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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’S SECONDAMENDED PETITION
TO THE HONORABLE JUDGE OF SAID COURT:
Plaintiff, Hemant Gajarawala Mr. Gajarawala” or “Plaintiff”) this Second Amended
Petition complaining of Somaiah Kurre (“Kurre” or Defendant , and in support thereof would
respectfully show the Court the following:
I. DISCOVERY CONTROL PLAN
Plaintiff intends conduct discovery under Level 2 and affirmatively pleads that
it seeks monetary relief in excess of $1,000,000.00, including actual damages penalties, pre
judgment interest, costs, expenses, and attorney fees IV 190.3(a) and cmt. 2.
II. PARTIES
Plaintiff Hemant Gajarawala is an individual residing in Fort Bend County,
Texas. Pursuant to Tex. Civ. Prac. & Rem. Code § 30.014, the last three numbers of Mr.
Gajarawala’s driver’s license number are and the last three numbers of his Social Security
Number are 610.
Defendant Somaiah Kurre is an individual who resides in Harris County, Texas.
Mr. Kurre has been served with process and has appeared in this case through counsel. Pursuant
to Tex. Civ. Prac. & Rem. Code § 30.014, the last three numbers of Defendant’s driver’s license
number are 305 and the last three numbers of Defendant’s Social Security Number are
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III. JURISDICTION AND VENUE
This Court has jurisdiction over this cause in that it involves an amount in
controversy in excess of the minimum jurisdictional limit. ODE §24.007(a) and (b)
Venue is proper in Harris County, Texas under the general venue provision because Defendant
resides in Harris County RAC ODE §§ 15.002(1) (3).Finally, an
agreement executed by Defendant provides that venue for any collection or enforcement action
shall be in Harris County.
IV. FACTS
Memorandum of Understanding
Mr. Gajarawala loaned Defendant money. To memorialize the loan, Mr.
Gajarawala and Defendant entered into a written agreement entitled Memorandum of
Understanding (“MOU”) dated July 30, 2015. A true and correct copy of the MOU is attached
hereto as Exhibit “A” and incorporated herein for all purposes.
By the terms of the MOU, Defendant was required to pay the entire
amount to Mr. Gajarawala by January 29, 2016. Within the four corners of the agreement, the
$80,000 was not interest bearing.
The time for repayment has run and the entire debt remains due and owing by
Defendant to Mr. Gajarawala. Defendant has therefore defaulted on his obligations under the
MOU.
Texas Concrete Enterprise IV, LLC
Mr. Gajarawala previously sued Defendant and others in a matter styled: Cause
No. 2014 08967; Hemant Gajarawala v. Somaiah Kurre, Rohini Leasing, LLC, and Texas
Concrete Enterprise, LLC; In the district Court of Harris County, Texas (the “Lawsuit”)
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In a full and complete settlement of the Lawsuit Mr. Gajarawala and Defendant
entered into a valid and enforceable Settlement Agreement (the “Settlement Agreement”) dated
September 16, 2014. A true and correct copy of the Settlement Agreement is attached as Exhibit
” and is incorporated herein for all purposes.
As a result of the Settlement Agreement Mr. Gajarawala received a 35%
ownership interest in Texas Concrete Enterprise IV, LLC (“Texas Concrete IV”), with Defendant
maintaining a 65% ownership interest in the company.
Texas Concrete is a closely held, Texas limited liability company
Subsequent to the Settlement Agreement Mr. Gajarawala and Defendant agreed
that DEVSJ Concrete, LLC (“DEVSJ”) would take Mr. Gajarawala’s 5% membership interest
in Texas Concrete IV.
Mr. Gajarawala is the sole managing member of DEVSJ DEVSJ is also the
intervenor Plaintiff in this case.
The Company Agreement of Texas Concrete IV, dated October 14, 2014,
establishes that DEVSJ and Defendant are the sole members of the company.
The Company Agreement further establishes that Mr. Gajarawala is a manager
and the CFO and that Defendant is a manager and the President of Texas Concrete IV.
Texas oncrete IV’s primary business and purpose is to own and operat
concrete production plant in Kendleton, Texas.
Defendant owns and operates multiple concrete plant facilities in and around the
greater Houston areaand other parts of Texas and has done so successfully for many years
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Mr. Gajarawala had no experience operating a concrete plant facility prior to the
venture with Defendant, but would serve as the chief financial officer for Texas Concrete IV
with the duty to, among other things, handle all of the company’s money matters including
being the primary contact for the company’s lenders, vendors and employees and resolving those
issues with proper business judgment
Subsequent to the execution of the Company Agreement on October 14, 2014, the
parties agreed that Texas Concrete IV needed funding for working capital to get the Kendleton
lant up and running.
Knowing that Mr. Gajarawala (1) had no experience operating a concrete plant
facility or similar business and (2) would have to rely upon Defendant’s expertise in operating
the Kendleton lant, Defendant promised, represented and assured Mr. Gajarawala that if Mr.
Gajarawala and DEVSJ helped the company obtain approximately $83,000 in working capital,
the Kendleton lant could generate millions of dollars in profits.
Defendant further promised, represented and assured Mr. Gajarawala that
Defendant would use his vast experience operating multiple concrete plants to, among other
things, ensure that the concrete plant is up and running and producing concrete at the plant s top
capacity in a timely mannerand that the produced concrete is sold to the public
In reliance upon Defendant’s promises representations, and assurances Mr.
Gajarawala utilized his long standing business relationship with bankers Allegiance Bank to
obtain the funding Defendant claimed the company needed to generate the many millions of
dollars in profits.
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Texas Concrete IV successfully borrowed, via two loan transactions,
approximately ,000.00 from Allegiance Bank in reliance upon Defendant’s representations,
promises, and assurances
However, despite the fact that Mr. Gajarawala is not personally a member of the
company and despite the fact that as a manager of the company Mr. Gajarawala had no
obligation to personally guarantee any such loans, ased exclusively upon Defendant’s promises,
representations, and assurances Mr. Gajarawala personally guaranteed the full amount of both
notes issued as part of the two loan transactions placing his personal assets, credit worthiness,
good will, and business relationships that were built over several decades at risk should the
venture fail. This agreement was entered into after the execution of the Company Agreement
and was made by Mr. Gajarawala individually and not in his capacity as a manager of Texas
oncrete IV.
After obtaining the loans and executing the personal guarantee Mr. Gajarawala
learned, via sworn oral deposition testimony by Defendant in this case, that Defendant made
multiple false representations to the bank regarding collateral pledged to secure both loans.
Such misrepresentations by Defendant place the loans at risk of being called and
put Mr. Gajarawala’s personal assets, credit worthiness, good will, and business relationships
that were built over several decades at risk should the bank decide to call the bank notes as such
representations likely constituteevents of default.
Additionally, Texas Concrete IV has an obligation under the terms of both note
with llegiance Bankto have an operating concrete plant in place.
Despite his promises representations and assurances and despite his absolute
fiduciary obligations to Texas Concrete IV, Defendant has failed and refused to meet his
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obligations to get the Kendleton Plant up and running and has provided absolutely zero support
to protect the interests of the company.
Moreover, despite repeated requests and demands from Mr. Gajarawala, DEVSJ,
and Allegiance Bank that Defendant perform as promised and required Defendant continues to
fail and refuse to meet his obligations causing significant harm to Texas Concrete IV and placing
Mr. Gajarawala’s personal assets, credit worthiness, good will, and business relationships that
were built over several decades at ris
In addition to failing to ensure the Kendleton lant is operational, Defendant has
failed and refused to timely provide various forms of documentation such as financial statements
and tax form to Allegiance Bank despite express requirements for same as part of the loan
agreements with Allegiance Bank.
Again, Defendant’s misrepresentations concerning collateral, the failure to have
an operational Kendleton lant and the failure to provide documentation to Allegiance Bank as
required are all potentially events of default under the terms of the two notes with Allegiance
Bank.
As a direct result of Defendant’s refusal to act, Allegiance Bank indicated its
intent to call the es secured by real and personal property owned by Texas Concrete IV and
ersonally guaranteed by Mr. Gajarawala and DEVSJ
After repeated attempts to seek Defendant’s attendance at properly called
meetings per the Company Agreement, and Defendant’s repeated refusal to abide by his
fiduciary obligations, and to act as he promised, represented, and assured, Mr. Gajarawala had no
choice but to seek to mitigate his damages and to learn, from scratch how to operate a concrete
plant without any assistance from Defendant.
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As such, Mr. Gaja wala worked tirelessly to complete the construction of the
concrete plant site, obtain working vehicles, employees, sales persons and to otherwise turn a
operational, incomplete concrete plant site into a running operation that could service its
debts
Defendant’s refusal and failure to do as promised, represented, and assured
caused much of the Allegiance ank loan funds to be wasted. In his attempt to continue to save
Texas Concrete IV and his personal assets, credit worthiness, good will, and business
relationships that were built over several decades Mr. Gajarawala has also been forced to infuse,
by way of personal loans to the companymore than $1 million in personal operating capital.
These loans were made out of necessity and have been instrumental in making
sure all of Texas Concrete IV’s debts are serviced timely and has resulted in making the
Kendleton lant operational as required by the Allegiance Bank loan.
But for Mr. Gajarawala’s action to save the company and mitigate the significant
damage caused by Defendant’s unlawful conduct Allegiance Bank would likely have called both
notes and placed the personal and real property assets of Texas Concrete IV, Mr. Gajarawala,
DEVSJ, and of Defendant at risk. Without question, even if the bank was never forced to seize
assets to satisfy the debts, Mr. Gajarawala and DEVSJ’s credit worthiness and good will would
have been destroyed along with decades of business relationships with important Allegiance
Bank bankers
Mr. Gajarawala was duped by Defendant to put his own neck on the line under the
guise of millions of dollars in profits to be made from the Kendleton lant. To date Mr.
Gajarawala has spent more than $1 million of his own dollars to mitigate his losses.
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Further, Defendant is also attempting to undo the transfer of a certain 4.649 acre
tract (“Land”), more or less, that was conveyed to Texas Concrete IV by Defendant via
Correction General Warranty Deed (“Correction Deed”). The Land was previously owned by
Shree Radha, LLC (“Shree Radha”), a limited liability company of which Defendant is not only
a 25% owner, but also the president. The Correction Deed was executed at Allegiance Bank’s
request to also allow Texas Concrete IV to sign a Deed of Trust covering same to secure
financing for Texas Concrete IV. Defendant knowingly and willingly executed both the
Correction Deed and the Deed of Trust at Allegiance Bank’s request and for the sole purpose of
obtaining financing for Texas Concrete IV.
It now appears that Defendant executed the documents effectuating the transfer of
the Land without the knowledge, consent, or approval of Shree Radha, or with the intent to
defraud Texas Concrete IV. Shree Radha has retained Defendant’s counsel’s previous law
partner, and is now threatening to initiate legal proceedings against Texas Concrete IV if a
Rescission Deed is not summarily executed to return ownership of the Land to Shree Radha. The
timing of the demand letter, on the eve of trial, and the interrelatedness of the parties serve only
invite additional scrutiny to Defendant’s motives and actions in executing the Correction Deed
and the subsequent Deed of Trust, and to Defendant’s claims that he was allegedly defrauded
Lastly, Shree Radha has sent a demand letter threatening litigation and accusing
Mr. Gajarawala, and/or Texas Concrete IV of fraud and deception to Allegiance Bank, thereby
not only defaming, Mr. Gajarawala and Texas Concrete IV, also disparaging Mr. Gajarawala
and Texas Concrete IV’s future business opportunities.
V. CAUSE OF ACTION
Plaintiff alleges and incorporates by reference all allegations and facts set fort
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in paragraphs 1.1 through 4.as if specifically restated herein.
Count Breach of Contract (The MOU)
The MOU is a valid and enforceable contract. As more fully provided above, the
deadline for Defendant to pay all amounts due and owing to Mr. Gajarawala was January 29,
Defendant failed to pay all amounts due and owing as required under the MOU and
therefore has breach the agreement. Defendant breach has caused Mr. Gajarawala actual
damages equal to the unpaid principal balance of the MOU for which Mr. Gajarawala now sues.
These damages are within the jurisdictional limits of this Court.
Count Promissory Estoppel (The MOU
Additionally or in the alternative, Defendant made promises to Mr. Gajarawala
concerning the terms of the MOU, Plaintiff reasonably and substantially relied upon said
promises to his detriment when he provided Defendant with $80,000.00 Mr. Gajarawala
reliance was foreseeable by Defendant, and injustice can be avoided only by enforcing
Defendant’ promises. Accordingly, Mr. Gajarawala hereby seek and entitled the damages
resulting therefrom.
Count Quantum Meruit (The MOU)
Additionally, or in the alternative, Defendant accepted the cash and services
provided by Mr. Gajarawalawith respect to the MOU with full knowledge and acceptance of Mr.
Gajarawala’s reasonable expectation that it would be paid. Accordingly, Mr. Gajarawala is
entitled to recover from Defendant the full amounts prayed for herein under the doctrine of
quantummeruit, for which now sues.
Count Breach of Contract ( Agreement to Cause Personal Guarantee
The agreement between Mr. Gajarawala and Defendant to induce Mr. Gajarawala
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to execute personal guarantees to secure more than $830,000 in loans from Allegiance Bank with
respect to Texas Concrete IV is a valid and enforceable contract.As more fully provided above,
Defendant has wholly failed to comply with his part of the agreement. Conversely, Mr.
Gajarawala has wholly performed and continues to perform his side of the bargain. Defendant’s
failure to do as promised constitutes a breach of the agreement. Defendant breach has caused
Mr. Gajarawala actual damages within the jurisdictional limits of this Court for which Mr.
Gajarawalanow sues.
CounFraud/Fraudulent Inducement (Agreement to Cause Personal Guarantee)
Defendant made material, false representations, promises, and assurances to Mr.
Gajarawala to induce him to help the company obtain two loans totaling approximately
and to obtain Mr. Gajarawala’s personal guarantee on 100% of those two loans.
When Defendant made these representations, promises, and assurances, he knew
they were false and material, or made them recklessly, as a positive assertion, and without
wledge of their truth. Defendant’s representations, promises and assurances were made with
the intention that Mr. Gajarawala rely upon them and ultimately induce Mr. Gajarawala to
personally guarantee more than $830,000 in loans for Texas Concrete IV. . Gajarawala relied
on these representations, promises, and assurances and personally guaranteed the loans. has
suffered significant injury as a direct result of such fraudulent conduct and Mr. Gajarawala seeks
damages resulting there from.
Further, Defendant made the false representations, promises, and assurances
knowingly and intentionally, thus entitling Mr. Gajarawala to recover exemplary damages r.
Gajarawala hereby sues for such exemplary damages.
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Count 6Defamation
Defendant published false statements to third parties concerning Mr. Gajarawala.
The statements directly refer to Mr. Gajarawala, unequivocally. The statements were made in
written form and Defendant reasonably calculated that the statements would injure Mr.
Gajarawala’s reputation as an honest businessman and bring financial injury to Mr. Gajarawala’s
various businesses. Defendant acted with actual malice, or at the very least negligence when he
made his defamatory statements, with full knowledge that his statements were false.
Because of Defendant’s malicious and/or negligent false statements, Mr.
Gajarawala has suffered actual damages in the form of injury to his reputation. Lastly, Defendant
specifically accused Mr. Gajarawala of committing the crimes of fraud and real estate fraud, as
well as deception. These false representations constitute libel per se, thus obviating the need to
prove actual damages. Further, as Defendant made such representations with malice, Mr.
Gajarawala is entitled to exemplary damages under the Civil Practices and Remedies Code
section 41.003 et seq
VI. ATTORNEY’SFEES
Mr. Gajarawala seeks and is entitled to recover reasonable attorney’s fees
incurred as a result of this action, plus, any reasonable attorney’s fees incurred in the event of an
appeal to the Court of Appeals, or the Texas Supreme Court, for which it now sues. IV
RAC ODE et s
VII. CONDITIONS PRECEDENT
All conditions precedent to Plaintiff s claims for relief have been performed
waived or have otherwise occurred.
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PRAYER
For the foregoing reasons, Plaintiff asks that it be awarded a judgment against Defendant
forthe following
ctual damages;
ontractually agreed damages and fees;
Exemplary Damages for Defamation;
Punitive damages;
Pre judgment and post judgment interest;
Court costsatto rney’s fees, and collection costs
All otherrelief, at law or in equity, to which Plaintiff is 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
Houston, TX 77027
Tel. (832) 533
Fax (832) 213
ATTORNEYS FOR PLAINTIFF
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CERTIFICATE OF SERVICE
I hereby certify that on this day of December, 2017, 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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Preview
Cause No.2016-49450 HEMANT GAJARAWALA, Individually § IN THE DISTRICT COURT OF § Plaintiff, § § vs. § HARRIS COUNTY, TEXAS § SOMAIAH KURRE § § Defendant § 80 JUDICIAL DISTRICT PLAINTIFF’S SECONDAMENDED PETITION TO THE HONORABLE JUDGE OF SAID COURT: Plaintiff, Hemant Gajarawala Mr. Gajarawala” or “Plaintiff”) this Second Amended Petition complaining of Somaiah Kurre (“Kurre” or Defendant , and in support thereof would respectfully show the Court the following: I. DISCOVERY CONTROL PLAN Plaintiff intends conduct discovery under Level 2 and affirmatively pleads that it seeks monetary relief in excess of $1,000,000.00, including actual damages penalties, pre judgment interest, costs, expenses, and attorney fees IV 190.3(a) and cmt. 2. II. PARTIES Plaintiff Hemant Gajarawala is an individual residing in Fort Bend County, Texas. Pursuant to Tex. Civ. Prac. & Rem. Code § 30.014, the last three numbers of Mr. Gajarawala’s driver’s license number are and the last three numbers of his Social Security Number are 610. Defendant Somaiah Kurre is an individual who resides in Harris County, Texas. Mr. Kurre has been served with process and has appeared in this case through counsel. Pursuant to Tex. Civ. Prac. & Rem. Code § 30.014, the last three numbers of Defendant’s driver’s license number are 305 and the last three numbers of Defendant’s Social Security Number are Page of III. JURISDICTION AND VENUE This Court has jurisdiction over this cause in that it involves an amount in controversy in excess of the minimum jurisdictional limit. ODE §24.007(a) and (b) Venue is proper in Harris County, Texas under the general venue provision because Defendant resides in Harris County RAC ODE §§ 15.002(1) (3).Finally, an agreement executed by Defendant provides that venue for any collection or enforcement action shall be in Harris County. IV. FACTS Memorandum of Understanding Mr. Gajarawala loaned Defendant money. To memorialize the loan, Mr. Gajarawala and Defendant entered into a written agreement entitled Memorandum of Understanding (“MOU”) dated July 30, 2015. A true and correct copy of the MOU is attached hereto as Exhibit “A” and incorporated herein for all purposes. By the terms of the MOU, Defendant was required to pay the entire amount to Mr. Gajarawala by January 29, 2016. Within the four corners of the agreement, the $80,000 was not interest bearing. The time for repayment has run and the entire debt remains due and owing by Defendant to Mr. Gajarawala. Defendant has therefore defaulted on his obligations under the MOU. Texas Concrete Enterprise IV, LLC Mr. Gajarawala previously sued Defendant and others in a matter styled: Cause No. 2014 08967; Hemant Gajarawala v. Somaiah Kurre, Rohini Leasing, LLC, and Texas Concrete Enterprise, LLC; In the district Court of Harris County, Texas (the “Lawsuit”) Page of In a full and complete settlement of the Lawsuit Mr. Gajarawala and Defendant entered into a valid and enforceable Settlement Agreement (the “Settlement Agreement”) dated September 16, 2014. A true and correct copy of the Settlement Agreement is attached as Exhibit ” and is incorporated herein for all purposes. As a result of the Settlement Agreement Mr. Gajarawala received a 35% ownership interest in Texas Concrete Enterprise IV, LLC (“Texas Concrete IV”), with Defendant maintaining a 65% ownership interest in the company. Texas Concrete is a closely held, Texas limited liability company Subsequent to the Settlement Agreement Mr. Gajarawala and Defendant agreed that DEVSJ Concrete, LLC (“DEVSJ”) would take Mr. Gajarawala’s 5% membership interest in Texas Concrete IV. Mr. Gajarawala is the sole managing member of DEVSJ DEVSJ is also the intervenor Plaintiff in this case. The Company Agreement of Texas Concrete IV, dated October 14, 2014, establishes that DEVSJ and Defendant are the sole members of the company. The Company Agreement further establishes that Mr. Gajarawala is a manager and the CFO and that Defendant is a manager and the President of Texas Concrete IV. Texas oncrete IV’s primary business and purpose is to own and operat concrete production plant in Kendleton, Texas. Defendant owns and operates multiple concrete plant facilities in and around the greater Houston areaand other parts of Texas and has done so successfully for many years Page of Mr. Gajarawala had no experience operating a concrete plant facility prior to the venture with Defendant, but would serve as the chief financial officer for Texas Concrete IV with the duty to, among other things, handle all of the company’s money matters including being the primary contact for the company’s lenders, vendors and employees and resolving those issues with proper business judgment Subsequent to the execution of the Company Agreement on October 14, 2014, the parties agreed that Texas Concrete IV needed funding for working capital to get the Kendleton lant up and running. Knowing that Mr. Gajarawala (1) had no experience operating a concrete plant facility or similar business and (2) would have to rely upon Defendant’s expertise in operating the Kendleton lant, Defendant promised, represented and assured Mr. Gajarawala that if Mr. Gajarawala and DEVSJ helped the company obtain approximately $83,000 in working capital, the Kendleton lant could generate millions of dollars in profits. Defendant further promised, represented and assured Mr. Gajarawala that Defendant would use his vast experience operating multiple concrete plants to, among other things, ensure that the concrete plant is up and running and producing concrete at the plant s top capacity in a timely mannerand that the produced concrete is sold to the public In reliance upon Defendant’s promises representations, and assurances Mr. Gajarawala utilized his long standing business relationship with bankers Allegiance Bank to obtain the funding Defendant claimed the company needed to generate the many millions of dollars in profits. Page of Texas Concrete IV successfully borrowed, via two loan transactions, approximately ,000.00 from Allegiance Bank in reliance upon Defendant’s representations, promises, and assurances However, despite the fact that Mr. Gajarawala is not personally a member of the company and despite the fact that as a manager of the company Mr. Gajarawala had no obligation to personally guarantee any such loans, ased exclusively upon Defendant’s promises, representations, and assurances Mr. Gajarawala personally guaranteed the full amount of both notes issued as part of the two loan transactions placing his personal assets, credit worthiness, good will, and business relationships that were built over several decades at risk should the venture fail. This agreement was entered into after the execution of the Company Agreement and was made by Mr. Gajarawala individually and not in his capacity as a manager of Texas oncrete IV. After obtaining the loans and executing the personal guarantee Mr. Gajarawala learned, via sworn oral deposition testimony by Defendant in this case, that Defendant made multiple false representations to the bank regarding collateral pledged to secure both loans. Such misrepresentations by Defendant place the loans at risk of being called and put Mr. Gajarawala’s personal assets, credit worthiness, good will, and business relationships that were built over several decades at risk should the bank decide to call the bank notes as such representations likely constituteevents of default. Additionally, Texas Concrete IV has an obligation under the terms of both note with llegiance Bankto have an operating concrete plant in place. Despite his promises representations and assurances and despite his absolute fiduciary obligations to Texas Concrete IV, Defendant has failed and refused to meet his Page of obligations to get the Kendleton Plant up and running and has provided absolutely zero support to protect the interests of the company. Moreover, despite repeated requests and demands from Mr. Gajarawala, DEVSJ, and Allegiance Bank that Defendant perform as promised and required Defendant continues to fail and refuse to meet his obligations causing significant harm to Texas Concrete IV and placing Mr. Gajarawala’s personal assets, credit worthiness, good will, and business relationships that were built over several decades at ris In addition to failing to ensure the Kendleton lant is operational, Defendant has failed and refused to timely provide various forms of documentation such as financial statements and tax form to Allegiance Bank despite express requirements for same as part of the loan agreements with Allegiance Bank. Again, Defendant’s misrepresentations concerning collateral, the failure to have an operational Kendleton lant and the failure to provide documentation to Allegiance Bank as required are all potentially events of default under the terms of the two notes with Allegiance Bank. As a direct result of Defendant’s refusal to act, Allegiance Bank indicated its intent to call the es secured by real and personal property owned by Texas Concrete IV and ersonally guaranteed by Mr. Gajarawala and DEVSJ After repeated attempts to seek Defendant’s attendance at properly called meetings per the Company Agreement, and Defendant’s repeated refusal to abide by his fiduciary obligations, and to act as he promised, represented, and assured, Mr. Gajarawala had no choice but to seek to mitigate his damages and to learn, from scratch how to operate a concrete plant without any assistance from Defendant. Page of As such, Mr. Gaja wala worked tirelessly to complete the construction of the concrete plant site, obtain working vehicles, employees, sales persons and to otherwise turn a operational, incomplete concrete plant site into a running operation that could service its debts Defendant’s refusal and failure to do as promised, represented, and assured caused much of the Allegiance ank loan funds to be wasted. In his attempt to continue to save Texas Concrete IV and his personal assets, credit worthiness, good will, and business relationships that were built over several decades Mr. Gajarawala has also been forced to infuse, by way of personal loans to the companymore than $1 million in personal operating capital. These loans were made out of necessity and have been instrumental in making sure all of Texas Concrete IV’s debts are serviced timely and has resulted in making the Kendleton lant operational as required by the Allegiance Bank loan. But for Mr. Gajarawala’s action to save the company and mitigate the significant damage caused by Defendant’s unlawful conduct Allegiance Bank would likely have called both notes and placed the personal and real property assets of Texas Concrete IV, Mr. Gajarawala, DEVSJ, and of Defendant at risk. Without question, even if the bank was never forced to seize assets to satisfy the debts, Mr. Gajarawala and DEVSJ’s credit worthiness and good will would have been destroyed along with decades of business relationships with important Allegiance Bank bankers Mr. Gajarawala was duped by Defendant to put his own neck on the line under the guise of millions of dollars in profits to be made from the Kendleton lant. To date Mr. Gajarawala has spent more than $1 million of his own dollars to mitigate his losses. Page of Further, Defendant is also attempting to undo the transfer of a certain 4.649 acre tract (“Land”), more or less, that was conveyed to Texas Concrete IV by Defendant via Correction General Warranty Deed (“Correction Deed”). The Land was previously owned by Shree Radha, LLC (“Shree Radha”), a limited liability company of which Defendant is not only a 25% owner, but also the president. The Correction Deed was executed at Allegiance Bank’s request to also allow Texas Concrete IV to sign a Deed of Trust covering same to secure financing for Texas Concrete IV. Defendant knowingly and willingly executed both the Correction Deed and the Deed of Trust at Allegiance Bank’s request and for the sole purpose of obtaining financing for Texas Concrete IV. It now appears that Defendant executed the documents effectuating the transfer of the Land without the knowledge, consent, or approval of Shree Radha, or with the intent to defraud Texas Concrete IV. Shree Radha has retained Defendant’s counsel’s previous law partner, and is now threatening to initiate legal proceedings against Texas Concrete IV if a Rescission Deed is not summarily executed to return ownership of the Land to Shree Radha. The timing of the demand letter, on the eve of trial, and the interrelatedness of the parties serve only invite additional scrutiny to Defendant’s motives and actions in executing the Correction Deed and the subsequent Deed of Trust, and to Defendant’s claims that he was allegedly defrauded Lastly, Shree Radha has sent a demand letter threatening litigation and accusing Mr. Gajarawala, and/or Texas Concrete IV of fraud and deception to Allegiance Bank, thereby not only defaming, Mr. Gajarawala and Texas Concrete IV, also disparaging Mr. Gajarawala and Texas Concrete IV’s future business opportunities. V. CAUSE OF ACTION Plaintiff alleges and incorporates by reference all allegations and facts set fort Page of in paragraphs 1.1 through 4.as if specifically restated herein. Count Breach of Contract (The MOU) The MOU is a valid and enforceable contract. As more fully provided above, the deadline for Defendant to pay all amounts due and owing to Mr. Gajarawala was January 29, Defendant failed to pay all amounts due and owing as required under the MOU and therefore has breach the agreement. Defendant breach has caused Mr. Gajarawala actual damages equal to the unpaid principal balance of the MOU for which Mr. Gajarawala now sues. These damages are within the jurisdictional limits of this Court. Count Promissory Estoppel (The MOU Additionally or in the alternative, Defendant made promises to Mr. Gajarawala concerning the terms of the MOU, Plaintiff reasonably and substantially relied upon said promises to his detriment when he provided Defendant with $80,000.00 Mr. Gajarawala reliance was foreseeable by Defendant, and injustice can be avoided only by enforcing Defendant’ promises. Accordingly, Mr. Gajarawala hereby seek and entitled the damages resulting therefrom. Count Quantum Meruit (The MOU) Additionally, or in the alternative, Defendant accepted the cash and services provided by Mr. Gajarawalawith respect to the MOU with full knowledge and acceptance of Mr. Gajarawala’s reasonable expectation that it would be paid. Accordingly, Mr. Gajarawala is entitled to recover from Defendant the full amounts prayed for herein under the doctrine of quantummeruit, for which now sues. Count Breach of Contract ( Agreement to Cause Personal Guarantee The agreement between Mr. Gajarawala and Defendant to induce Mr. Gajarawala Page of to execute personal guarantees to secure more than $830,000 in loans from Allegiance Bank with respect to Texas Concrete IV is a valid and enforceable contract.As more fully provided above, Defendant has wholly failed to comply with his part of the agreement. Conversely, Mr. Gajarawala has wholly performed and continues to perform his side of the bargain. Defendant’s failure to do as promised constitutes a breach of the agreement. Defendant breach has caused Mr. Gajarawala actual damages within the jurisdictional limits of this Court for which Mr. Gajarawalanow sues. CounFraud/Fraudulent Inducement (Agreement to Cause Personal Guarantee) Defendant made material, false representations, promises, and assurances to Mr. Gajarawala to induce him to help the company obtain two loans totaling approximately and to obtain Mr. Gajarawala’s personal guarantee on 100% of those two loans. When Defendant made these representations, promises, and assurances, he knew they were false and material, or made them recklessly, as a positive assertion, and without wledge of their truth. Defendant’s representations, promises and assurances were made with the intention that Mr. Gajarawala rely upon them and ultimately induce Mr. Gajarawala to personally guarantee more than $830,000 in loans for Texas Concrete IV. . Gajarawala relied on these representations, promises, and assurances and personally guaranteed the loans. has suffered significant injury as a direct result of such fraudulent conduct and Mr. Gajarawala seeks damages resulting there from. Further, Defendant made the false representations, promises, and assurances knowingly and intentionally, thus entitling Mr. Gajarawala to recover exemplary damages r. Gajarawala hereby sues for such exemplary damages. Page of Count 6Defamation Defendant published false statements to third parties concerning Mr. Gajarawala. The statements directly refer to Mr. Gajarawala, unequivocally. The statements were made in written form and Defendant reasonably calculated that the statements would injure Mr. Gajarawala’s reputation as an honest businessman and bring financial injury to Mr. Gajarawala’s various businesses. Defendant acted with actual malice, or at the very least negligence when he made his defamatory statements, with full knowledge that his statements were false. Because of Defendant’s malicious and/or negligent false statements, Mr. Gajarawala has suffered actual damages in the form of injury to his reputation. Lastly, Defendant specifically accused Mr. Gajarawala of committing the crimes of fraud and real estate fraud, as well as deception. These false representations constitute libel per se, thus obviating the need to prove actual damages. Further, as Defendant made such representations with malice, Mr. Gajarawala is entitled to exemplary damages under the Civil Practices and Remedies Code section 41.003 et seq VI. ATTORNEY’SFEES Mr. Gajarawala seeks and is entitled to recover reasonable attorney’s fees incurred as a result of this action, plus, any reasonable attorney’s fees incurred in the event of an appeal to the Court of Appeals, or the Texas Supreme Court, for which it now sues. IV RAC ODE et s VII. CONDITIONS PRECEDENT All conditions precedent to Plaintiff s claims for relief have been performed waived or have otherwise occurred. Page of PRAYER For the foregoing reasons, Plaintiff asks that it be awarded a judgment against Defendant forthe following ctual damages; ontractually agreed damages and fees; Exemplary Damages for Defamation; Punitive damages; Pre judgment and post judgment interest; Court costsatto rney’s fees, and collection costs All otherrelief, at law or in equity, to which Plaintiff is 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 Houston, TX 77027 Tel. (832) 533 Fax (832) 213 ATTORNEYS FOR PLAINTIFF Page of CERTIFICATE OF SERVICE I hereby certify that on this day of December, 2017, 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