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FILED
1/8/2024 6:02 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Elizabeth Ferguson DEPUTY
CAUSE NO. DC-22-07776
JESUS HERNANDEZ, § IN THE DISTRICT COURT
§
§
§
Plaintiff, §
§
v. § DALLAS COUNTY, TEXAS
§
SOUTHERN SOLAR, LLC, AND §
GOODLEAP, LLC F/KA/ PARAMOUNT §
EQUITY MORTGAGE D/B/A LOANPAL §
§
§
Defendants. § 95th JUDICIAL DISTRICT
SOUTHERN SOLAR’S MOTION FOR NEW TRIAL
Defendant Southern Solar, LLC (“Southern” or “Defendant”) hereby files its Motion for
New Trial and would respectfully show the Court as follows:
SUMMARY OF ARGUMENT
THIS CASE IS ALL ABOUT ELECTRICITY BILLS AND A SOLAR
PANEL SYSTEM INSTALLED BY SOUTHERN ON PLAINTIFF’S HOME.
PRIOR TO TRIAL AND INDEED PRIOR TO HIS CLOSING ARGUMENT,
PLAINTIFF NEVER DISCLOSED HIS AMOUNT AND METHOD OF
CALCULATING ECONOMIC DAMAGES REQUIRING THE EXCLUSION OF
ANY SUCH CLAIMS AT TRIAL. PLAINTIFF ALSO DID NOT DISCLOSE
THE LEGAL THEORIES AND FACTUAL BASES OF SAME PRIOR TO TRIAL.
DEFENDANT’S MOTION FOR DIRECTED VERDICT SHOULD HAVE
BEEN GRANTED BOTH TIMES IT WAS URGED, ONCE PRIOR TO TRIAL
AND ONCE AFTER PLAINTIFF’S CASE CLOSED. THE JURY’S ULTIMATE
FINDINGS WERE AGAINST THE GREAT WEIGHT OF THE EVIDENCE.
TESTIMONY AT TRIAL ALSO CONCLUSIVELY ESTABLISHED
SOUTHERN’S AFFIRMATIVE DEFENSE OF ACCORD AND
SATISFACTION. IN SHORT, PLAINTIFF DID NOT PROVE HIS CASE AND
BLATANTLY VIOLATED THE TRCP’S MANDATORY DISCLOSURE
RULES REQUIRING THE GRANT OF THIS MOTION FOR NEW TRIAL.
DEFENDANT SOUTHERN SOLAR’S MOTION FOR NEW TRIAL PAGE 1
I. NEW TRIAL SHOULD BE GRANTED ON SEVERAL GROUNDS
A. PLAINTIFF FAILED TO DISCLOSE DAMAGES OR LIABILIITY
THEORIES SO DIRECTED VERDICT WAS MANDATORY
Under TRCP 193.6, the Court was required to exclude evidence and witnesses that were
not timely disclosed in Plaintiff’s “discovery” before trial. TEX. R. CIV. P. 193.6(a). The Rule
"is mandatory, and the penalty—exclusion of evidence—is automatic ...” See F 1
CONSTRUCTION, INC. v. BANZ, No. 05-19-00717-CV (Tex.App.—Dallas 5th Dist. 2021
(Memorandum Opinion). Disclosure of the amount of economic damages and the method by
which they were calculated is probably the biggest of the disclosures required under TRCP
194.2(a)(4). Yet Plaintiff never served initial disclosures in this case at any time.
In F-1 Construction, a very recent and compelling case from the Dallas Fifth District
Court of Appeals, the Court examined a plaintiff’s failure to disclose its evidence of “actual or
economic damages . . .,” exemplary damages and attorney’s fees based on claims for breach of
contract, fraudulent inducement, negligent misrepresentation and common law fraud. Those
claims are very similar to Plaintiff’s claims in this case. The plaintiff finally attempted to
provide some evidence of damages shortly before trial in response to a motion to exclude. The
trial court excluded the evidence and entered a take-nothing judgment against the plaintiff. The
plaintiff appealed. The Court of Appeals affirmed the trial court’s exclusion of the evidence and
the take-nothing judgment, holding as follows:
Rule 193.6 requires the exclusion of evidence and witnesses that are not
timely disclosed in response to discovery requests. TEX. R. CIV. P.
193.6(a). The Rule "is mandatory, and the penalty—exclusion of
evidence—is automatic, absent a showing of: (1) good cause or (2) lack of
unfair surprise or (3) unfair prejudice." Lopez v. La Madeleine of Tex.,
Inc., 200 S.W.3d 854, 860 (Tex. App.-Dallas 2006, no pet.).
DEFENDANT SOUTHERN SOLAR’S MOTION FOR NEW TRIAL PAGE 2
The burden of establishing good cause or lack of unfair surprise or unfair
prejudice is on the party seeking to introduce the evidence. TEX. R. CIV.
P. 193.6(a). The good cause exception "allows a trial judge to excuse a
party's failure to comply with discovery obligations in difficult or
impossible circumstances." PopCap Games, Inc. v. MumboJumbo, LLC,
350 S.W.3d 699, 718 (Tex. App.-Dallas 2011, pet. denied). Inadvertence,
lack of surprise, or the uniqueness of the offered evidence, however, do
not constitute good cause. Id. If Construction failed to meet this burden,
then under rule 193.6, the trial court's decision to exclude the evidence
should be affirmed. See Cunningham v. Columbia/St. David's Healthcare
Sys., L.P., 185 S.W.3d 7, 13 (Tex. App.-Austin 2005, no pet.).
We review the trial court's decision for an abuse of discretion. VSDH
Vaquero Venture, LTD. v. Gross, No. 05-19-00217-CV, 2020 WL
3248481, at *4 (Tex. App.-Dallas June 16, 2020, no pet.) (mem. op.). The
general test for abuse of discretion is whether the trial court acted without
regard to any guiding rules or principles. Cire v. Cummings, 134 S.W.3d
835, 838-39 (Tex. 2004). This occurs when either (1) the trial court fails to
analyze or apply the law correctly, or (2) with regard to factual issues or
matters committed to its discretion, the trial court could reasonably only
reach one decision and failed to do so. Jaster-Quintanilla & Assocs., Inc.
v. Prouty, 549 S.W.3d 183, 188 (Tex. App.-Austin 2018, no pet).
The purposes of Rule 193.6 are threefold: (i) to promote responsible
assessment of settlement, (ii) to prevent trial by ambush, and (iii) to give
the other party the opportunity to prepare rebuttal to expert testimony.
In re D.W.G.K., 558 S.W.3d 671, 680 (Tex. App.-Texarkana 2018, pet.
denied). Accordingly, in order to establish the absence of unfair surprise
or prejudice, the party seeking to call an untimely disclosed witness or
introduce untimely disclosed evidence must establish that the other party
had enough evidence to reasonably assess settlement, to avoid trial by
ambush, and to prepare rebuttal to expert testimony. Id.
Here, it is undisputed that the information was not timely provided. The
requests for disclosure were outstanding for almost a year and no
information was provided until the eve of trial. Construction
acknowledged that its failure to respond was inadvertent. Although
Construction argued that exclusion was a harsh penalty, it presented no
evidence that it would have been difficult or impossible for it to have
timely disclosed the evidence. Nor does Construction argue on appeal that
there is evidence of good cause in the record.
Likewise, Construction offered no evidence to demonstrate the absence
of unfair surprise or prejudice. Indeed, there is nothing to suggest that
Defendants had enough evidence to reasonably assess settlement, avoid
DEFENDANT SOUTHERN SOLAR’S MOTION FOR NEW TRIAL PAGE 3
trial by ambush, or prepare rebuttal to expert testimony. See In re
D.W.G.K., 558 S.W.3d at 680.
In addition, Construction's argument that Banz's oral motion was
inappropriate because Rule 215 sanctions require notice and a hearing is
misplaced. Banz did not request discretionary sanctions for discovery
abuse under Rule 215. Instead, Banz simply stated orally that he joined
Gutierrez's written request for exclusion under Rule 193. We are aware of
no authority, nor does Construction provide any, precluding the oral
presentation of or joining in such a motion.
Because Construction did not meet its burden to show good cause or lack
of surprise or prejudice—an exception to Rule 193's automatic, mandatory
exclusion penalty—the trial court did not abuse its discretion by excluding
the untimely disclosed evidence.
Id. at *3-*4 (Emphasis Supplied).
In addition, as of January 1, 2021, TRCP 193.6 was amended to exclude evidence and
witnesses that were not included in a party’s mandatory Rule 194.1 “disclosures,” and “[w]ithout
awaiting a discovery request,” see TRCP 194.1. This rule change did not apply in F 1
Construction which predated it, but that makes Defendant’s Motion for New Trial even more
compelling.
B. DIRECTED VERDICT WAS MANDATORY
i. Failure to Disclose and Procedural Background
Plaintiff’s disclosure duties in the instant case were in existence for nearly over a year
and a half prior to trial (not one year as in F 1) yet Plaintiff never disclosed anything. Plaintiff
did not disclose (1) the legal theories and, in general, the factual bases of the responding party’s
claims or defenses related to liability or exemplary damages; (2) the amount and any method of
calculating economic or exemplary damages; or (3) a copy of description by category and
location of all documents and information Plaintiff “may use to support its claims or defenses . .
.” TRCP 194.2(b)(3), (4) and (6).
DEFENDANT SOUTHERN SOLAR’S MOTION FOR NEW TRIAL PAGE 4
Just like the F 1 plaintiff, Hernandez did not prove good cause for the failure to disclose
or any “evidence to demonstrate the absence of unfair surprise or prejudice . . . [nor anything] to
suggest that Defendant[] had enough evidence to reasonably assess settlement, avoid trial by
ambush, or prepare rebuttal to expert testimony. F 1 at 4, citing In re D.W.G.K., 558 S.W.3d at
680.
If the party with the disclosure burden does not attempt to show good cause, the trial
court has no discretion. Instead, under rule 193.6, the trial court possesses no discretion; it must
exclude evidence not timely provided, amended, or supplemented in response to a discovery
request in the absence of evidence showing good cause for the failure to respond or the lack of
prejudice to the party opposing admission of the evidence. See, e.g., F 1; Beam v. A.H. Chaney,
Inc., 56 S.W.3d 920, 924 (Tex. App.-Fort Worth 2001, pet. denied). The Rule "is mandatory,
and the penalty—exclusion of evidence—is automatic ...:
Automatic means the trial court has no discretion.
“... [U]nder rule 193.6, the trial court possesses no discretion; it must exclude evidence
not timely provided, amended, or supplemented in response to a discovery request in the
absence of evidence showing good cause for the failure to respond or the lack of
prejudice to the party opposing admission of the evidence.
See, e.g., Beam, 56 S.W.3d at 924 (reversing case because trial court failed to apply the
automatic exclusion of rule 193.6 even when no attempt was made to show good cause, lack of
surprise, or prejudice by non-answering party).
ii. Granting Defendant’s Motion for Directed Verdict Was Mandatory
All of Plaintiff’s purported “evidence” should have been barred for Plaintiff’s complete
failure to disclose as required by the Rules. Without any such evidence, directed verdict was
mandatory. As a result, Defendant filed a pre-trial Motion for Directed Verdict. That Motion is
attached hereto as Exhibit A for the Court’s easy reference.
DEFENDANT SOUTHERN SOLAR’S MOTION FOR NEW TRIAL PAGE 5
The Motion should have been granted due to Plaintiff’s failure to disclose any damages
amounts or calculations or to disclose its legal theories and factual bases for same. 1 Plaintiff also
never disclosed, described or provided copies of documents or materials it planned to rely upon
at trial to prove its claims as required by TRCP 194.2(b)(4). The Motion for Directed Verdict
was even more appropriate than a mere motion to exclude, as it would decide the case given
Plaintiff’s lack of evidence to support his claims, in particular the damages Plaintiff would later
finally disclose during closing argument for the first time. The trial Court’s failure to grant the
pre-trial Motion for Directed Verdict was error.
Then, after conclusion of Plaintiff’s case-in-chief, Defendant reasserted its Motion for
Directed Verdict. Despite noting that the Court was “struggling” with the scintilla of evidence
standard given Plaintiff’s failure to introduce any electricity bills, or tax returns, or proof of
payments of any sort, the Court improperly denied the Motion for Directed Verdict. By re-
urging the Motion for Directed Verdict, Defendant continued its proper objection to Plaintiff
recovering any damages given Plaintiff’s complete failure to disclose in violation of the rules
(although such a continuing objection was not required after the initial Motion was denied). And
even aside from Plaintiff’s complete failure to disclose its damages, Plaintiff did not introduce
any proper and admissible evidence to support a finding of liability or damages so directed
verdict was mandatory.
The trial Court’s failure to exclude the evidence and grant the Motion for Directed
Verdict was error even without additional efforts to preserve appeal (though Defendant
1
Even aside from the undisclosed “damages,” Plaintiff’s failure to disclose its legal theories and factual bases
therefor is particularly egregious in this case, since Plaintiff literally dropped its fraud, fraudulent inducement and
declaratory judgment claims at trial prior to closing. Dropping those claims meant that Plaintiff was not attempting
to avoid, rescind or cancel the Solar Agreement at issue in this case. Without those claims, the contract remained in
place and still remains in place. As such, the jury’s complete disregard for its terms was a blatant nullification and
failure to comply with the Jury Instructions regarding their duties and the burden of proof.
DEFENDANT SOUTHERN SOLAR’S MOTION FOR NEW TRIAL PAGE 6
consistently objected throughout the trial on various other valid grounds). As the Texas Supreme
Court has observed, "[i]t would hardly be right to reward competent counsel's diligent
preparation by excusing his opponent from complying with the requirements of the rules."
Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 915 (Tex. 1992) (explaining that counsel should
not be excused from the requirements of the rule without a strict showing of good cause). In
other words, Defendant’s initial objections and Motion for Directed Verdict constituted a
“running objection” throughout the course of the trial.
Plaintiff’s failure to disclose absolutely resulted in “trial by ambush” and inability of
Southern to responsibly assess settlement and prepare rebuttal expert testimony under F 1 and
the cases cited therein, especially In re D.W.G.K. These tactics simply cannot be allowed and
the Court was required to direct verdict against Plaintiff and exclude any such evidence. In
addition, even had Plaintiff disclosed some of these theories and numbers, they were not actually
proven at trial and the jury’s verdict was infirm as a result.
During trial, Southern consistently objected to the presentation of any evidence of
damages, electrical bills or alleged failure of solar output/input. Defendant’s objections to
Plaintiff’s exhibits in that regard were sustained by the trial court and any such alleged evidence
excluded pre-trial, not just because of Plaintiff’s failure to disclose it but also because Plaintiff’s
purported evidence in that regard was not admissible as self-authenticating until TRE 902(10) in
the absence of business records affidavits, and was also highly misleading as incomplete and
only supposedly covering a few months of electricity bills instead of the four years at issue here.
And again, as recognized by Plaintiff in his trial brief, Defendant also continuously objected to
any testimony about damages due to Plaintiff’s failures to disclose any damages or calculations
as required by the rules, as well as because the Best Evidence Rule barred any such testimony.
DEFENDANT SOUTHERN SOLAR’S MOTION FOR NEW TRIAL PAGE 7
Plaintiff had no live pleading and made no required disclosures (1) to support any claim
for exemplary damages, or (2) to support any claim of a DTPA violation based on
unconscionable or “knowing” actions by Defendant. Although Plaintiff’s live pleading, being
the Original Petition, did state Plaintiff sought total damages of less than $250,000.00, Plaintiff
failed to disclose the method of calculating economic damages or exemplary damages. Then, as
another example of trial by ambush, despite representation in pre-trial communications that
Plaintiff would not be seeking exemplary damages, Plaintiff obtained an egregiously high verdict
on exemplary damages and amended its Petition post-verdict to raise its damage cap to over
$500,000, an egregious abuse of process.
Directed verdict was mandatory and the failure to grant same reversible error. This
Motion for New Trial must be granted.
C. DISCLOSURE ISSUE ASIDE, NEW TRIAL MUST BE GRANTED
i. The General Standard for New Trial
Under TRCP 324.1(b), a point in a motion for new trial is a prerequisite to the following
complaints on appeal: . . . (2) A complaint of factual insufficiency of the evidence to support a
jury finding; (3) A complaint that a jury finding is against the overwhelming weight of the
evidence; (4) A complaint of inadequacy or excessiveness of the damages found by the jury . . . .
All three of those issues apply to the jury’s findings in this case. Even aside from
Plaintiff’s blatant disclosure failures necessitating Directed Verdict, there was no competent
evidence to support the jury’s finding. Even if there were a tiny scintilla of proof, such as Mr.
Hernandez’s completely self-serving ipse dixit testimony with no actual proof of electricity bills,
tax returns, bank statements or solar output records, the “overwhelming weight” of the evidence
failed to support the jury’s findings. The Contract was in evidence, it was not rescinded or
DEFENDANT SOUTHERN SOLAR’S MOTION FOR NEW TRIAL PAGE 8
canceled for fraud of any kind as Plaintiff dropped his fraud claims and declaratory judgment
claims, and its terms completely contradict each and every claim by the Plaintiff. The Parol
Evidence Rule barred any testimony contradicting the terms of the parties’ written agreement.
The trial Court also improperly overruled Defendant’s proper objections to testimony by
Plaintiff’s witnesses or improperly sustained objections lodged by Plaintiff’s counsel on several
occasions. In a “Trial Brief” submitted to the Court during trial by Plaintiff, Plaintiff recognized
that Defendant consistently objected to both inadmissible written “exhibits” and to oral
testimony on damages or liability due to lack of disclosure. Even with the testimony admitted
improperly, there still was no legally sufficient evidence to support the jury’s findings.
Moreover, even if there were some proper finding of liability, the jury’s damage award
was obviously and blatantly excessive. In short, it would end upon giving Plaintiff over 100
years of free electricity, and that does not even include the fact that Plaintiff would own these 68
solar panels outright and by such ownership would get even more free years of electricity.
Finally, the jury’s rejection of Defendant’s Affirmative Defense of Accord and
Satisfaction was against the overwhelming weight of the evidence—Mrs. Hernandez admitted
that months after the Agreement in question was signed and the solar system installed, Southern
gave Plaintiff an additional $36,000 of benefits not required by the Contract and thus “did right”
by Plaintiff. The doctrine directly applied and that defense should have been upheld as having
been proved by a great weight of evidence.
ii. Plaintiff’s Lack of Competent Evidence
At trial, Plaintiff never introduced any actual evidence to support his claims. As such, the
final verdict was based on no competent evidence at all and must be disregarded.
Among other things, the following are some of Plaintiff’s failures in proof:
DEFENDANT SOUTHERN SOLAR’S MOTION FOR NEW TRIAL PAGE 9
a. Plaintiff did not introduce any electricity bills.
b. Plaintiff did not introduce his tax returns to support the tax credit claims.
c. Plaintiff did not introduce any other evidence of income, income taxes, pay stubs
or income information of any kind to establish Plaintiff’s tax burdens or lack
thereof.
d. Plaintiff did not introduce any evidence to show that the solar system does not
work, or never worked, or is not currently working. This despite the fact that
Plaintiff admitted on cross (after first denying it) that he had been given a
computer application (“app’) which monitors solar production and that he used it.
He simply testified that the app, like the solar system itself, “did not work.”
i. Did Plaintiff’s counsel ever once think to inquire about how to measure
solar production or get records from the company which runs the app?
ii. Did Plaintiff’s counsel ever review Plaintiff’s electricity bills to see the
actual costs to Plaintiff and the solar system’s input to reduce those costs?
Both would be shown by the electricity bills.
e. Plaintiff did not introduce any payment receipts or even his own banking records
to prove that he ever made a single payment to anyone for anything related to
either electricity or the loan he took to buy the solar system.
f. The uncontroverted testimony regarding the tax credit from Southern’s
representative Joshua Moore was that it lasts for 5 years and is thus still alive to
be claimed, and that it can be assigned to someone else living in the household.
As such, the tax credit issue wasn’t even ripe for consideration as an element of
liability or damages.
DEFENDANT SOUTHERN SOLAR’S MOTION FOR NEW TRIAL PAGE 10
g. On cross, Mrs. Hernandez admitted Southern gave Plaintiff $36,000 worth of
extra solar panels and 22 months’ worth of solar loan payments in an effort to
“make things right” with herself and her husband, Southern’s customer. Then
Mrs. Hernandez was asked “Did Southern make things right with you our
customer?” Mrs. Hernandez said “Yes.”
i. That answer completely vitiates Plaintiff’s claims of pre-contractual bad
acts and misrepresentations, since those measures by Southern took place
months after the contract was signed. Southern did not just disappear and
fail to respond. Instead, Southern affirmatively acted to fix perceived
issues raised by Plaintiff and made things right by Mrs. Hernandez’s own
admission.
Plaintiff’s only attempt at introducing “evidence” came in the form of totally self-serving,
conclusory and potentially perjurious testimony. All of these statements were mere ipse dixit,
which is defined as follows:
The term "ipse dixit" originated from the Latin phrase meaning "he
himself said it." In legal terms, it refers to a statement or argument
that is accepted as true solely because of the authority of the person
who made it, rather than based on any supporting evidence or
logic. This is often viewed as a fallacy in legal reasoning, as it
lacks a sound foundation for drawing any conclusions. Legal-
Explanations.com (Emphasis supplied).
Plaintiff’s only purported proof of damages was testimony from his client. Throughout
the trial and especially in his closing, counsel consistently and vehemently told the jury and this
Court that oral testimony is evidence so written proof is not required. Maybe in another case that
might be true but not this one. This case required written, admissible, authentic proofs. All of
Plaintiff’s testimony was obvious ipse dixit without supporting evidence or logic, and it also
DEFENDANT SOUTHERN SOLAR’S MOTION FOR NEW TRIAL PAGE 11
violated the Best Evidence Rule and hearsay—he essentially testified to what third-party
business records “say” content-wise without introducing those records or obtaining admissible
versions of same. And of course, that testimony was about the “truth of the matter asserted,”
despite Plaintiff’s counsel’s constant attempts during trial to parse hairs on several lines of
testimony and say it was not for the truth. This testimony also consistently violated the Parol
Evidence Rule.
As Plaintiff has repeatedly indicated, this case was and has always been about the cost of
electricity and the solar system’s workings, along with some tax credit allegations. The
following is damages Question No. 3 from the Jury Charge (emphasis supplied):
QUESTION 3:
What sum of money, if any, if paid now in cash, would fairly and reasonably
compensate Jesus Hernandez for his damages, if any, that resulted from such conduct?
Consider the following elements of damages, if any, and none other.
Expenses. The payments, including interest, paid by Jesus Hernandez for the
solar panels.
Loss of the benefit of the bargain. The difference between the monthly power
bills promised by Southern Solar and the actual power bills incurred. The
difference between the tax credits promised by Southern Solar and the actual tax
credits received.
In answering questions about damages, answer each question separately. Do not
increase or reduce the amount in one answer because of your answer to any other
question about damages. Do not speculate about what any party’s ultimate recovery may
or may not be. Any recovery will be determined by the court when it applies the law to
your answers at the time of judgment. Do not add any amount for interest on damages, if
any.
Answer separately in dollars and cents for damages, if any.
1. Expenses sustained in the past.
Answer: _______________
DEFENDANT SOUTHERN SOLAR’S MOTION FOR NEW TRIAL PAGE 12
2. Expenses that, in reasonable probability, Jesus Hernandez will sustain in the
future.
Answer: _______________
3. Loss of the benefit of the bargain sustained in the past.
Answer: _______________
4. Loss of the benefit of the bargain that, in reasonable probability, Jesus
Hernandez will sustain in the future.
Answer: _______________
The defined damage terms in the Charge were not satisfied by Plaintiff because he did
not introduce any “actual power bills incurred.”
The damage terms also precluded any recovery regarding the tax credit because Plaintiff
did not introduce any tax returns to demonstrate the “actual tax credits received.” In addition,
Defendant’s witness testified without objection that the tax credit lasts for five years and thus is
still claimable and is, in fact, assignable to a household member. The tax credit thus was not
even ripe for consideration as an element of damages.
The damage terms in the Charge also required Plaintiff to prove the “payments paid by
Jesus Hernandez” for the solar panels. Plaintiff did not introduce any evidence at all that Mr.
Hernandez ever paid anything to anyone for this solar system. No receipts. No bank records.
No records from alleged payees. Nothing. And Plaintiff literally nonsuited his claims against
the lender which would tend to indicate that Plaintiff’s loan obligations were terminated at some
point for some reason.
Plaintiff also wholly failed to prove that the solar system did not work, or never worked,
or is not working currently. It was Plaintiff’s burden to prove that by a preponderance of the
evidence and he failed.
DEFENDANT SOUTHERN SOLAR’S MOTION FOR NEW TRIAL PAGE 13
The Court recognized these huge obstacles to any recovery in the hearing on Southern’s
Motion for Directed Verdict after Plaintiff closed his evidence. There simply could not have
been any proper findings of liability or damages for the Plaintiff without any power bills,
payment receipts or bank records of payments, tax returns or proof that the solar system does not
work. The Court’s open-Court admission of struggling to find that Plaintiff had introduced
“more than a scintilla” of evidence was telling. Also very telling is that Plaintiff did not
introduce any of his closing-argument damage numbers in his case-in-chief. Directed Verdict
should have been granted. This Motion for New Trial must be granted to the lack of any
evidence even close to sufficient to support the jury’s findings.
D. DEFENDANT CONCLUSIVELY ESTABLISHED ITS AFFIRMATIVE
DEFENSE OF ACCORD AND SATISFACTION
Both Mr. and Mrs. Hernandez admitted in their testimony that Southern provided them
with $36,000 in additional benefits not required by the Installation Agreement after Plaintiff had
been complaining about things. Then on cross-examination, Mrs. Hernandez admitted Southern
gave Plaintiff $36,000 worth of extra solar panels and 22 months’ worth of solar loan payments
in an effort to “make things right” with herself and her husband, Southern’s customer. Then
Mrs. Hernandez was asked “Did Southern make things right with you our customer?”
Mrs. Hernandez said “Yes.”
That answer 100% established Southern’s defense of Accord and Satisfaction. The PJC
on that doctrine instructs that the defense is established if the parties agree on a different
performance than that for which the parties initially contracted. In this case, the different
performance was the extra $36,000 worth of panels and loan payments by Southern, and both
were accepted by Plaintiff and his wife in satisfaction of their complaints. Of this there can be
DEFENDANT SOUTHERN SOLAR’S MOTION FOR NEW TRIAL PAGE 14
no doubt. 2 And unlike a normal case of Accord and Satisfaction, which typically involves a
party doing less than what the original contract required, Southern did substantially more than
the the Solar Installation Agreement required. Southern did right by its customer and its defense
should have been upheld by the jury. The jury’s finding otherwise was against the great weight
and preponderance of the evidence and this Motion for New Trial should be granted.
CONCLUSION AND PRAYER
For the reasons stated above, Defendant Southern Solar requests that the Court grant
Southern’s Motion for New Trial, vacate the Judgment of December 7, 2023 and for such other
and further relief as may be warranted in the circumstances.
Respectfully submitted,
THE AVERILL FIRM
/s/ Martin P. Averill
Martin P. Averill, Founder
State Bar No.: 24025231
Attorneys for Plaintiff
averillfirm@gmail.com
cc: averillfirm.asmith@gmail.com
2619 Hibernia Street #4
Dallas, Texas 75204
Tel: 214-878-9822
COUNSEL FOR DEFENDANT SOUTHERN
SOLAR, LLC
2
It must be noted that subtracting the extra $36,000 provided by Southern from the original purchase price of
$60,000 means that Plaintiff ended up with 68 solar panels, not the original 43, for the total price of $24,000.
Interestingly, that number is eerily close to what Plaintiff’s counsel promised in his only pre-trial disclosure email
regarding alleged damages.
DEFENDANT SOUTHERN SOLAR’S MOTION FOR NEW TRIAL PAGE 15
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing was served on all counsel of record
by Efile on the 8th day of January, 2024.
/s/ Marty Averill
Martin P. Averill
DEFENDANT SOUTHERN SOLAR’S MOTION FOR NEW TRIAL PAGE 16
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Marty Averill on behalf of Marty Averill
Bar No. 24025231
averillfirm@gmail.com
Envelope ID: 83202426
Filing Code Description: Counter Claim
Filing Description: CHANGE TO MOTION FOR NEW TRIAL
Status as of 1/9/2024 9:04 AM CST
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Ashley Burch averillfirm.asmith@gmail.com 1/8/2024 6:02:13 PM SENT
Philip DRacusin eservicehou@cwlaw.com 1/8/2024 6:02:13 PM SENT
Giao Arnell giao@arnelllaw.com 1/8/2024 6:02:13 PM SENT
Karin Alonzo kalonzo@dallascourts.org 1/8/2024 6:02:13 PM SENT
Associated Case Party: SOUTHERN SOLAR, LLC
Name BarNumber Email TimestampSubmitted Status
Martin PAverill averillfirm@gmail.com 1/8/2024 6:02:13 PM SENT
Associated Case Party: JESUS HERNANDEZ
Name BarNumber Email TimestampSubmitted Status
MARCUS FIFER MARCUS@FIFER.LAW 1/8/2024 6:02:13 PM SENT
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FILED 1/8/2024 6:02 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Elizabeth Ferguson DEPUTY CAUSE NO. DC-22-07776 JESUS HERNANDEZ, § IN THE DISTRICT COURT § § § Plaintiff, § § v. § DALLAS COUNTY, TEXAS § SOUTHERN SOLAR, LLC, AND § GOODLEAP, LLC F/KA/ PARAMOUNT § EQUITY MORTGAGE D/B/A LOANPAL § § § Defendants. § 95th JUDICIAL DISTRICT SOUTHERN SOLAR’S MOTION FOR NEW TRIAL Defendant Southern Solar, LLC (“Southern” or “Defendant”) hereby files its Motion for New Trial and would respectfully show the Court as follows: SUMMARY OF ARGUMENT THIS CASE IS ALL ABOUT ELECTRICITY BILLS AND A SOLAR PANEL SYSTEM INSTALLED BY SOUTHERN ON PLAINTIFF’S HOME. PRIOR TO TRIAL AND INDEED PRIOR TO HIS CLOSING ARGUMENT, PLAINTIFF NEVER DISCLOSED HIS AMOUNT AND METHOD OF CALCULATING ECONOMIC DAMAGES REQUIRING THE EXCLUSION OF ANY SUCH CLAIMS AT TRIAL. PLAINTIFF ALSO DID NOT DISCLOSE THE LEGAL THEORIES AND FACTUAL BASES OF SAME PRIOR TO TRIAL. DEFENDANT’S MOTION FOR DIRECTED VERDICT SHOULD HAVE BEEN GRANTED BOTH TIMES IT WAS URGED, ONCE PRIOR TO TRIAL AND ONCE AFTER PLAINTIFF’S CASE CLOSED. THE JURY’S ULTIMATE FINDINGS WERE AGAINST THE GREAT WEIGHT OF THE EVIDENCE. TESTIMONY AT TRIAL ALSO CONCLUSIVELY ESTABLISHED SOUTHERN’S AFFIRMATIVE DEFENSE OF ACCORD AND SATISFACTION. IN SHORT, PLAINTIFF DID NOT PROVE HIS CASE AND BLATANTLY VIOLATED THE TRCP’S MANDATORY DISCLOSURE RULES REQUIRING THE GRANT OF THIS MOTION FOR NEW TRIAL. DEFENDANT SOUTHERN SOLAR’S MOTION FOR NEW TRIAL PAGE 1 I. NEW TRIAL SHOULD BE GRANTED ON SEVERAL GROUNDS A. PLAINTIFF FAILED TO DISCLOSE DAMAGES OR LIABILIITY THEORIES SO DIRECTED VERDICT WAS MANDATORY Under TRCP 193.6, the Court was required to exclude evidence and witnesses that were not timely disclosed in Plaintiff’s “discovery” before trial. TEX. R. CIV. P. 193.6(a). The Rule "is mandatory, and the penalty—exclusion of evidence—is automatic ...” See F 1 CONSTRUCTION, INC. v. BANZ, No. 05-19-00717-CV (Tex.App.—Dallas 5th Dist. 2021 (Memorandum Opinion). Disclosure of the amount of economic damages and the method by which they were calculated is probably the biggest of the disclosures required under TRCP 194.2(a)(4). Yet Plaintiff never served initial disclosures in this case at any time. In F-1 Construction, a very recent and compelling case from the Dallas Fifth District Court of Appeals, the Court examined a plaintiff’s failure to disclose its evidence of “actual or economic damages . . .,” exemplary damages and attorney’s fees based on claims for breach of contract, fraudulent inducement, negligent misrepresentation and common law fraud. Those claims are very similar to Plaintiff’s claims in this case. The plaintiff finally attempted to provide some evidence of damages shortly before trial in response to a motion to exclude. The trial court excluded the evidence and entered a take-nothing judgment against the plaintiff. The plaintiff appealed. The Court of Appeals affirmed the trial court’s exclusion of the evidence and the take-nothing judgment, holding as follows: Rule 193.6 requires the exclusion of evidence and witnesses that are not timely disclosed in response to discovery requests. TEX. R. CIV. P. 193.6(a). The Rule "is mandatory, and the penalty—exclusion of evidence—is automatic, absent a showing of: (1) good cause or (2) lack of unfair surprise or (3) unfair prejudice." Lopez v. La Madeleine of Tex., Inc., 200 S.W.3d 854, 860 (Tex. App.-Dallas 2006, no pet.). DEFENDANT SOUTHERN SOLAR’S MOTION FOR NEW TRIAL PAGE 2 The burden of establishing good cause or lack of unfair surprise or unfair prejudice is on the party seeking to introduce the evidence. TEX. R. CIV. P. 193.6(a). The good cause exception "allows a trial judge to excuse a party's failure to comply with discovery obligations in difficult or impossible circumstances." PopCap Games, Inc. v. MumboJumbo, LLC, 350 S.W.3d 699, 718 (Tex. App.-Dallas 2011, pet. denied). Inadvertence, lack of surprise, or the uniqueness of the offered evidence, however, do not constitute good cause. Id. If Construction failed to meet this burden, then under rule 193.6, the trial court's decision to exclude the evidence should be affirmed. See Cunningham v. Columbia/St. David's Healthcare Sys., L.P., 185 S.W.3d 7, 13 (Tex. App.-Austin 2005, no pet.). We review the trial court's decision for an abuse of discretion. VSDH Vaquero Venture, LTD. v. Gross, No. 05-19-00217-CV, 2020 WL 3248481, at *4 (Tex. App.-Dallas June 16, 2020, no pet.) (mem. op.). The general test for abuse of discretion is whether the trial court acted without regard to any guiding rules or principles. Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004). This occurs when either (1) the trial court fails to analyze or apply the law correctly, or (2) with regard to factual issues or matters committed to its discretion, the trial court could reasonably only reach one decision and failed to do so. Jaster-Quintanilla & Assocs., Inc. v. Prouty, 549 S.W.3d 183, 188 (Tex. App.-Austin 2018, no pet). The purposes of Rule 193.6 are threefold: (i) to promote responsible assessment of settlement, (ii) to prevent trial by ambush, and (iii) to give the other party the opportunity to prepare rebuttal to expert testimony. In re D.W.G.K., 558 S.W.3d 671, 680 (Tex. App.-Texarkana 2018, pet. denied). Accordingly, in order to establish the absence of unfair surprise or prejudice, the party seeking to call an untimely disclosed witness or introduce untimely disclosed evidence must establish that the other party had enough evidence to reasonably assess settlement, to avoid trial by ambush, and to prepare rebuttal to expert testimony. Id. Here, it is undisputed that the information was not timely provided. The requests for disclosure were outstanding for almost a year and no information was provided until the eve of trial. Construction acknowledged that its failure to respond was inadvertent. Although Construction argued that exclusion was a harsh penalty, it presented no evidence that it would have been difficult or impossible for it to have timely disclosed the evidence. Nor does Construction argue on appeal that there is evidence of good cause in the record. Likewise, Construction offered no evidence to demonstrate the absence of unfair surprise or prejudice. Indeed, there is nothing to suggest that Defendants had enough evidence to reasonably assess settlement, avoid DEFENDANT SOUTHERN SOLAR’S MOTION FOR NEW TRIAL PAGE 3 trial by ambush, or prepare rebuttal to expert testimony. See In re D.W.G.K., 558 S.W.3d at 680. In addition, Construction's argument that Banz's oral motion was inappropriate because Rule 215 sanctions require notice and a hearing is misplaced. Banz did not request discretionary sanctions for discovery abuse under Rule 215. Instead, Banz simply stated orally that he joined Gutierrez's written request for exclusion under Rule 193. We are aware of no authority, nor does Construction provide any, precluding the oral presentation of or joining in such a motion. Because Construction did not meet its burden to show good cause or lack of surprise or prejudice—an exception to Rule 193's automatic, mandatory exclusion penalty—the trial court did not abuse its discretion by excluding the untimely disclosed evidence. Id. at *3-*4 (Emphasis Supplied). In addition, as of January 1, 2021, TRCP 193.6 was amended to exclude evidence and witnesses that were not included in a party’s mandatory Rule 194.1 “disclosures,” and “[w]ithout awaiting a discovery request,” see TRCP 194.1. This rule change did not apply in F 1 Construction which predated it, but that makes Defendant’s Motion for New Trial even more compelling. B. DIRECTED VERDICT WAS MANDATORY i. Failure to Disclose and Procedural Background Plaintiff’s disclosure duties in the instant case were in existence for nearly over a year and a half prior to trial (not one year as in F 1) yet Plaintiff never disclosed anything. Plaintiff did not disclose (1) the legal theories and, in general, the factual bases of the responding party’s claims or defenses related to liability or exemplary damages; (2) the amount and any method of calculating economic or exemplary damages; or (3) a copy of description by category and location of all documents and information Plaintiff “may use to support its claims or defenses . . .” TRCP 194.2(b)(3), (4) and (6). DEFENDANT SOUTHERN SOLAR’S MOTION FOR NEW TRIAL PAGE 4 Just like the F 1 plaintiff, Hernandez did not prove good cause for the failure to disclose or any “evidence to demonstrate the absence of unfair surprise or prejudice . . . [nor anything] to suggest that Defendant[] had enough evidence to reasonably assess settlement, avoid trial by ambush, or prepare rebuttal to expert testimony. F 1 at 4, citing In re D.W.G.K., 558 S.W.3d at 680. If the party with the disclosure burden does not attempt to show good cause, the trial court has no discretion. Instead, under rule 193.6, the trial court possesses no discretion; it must exclude evidence not timely provided, amended, or supplemented in response to a discovery request in the absence of evidence showing good cause for the failure to respond or the lack of prejudice to the party opposing admission of the evidence. See, e.g., F 1; Beam v. A.H. Chaney, Inc., 56 S.W.3d 920, 924 (Tex. App.-Fort Worth 2001, pet. denied). The Rule "is mandatory, and the penalty—exclusion of evidence—is automatic ...: Automatic means the trial court has no discretion. “... [U]nder rule 193.6, the trial court possesses no discretion; it must exclude evidence not timely provided, amended, or supplemented in response to a discovery request in the absence of evidence showing good cause for the failure to respond or the lack of prejudice to the party opposing admission of the evidence. See, e.g., Beam, 56 S.W.3d at 924 (reversing case because trial court failed to apply the automatic exclusion of rule 193.6 even when no attempt was made to show good cause, lack of surprise, or prejudice by non-answering party). ii. Granting Defendant’s Motion for Directed Verdict Was Mandatory All of Plaintiff’s purported “evidence” should have been barred for Plaintiff’s complete failure to disclose as required by the Rules. Without any such evidence, directed verdict was mandatory. As a result, Defendant filed a pre-trial Motion for Directed Verdict. That Motion is attached hereto as Exhibit A for the Court’s easy reference. DEFENDANT SOUTHERN SOLAR’S MOTION FOR NEW TRIAL PAGE 5 The Motion should have been granted due to Plaintiff’s failure to disclose any damages amounts or calculations or to disclose its legal theories and factual bases for same. 1 Plaintiff also never disclosed, described or provided copies of documents or materials it planned to rely upon at trial to prove its claims as required by TRCP 194.2(b)(4). The Motion for Directed Verdict was even more appropriate than a mere motion to exclude, as it would decide the case given Plaintiff’s lack of evidence to support his claims, in particular the damages Plaintiff would later finally disclose during closing argument for the first time. The trial Court’s failure to grant the pre-trial Motion for Directed Verdict was error. Then, after conclusion of Plaintiff’s case-in-chief, Defendant reasserted its Motion for Directed Verdict. Despite noting that the Court was “struggling” with the scintilla of evidence standard given Plaintiff’s failure to introduce any electricity bills, or tax returns, or proof of payments of any sort, the Court improperly denied the Motion for Directed Verdict. By re- urging the Motion for Directed Verdict, Defendant continued its proper objection to Plaintiff recovering any damages given Plaintiff’s complete failure to disclose in violation of the rules (although such a continuing objection was not required after the initial Motion was denied). And even aside from Plaintiff’s complete failure to disclose its damages, Plaintiff did not introduce any proper and admissible evidence to support a finding of liability or damages so directed verdict was mandatory. The trial Court’s failure to exclude the evidence and grant the Motion for Directed Verdict was error even without additional efforts to preserve appeal (though Defendant 1 Even aside from the undisclosed “damages,” Plaintiff’s failure to disclose its legal theories and factual bases therefor is particularly egregious in this case, since Plaintiff literally dropped its fraud, fraudulent inducement and declaratory judgment claims at trial prior to closing. Dropping those claims meant that Plaintiff was not attempting to avoid, rescind or cancel the Solar Agreement at issue in this case. Without those claims, the contract remained in place and still remains in place. As such, the jury’s complete disregard for its terms was a blatant nullification and failure to comply with the Jury Instructions regarding their duties and the burden of proof. DEFENDANT SOUTHERN SOLAR’S MOTION FOR NEW TRIAL PAGE 6 consistently objected throughout the trial on various other valid grounds). As the Texas Supreme Court has observed, "[i]t would hardly be right to reward competent counsel's diligent preparation by excusing his opponent from complying with the requirements of the rules." Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 915 (Tex. 1992) (explaining that counsel should not be excused from the requirements of the rule without a strict showing of good cause). In other words, Defendant’s initial objections and Motion for Directed Verdict constituted a “running objection” throughout the course of the trial. Plaintiff’s failure to disclose absolutely resulted in “trial by ambush” and inability of Southern to responsibly assess settlement and prepare rebuttal expert testimony under F 1 and the cases cited therein, especially In re D.W.G.K. These tactics simply cannot be allowed and the Court was required to direct verdict against Plaintiff and exclude any such evidence. In addition, even had Plaintiff disclosed some of these theories and numbers, they were not actually proven at trial and the jury’s verdict was infirm as a result. During trial, Southern consistently objected to the presentation of any evidence of damages, electrical bills or alleged failure of solar output/input. Defendant’s objections to Plaintiff’s exhibits in that regard were sustained by the trial court and any such alleged evidence excluded pre-trial, not just because of Plaintiff’s failure to disclose it but also because Plaintiff’s purported evidence in that regard was not admissible as self-authenticating until TRE 902(10) in the absence of business records affidavits, and was also highly misleading as incomplete and only supposedly covering a few months of electricity bills instead of the four years at issue here. And again, as recognized by Plaintiff in his trial brief, Defendant also continuously objected to any testimony about damages due to Plaintiff’s failures to disclose any damages or calculations as required by the rules, as well as because the Best Evidence Rule barred any such testimony. DEFENDANT SOUTHERN SOLAR’S MOTION FOR NEW TRIAL PAGE 7 Plaintiff had no live pleading and made no required disclosures (1) to support any claim for exemplary damages, or (2) to support any claim of a DTPA violation based on unconscionable or “knowing” actions by Defendant. Although Plaintiff’s live pleading, being the Original Petition, did state Plaintiff sought total damages of less than $250,000.00, Plaintiff failed to disclose the method of calculating economic damages or exemplary damages. Then, as another example of trial by ambush, despite representation in pre-trial communications that Plaintiff would not be seeking exemplary damages, Plaintiff obtained an egregiously high verdict on exemplary damages and amended its Petition post-verdict to raise its damage cap to over $500,000, an egregious abuse of process. Directed verdict was mandatory and the failure to grant same reversible error. This Motion for New Trial must be granted. C. DISCLOSURE ISSUE ASIDE, NEW TRIAL MUST BE GRANTED i. The General Standard for New Trial Under TRCP 324.1(b), a point in a motion for new trial is a prerequisite to the following complaints on appeal: . . . (2) A complaint of factual insufficiency of the evidence to support a jury finding; (3) A complaint that a jury finding is against the overwhelming weight of the evidence; (4) A complaint of inadequacy or excessiveness of the damages found by the jury . . . . All three of those issues apply to the jury’s findings in this case. Even aside from Plaintiff’s blatant disclosure failures necessitating Directed Verdict, there was no competent evidence to support the jury’s finding. Even if there were a tiny scintilla of proof, such as Mr. Hernandez’s completely self-serving ipse dixit testimony with no actual proof of electricity bills, tax returns, bank statements or solar output records, the “overwhelming weight” of the evidence failed to support the jury’s findings. The Contract was in evidence, it was not rescinded or DEFENDANT SOUTHERN SOLAR’S MOTION FOR NEW TRIAL PAGE 8 canceled for fraud of any kind as Plaintiff dropped his fraud claims and declaratory judgment claims, and its terms completely contradict each and every claim by the Plaintiff. The Parol Evidence Rule barred any testimony contradicting the terms of the parties’ written agreement. The trial Court also improperly overruled Defendant’s proper objections to testimony by Plaintiff’s witnesses or improperly sustained objections lodged by Plaintiff’s counsel on several occasions. In a “Trial Brief” submitted to the Court during trial by Plaintiff, Plaintiff recognized that Defendant consistently objected to both inadmissible written “exhibits” and to oral testimony on damages or liability due to lack of disclosure. Even with the testimony admitted improperly, there still was no legally sufficient evidence to support the jury’s findings. Moreover, even if there were some proper finding of liability, the jury’s damage award was obviously and blatantly excessive. In short, it would end upon giving Plaintiff over 100 years of free electricity, and that does not even include the fact that Plaintiff would own these 68 solar panels outright and by such ownership would get even more free years of electricity. Finally, the jury’s rejection of Defendant’s Affirmative Defense of Accord and Satisfaction was against the overwhelming weight of the evidence—Mrs. Hernandez admitted that months after the Agreement in question was signed and the solar system installed, Southern gave Plaintiff an additional $36,000 of benefits not required by the Contract and thus “did right” by Plaintiff. The doctrine directly applied and that defense should have been upheld as having been proved by a great weight of evidence. ii. Plaintiff’s Lack of Competent Evidence At trial, Plaintiff never introduced any actual evidence to support his claims. As such, the final verdict was based on no competent evidence at all and must be disregarded. Among other things, the following are some of Plaintiff’s failures in proof: DEFENDANT SOUTHERN SOLAR’S MOTION FOR NEW TRIAL PAGE 9 a. Plaintiff did not introduce any electricity bills. b. Plaintiff did not introduce his tax returns to support the tax credit claims. c. Plaintiff did not introduce any other evidence of income, income taxes, pay stubs or income information of any kind to establish Plaintiff’s tax burdens or lack thereof. d. Plaintiff did not introduce any evidence to show that the solar system does not work, or never worked, or is not currently working. This despite the fact that Plaintiff admitted on cross (after first denying it) that he had been given a computer application (“app’) which monitors solar production and that he used it. He simply testified that the app, like the solar system itself, “did not work.” i. Did Plaintiff’s counsel ever once think to inquire about how to measure solar production or get records from the company which runs the app? ii. Did Plaintiff’s counsel ever review Plaintiff’s electricity bills to see the actual costs to Plaintiff and the solar system’s input to reduce those costs? Both would be shown by the electricity bills. e. Plaintiff did not introduce any payment receipts or even his own banking records to prove that he ever made a single payment to anyone for anything related to either electricity or the loan he took to buy the solar system. f. The uncontroverted testimony regarding the tax credit from Southern’s representative Joshua Moore was that it lasts for 5 years and is thus still alive to be claimed, and that it can be assigned to someone else living in the household. As such, the tax credit issue wasn’t even ripe for consideration as an element of liability or damages. DEFENDANT SOUTHERN SOLAR’S MOTION FOR NEW TRIAL PAGE 10 g. On cross, Mrs. Hernandez admitted Southern gave Plaintiff $36,000 worth of extra solar panels and 22 months’ worth of solar loan payments in an effort to “make things right” with herself and her husband, Southern’s customer. Then Mrs. Hernandez was asked “Did Southern make things right with you our customer?” Mrs. Hernandez said “Yes.” i. That answer completely vitiates Plaintiff’s claims of pre-contractual bad acts and misrepresentations, since those measures by Southern took place months after the contract was signed. Southern did not just disappear and fail to respond. Instead, Southern affirmatively acted to fix perceived issues raised by Plaintiff and made things right by Mrs. Hernandez’s own admission. Plaintiff’s only attempt at introducing “evidence” came in the form of totally self-serving, conclusory and potentially perjurious testimony. All of these statements were mere ipse dixit, which is defined as follows: The term "ipse dixit" originated from the Latin phrase meaning "he himself said it." In legal terms, it refers to a statement or argument that is accepted as true solely because of the authority of the person who made it, rather than based on any supporting evidence or logic. This is often viewed as a fallacy in legal reasoning, as it lacks a sound foundation for drawing any conclusions. Legal- Explanations.com (Emphasis supplied). Plaintiff’s only purported proof of damages was testimony from his client. Throughout the trial and especially in his closing, counsel consistently and vehemently told the jury and this Court that oral testimony is evidence so written proof is not required. Maybe in another case that might be true but not this one. This case required written, admissible, authentic proofs. All of Plaintiff’s testimony was obvious ipse dixit without supporting evidence or logic, and it also DEFENDANT SOUTHERN SOLAR’S MOTION FOR NEW TRIAL PAGE 11 violated the Best Evidence Rule and hearsay—he essentially testified to what third-party business records “say” content-wise without introducing those records or obtaining admissible versions of same. And of course, that testimony was about the “truth of the matter asserted,” despite Plaintiff’s counsel’s constant attempts during trial to parse hairs on several lines of testimony and say it was not for the truth. This testimony also consistently violated the Parol Evidence Rule. As Plaintiff has repeatedly indicated, this case was and has always been about the cost of electricity and the solar system’s workings, along with some tax credit allegations. The following is damages Question No. 3 from the Jury Charge (emphasis supplied): QUESTION 3: What sum of money, if any, if paid now in cash, would fairly and reasonably compensate Jesus Hernandez for his damages, if any, that resulted from such conduct? Consider the following elements of damages, if any, and none other. Expenses. The payments, including interest, paid by Jesus Hernandez for the solar panels. Loss of the benefit of the bargain. The difference between the monthly power bills promised by Southern Solar and the actual power bills incurred. The difference between the tax credits promised by Southern Solar and the actual tax credits received. In answering questions about damages, answer each question separately. Do not increase or reduce the amount in one answer because of your answer to any other question about damages. Do not speculate about what any party’s ultimate recovery may or may not be. Any recovery will be determined by the court when it applies the law to your answers at the time of judgment. Do not add any amount for interest on damages, if any. Answer separately in dollars and cents for damages, if any. 1. Expenses sustained in the past. Answer: _______________ DEFENDANT SOUTHERN SOLAR’S MOTION FOR NEW TRIAL PAGE 12 2. Expenses that, in reasonable probability, Jesus Hernandez will sustain in the future. Answer: _______________ 3. Loss of the benefit of the bargain sustained in the past. Answer: _______________ 4. Loss of the benefit of the bargain that, in reasonable probability, Jesus Hernandez will sustain in the future. Answer: _______________ The defined damage terms in the Charge were not satisfied by Plaintiff because he did not introduce any “actual power bills incurred.” The damage terms also precluded any recovery regarding the tax credit because Plaintiff did not introduce any tax returns to demonstrate the “actual tax credits received.” In addition, Defendant’s witness testified without objection that the tax credit lasts for five years and thus is still claimable and is, in fact, assignable to a household member. The tax credit thus was not even ripe for consideration as an element of damages. The damage terms in the Charge also required Plaintiff to prove the “payments paid by Jesus Hernandez” for the solar panels. Plaintiff did not introduce any evidence at all that Mr. Hernandez ever paid anything to anyone for this solar system. No receipts. No bank records. No records from alleged payees. Nothing. And Plaintiff literally nonsuited his claims against the lender which would tend to indicate that Plaintiff’s loan obligations were terminated at some point for some reason. Plaintiff also wholly failed to prove that the solar system did not work, or never worked, or is not working currently. It was Plaintiff’s burden to prove that by a preponderance of the evidence and he failed. DEFENDANT SOUTHERN SOLAR’S MOTION FOR NEW TRIAL PAGE 13 The Court recognized these huge obstacles to any recovery in the hearing on Southern’s Motion for Directed Verdict after Plaintiff closed his evidence. There simply could not have been any proper findings of liability or damages for the Plaintiff without any power bills, payment receipts or bank records of payments, tax returns or proof that the solar system does not work. The Court’s open-Court admission of struggling to find that Plaintiff had introduced “more than a scintilla” of evidence was telling. Also very telling is that Plaintiff did not introduce any of his closing-argument damage numbers in his case-in-chief. Directed Verdict should have been granted. This Motion for New Trial must be granted to the lack of any evidence even close to sufficient to support the jury’s findings. D. DEFENDANT CONCLUSIVELY ESTABLISHED ITS AFFIRMATIVE DEFENSE OF ACCORD AND SATISFACTION Both Mr. and Mrs. Hernandez admitted in their testimony that Southern provided them with $36,000 in additional benefits not required by the Installation Agreement after Plaintiff had been complaining about things. Then on cross-examination, Mrs. Hernandez admitted Southern gave Plaintiff $36,000 worth of extra solar panels and 22 months’ worth of solar loan payments in an effort to “make things right” with herself and her husband, Southern’s customer. Then Mrs. Hernandez was asked “Did Southern make things right with you our customer?” Mrs. Hernandez said “Yes.” That answer 100% established Southern’s defense of Accord and Satisfaction. The PJC on that doctrine instructs that the defense is established if the parties agree on a different performance than that for which the parties initially contracted. In this case, the different performance was the extra $36,000 worth of panels and loan payments by Southern, and both were accepted by Plaintiff and his wife in satisfaction of their complaints. Of this there can be DEFENDANT SOUTHERN SOLAR’S MOTION FOR NEW TRIAL PAGE 14 no doubt. 2 And unlike a normal case of Accord and Satisfaction, which typically involves a party doing less than what the original contract required, Southern did substantially more than the the Solar Installation Agreement required. Southern did right by its customer and its defense should have been upheld by the jury. The jury’s finding otherwise was against the great weight and preponderance of the evidence and this Motion for New Trial should be granted. CONCLUSION AND PRAYER For the reasons stated above, Defendant Southern Solar requests that the Court grant Southern’s Motion for New Trial, vacate the Judgment of December 7, 2023 and for such other and further relief as may be warranted in the circumstances. Respectfully submitted, THE AVERILL FIRM /s/ Martin P. Averill Martin P. Averill, Founder State Bar No.: 24025231 Attorneys for Plaintiff averillfirm@gmail.com cc: averillfirm.asmith@gmail.com 2619 Hibernia Street #4 Dallas, Texas 75204 Tel: 214-878-9822 COUNSEL FOR DEFENDANT SOUTHERN SOLAR, LLC 2 It must be noted that subtracting the extra $36,000 provided by Southern from the original purchase price of $60,000 means that Plaintiff ended up with 68 solar panels, not the original 43, for the total price of $24,000. Interestingly, that number is eerily close to what Plaintiff’s counsel promised in his only pre-trial disclosure email regarding alleged damages. DEFENDANT SOUTHERN SOLAR’S MOTION FOR NEW TRIAL PAGE 15 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing was served on all counsel of record by Efile on the 8th day of January, 2024. /s/ Marty Averill Martin P. Averill DEFENDANT SOUTHERN SOLAR’S MOTION FOR NEW TRIAL PAGE 16 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Marty Averill on behalf of Marty Averill Bar No. 24025231 averillfirm@gmail.com Envelope ID: 83202426 Filing Code Description: Counter Claim Filing Description: CHANGE TO MOTION FOR NEW TRIAL Status as of 1/9/2024 9:04 AM CST Case Contacts Name BarNumber Email TimestampSubmitted Status Ashley Burch averillfirm.asmith@gmail.com 1/8/2024 6:02:13 PM SENT Philip DRacusin eservicehou@cwlaw.com 1/8/2024 6:02:13 PM SENT Giao Arnell giao@arnelllaw.com 1/8/2024 6:02:13 PM SENT Karin Alonzo kalonzo@dallascourts.org 1/8/2024 6:02:13 PM SENT Associated Case Party: SOUTHERN SOLAR, LLC Name BarNumber Email TimestampSubmitted Status Martin PAverill averillfirm@gmail.com 1/8/2024 6:02:13 PM SENT Associated Case Party: JESUS HERNANDEZ Name BarNumber Email TimestampSubmitted Status MARCUS FIFER MARCUS@FIFER.LAW 1/8/2024 6:02:13 PM SENT