Preview
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 JUDGMENT NON OBSTANTE VEREDICTO
Defendant Southern Solar, LLC (“Southern”) hereby files its Motion for Judgment
Notwithstanding the Verdict 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.
PLAINTIFF DID NOT INTRODUCE ANY POWER BILLS INTO EVIDENCE
AT TRIAL NOR ANY EVIDENCE THAT THE SOLAR PANELS DO NOT
WORK. PLAINTIFF ALSO DID NOT INTRODUCE ANY TAX RETURNS OR
OTHER PROOF THAT PLAINTIFF DID NOT RECEIVE THE FEDERAL
SOLAR TAX CREDIT THAT WAS (AND REMAINS) AVAILABLE FOR THIS
SOLAR SYSTEM. PLAINTIFF’S WIFE ALSO ADMITTED THAT SOUTHERN
“DID RIGHT” BY PLAINTIFF AND HERSELF BY GIVING THEM AN
ADDITIONAL $36,000 OF BENEFITS MONTHS AFTER THE ACTS
COMPLAINED OF IN THIS CASE, THUS ESTABLISHING SOUTHERN’S
DEFENSE OF ACCORD AND SATISFACTION. PLAINTIFF NEVER
DISCLOSED AT ANY TIME ITS AMOUNT AND METHOD OF
CALCULATING ECONOMIC DAMAGES BEFORE TRIAL, REQUIRING THE
EXCLUSION OF ANY SUCH CLAIMS AT TRIAL. IN SHORT, PLAINTIFF
DID NOT PROVE HIS CASE. JURY NULLIFICATION AND SYMPATHY IS
NOT ENOUGH. THE VERDICT MUST BE DISREGARDED.
SOUTHERN SOLAR’S MOTION FOR JUDGMENT NON OBSTANTE VERDICTO PAGE 1
EXHIBIT A
I. PLAINTIFF’S LACK OF EVIDENCE
1. At trial, Plaintiff never introduced any actual evidence to support his damage
claims. As such, the final verdict was based on no competent evidence at all and must be
disregarded.
2. 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).
3. Plaintiff’s only purported proof 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.
4. 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.
SOUTHERN SOLAR’S MOTION FOR JUDGMENT NON OBSTANTE VERDICTO PAGE 2
EXHIBIT A
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: _______________
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: _______________
5. The defined damage terms in the Charge were not satisfied by Plaintiff because he
did not introduce any “actual power bills incurred.”
6. 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.”
7. The damage terms 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.
SOUTHERN SOLAR’S MOTION FOR JUDGMENT NON OBSTANTE VERDICTO PAGE 3
EXHIBIT A
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.
8. 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 miserably.
9. The Court recognized these huge obstacles to any recovery in the hearing on
Southern’s Motion for Directed Verdict. There simply cannot be any kind of liability or damage
findings for the Plaintiff without any power bills or tax returns in evidence. 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 its closing-
argument damage numbers in his case-in-chief. Had the Court seen those outrageous numbers
at that time, the undersigned believes the Court without a doubt would have granted the Motion
for Directed Verdict as not even close to a scintilla of evidence existed to support them.
10. Among other things, the following are some of Plaintiff’s failures in proof:
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
SOUTHERN SOLAR’S MOTION FOR JUDGMENT NON OBSTANTE VERDICTO PAGE 4
EXHIBIT A
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 of 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, it wasn’t even ripe for consideration as any element of liability or
damages.
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
SOUTHERN SOLAR’S MOTION FOR JUDGMENT NON OBSTANTE VERDICTO PAGE 5
EXHIBIT A
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.
h. Mrs. Hernandez’s answers in that regard also 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 no doubt.
i. 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.
11. Finally, Plaintiff never pled breach of contract or breach of warranty. These
complaints about the capacity and performance of the system are obviously mere breach of
contract or warranty claims, but Plaintiff has never made such claims in this case nor provided
any documentation or evidence to back them up. The only live causes of action Plaintiff had at
trial were two naked DTPA claims. Plaintiff even dropped his fraudulent inducement and
declaratory judgment claims, and never pled Rescission to void the contract. Thus, the
Installation contract was in evidence and it affirmatively negates Plaintiff’s claims. And the 25-
SOUTHERN SOLAR’S MOTION FOR JUDGMENT NON OBSTANTE VERDICTO PAGE 6
EXHIBIT A
year warranty in the contract was never called upon by Plaintiff, who simply just sued instead of
asking Southern to fix any perceived problems. Obviously, Plaintiff wants to keep the solar
panels and the obvious benefits they are providing, whilst also keeping a large damage award
and getting free electricity for over 100 years, which is patently absurd.
II. Exclusion of Any Evidence of Liability or Damages by Plaintiff Was Mandatory
1. 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,
Court of Appeals of Texas, Fifth District, Dallas (Tex.App.—Dallas 5th Dist. 2021).
2. 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. The plaintiff finally attempted to provide some evidence of
damages on the day before trial in response to a motion to exclude.
3. 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.).
SOUTHERN SOLAR’S MOTION FOR JUDGMENT NON OBSTANTE VERDICTO PAGE 7
EXHIBIT A
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
SOUTHERN SOLAR’S MOTION FOR JUDGMENT NON OBSTANTE VERDICTO PAGE 8
EXHIBIT A
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.
4. F 1 Construction and Rule 193.6 required the exclusion of any evidence from
Plaintiff of either economic or punitive damages. 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 exclusion of the evidence is not discretionary—it is mandatory.
5. 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 this Motion for JNOV
even more compelling. Plaintiff’s disclosure duties in the instant case were in
existence for nearly two years prior to trial (not one year as in F 1) yet Plaintiff never
disclosed anything. Plaintiff did not plead or disclose (1) the legal theories and, in
general, the factual bases of the responding party’s claims or defenses related to
SOUTHERN SOLAR’S MOTION FOR JUDGMENT NON OBSTANTE VERDICTO PAGE 9
EXHIBIT A
liability or exemplary damages, or (2) the amount and any method of calculating
economic or exemplary damages.
6. Like the plaintiff in F 1 Construction, Plaintiff also did not present any testimony or
evidence about whether (1) there was good cause for Plaintiff’s failure to timely
make, amend, or supplement the discovery response1; or (2) the failure to timely
make, amend, or supplement the discovery response would not unfairly surprise or
unfairly prejudice the other parties, see, TRCP 193.6(b). Plaintiff at trial ignored and
by Plaintiff’s Motion to Amend continues to ignore that, under TRCP 193.6(b), the
“burden of establishing good cause or the lack of unfair surprise or unfair prejudice
is on the party seeking to introduce the evidence or call the witness.”
7. In this 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.
8. Plaintiff has no pleading and made no required disclosure (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
1
“Discovery” as used in 193.6 includes “required disclosures.” See, TRCP 192, which as of January 1, 2021, struck
out “requests for disclosures” and replaced it with “required disclosures.”
SOUTHERN SOLAR’S MOTION FOR JUDGMENT NON OBSTANTE VERDICTO PAGE 10
EXHIBIT A
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.
9. In addition to Plaintiff’s multiple and fatal non-disclosure errors, Plaintiff’s own
Requests for Production and Interrogatories did not even ask how solar output and
generation would be measured, who would measure it, what types of records would
exist showing such output and generation, or even how such solar output would be
shown as “generation credits” or the like on Plaintiff’s electricity bills. Plaintiff also
never took a deposition of any representative of Southern to ask questions like this.
Instead, apparently Plaintiff’s counsel decided to brazenly ignore their investigation
responsibilities and duties to verify their client’s story and claims and just go forward
at trial with patently false accusations and failures of proof.
III. JNOV Must be Granted
JNOV is appropriate where directed verdict would have been appropriate. Plaintiff had
not a scintilla of evidence to support his claims, and any purported evidence he did have was
required to be excluded under Rule 193.6 and F 1 Construction. Plaintiff’s tactics of trial by
ambush cannot be allowed to stand.
Simply put, there is no way that any reasonable person could deduce from Plaintiff’s
“evidence” that Southern was liable for anything, especially since it was never proven that the
solar system does not work, that the tax credit was not actually applied for, denied or not
received, and that actual electricity costs exceeded anything, or that Mr. Hernandez actually paid
anything to anyone.
SOUTHERN SOLAR’S MOTION FOR JUDGMENT NON OBSTANTE VERDICTO PAGE 11
EXHIBIT A
Southern is confident that had the Presiding Judge been made aware of Plaintiff’s
enormous damage claims, which were never disclosed to the undersigned or to the Court at any
time prior to closing, the Court would have granted directed verdict.
D. CONCLUSION AND PRAYER
12. For the reasons stated above, Defendant Southern Solar requests that the Court
deny grant Southern’s Motion for Judgment Non Obstante Veredicto, set aside the jury’s verdict,
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
SOUTHERN SOLAR’S MOTION FOR JUDGMENT NON OBSTANTE VERDICTO PAGE 12
EXHIBIT A
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing was served on all counsel of record
by Efile on the 5th day of December, 2023.
/s/ Marty Averill
Martin P. Averill
SOUTHERN SOLAR’S MOTION FOR JUDGMENT NON OBSTANTE VERDICTO PAGE 13
EXHIBIT A
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
Preview
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 JUDGMENT NON OBSTANTE VEREDICTO Defendant Southern Solar, LLC (“Southern”) hereby files its Motion for Judgment Notwithstanding the Verdict 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. PLAINTIFF DID NOT INTRODUCE ANY POWER BILLS INTO EVIDENCE AT TRIAL NOR ANY EVIDENCE THAT THE SOLAR PANELS DO NOT WORK. PLAINTIFF ALSO DID NOT INTRODUCE ANY TAX RETURNS OR OTHER PROOF THAT PLAINTIFF DID NOT RECEIVE THE FEDERAL SOLAR TAX CREDIT THAT WAS (AND REMAINS) AVAILABLE FOR THIS SOLAR SYSTEM. PLAINTIFF’S WIFE ALSO ADMITTED THAT SOUTHERN “DID RIGHT” BY PLAINTIFF AND HERSELF BY GIVING THEM AN ADDITIONAL $36,000 OF BENEFITS MONTHS AFTER THE ACTS COMPLAINED OF IN THIS CASE, THUS ESTABLISHING SOUTHERN’S DEFENSE OF ACCORD AND SATISFACTION. PLAINTIFF NEVER DISCLOSED AT ANY TIME ITS AMOUNT AND METHOD OF CALCULATING ECONOMIC DAMAGES BEFORE TRIAL, REQUIRING THE EXCLUSION OF ANY SUCH CLAIMS AT TRIAL. IN SHORT, PLAINTIFF DID NOT PROVE HIS CASE. JURY NULLIFICATION AND SYMPATHY IS NOT ENOUGH. THE VERDICT MUST BE DISREGARDED. SOUTHERN SOLAR’S MOTION FOR JUDGMENT NON OBSTANTE VERDICTO PAGE 1 EXHIBIT A I. PLAINTIFF’S LACK OF EVIDENCE 1. At trial, Plaintiff never introduced any actual evidence to support his damage claims. As such, the final verdict was based on no competent evidence at all and must be disregarded. 2. 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). 3. Plaintiff’s only purported proof 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. 4. 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. SOUTHERN SOLAR’S MOTION FOR JUDGMENT NON OBSTANTE VERDICTO PAGE 2 EXHIBIT A 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: _______________ 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: _______________ 5. The defined damage terms in the Charge were not satisfied by Plaintiff because he did not introduce any “actual power bills incurred.” 6. 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.” 7. The damage terms 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. SOUTHERN SOLAR’S MOTION FOR JUDGMENT NON OBSTANTE VERDICTO PAGE 3 EXHIBIT A 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. 8. 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 miserably. 9. The Court recognized these huge obstacles to any recovery in the hearing on Southern’s Motion for Directed Verdict. There simply cannot be any kind of liability or damage findings for the Plaintiff without any power bills or tax returns in evidence. 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 its closing- argument damage numbers in his case-in-chief. Had the Court seen those outrageous numbers at that time, the undersigned believes the Court without a doubt would have granted the Motion for Directed Verdict as not even close to a scintilla of evidence existed to support them. 10. Among other things, the following are some of Plaintiff’s failures in proof: 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 SOUTHERN SOLAR’S MOTION FOR JUDGMENT NON OBSTANTE VERDICTO PAGE 4 EXHIBIT A 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 of 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, it wasn’t even ripe for consideration as any element of liability or damages. 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 SOUTHERN SOLAR’S MOTION FOR JUDGMENT NON OBSTANTE VERDICTO PAGE 5 EXHIBIT A 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. h. Mrs. Hernandez’s answers in that regard also 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 no doubt. i. 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. 11. Finally, Plaintiff never pled breach of contract or breach of warranty. These complaints about the capacity and performance of the system are obviously mere breach of contract or warranty claims, but Plaintiff has never made such claims in this case nor provided any documentation or evidence to back them up. The only live causes of action Plaintiff had at trial were two naked DTPA claims. Plaintiff even dropped his fraudulent inducement and declaratory judgment claims, and never pled Rescission to void the contract. Thus, the Installation contract was in evidence and it affirmatively negates Plaintiff’s claims. And the 25- SOUTHERN SOLAR’S MOTION FOR JUDGMENT NON OBSTANTE VERDICTO PAGE 6 EXHIBIT A year warranty in the contract was never called upon by Plaintiff, who simply just sued instead of asking Southern to fix any perceived problems. Obviously, Plaintiff wants to keep the solar panels and the obvious benefits they are providing, whilst also keeping a large damage award and getting free electricity for over 100 years, which is patently absurd. II. Exclusion of Any Evidence of Liability or Damages by Plaintiff Was Mandatory 1. 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, Court of Appeals of Texas, Fifth District, Dallas (Tex.App.—Dallas 5th Dist. 2021). 2. 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. The plaintiff finally attempted to provide some evidence of damages on the day before trial in response to a motion to exclude. 3. 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.). SOUTHERN SOLAR’S MOTION FOR JUDGMENT NON OBSTANTE VERDICTO PAGE 7 EXHIBIT A 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 SOUTHERN SOLAR’S MOTION FOR JUDGMENT NON OBSTANTE VERDICTO PAGE 8 EXHIBIT A 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. 4. F 1 Construction and Rule 193.6 required the exclusion of any evidence from Plaintiff of either economic or punitive damages. 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 exclusion of the evidence is not discretionary—it is mandatory. 5. 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 this Motion for JNOV even more compelling. Plaintiff’s disclosure duties in the instant case were in existence for nearly two years prior to trial (not one year as in F 1) yet Plaintiff never disclosed anything. Plaintiff did not plead or disclose (1) the legal theories and, in general, the factual bases of the responding party’s claims or defenses related to SOUTHERN SOLAR’S MOTION FOR JUDGMENT NON OBSTANTE VERDICTO PAGE 9 EXHIBIT A liability or exemplary damages, or (2) the amount and any method of calculating economic or exemplary damages. 6. Like the plaintiff in F 1 Construction, Plaintiff also did not present any testimony or evidence about whether (1) there was good cause for Plaintiff’s failure to timely make, amend, or supplement the discovery response1; or (2) the failure to timely make, amend, or supplement the discovery response would not unfairly surprise or unfairly prejudice the other parties, see, TRCP 193.6(b). Plaintiff at trial ignored and by Plaintiff’s Motion to Amend continues to ignore that, under TRCP 193.6(b), the “burden of establishing good cause or the lack of unfair surprise or unfair prejudice is on the party seeking to introduce the evidence or call the witness.” 7. In this 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. 8. Plaintiff has no pleading and made no required disclosure (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 1 “Discovery” as used in 193.6 includes “required disclosures.” See, TRCP 192, which as of January 1, 2021, struck out “requests for disclosures” and replaced it with “required disclosures.” SOUTHERN SOLAR’S MOTION FOR JUDGMENT NON OBSTANTE VERDICTO PAGE 10 EXHIBIT A 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. 9. In addition to Plaintiff’s multiple and fatal non-disclosure errors, Plaintiff’s own Requests for Production and Interrogatories did not even ask how solar output and generation would be measured, who would measure it, what types of records would exist showing such output and generation, or even how such solar output would be shown as “generation credits” or the like on Plaintiff’s electricity bills. Plaintiff also never took a deposition of any representative of Southern to ask questions like this. Instead, apparently Plaintiff’s counsel decided to brazenly ignore their investigation responsibilities and duties to verify their client’s story and claims and just go forward at trial with patently false accusations and failures of proof. III. JNOV Must be Granted JNOV is appropriate where directed verdict would have been appropriate. Plaintiff had not a scintilla of evidence to support his claims, and any purported evidence he did have was required to be excluded under Rule 193.6 and F 1 Construction. Plaintiff’s tactics of trial by ambush cannot be allowed to stand. Simply put, there is no way that any reasonable person could deduce from Plaintiff’s “evidence” that Southern was liable for anything, especially since it was never proven that the solar system does not work, that the tax credit was not actually applied for, denied or not received, and that actual electricity costs exceeded anything, or that Mr. Hernandez actually paid anything to anyone. SOUTHERN SOLAR’S MOTION FOR JUDGMENT NON OBSTANTE VERDICTO PAGE 11 EXHIBIT A Southern is confident that had the Presiding Judge been made aware of Plaintiff’s enormous damage claims, which were never disclosed to the undersigned or to the Court at any time prior to closing, the Court would have granted directed verdict. D. CONCLUSION AND PRAYER 12. For the reasons stated above, Defendant Southern Solar requests that the Court deny grant Southern’s Motion for Judgment Non Obstante Veredicto, set aside the jury’s verdict, 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 SOUTHERN SOLAR’S MOTION FOR JUDGMENT NON OBSTANTE VERDICTO PAGE 12 EXHIBIT A CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing was served on all counsel of record by Efile on the 5th day of December, 2023. /s/ Marty Averill Martin P. Averill SOUTHERN SOLAR’S MOTION FOR JUDGMENT NON OBSTANTE VERDICTO PAGE 13 EXHIBIT A 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