Preview
9/22/2016 3:21:01 PM
Chris Daniel - District Clerk Harris County
Envelope No. 12854833
By: ALEX CASARES
Filed: 9/22/2016 3:21:01 PM
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 FIRST AMENDED ORIGINAL PETITION
TO THE HONORABLE JUDGE OF SAID COURT:
Plaintiff, Hemant Gajarawala, (“Mr. Gajarawala” or “Plaintiff’) this First Amended
Original Petition complaining of Somaiah Kurre (“Kurre” or “Defendant”), and in support
thereof would respectfully show the Court the following:
I. DISCOVERY CONTROL PLAN
1.1 Plaintiff intends to 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. TEX. R. Civ. P. 190.3(a) and cmt. 2.
II. PARTIES
21 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 343 and the last three numbers of his Social Security
Number are 610.
2.2 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 184.III. JURISDICTION AND VENUE
3.1 This Court has jurisdiction over this cause in that it involves an amount in
controversy in excess of the minimum jurisdictional limit. Gov’T CODE §24.007(a) and (b).
Venue is proper in Harris County, Texas under the general venue provision because Defendant
resides in Harris County. TEx. Civ. PRAC. & REM. CODE §§ 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
A. OCTOBER 2, 2014 PROMISSORY NOTE
4.1 Mr. Gajarawala previously sued Defendant in a matter styled: Cause No. 2014-
08967; Hemant Gajarawala v. Somaiah Kurre, Rohini Leasing, LLC, and Texas Concrete
Enterprise, LLC; In the 80" district Court of Harris County, Texas (the “Lawsuit”).
4.2. Ina 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
“A” and is incorporated herein for all purposes.
4.3 Per the Settlement Agreement, on October 2, 2014, for good and valuable
consideration, Defendant executed and delivered to Mr. Gajarawala a promissory note (the
“Note’) payable to the order of Mr. Gajarawala. A true and correct copy of the Note is attached
as Exhibit “B” and incorporated herein by reference for all purposes. Mr. Gajarawala is
currently the owner and holder of the Note and is entitled to receive payment thereon and enforce
same.44 The Note was made in the principal amount of $215,000.00, with an annual
interest rate of 7% per year and a maturity date of September 1, 2017. The Note also provides
for the imposition of liquidated damages of $250.00 as a late payment penalty for each month in
which Defendant fails to make a payment pursuant to the terms of the Note on or before the 5"
day of any month.
4.5 Moreover, the Note is secured by the proportional share of Defendant’s interest in
Texas Concrete Enterprise-IV, LLC. The value of said proportional share is to be determined at
the time of default.
4.6 Finally, the Note provides that in the event of default in the payment or any other
default by Defendant, Mr. Gajarawala shall have the right to declare the unpaid balance of the
Note, including accrued interest and all other indebtedness and obligations of Defendant to Mr.
Gajarawala, immediately due and payable.
4.7 Defendant failed to make all payments due and owing under the Note in a timely
manner, triggering the $250.00 liquidated late payment penalty provision of the Note for several
months. Moreover, Defendant failed to make payments due and owing under the Note and,
specifically, failed to make all of the payments due for the month of January 2016 and each
month thereafter. Defendant has therefore defaulted on the Note.
4.8 Pursuant to the terms of the Note, Mr. Gajarawala has provided notice and
declared, in writing, that Defendant has defaulted and that the maturity date of the Note had been
accelerated declaring the unpaid principal balance, earned interest, and any other amounts owed
on the Note immediately due.
4.9 Defendant waived demand, notice of intent to accelerate, and notice of
acceleration. Nonetheless, Mr. Gajarawala gave the aforementioned notice of default and noticeof acceleration of the maturity date of the Note. Despite acceleration, Defendant failed to satisfy
his obligations under the Note and failed to pay the amounts owing under the Note.
B. Memorandum of Understanding
4.10 Mr. Gajarawala loaned Defendant $80,000.00 on July 30, 2015. The loan was
memorialized by written agreement entitled Memorandum of Understanding (“MOU”) dated
July 30, 2015. A true and correct copy of the MOU is attached hereto as Exhibit “C” and
incorporated herein for all purposes.
4.11 By the terms of the MOU, Defendant was required to repay the entire amount due
by January 29, 2016. 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.
Cc. Texas Concrete Enterprise 1V, LLC
4.12 Texas Concrete Enterprises IV, LLC (“Texas Concrete IV”) is a closely held,
Texas limited liability company.
4.13 DEVSJ Concrete, LLC (“DEVSJ”) owns a 35% interest and Defendant owns a
65% interest in Texas Concrete IV.'
4.14 Mr. Gajarawala is the sole managing member of DEVSJ and is a manager and the
CFO of Texas Concrete IV.
4.15 Defendant is a manager and the President of Texas Concrete IV.
4.16 Texas Concrete IV’s primary business and purpose is to own and operate a
concrete production plant in Kendleton, Texas.
Defendant’s ownership interest in Texas Concrete IV is the collateral under the Settlement Agreement
and the Note and Mr. Gajarawala seeks to foreclose on the collateral pursuant to the terms of the Note.4.17 Defendant owns and operates multiple concrete plant facilities in and around the
greater Houston area and other parts of Texas.
4.18 The Texas Concrete IV company agreement provides that:
1. Mr. Gajarawala is to 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.
2. Defendant, in part because of his vast experience operating multiple
concrete plants, is 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 manner and that the
produced concrete is sold to the public.
4.19 Texas Concrete IV has borrowed, via two loan transactions, approximately
$835,000.00 from Allegiance Bank for the express purpose of getting the concrete plant in
Kendleton, Texas (the “Kendleton Plant”) up and running and producing and selling concrete as
part of an operating business.
4.20 Based upon Defendant’s promise to Mr. Gajarawala that he would work diligently
to ensure that the concrete plant would be fully functional, Mr. Gajarawala personally guaranteed
the full amount of both notes issued as part of the two loan transactions between Texas Concrete
IV from Allegiance Bank.
4.21 In fact, Texas Concrete IV has an obligation under the terms of both notes with
Allegiance Bank to have an operating concrete plant in place.4.22 Despite his promises to Mr. Gajarawala and despite his absolute fiduciary
obligations to Texas Concrete IV, Defendant has failed and refused to meet his obligations to get
the Kendleton Plant up and running.
4.23 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.
4.24 In addition to failing to ensure an operational Kendleton Plant, 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.
4.25 The failure to have an operational Kendleton Plant and to provide documentation
to Allegiance Bank as required are both potentially events of default under the terms of the two
notes with Allegiance Bank.
4.26 Asa direct result of Defendant’s refusal to act, Allegiance Bank has indicated its
intent to call the more than $835,000.00 in note obligations that are secured by real and personal
property owned by Texas Concrete IV and that is personally guaranteed by Mr. Gajarawala.
4.27 Without question, Defendant’s failure to do as promised and required by his
fiduciary duties, may require Mr. Gajarawala to lose his entire investment in Texas Concrete IV
and still have to pay all of the company’s indebtedness under the terms of the personal
guarantees with Allegiance Bank.
V. CAUSE OF ACTION
5.1 Plaintiff re-alleges and incorporates by reference all allegations and facts set forth
in paragraphs 1.1 through 4.27 as if specifically restated herein.Count 1 - Breach of Contract (The Note)
5.2. The Note is a valid and enforceable contract. As more fully provided above,
Defendant has failed to make timely payments on the note for several months and has wholly
failed to make any payments from January 1, 2016 and each month thereafter. Defendant’s
breach has caused Mr. Gajarawala actual damages equal to the unpaid principal balance of the
Note, plus earned interest, liquidated late fees and any other amounts owed on the Note as set
forth therein for which Mr. Gajarawala now sues. These damages are within the jurisdictional
limits of this Court.
5.3. In addition to the award of damages sought by Mr. Gajarawala, Mr. Gajarawala
seeks an order foreclosing on the proportional share of Defendant’s interest in Texas Concrete
Enterprise-IV, LLC as specifically provided by the terms of the Note.
Count 2 — Promissory Estoppel (The Note)
5.4 In the alternative, Defendant made promises to Mr. Gajarawala concerning the
terms of the Note, Mr. Gajarawala reasonably and substantially relied upon said promises to his
detriment when he dismissed the Lawsuit, Mr. Gajarawala reliance was foreseeable by
Defendant, and injustice can be avoided only by enforcing Defendant’s promises. Accordingly,
Mr. Gajarawala hereby seeks and is entitled the damages resulting there from.
Count 3 — Breach of Contract (The MOU)
5.5. 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,
2016. Defendant failed to pay all amounts due and owing as required under the MOU and
therefore has breached the agreement. Defendant’s 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 4 — Promissory Estoppel (The MOU)
5.6 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’s
reliance was foreseeable by Defendant, and injustice can be avoided only by enforcing
Defendant’s promises. Accordingly, Mr. Gajarawala hereby seeks and is entitled the damages
resulting therefrom.
Count 5 - Quantum Meruit (The MOU)
5.7 Additionally, or in the alternative, Defendant accepted the cash and services
provided by Mr. Gajarawala with 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
quantum meruit, for which he now sues.
Count 6 - Breach of Contract (Texas Concrete IV Agreement)
5.8 The agreement between Mr. Gajarawala and Defendant 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 do as promised
constitutes a breach of the company agreement. Defendant’s breach has caused Mr. Gajarawala
actual damages within the jurisdictional limits of this Court for which Mr. Gajarawala now sues.VI. ATTORNEY’S FEES
6.1 Mr. Gajarawala presented the claims under the Note and MOU to Defendant for
payment and made demand thereon. At the time of filing this petition, payment for the just
amount owed under the Note and MOU have not been tendered. As a result of Defendant’s
failure to pay the claim, Mr. Gajarawala has been required to retain the undersigned legal
counsel to bring this suit. Mr. Gajarawala is therefore entitled to recover its 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. TEX. CIV. PRAC. & REM. CODE §§ 38.001, et seq.
6.2. Mr. Gajarawala is also entitled to recover its reasonable attorney’s fees, plus any
legal fees and collection costs pursuant to the express terms of the Note and the MOU.
6.3. Mr. Gajarawala and Defendant entered into a company agreement to create rights
and obligations of the parties with respect to Texas Concrete IV, Mr. Gajarawala has demanded
that Defendant perform as promised. Despite such demand, Defendant has wholly failed and
refused to perform his obligations. As such, Mr. Gajarawala seeks and is entitled to recover his
attorney’s fees related to Defendant’s breach of the company agreement pursuant to TEX. CIV.
PRAC. & REM. CODE §§ 38.001, ef seq.
VII. CONDITIONS PRECEDENT
7A All conditions precedent to Plaintiff's claims for relief have been performed,
waived or have otherwise occurred.PRAYER
For the foregoing reasons, Plaintiff asks that it be awarded a judgment against Defendant
for the following:
a.
b.
Actual damages;
Contractually agreed damages and fees;
Pre-judgment and post-judgment interest;
Court costs, attorney’s fees, and collection costs;
All other relief, at law or in equity, to which Plaintiff is justly entitled.
Respectfully submitted,
MCCATHERN, PLLC
By: /s/Isaac Villarreal
Isaac Villarreal
Texas Bar No. 24054553
ivillarreal@mccathernlaw.com,
Andrew T. Green
Texas Bar No. 24069823
agreen@mccathernlaw.com
2000 West Loop South, Suite 2100
Houston, TX 77027
Tel. (832) 533-8689
Fax (832) 213-4842
ATTORNEYS FOR PLAINTIFF
10CERTIFICATE OF SERVICE
Thereby certify that on this 22" day of September, 2016, 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 E-mail and/or E-file
KOCHMAN & CHARBONNET, PC
12012 Wickchester, Suite 150
Houston, Texas 77079
jdcharbonnet@kdclaw.com
[Attorney for Defendant]
/s/ Isaac Villarreal
Isaac Villarreal
11
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9/22/2016 3:21:01 PM Chris Daniel - District Clerk Harris County Envelope No. 12854833 By: ALEX CASARES Filed: 9/22/2016 3:21:01 PM 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 FIRST AMENDED ORIGINAL PETITION TO THE HONORABLE JUDGE OF SAID COURT: Plaintiff, Hemant Gajarawala, (“Mr. Gajarawala” or “Plaintiff’) this First Amended Original Petition complaining of Somaiah Kurre (“Kurre” or “Defendant”), and in support thereof would respectfully show the Court the following: I. DISCOVERY CONTROL PLAN 1.1 Plaintiff intends to 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. TEX. R. Civ. P. 190.3(a) and cmt. 2. II. PARTIES 21 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 343 and the last three numbers of his Social Security Number are 610. 2.2 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 184.III. JURISDICTION AND VENUE 3.1 This Court has jurisdiction over this cause in that it involves an amount in controversy in excess of the minimum jurisdictional limit. Gov’T CODE §24.007(a) and (b). Venue is proper in Harris County, Texas under the general venue provision because Defendant resides in Harris County. TEx. Civ. PRAC. & REM. CODE §§ 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 A. OCTOBER 2, 2014 PROMISSORY NOTE 4.1 Mr. Gajarawala previously sued Defendant in a matter styled: Cause No. 2014- 08967; Hemant Gajarawala v. Somaiah Kurre, Rohini Leasing, LLC, and Texas Concrete Enterprise, LLC; In the 80" district Court of Harris County, Texas (the “Lawsuit”). 4.2. Ina 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 “A” and is incorporated herein for all purposes. 4.3 Per the Settlement Agreement, on October 2, 2014, for good and valuable consideration, Defendant executed and delivered to Mr. Gajarawala a promissory note (the “Note’) payable to the order of Mr. Gajarawala. A true and correct copy of the Note is attached as Exhibit “B” and incorporated herein by reference for all purposes. Mr. Gajarawala is currently the owner and holder of the Note and is entitled to receive payment thereon and enforce same.44 The Note was made in the principal amount of $215,000.00, with an annual interest rate of 7% per year and a maturity date of September 1, 2017. The Note also provides for the imposition of liquidated damages of $250.00 as a late payment penalty for each month in which Defendant fails to make a payment pursuant to the terms of the Note on or before the 5" day of any month. 4.5 Moreover, the Note is secured by the proportional share of Defendant’s interest in Texas Concrete Enterprise-IV, LLC. The value of said proportional share is to be determined at the time of default. 4.6 Finally, the Note provides that in the event of default in the payment or any other default by Defendant, Mr. Gajarawala shall have the right to declare the unpaid balance of the Note, including accrued interest and all other indebtedness and obligations of Defendant to Mr. Gajarawala, immediately due and payable. 4.7 Defendant failed to make all payments due and owing under the Note in a timely manner, triggering the $250.00 liquidated late payment penalty provision of the Note for several months. Moreover, Defendant failed to make payments due and owing under the Note and, specifically, failed to make all of the payments due for the month of January 2016 and each month thereafter. Defendant has therefore defaulted on the Note. 4.8 Pursuant to the terms of the Note, Mr. Gajarawala has provided notice and declared, in writing, that Defendant has defaulted and that the maturity date of the Note had been accelerated declaring the unpaid principal balance, earned interest, and any other amounts owed on the Note immediately due. 4.9 Defendant waived demand, notice of intent to accelerate, and notice of acceleration. Nonetheless, Mr. Gajarawala gave the aforementioned notice of default and noticeof acceleration of the maturity date of the Note. Despite acceleration, Defendant failed to satisfy his obligations under the Note and failed to pay the amounts owing under the Note. B. Memorandum of Understanding 4.10 Mr. Gajarawala loaned Defendant $80,000.00 on July 30, 2015. The loan was memorialized by written agreement entitled Memorandum of Understanding (“MOU”) dated July 30, 2015. A true and correct copy of the MOU is attached hereto as Exhibit “C” and incorporated herein for all purposes. 4.11 By the terms of the MOU, Defendant was required to repay the entire amount due by January 29, 2016. 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. Cc. Texas Concrete Enterprise 1V, LLC 4.12 Texas Concrete Enterprises IV, LLC (“Texas Concrete IV”) is a closely held, Texas limited liability company. 4.13 DEVSJ Concrete, LLC (“DEVSJ”) owns a 35% interest and Defendant owns a 65% interest in Texas Concrete IV.' 4.14 Mr. Gajarawala is the sole managing member of DEVSJ and is a manager and the CFO of Texas Concrete IV. 4.15 Defendant is a manager and the President of Texas Concrete IV. 4.16 Texas Concrete IV’s primary business and purpose is to own and operate a concrete production plant in Kendleton, Texas. Defendant’s ownership interest in Texas Concrete IV is the collateral under the Settlement Agreement and the Note and Mr. Gajarawala seeks to foreclose on the collateral pursuant to the terms of the Note.4.17 Defendant owns and operates multiple concrete plant facilities in and around the greater Houston area and other parts of Texas. 4.18 The Texas Concrete IV company agreement provides that: 1. Mr. Gajarawala is to 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. 2. Defendant, in part because of his vast experience operating multiple concrete plants, is 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 manner and that the produced concrete is sold to the public. 4.19 Texas Concrete IV has borrowed, via two loan transactions, approximately $835,000.00 from Allegiance Bank for the express purpose of getting the concrete plant in Kendleton, Texas (the “Kendleton Plant”) up and running and producing and selling concrete as part of an operating business. 4.20 Based upon Defendant’s promise to Mr. Gajarawala that he would work diligently to ensure that the concrete plant would be fully functional, Mr. Gajarawala personally guaranteed the full amount of both notes issued as part of the two loan transactions between Texas Concrete IV from Allegiance Bank. 4.21 In fact, Texas Concrete IV has an obligation under the terms of both notes with Allegiance Bank to have an operating concrete plant in place.4.22 Despite his promises to Mr. Gajarawala and despite his absolute fiduciary obligations to Texas Concrete IV, Defendant has failed and refused to meet his obligations to get the Kendleton Plant up and running. 4.23 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. 4.24 In addition to failing to ensure an operational Kendleton Plant, 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. 4.25 The failure to have an operational Kendleton Plant and to provide documentation to Allegiance Bank as required are both potentially events of default under the terms of the two notes with Allegiance Bank. 4.26 Asa direct result of Defendant’s refusal to act, Allegiance Bank has indicated its intent to call the more than $835,000.00 in note obligations that are secured by real and personal property owned by Texas Concrete IV and that is personally guaranteed by Mr. Gajarawala. 4.27 Without question, Defendant’s failure to do as promised and required by his fiduciary duties, may require Mr. Gajarawala to lose his entire investment in Texas Concrete IV and still have to pay all of the company’s indebtedness under the terms of the personal guarantees with Allegiance Bank. V. CAUSE OF ACTION 5.1 Plaintiff re-alleges and incorporates by reference all allegations and facts set forth in paragraphs 1.1 through 4.27 as if specifically restated herein.Count 1 - Breach of Contract (The Note) 5.2. The Note is a valid and enforceable contract. As more fully provided above, Defendant has failed to make timely payments on the note for several months and has wholly failed to make any payments from January 1, 2016 and each month thereafter. Defendant’s breach has caused Mr. Gajarawala actual damages equal to the unpaid principal balance of the Note, plus earned interest, liquidated late fees and any other amounts owed on the Note as set forth therein for which Mr. Gajarawala now sues. These damages are within the jurisdictional limits of this Court. 5.3. In addition to the award of damages sought by Mr. Gajarawala, Mr. Gajarawala seeks an order foreclosing on the proportional share of Defendant’s interest in Texas Concrete Enterprise-IV, LLC as specifically provided by the terms of the Note. Count 2 — Promissory Estoppel (The Note) 5.4 In the alternative, Defendant made promises to Mr. Gajarawala concerning the terms of the Note, Mr. Gajarawala reasonably and substantially relied upon said promises to his detriment when he dismissed the Lawsuit, Mr. Gajarawala reliance was foreseeable by Defendant, and injustice can be avoided only by enforcing Defendant’s promises. Accordingly, Mr. Gajarawala hereby seeks and is entitled the damages resulting there from. Count 3 — Breach of Contract (The MOU) 5.5. 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, 2016. Defendant failed to pay all amounts due and owing as required under the MOU and therefore has breached the agreement. Defendant’s 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 4 — Promissory Estoppel (The MOU) 5.6 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’s reliance was foreseeable by Defendant, and injustice can be avoided only by enforcing Defendant’s promises. Accordingly, Mr. Gajarawala hereby seeks and is entitled the damages resulting therefrom. Count 5 - Quantum Meruit (The MOU) 5.7 Additionally, or in the alternative, Defendant accepted the cash and services provided by Mr. Gajarawala with 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 quantum meruit, for which he now sues. Count 6 - Breach of Contract (Texas Concrete IV Agreement) 5.8 The agreement between Mr. Gajarawala and Defendant 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 do as promised constitutes a breach of the company agreement. Defendant’s breach has caused Mr. Gajarawala actual damages within the jurisdictional limits of this Court for which Mr. Gajarawala now sues.VI. ATTORNEY’S FEES 6.1 Mr. Gajarawala presented the claims under the Note and MOU to Defendant for payment and made demand thereon. At the time of filing this petition, payment for the just amount owed under the Note and MOU have not been tendered. As a result of Defendant’s failure to pay the claim, Mr. Gajarawala has been required to retain the undersigned legal counsel to bring this suit. Mr. Gajarawala is therefore entitled to recover its 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. TEX. CIV. PRAC. & REM. CODE §§ 38.001, et seq. 6.2. Mr. Gajarawala is also entitled to recover its reasonable attorney’s fees, plus any legal fees and collection costs pursuant to the express terms of the Note and the MOU. 6.3. Mr. Gajarawala and Defendant entered into a company agreement to create rights and obligations of the parties with respect to Texas Concrete IV, Mr. Gajarawala has demanded that Defendant perform as promised. Despite such demand, Defendant has wholly failed and refused to perform his obligations. As such, Mr. Gajarawala seeks and is entitled to recover his attorney’s fees related to Defendant’s breach of the company agreement pursuant to TEX. CIV. PRAC. & REM. CODE §§ 38.001, ef seq. VII. CONDITIONS PRECEDENT 7A All conditions precedent to Plaintiff's claims for relief have been performed, waived or have otherwise occurred.PRAYER For the foregoing reasons, Plaintiff asks that it be awarded a judgment against Defendant for the following: a. b. Actual damages; Contractually agreed damages and fees; Pre-judgment and post-judgment interest; Court costs, attorney’s fees, and collection costs; All other relief, at law or in equity, to which Plaintiff is justly entitled. Respectfully submitted, MCCATHERN, PLLC By: /s/Isaac Villarreal Isaac Villarreal Texas Bar No. 24054553 ivillarreal@mccathernlaw.com, Andrew T. Green Texas Bar No. 24069823 agreen@mccathernlaw.com 2000 West Loop South, Suite 2100 Houston, TX 77027 Tel. (832) 533-8689 Fax (832) 213-4842 ATTORNEYS FOR PLAINTIFF 10CERTIFICATE OF SERVICE Thereby certify that on this 22" day of September, 2016, 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 E-mail and/or E-file KOCHMAN & CHARBONNET, PC 12012 Wickchester, Suite 150 Houston, Texas 77079 jdcharbonnet@kdclaw.com [Attorney for Defendant] /s/ Isaac Villarreal Isaac Villarreal 11