parol evidence rule does not bar evidence offered to show that the loan
transaction is usurious, Motion in Limine on parol evidence of Plaintiff HEMANT GAJARAWAL
(hereinafter “Gajarawala”) and Intervenor Plaintiff, DEVSJ Concrete, LLC must be denied.Respectfully submitted,
KOCHMAN & CHARBONNET, PC
ye
JOHN D. CHARBONNET, JR.
TBA NO. 00785758
12012 Wickchester, Suite 150
Houston, Texas 77079
713-871-2490 — phone
713-871-2495 — fax
jdcharbonnet@kdclaw.com - email
ATTORNEY FOR DEFENDANT
CERTIFICATE OF SERVICE
Ido hereby certify that a true and correct copy of the above and foregoing has been forwarded
via efiling to all counsel of record on February $, 2017:
GAN Dz. oe JR.
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CAUSE NO. 2016-49450 HEMANT GAJARAWALA § IN THE DISTRICT COURT OF § VS. § HARRIS COUNTY TEXAS § SOMAIAH KURRE § 80" JUDICIAL DISTRICT RESPONSE TO MOTION IN LIMINE ON PAROL EVIDENCE TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, Defendant / Counter-Plaintiff, SOMAIAH KURRE (hereinafter “Kurre”), and file this Response to the Motion in Limine on parol evidence of Plaintiff HEMANT GAJARAWAL (hereinafter “Gajarawala”) and Intervenor Plaintiff, DEVSJ Concrete, LLC and in support thereof would respectfully show unto the Court as follows: i 1: In Item 2 of their Motion in Limine, Plaintiff and Intervenor Plaintiff erroneously seek to prevent the any argument, testimony or evidence concerning the Memorandum of Understanding (hereinafter “MOU”) that would violate the parol evidence rule. Curiously, but not surprisingly, none of the cases cited in the Motion in Limine is a case involving usury. Why is this? Simple, with regard to a contract that is asserted to be usurious, the parol evidence rule is not applicable. Texas courts do not allow a creditor improperly charging a usurious interest rate to hide behind the parol evidence rule. De In his Second Amended Counterclaim, on file herein, Kurre has asserted a cause of action for Usury asserting that the MOU is a usurious contract and that Gajarawala committed usury. Specifically, Kurre asserts that: (1) contrary to the MOU, Gajarawala only loaned Kurre $60,000.00; (2) Kurre has an absolute obligation to repay the principal of $60,000.00; (3) Gajarawala contracted for and/or charged interest that exceeded the maximum amount allowed by law. Specifically, Kurre asserts: “While the MOU refers to services paid and provided by Gajarawala, this assertion is incorrect.” Second Amended Counterclaim at G. Usury. Accordingly, the interest rate charge Kurreby Gajarawala exceeded the lawful 18%. 3 Contracts for usurious interest are contrary to public policy and prohibited by the Texas Constitution and Texas Finance Code. Sturm v. Meuns, 224 $.W.3d 758, 761 (Tex.App.- Houston [14th Dist.] 2007, no pet.)(citing TEX. CONST, art. XVI, § 11; TEX. FIN. CODE ANN. §§ 302.001(b), 305.001-.008 (Vernon 2006 & Supp. 2006). In Sturm, the creditor, like Gajarawala here, sought to use the parol evidence rule to prevent the borrower from establishing that the note was usurious. The Sturm court rejected the application of the parol evidence rule, stating: because the rule applies only where such evidence is offered for the purpose of enforcing an inconsistent agreement (ie., determining the terms of an agreement that is to be enforced), it does not apply to evidence offered for the purpose of showing that no agreement is to be enforced at all, such as by reason of illegality, fraud, duress, mistake, lack of consideration, or other invalidating cause. See, Restatement (Second) of Contracts § 214 (1981). ! Therefore, the parol evidence rule does not bar evidence offered to show that a loan transaction is usurious. See Smith v. Stevens, 81 Tex. 461, 16 S.W. 986, 987 (1891). Foomo [6] See generally 6 Arthur Linton Corbin, Corbin on Contracts § 573 (1960) (recognizing that the parol evidence rule does not apply in determining whether: (1) the parties made a contract; (2) the contract is void or voidable for any reason; or (3) the parties assented to a particular writing as the complete and accurate integration of that contract). Sturm at 672. 4. As the parol evidence rule does not bar evidence offered to show that the loan transaction is usurious, Motion in Limine on parol evidence of Plaintiff HEMANT GAJARAWAL (hereinafter “Gajarawala”) and Intervenor Plaintiff, DEVSJ Concrete, LLC must be denied.Respectfully submitted, KOCHMAN & CHARBONNET, PC ye JOHN D. CHARBONNET, JR. TBA NO. 00785758 12012 Wickchester, Suite 150 Houston, Texas 77079 713-871-2490 — phone 713-871-2495 — fax jdcharbonnet@kdclaw.com - email ATTORNEY FOR DEFENDANT CERTIFICATE OF SERVICE Ido hereby certify that a true and correct copy of the above and foregoing has been forwarded via efiling to all counsel of record on February $, 2017: GAN Dz. oe JR.