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Cause No.2016-49450
HEMANT GAJARAWALA, Individually § IN THE DISTRICT COURT OF
§
Plaintiff, §
§
vs. § HARRIS COUNTY, TEXAS
§
SOMAIAH KURRE §
§
Defendant § 80 JUDICIAL DISTRICT
PLAINTIFF’SAND INTERVENOR’S FIRST AMENDED ANSWER TO
DEFENDANT’S COUNTERCLAIMS
Plaintiff, Hemant Gajarawala Mr. Gajarawala” or “Plaintiff and Intervenor Plaintiff
DEVSJ Concrete, LLC (“DEVSJ” or “Intervenor file this First Amended Answer to
Defendant’s Counterclaims, and state as follows:
I. GENERAL DENIAL
Plaintiff and Intervenor assert a general denial as authorized by Rule 92 of the Texas Rules
of Civil Procedure, and demands that Defendant be required to prove each and every charge and
allegation asserted against Plaintiff and Intervenor under the appropriate burden of proof as
required by the Constitution and laws of the State of Texas.
II. AFFIRMATIVE DEFENSES
Pursuant to Tex. R. Civ. P. 94, Plaintiff and Intervenor assert the following defenses to
Defendant’s live Counterclaim:
Defendant’s claims are barred, all or in part, by the doctrine of repudiation;
Defendant’s claims are barred, all or in part, because of failure of consideration;
Defendant s claims are barred, all or in part, because of lack of consideration;
Defendant s claims are barred, all or in part, by the doctrine of laches;
Defendant s claims are barred, all or in part, because of Defendants ratification;
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Defendant s claims are barred, all or inpart, because of the business judgment rule;
Defendant s claims are barred, all or in part, because Defendant failed to mitigate the
damages alleged;
Defendant s claims are barred, all or in part, because of Defendants prior material breach
of various agreements between the parties;
Defendant s claims are barred, all or in part, because of Defendant’s fraud;
Defendant s claims are barred, all or in part, because Plaintiff and Intervenor complied
with their respective obligations to mitigate damages caused by Defendant’s unlawful conduct;
Defendant s claims are barred, all or in part, by the doctrine of in pari delicto
Defendant s claims are barred, all or in part, because Defendant is proportionately
responsiblefor any and all damages caused to Texas Concrete Enterprise IV, LLC
Defendants claims are barred, all or in part, because Defendants own actions or omissions
caused or contributed to Defendant’s alleged injuries;
Defendant s claims are barred, all or in part, by the unclean hands doctrine;
Defendant s claims are barred, all or in part, by the doctrine of estoppel;
Defendant s claims are barred, all or in part, by the doctrine of novation and/or accord and
satisfaction;
Defendants claims are barred, all or in part, because of Defendant’s abandonment;
Defendant s claims are barred, all or in part, because of Defendant’s Waiver; and
Defendant s claims are barred, all or in part, because Intervenor, a limited liability
company, not be subject to theclaim attorney’s fees made by Defendant as plead
Defendant s claims are barred, all or in part, by the parol evidence rule;
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Defendant s claims are barred, all or in part, because there has been no injury to Texas
Concrete Enterprise IV, LLC or benefit to Plaintiff or Intervenor as a result of any of the conduct
complained of by Defendant;
Defendant’s claim are barred, all or in part, by Defendant’s failure to satisfy a condition
precedent;
Defendant’s claims are barred, all or in part, by the economic ss rule;and
Defendant’s claims are barred, all or in part, because Defendant lacks standing to assert
same.
III. SPECIFIC DENIALS
Plaintiff and Intervenor specifically deny that Defendant has satisfied all conditions
precedent under that certain Memorandum of Understanding executed by and between Hemant
Gajarawala and Defendant on or about June 25, 2015 wherein Defendant was to contribute ten
(10) concrete mixe trucks (“Mixer Truck MOU”); namely, Defendant is not entitled to repayment
of the $380,000.00 until at least six (6) months after the Texas Concrete Enterprise IV, LLC plant
is operational and achieving steady profits. To date, six (6) months have not elapsed since the
Texas Concrete Enterprise IV, LLC plant became operational and began to earn steady profits.
Thus, Defendant has failed to satisfy a condition precedent and his breach of contract claim for the
MixerTruck MOU is barred.
Plaintiff and Intervenor specifically deny that Defendant has satisfied all conditions
precedent under the Company Agreement of Texas Concrete Enterprise IV, LLC (“Company
Agreement”) so as to allow a winding up and termination of Texas Concrete Enterprise IV, LLC
(“Texas Concrete”). Namely, Texas law provides that a limited liability company agreement
controls over the default terms of the Texas Business Organizations Code (“TBOC”). As Texas
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Concrete’s Company Agreement provides a list of events requiring termination, those events
control over the TBOC provisions. As such, Plaintiff and Intervenor specifically deny that any of
the events listed in section 16.01(a) (e) have occurred; thus, Defendant is precluded from
requesting an order requiring the winding up and termination of business of Texas Concrete.
PRAYER
For the foregoing reasons, Plaintiff prays that Defendant take nothing against Plaintiff and
Intervenor by reason of this suit, that Plaintiff and Intervenor allowed to recover costs of court
and attorney’s fees, and such other further relief, whether at law or in equity, to which they may
justly entitled.
Respectfully submitted,
ATHERN
By:/s/Isaac Villarreal
Isaac Villarreal
Texas Bar No. 24054553
ivillarreal@mccathernlaw.com
Andrew T. Green
Texas Bar No. 24069823
agreen@mccathernlaw.com
Eric M.Utermohlen
Texas Bar No. 24
eutermohlen@mccathernlaw.com
2000 West Loop South, Suite 185
Houston, TX 77027
Tel. (832) 533
Fax (832) 213
ATTORNEYS FOR PLAINTIFFAND
INTERVENOR PLAINTIFF
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CERTIFICATE OF SERVICE
I hereby certify that on this day of December, a true and correct copy of the
foregoing and/or attached was served on each attorney of record or party in accordance with the
Texas Rules of Civil Procedure as follows:
John D. Charbonnet, Jr. Via file
OCHMAN HARBONNET
12012 Wickchester, Suite 150
Houston, Texas 77079
jdcharbonnet@kdclaw.com
Attorney for Defendant
/s/ Isaac Villarreal
Isaac Villarreal
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Cause No.2016-49450 HEMANT GAJARAWALA, Individually § IN THE DISTRICT COURT OF § Plaintiff, § § vs. § HARRIS COUNTY, TEXAS § SOMAIAH KURRE § § Defendant § 80 JUDICIAL DISTRICT PLAINTIFF’SAND INTERVENOR’S FIRST AMENDED ANSWER TO DEFENDANT’S COUNTERCLAIMS Plaintiff, Hemant Gajarawala Mr. Gajarawala” or “Plaintiff and Intervenor Plaintiff DEVSJ Concrete, LLC (“DEVSJ” or “Intervenor file this First Amended Answer to Defendant’s Counterclaims, and state as follows: I. GENERAL DENIAL Plaintiff and Intervenor assert a general denial as authorized by Rule 92 of the Texas Rules of Civil Procedure, and demands that Defendant be required to prove each and every charge and allegation asserted against Plaintiff and Intervenor under the appropriate burden of proof as required by the Constitution and laws of the State of Texas. II. AFFIRMATIVE DEFENSES Pursuant to Tex. R. Civ. P. 94, Plaintiff and Intervenor assert the following defenses to Defendant’s live Counterclaim: Defendant’s claims are barred, all or in part, by the doctrine of repudiation; Defendant’s claims are barred, all or in part, because of failure of consideration; Defendant s claims are barred, all or in part, because of lack of consideration; Defendant s claims are barred, all or in part, by the doctrine of laches; Defendant s claims are barred, all or in part, because of Defendants ratification; Page of Defendant s claims are barred, all or inpart, because of the business judgment rule; Defendant s claims are barred, all or in part, because Defendant failed to mitigate the damages alleged; Defendant s claims are barred, all or in part, because of Defendants prior material breach of various agreements between the parties; Defendant s claims are barred, all or in part, because of Defendant’s fraud; Defendant s claims are barred, all or in part, because Plaintiff and Intervenor complied with their respective obligations to mitigate damages caused by Defendant’s unlawful conduct; Defendant s claims are barred, all or in part, by the doctrine of in pari delicto Defendant s claims are barred, all or in part, because Defendant is proportionately responsiblefor any and all damages caused to Texas Concrete Enterprise IV, LLC Defendants claims are barred, all or in part, because Defendants own actions or omissions caused or contributed to Defendant’s alleged injuries; Defendant s claims are barred, all or in part, by the unclean hands doctrine; Defendant s claims are barred, all or in part, by the doctrine of estoppel; Defendant s claims are barred, all or in part, by the doctrine of novation and/or accord and satisfaction; Defendants claims are barred, all or in part, because of Defendant’s abandonment; Defendant s claims are barred, all or in part, because of Defendant’s Waiver; and Defendant s claims are barred, all or in part, because Intervenor, a limited liability company, not be subject to theclaim attorney’s fees made by Defendant as plead Defendant s claims are barred, all or in part, by the parol evidence rule; Page of Defendant s claims are barred, all or in part, because there has been no injury to Texas Concrete Enterprise IV, LLC or benefit to Plaintiff or Intervenor as a result of any of the conduct complained of by Defendant; Defendant’s claim are barred, all or in part, by Defendant’s failure to satisfy a condition precedent; Defendant’s claims are barred, all or in part, by the economic ss rule;and Defendant’s claims are barred, all or in part, because Defendant lacks standing to assert same. III. SPECIFIC DENIALS Plaintiff and Intervenor specifically deny that Defendant has satisfied all conditions precedent under that certain Memorandum of Understanding executed by and between Hemant Gajarawala and Defendant on or about June 25, 2015 wherein Defendant was to contribute ten (10) concrete mixe trucks (“Mixer Truck MOU”); namely, Defendant is not entitled to repayment of the $380,000.00 until at least six (6) months after the Texas Concrete Enterprise IV, LLC plant is operational and achieving steady profits. To date, six (6) months have not elapsed since the Texas Concrete Enterprise IV, LLC plant became operational and began to earn steady profits. Thus, Defendant has failed to satisfy a condition precedent and his breach of contract claim for the MixerTruck MOU is barred. Plaintiff and Intervenor specifically deny that Defendant has satisfied all conditions precedent under the Company Agreement of Texas Concrete Enterprise IV, LLC (“Company Agreement”) so as to allow a winding up and termination of Texas Concrete Enterprise IV, LLC (“Texas Concrete”). Namely, Texas law provides that a limited liability company agreement controls over the default terms of the Texas Business Organizations Code (“TBOC”). As Texas Page of Concrete’s Company Agreement provides a list of events requiring termination, those events control over the TBOC provisions. As such, Plaintiff and Intervenor specifically deny that any of the events listed in section 16.01(a) (e) have occurred; thus, Defendant is precluded from requesting an order requiring the winding up and termination of business of Texas Concrete. PRAYER For the foregoing reasons, Plaintiff prays that Defendant take nothing against Plaintiff and Intervenor by reason of this suit, that Plaintiff and Intervenor allowed to recover costs of court and attorney’s fees, and such other further relief, whether at law or in equity, to which they may justly entitled. Respectfully submitted, ATHERN By:/s/Isaac Villarreal Isaac Villarreal Texas Bar No. 24054553 ivillarreal@mccathernlaw.com Andrew T. Green Texas Bar No. 24069823 agreen@mccathernlaw.com Eric M.Utermohlen Texas Bar No. 24 eutermohlen@mccathernlaw.com 2000 West Loop South, Suite 185 Houston, TX 77027 Tel. (832) 533 Fax (832) 213 ATTORNEYS FOR PLAINTIFFAND INTERVENOR PLAINTIFF Page of CERTIFICATE OF SERVICE I hereby certify that on this day of December, a true and correct copy of the foregoing and/or attached was served on each attorney of record or party in accordance with the Texas Rules of Civil Procedure as follows: John D. Charbonnet, Jr. Via file OCHMAN HARBONNET 12012 Wickchester, Suite 150 Houston, Texas 77079 jdcharbonnet@kdclaw.com Attorney for Defendant /s/ Isaac Villarreal Isaac Villarreal Page of