Motion for Reconsideration or Rehearing in JASON PALKER, MELANIE PALKER VS. ADT SOLAR LLC F/K/A MARC JONES CONSTRUCTION LLC D/B/A SUNPRO SOLAR, CHEVRON FEDERAL CREDIT UNION DBA SPECTRUM CREDIT UNION, TONNY AGYEKUM-BIMPONG| Trellis.Law

On June 30, 2023 a Motion-Secondary was filed involving a dispute between Palker, Jason, Palker, Melanie, and Adt Solar Llc F K A Marc Jones Construction Llc D B A Sunpro Solar, Agyekum-Bimpong, Tonny, Chevron Federal Credit Union Dba Spectrum Credit Union, for Contract - Consumer/Commercial/Debt (OCA) in the District Court of Hidalgo County.

Preview
Electronically Submitted
5/2/2024 10:01 PM
Hidalgo County Clerk
Accepted by: Nancy Flores

CAUSE NO. CL-23-2565-F

JASON PALKER AND
MELANIE § IN THE COUNTY COURT
PALKER §
Plaintiffs, §
§
Vs. §
§ COURT AT LAW NO. 6
ADT SOLAR LLC F/K/A MARC JONES §
CONSTRUCTION LLC D/B/A SUNPRO §
SOLAR AND CHEVRON FEDERAL §
CREDIT UNION AND §
TONY AGYEKUM-BIMPONG § HIDALGO COUNTY, TEXAS
Defendants. §

PLAINTIFFS’ COMBINED (1.) REPLY BRIEF IN SUPPORT OF PLAINTIFFS’
MOTION FOR CLARIFICATION AND/OR RECONSIDERATION OF COURT’S
OCTOBER 12, 2023 RULING AND (2.) PLAINTIFF MELANIE PALKER’S RESPONSE
TO DEFENDANT CHEVRON’S TRADITIONAL MOTION FOR SUMMARY
JUDGMENT

NOW COME Plaintiffs Jason Palker and Melanie Palker and file this Reply Brief in

Support of Motion for Clarification and/or Reconsideration of Court’s October 12, 2023 Ruling,

and comes Melanie Palker, individually, in Response to Defendant Chevron’s Traditional Motion

for Summary Judgment. In support thereof, Plaintiffs respectfully shows unto the Court the

following:

Ps’ Reply Brief in Support of M4C&R, and Resp to Chevron MSJ
Electronically Submitted
5/2/2024 10:01 PM
Hidalgo County Clerk
Accepted by: Nancy Flores

TABLE OF CONTENTS

I. FACTUAL AND PROCEDURAL BACKGROUND .......................................................................... 1
II. EVIDENCE........................................................................................................................................... 3
III. ARGUMENT: REPLY IN SUPPORT OF MOTION FOR CLARIFICATION AND/OR
RECONSIDERATION ................................................................................................................................. 4
A. There is No Credible Evidence Existence of an Agreement to Arbitrate .................................. 5
i. The ADT Contract’s Arbitration Provision. ............................................................................ 5
ii. The Chevron Loan Agreement’s Arbitration Provision.......................................................... 9
iii. The ADT Contract and the Chevron Loan Agreement Were Both Components of a
Contemporaneous Transaction, but have Clashing Arbitration Clauses, Further Evidencing a
Lack of Agreement to Arbitrate. ..................................................................................................... 15
B. If the Court Finds (which it should not) an Agreement to Arbitrate, the Court Must
Determine whether the Arbitration Agreement Covers Plaintiffs’ Claims. .................................... 19
C. If the Court Finds the Existence of an Agreement to Arbitrate, and the Plaintiffs’ Claims
Are Within the Scope of the Agreement, The Court Must Still find No Defenses to Arbitration
Apply. ..................................................................................................................................................... 23
i. Unconscionability. ..................................................................................................................... 23
ii. Fraudulent Inducement. ........................................................................................................... 26
iii. There is No Legal Basis Whatsoever to Compel Melanie Palker, an Undisputed Non-
Signatory to Engage in Arbitration ................................................................................................. 27
IV. PLAINTIFF MELANIE PALKER’S RESPONSE TO DEFENDANT CHEVRON’S MOTION
FOR SUMMARY JUDGMENT................................................................................................................. 29
A. Chevron Encumbered Melanie Palker’s Property Rights as a Matter of Law via a Lien ..... 29
B. Recognizing that the Solar System Is Obviously a Fixture by its very Nature, Defendant
Chevron Incorrectly Claims a Contractual “Intent” for it Not to Be Considered One .................. 31
C. Defendant Chevron’s Motion for Summary Judgment on Melanie Palker’s Fraudulent Lien
Claim should be Denied ........................................................................................................................ 35
V. PRAYER ............................................................................................................................................. 36

Ps’ Reply Brief in Support of M4C&R, and Resp to Chevron MSJ
Page 1 of 36
Electronically Submitted
5/2/2024 10:01 PM
Hidalgo County Clerk
Accepted by: Nancy Flores

I. FACTUAL AND PROCEDURAL BACKGROUND

1.1. On June 30, 2023, Plaintiff Jason Palker commenced this action and served the

respective Defendants. On August 14, 2023, Defendants ADT Solar and Bimpong filed a Motion

to Compel Arbitration. On October 9, 2023, Defendant Chevron filed a Joinder in ADT and

Bimpong’s Motion to Compel Arbitration.

1.2. On October 12, 2023, Plaintiff filed a response to these Motions to Compel

Arbitration and subsequent Omnibus Response. A hearing was conducted that day. According to

the Court’s Register of Actions, the following rulings were made: “Attorneys Michael Saldana,

Greg Kerr and Martin Canales all present for hearings. Defendants' Motion to Compel Arbitration

Granted with the exception to DTPA. Defendants' Motion to Stay Discovery Granted. Motion to

Compel Mandatory Mediation (to be briefed).” (emphasis added). No order was signed, and this

verbal order remains unclear to the parties. To date, no written order has been executed, and for

additional reasons addressed herein, it is impossible for Plaintiffs to discern precisely how any

such potentially compelled arbitration is to be conducted where there was no agreement to

arbitrate. Further, even if this Court were to find agreements to arbitrate – which it should not –

the subject arbitration clauses clash with one another, further demonstrating a lack of a meeting of

the minds necessary to form an agreement to arbitrate, and rendering the actual arbitration

impossible to conduct. Further, even if this Court determined that there was an agreement to

arbitrate (there wasn’t), that it is possible to conduct arbitration in accordance with the arbitration

provisions (it isn’t), there is still no agreement between the provisions regarding the scope of

arbitration, which again, makes arbitration both pointless and unconscionable. Finally, Plaintiffs

assert numerous meritorious defenses to arbitration.

Ps’ Reply Brief in Support of M4C&R, and Resp to Chevron MSJ
Page 1 of 36
Electronically Submitted
5/2/2024 10:01 PM
Hidalgo County Clerk
Accepted by: Nancy Flores

1.3. On January 29, 2024, Plaintiff Melanie Palker joined this action via Plaintiff’s First

Amended Petition, bringing wholly linked and additional claims not previously presented for the

Court’s consideration. Namely, Melanie Palker is a fifty-percent owner of the real property on

which a lien was filed securing the transaction made the basis of the suit. Melanie Palker is Jason

Palker’s mother and the property is not owned as community property. Melanie Palker was not a

party to the transaction made the basis of this suit, was not a signatory on any of the sales contracts

or financing agreements, and cannot be bound by arbitration as a matter of law, notwithstanding

Defendant Chevron’s baseless assertions to the contrary. Plaintiffs Melanie Palker and Jason

Palker moved for Clarification and/or Reconsideration of the Court’s October 12, 2023 verbal

rulings.

1.4. Defendants ADT and Chevron both responded to this, re-urging that this matter

should be wholly arbitrated. Chevron separately moved for Summary Judgment on Plaintiff

Melanie Palker’s Claims.

Ps’ Reply Brief in Support of M4C&R, and Resp to Chevron MSJ
Page 2 of 36
Electronically Submitted
5/2/2024 10:01 PM
Hidalgo County Clerk
Accepted by: Nancy Flores

II. EVIDENCE

Plaintiffs intend to reference the following evidence without stipulating to their

admissibility, tabulated as follows:

1. Defendant ADT’s August 14, 2023 Motion to Compel Arbitration:
Exhibit A: Affidavit of William H. Payne, IV, and its attachment
Exhibit A-1: ADT Home Improvement Contract (“Installation Agreement” and/or
“the ADT Contract”)
2. Defendant Chevron’s October 9, 2023 Joinder in ADT’s Motion to Compel Arbitration:
Exhibit A: Solar Energy System Long-Term Loan Agreement and Promissory
Note.
3. Defendant Chevron’s March 5, 2024 Response to Plaintiffs’ Motion for Clarification and
Motion for Summary Judgment of Melanie Palker’s Claims:
Exhibit A: Affidavit of Ever Morales, and its attachment
Exhibit A-1: Solar Energy System Long-Term Loan Agreement and Promissory
Note (the “Chevron Loan Agreement”)

Plaintiffs intend to admit the following evidence for limited purposes, tabulated as follows:

4. Exhibit 1 – Complete DocuSign ADT Contractor with Signature Certification Page
Accessed by Jason Palker
5. Exhibit 2 – Complete DocuSign Chevron Loan Agreement with Signature Certification
Page Accessed by Jason Palker
6. Exhibit 3 – Exemplar similar ADT Contract from Ruvalcaba v. ADT & Chevron
7. Exhibit 4 – Hidalgo County Appraisal District Report.
8. Exhibit 5 – Lien on the property
9. Demonstrative 1 – Comparative Chart of Arbitration Provisions in ADT and Chevron
Contracts
10. Live Testimony of Plaintiff Jason Palker
11. Live Testimony of Plaintiff Melanie Palker

Ps’ Reply Brief in Support of M4C&R, and Resp to Chevron MSJ
Page 3 of 36
Electronically Submitted
5/2/2024 10:01 PM
Hidalgo County Clerk
Accepted by: Nancy Flores

III. ARGUMENT: REPLY IN SUPPORT OF MOTION FOR CLARIFICATION
AND/OR RECONSIDERATION

3.1. While a motion to reconsider is not expressly provided for in the Rules, a trial court

retains plenary jurisdiction to reconsider its interlocutory rulings until a final judgment or order is

entered and the decree becomes final.1 No such judgment or order has been executed in this matter

and this Court retains jurisdiction and plenary power over this matter to reconsider any rulings

which (albeit confusingly) may have been made previously.

3.2. A party seeking to compel arbitration must first establish the existence of an

arbitration agreement.2 Once the movant establishes an agreement, the court must then determine

whether the arbitration agreement covers the nonmovant's claims.3 State and federal policies

continue to favor arbitration. Therefore, a presumption exists favoring agreements to arbitrate

under the FAA.4 Courts must resolve any doubts about an arbitration agreement's scope in favor

of arbitration.5 Once the court concludes that the arbitration agreement encompasses the claims,

and that the party opposing arbitration has failed to prove its defenses, the trial court has no

discretion but to compel arbitration and stay its own proceedings.6

1
Fernandez v. State, 621 S.W.3d 818, 826 (Tex. App.—El Paso 2021, pet. ref'd) (citing Fruehauf Corp. v. Carrillo,
848 S.W.2d 83, 84 (Tex. 1993) (per curiam) (a trial court has plenary power over its judgment until it becomes final);
White v. Baptist St. Anthony's Hosp., 188 S.W.3d 373, 374–75 (Tex. App.—Amarillo 2006, pet. denied) (recognizing
that a trial court has plenary jurisdiction to reconsider its interlocutory rulings and retains that ability until a final
judgment or order is entered in the cause and a decree becomes final); see also In re Panchakarla, 602 S.W.3d 536,
539–40 (Tex. 2020) (per curiam) (recognizing that a trial court retains continuing control over interlocutory orders
and may set them aside any time before a final judgment is rendered)
2
In re Oakwood Mobile Homes, 987 S.W.2d 571, 573 (Tex.1999).
3
Cantella & Co. v. Goodwin, 924 S.W.2d 943, 944 (Tex.1996).
4
Id.; Green Tree Fin. Corp. v. Randolph, 531 U.S. 79, 91 (2000); Cantella, 924 S.W.2d at 944.
5
Mitsubishi Motors Corp. v. Soler Chrysler–Plymouth, Inc., 473 U.S. 614, 626 (1985); Prudential Sec., Inc. v.
Marshall, 909 S.W.2d 896, 899 (Tex.1995).
6
In re Oakwood, 987 S.W.2d at 573.

Ps’ Reply Brief in Support of M4C&R, and Resp to Chevron MSJ
Page 4 of 36
Electronically Submitted
5/2/2024 10:01 PM
Hidalgo County Clerk
Accepted by: Nancy Flores

A. There is No Credible Evidence Existence of an Agreement to Arbitrate

3.3. This case involves two contracts: (1.) An installation agreement with Defendant

ADT Solar to install a solar system which contained an arbitration provision, and (2.) A Loan

Agreement with Defendant Chevron which also contained an arbitration provision with materially

different terms.

i. The ADT Contract’s Arbitration Provision.

3.4. There was never an agreement to arbitrate with ADT. To compel arbitration, ADT

Solar relies on the Installation Agreement attached to its motion as Exhibit A-1, which it purports

was signed by Jason Palker (and it admits was never signed by Melanie Palker). Plaintiff objects

to this exhibit for a number of reasons.

3.5. To authenticate the installation agreement, Defendant ADT attached the short

affidavit of William H. Payne, as Exhibit A to its motion. Willaim H. Payne’s is the only attached

affidavit. Defendant did not attach an affidavit of Tonny Bimpong, the salesman who engaged in

door-to-door sales with Jason Palker, who negotiated the contract with him, and was the only

person present at the time of the purported “execution.” Tonny Bimpong is the only individual that

would have personal knowledge of the transaction and the agreements.

3.6. There are also no facts in any affidavit showing that the signature on the installation

agreement belongs to Jason Palker, or that the electronic signatures are verified through “the

efficacy of any security procedure . . . to determine the person to which the electronic record

or electronic signature was attributable.”7 In fact, ADT Solar purposefully and knowingly

omitted the signature certification page from the document, which shows Bimpong executed

7
See Aerotek, Inc. v. Boyd, 624 S.W.3d 199, 200 (Tex. 2021)

Ps’ Reply Brief in Support of M4C&R, and Resp to Chevron MSJ
Page 5 of 36
Electronically Submitted
5/2/2024 10:01 PM
Hidalgo County Clerk
Accepted by: Nancy Flores

the document at 4:39PM Central Standard Time. See infra., image from Exhibit 1 – ADT Contract

DocuSign Signature Certification.

3.7. Defendants must show that the electronic record used to support arbitration cannot

be created or changed without unique, secret credentials attributable to the one person who holds

those credentials.8 Defendant ADT’s attached installation agreement shows that Defendants ADT

and/or Bimpong and/or whomever electronically signed the document contemplated that the

transaction be done by electronic means. Therefore, the Texas Uniform Electronic Transactions

Act applies.9 As such, Defendants are required to have provided testimony in affidavit form as to

its security credentials using “DocuSign” and how those security measures make Defendant ADT

or William H. Payne believe that the electronic signature of Jason Palker on the installation

agreement is attributable to him.10 William H. Payne’s affidavit fails to testify or mention those

security measures. Thus, the electronic signatures on Defendant’s installation agreement cannot be

8
Id. at 206. (emphasis added).
9
Tex. Bus. Comm. C. 322.009
10
The Texas Uniform Electronic Transactions Act (the Act) states that “[a]n electronic record or electronic signature
is attributable to a person [by] showing ... the efficacy of any security procedure applied to determine the person to
which the electronic record or electronic signature was attributable.”

Ps’ Reply Brief in Support of M4C&R, and Resp to Chevron MSJ
Page 6 of 36
Electronically Submitted
5/2/2024 10:01 PM
Hidalgo County Clerk
Accepted by: Nancy Flores

attributable to Jason Palker as matter of law. Therefore, the Court must deny Defendant’s motion

to compel arbitration.

3.8. Further, Plaintiff Jason Palker previously provided this court with sworn affidavit

testimony swearing that Bimpong misrepresented that the contracts (with ADT or with Chevron)

did not contain arbitration clauses.11 Plaintiff Jason Palker also swore that he was unable to actually

review the contract itself which was “clicked to sign” on Bimpong’s iPad without the ability to

actually scroll through, read, or otherwise review the document. No Defendant has proven that

Plaintiff Jason Palker ever signed the agreement to arbitrate, cannot in any way authenticate the

signature, and Plaintiff Jason Palker has provided sworn testimony that he was expressly warranted

that the contracts did not contain arbitration clauses and did not agree to arbitrate.

3.9. Arbitration should also be denied because ADT’s exhibits fail to authenticate the

arbitration provision pursuant to Tex. R. Evid. §901(a). Here, there is no testimony from Tonny

Bimpong or Defendants ADT or Chevron that the signature on the arbitration agreement is Jason

Palker’s signature. In Huckaba v. Ref-Chem, L.P., the Fifth Circuit, applying Texas law, held that

an arbitration agreement was invalid because the employer failed to sign the arbitration

agreement.12 Here, with no proper authentication for signatures, the arbitration provision fails. In

Estate of Guerrero, the Appellate Court denied arbitration because a Defendant did not

authenticate the Arbitration Agreement or any of the sales documents it attached to its motions to

compel arbitration, thus there was no competent evidence of an agreement to arbitrate. 13 Like in

Huckaba and Guerrero, the arbitration agreement is not authenticated in this case and therefore

arbitration should be denied under the ADT Contract.

11
See Exhibit 2 to Pltf. Amd. Omnibus Resp. to ADT & Chevron’s Motion to Comp. Arb. (10.12.2023)
12
17-50341 (5th Cir. 2018)
13
465 S.W.3d 693, 705 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (en banc)

Ps’ Reply Brief in Support of M4C&R, and Resp to Chevron MSJ
Page 7 of 36
Electronically Submitted
5/2/2024 10:01 PM
Hidalgo County Clerk
Accepted by: Nancy Flores

3.10. William H. Payne’s affidavit testimony that “By virtue of my position with ADT,

and based on my review of ADT’s records, I have personal knowledge of the facts stated in this

affidavit… I have reviewed Exhibit A-1 hereto, which is a true and correct copy of the Home

Improvement Contract that Mr. Palker entered into with ADT on May 17, 2021” is conclusory and

shows that William H. Payne has no personal knowledge of the transaction between Plaintiff Jason

Palker and Defendant. Opinion testimony that is conclusory or speculative is not relevant evidence,

because it does not tend to make existence of material fact “more probable or less probable.”14

Here, there are zero material facts in Payne’s affidavit showing Payne’s involvement in the

transaction as to what he did, what he observed, what documents he saw or reviewed, and what

documents he signed or saw signed or verified to be signed. Thus, Payne’s statement that he has

knowledge that Jason Palker entered into the Home Improvement Contract by virtue of his position

with ADT should be given no effect and struck as conclusory.

3.11. Plaintiff further objects on the basis that the ADT Contract presented to the Court

is not the Original and the duplicate copy is disputed by Plaintiffs.15

3.12. There is no testimony which authenticates the ADT Contract as a business record

pursuant to any hearsay exception and self-authentication. See Tex. R. Evid. §902(10) and §803(6).

Because of this, the affidavit and its exhibits are hearsay and Defendant offered no testimony as to

how the attached exhibits meet any hearsay exception. Defendant also did not produce any

foundation for self-authenticating the attached exhibits. The analysis would be different, if the

Defendant proved up the attached exhibits to its motion as a business record pursuant to Tex. R.

Evid. §902(10) and §803(6). Further there is nothing in any attached affidavit saying that the

14
See Tex. R. Evid. §401
15
Tex. R. Evd. 1001, 1002, 1003.

Ps’ Reply Brief in Support of M4C&R, and Resp to Chevron MSJ
Page 8 of 36
Electronically Submitted
5/2/2024 10:01 PM
Hidalgo County Clerk
Accepted by: Nancy Flores

claims of this lawsuit fall within the scope of an arbitration provision purportedly signed or agreed

to by Jason Palker.

3.13. Arbitration should be denied because the electronic agreement shows fraud or lack

of reliability. The party opposing the enforcement of an electronic agreement may come forward

with evidence that the security procedures utilized in the transaction “lack[ed] integrity or

effectiveness,” and that therefore, the party’s signature on the contract cannot reliably be attributed

to him.16 Here, Jason Palker denies that the electronic signature on the ADT Contract is his. The

document was never readable on Bimpong’s iPad, and was “clicked-to-sign” without the ability to

review any of the terms. Jason Palker has never received a hard copy of the agreement. Moreover,

the electronic copy was never even sent to him for execution, as evidenced by the DocuSign

Signature Certificate – it was sent to and signed by Bimpong. Because Jason Palker alleges that

Bimpong forged his electronic signatures on the ADT Contract, the electronic referenced in support

of arbitration by Defendants are tainted with fraud and unreliability. Because of the lack of

reliability of the installation agreement due to the allegation of forged electronic signatures,

Defendant’s motion to compel arbitration should be denied.

ii. The Chevron Loan Agreement’s Arbitration Provision.

3.13. There was never an agreement to arbitrate with Chevron. In conjunction with the

ADT Contract, Plaintiff Jason Palker was presented with a separate “click-to-sign” Solar Energy

System Long-Term Loan Agreement and Promissory Note by Sunlight Financial (the “Chevron

Loan Agreement”) on Bimpong’s iPad. Jason Palker previously provided the Court with sworn

affidavit testimony stating that Bimpong has Palker login to his iPad DocuSign so these documents

16
Solcius, LLC v. Meraz, No. 08-22-00146-CV, 2023 WL 2261414, at *5 (Tex. App.—El Paso Feb. 27, 2023, no
pet.); see also See Knox Waste Serv., LLC v. Sherman, No. 11-19-00407-CV, 2021 WL 4470876, at *9 (recognizing
same)

Ps’ Reply Brief in Support of M4C&R, and Resp to Chevron MSJ
Page 9 of 36
Electronically Submitted
5/2/2024 10:01 PM
Hidalgo County Clerk
Accepted by: Nancy Flores

could be executed. The DocuSign Signature Certification on both “agreements” verify that they

were executed at the same time and place, on Bimpong’s iPad. See Def. Chevron’s MSJ (March 5,

2024) Ex. A-1. See also Exhibit 2 – Complete Chevron Loan Agreement Accessed by Jason

Palker.

3.14. To compel arbitration, Chevron joined in ADT Solar’s Motion to Compel

Arbitration, without ever independently moving to compel arbitration under the terms of the

Chevron Loan Agreement’s Arbitration Provision. Notwithstanding, Chevron attached a purported

copy of the Chevron Loan Agreement to its Joinder on October 9, 2023 as Exhibit A.17

Subsequently, Chevron attached another purported copy of the Chevron Loan Agreement to its

Response to Plaintiffs’ Motion for Clarification on March 5, 2024. This copy, attached as Exhibit

A-1, did not contain the previous redactions and instead included pages 1 through 16 of 19, and a

purported DocuSign Signature Certificate was attached. Plaintiff objects to this contract as

evidence for numerous reasons.

3.15. To authenticate the installation agreement, Defendant Chevron attached the short

affidavit of Ever Morales, as Exhibit A to its motion. Ever Morales’ is the only attached affidavit.

Chevron did not attach an affidavit of Tonny Bimpong, the salesman who engaged in door-to-door

sales with Jason Palker, who negotiated the contract with him, and was the only person present at

the time of the purported “execution.” Tonny Bimpong is the only individual that would have

personal knowledge of the transaction and the agreements.

3.16. Similar to the ADT Contract, there are also no facts in any affidavit showing that

the signature on the installation agreement belongs to Jason Palker, or that the electronic signatures

17
Plaintiffs note that this is a 14-page redacted document. It includes no affidavit attempting to authenticate it. The
footer of the document begins with “page 1 of 19” and ends with “page 14 of 19,” with at least five pages omitted. It
also includes no DocuSign signature certification.

Ps’ Reply Brief in Support of M4C&R, and Resp to Chevron MSJ
Page 10 of 36
Electronically Submitted
5/2/2024 10:01 PM
Hidalgo County Clerk
Accepted by: Nancy Flores

are verified through “the efficacy of any security procedure . . . to determine the person to

which the electronic record or electronic signature was attributable.”18 In fact, Chevron

previously omitted the signature certification page from the document, which shows it was

purportedly executed at 4:32PM Central Standard Time, just seven minutes before Bimpong

executed the ADT Contract. See infra.; Compare with Exhibit 1 – ADT Contract DocuSign

Signature Certification.

See Exhibit 2.

3.17. Defendant Chevron must show that the electronic record used to support arbitration

cannot be created or changed without unique, secret credentials attributable to the one person who

holds those credentials.19 Defendant Chevron’s attached installation agreement shows that

Sunlight Financial and/or Defendants Chevron and/or Bimpong and/or whomever electronically

signed the document contemplated that the transaction be done by electronic means. Therefore,

the Texas Uniform Electronic Transactions Act applies.20 As such, Defendants are required to have

provided testimony in affidavit form as to its security credentials using “DocuSign” and how those

security measures make Defendant Chevron or Ever Morales believe that the electronic signature

18
See Aerotek, Inc. v. Boyd, 624 S.W.3d 199, 200 (Tex. 2021)
19
Id. at 206. (emphasis added).
20
Tex. Bus. Comm. C. 322.009

Ps’ Reply Brief in Support of M4C&R, and Resp to Chevron MSJ
Page 11 of 36
Electronically Submitted
5/2/2024 10:01 PM
Hidalgo County Clerk
Accepted by: Nancy Flores

of Jason Palker on the installation agreement is attributable to him.21 Ever Morales’ affidavit fails

to testify about or mention those security measures. Thus, the electronic signatures on Defendant’s

installation agreement cannot be attributable to Jason Palker as matter of law. Therefore, the Court

must deny Defendant’s motion to compel arbitration on the Chevron Loan Agreement’s arbitration

provision, if ever expressly moved for.

3.18. Further, Plaintiff Jason Palker previously provided this court with sworn affidavit

testimony swearing that Bimpong misrepresented that the contracts (with ADT or with Chevron)

did not contain arbitration clauses. Plaintiff Jason Palker also swore that he was unable to actually

review the contract itself which was “clicked to sign” on Bimpong’s iPad without the ability to

actually scroll through, read, or otherwise review the document. No Defendant has proven that

Plaintiff Jason Palker ever signed the agreement to arbitrate, cannot in any way authenticate the

signature, and Plaintiff Jason Palker has provided sworn testimony that he was expressly warranted

that the contracts did not contain arbitration clauses and did not agree to arbitrate.

3.19. Arbitration should also be denied because Chevron’s exhibits fail to authenticate

the arbitration provision pursuant to Tex. R. Evid. §901(a). Here, there is no testimony from Tonny

Bimpong or Defendant Chevron that the signature on the arbitration agreement is Jason Palker’s

signature. In Huckaba v. Ref-Chem, L.P., the Fifth Circuit, applying Texas law, held that an

arbitration agreement was invalid because the employer failed to sign the arbitration agreement.22

Here, with no proper authentication for signatures, the arbitration provision fails. In Estate of

Guerrero, the Appellate Court denied arbitration because a Defendant did not authenticate the

Arbitration Agreement or any of the sales documents it attached to its motions to compel

21
The Texas Uniform Electronic Transactions Act (the Act) states that “[a]n electronic record or electronic signature
is attributable to a person [by] showing ... the efficacy of any security procedure applied to determine the person to
which the electronic record or electronic signature was attributable.”
22
17-50341 (5th Cir. 2018)

Ps’ Reply Brief in Support of M4C&R, and Resp to Chevron MSJ
Page 12 of 36
Electronically Submitted
5/2/2024 10:01 PM
Hidalgo County Clerk
Accepted by: Nancy Flores

arbitration, thus there was no competent evidence of an agreement to arbitrate.23 Like in Huckaba

and Guerrero, the arbitration agreement is not authenticated in this case and therefore arbitration

should be denied under the Chevron Loan Agreement.

3.20. Ever Morales’ affidavit testimony that “By virtue of my position and based on my

review of Spectrum’s records, I have personal knowledge… that Mr. Palker entered into [the

Chevron Agreement] on May 17, 2021” is conclusory and shows that Ever Morales has no personal

knowledge of the transaction between Plaintiff Jason Palker and Chevron. Opinion testimony that

is conclusory or speculative is not relevant evidence, because it does not tend to make existence

of material fact “more probable or less probable.”24 Here, there are zero material facts in Morales’

affidavit showing his involvement in the transaction as to what he did, what he observed, what

documents he saw or reviewed, and what documents he signed or saw signed or verified to be

signed. Thus, Morales’ statement that he has knowledge that Jason Palker entered into the Chevron

Loan Agreement “by virtue of [his] position” should be given no effect and struck as conclusory.

3.21. Plaintiff further objects on the basis that the Chevron Loan Agreement presented to

the Court is not the Original and the duplicate copy is disputed by Plaintiffs.25

3.22. There is no testimony which authenticates the Chevron Loan Agreement as a

business record pursuant to any hearsay exception and self-authentication. See Tex. R. Evid.

§902(10) and §803(6). Because of this, the affidavit and its exhibits are hearsay and Defendant

offered no testimony as to how the attached exhibits meet any hearsay exception. Defendant also

did not produce any foundation for self-authenticating the attached exhibits. The analysis would

be different, if the Defendant proved up the attached exhibits to its motion as a business record

23
465 S.W.3d 693, 705 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (en banc)
24
See Tex. R. Evid. §401
25
Tex. R. Evd. 1001, 1002, 1003.

Ps’ Reply Brief in Support of M4C&R, and Resp to Chevron MSJ
Page 13 of 36
Electronically Submitted
5/2/2024 10:01 PM
Hidalgo County Clerk
Accepted by: Nancy Flores

pursuant to Tex. R. Evid. §902(10) and §803(6). Further there is nothing in any attached affidavit

saying that the claims of this lawsuit fall within the scope of an arbitration provision purportedly

signed or agreed to by Jason Palker.

3.23. Arbitration should be denied because the electronic agreement shows fraud or lack

of reliability. The party opposing the enforcement of an electronic agreement may come forward

with evidence that the security procedures utilized in the transaction “lack[ed] integrity or

effectiveness,” and that therefore, the party’s signature on the contract cannot reliably be attributed

to him. Here, Jason Palker denies that the electronic signature on the Chevron Loan Agreement is

his. While Jason Palker admits that he utilized Bimpong’s iPad to login to his DocuSign account,

there is no means whatsoever beyond which Chevron can conceivably authenticate or has in any

way attempted to authenticate Palker’s signature, the contract as a whole, or specifically the

arbitration agreement. The document was never readable on Bimpong’s iPad, and was “clicked-

to-sign” without the ability to review any of the terms. Jason Palker has never received a hard copy

of the agreement. Moreover, while the electronic copy was sent to him for execution, as evidenced

by the DocuSign Signature Certificate – it was opened and executed on Bimpong’s iPad, sharing

the exact same IP Address and executed only seven minutes apart from the ADT Contract, further

supporting the notion that this was all a contemporaneous transaction. Because Jason Palker

alleges that Bimpong forged his electronic signatures on the Chevron Loan Agreement after

permitting Bimpong to login to Palker’s DocuSign account, the electronic documents referenced

in support of arbitration by Defendants are tainted with fraud and unreliability. Because of the lack

of reliability of the installation agreement due to the allegation of forged electronic signatures,

Defendant’s motion to compel arbitration should be denied.

Ps’ Reply Brief in Support of M4C&R, and Resp to Chevron MSJ
Page 14 of 36
Electronically Submitted
5/2/2024 10:01 PM
Hidalgo County Clerk
Accepted by: Nancy Flores

iii. The ADT Contract and the Chevron Loan Agreement Were Both Components of a
Contemporaneous Transaction, but have Clashing Arbitration Clauses, Further
Evidencing a Lack of Agreement to Arbitrate.

3.24. Although the Chevron Loan Agreement was addressed from Sunlight Financial to

Jason Palker, Plaintiff Jason Palker never independently sought financing from Sunlight Financial,

which was partnered with ADT Solar, nor did Plaintiff Jason Palker independently seek financing

from Sunlight Financial’s lender, Defendant Chevron. Rather, the ADT Contract and the Chevron

Loan Agreement were provided to Plaintiff by ADT Solar through Bimpong as material documents

in the underlying transaction. Both of these documents, the material provisions contained therein,

including the two wholly inconsistent arbitration clauses, arose out of the same transaction and

were all materially drafted by ADT Solar and/or its agents and provided to Plaintiff by ADT Solar.

Plaintiff never met with, had discussions with, or negotiated with any agent of Sunlight Financial

or Defendant Chevron at any point preceding, during, or following the execution of these

documents.

3.25. Preceding the Chevron Loan Agreement was an introductory letter authored by

Sunlight Financial. Sunlight Financial, per the introductory letter, was “excited to partner with

Marc Jones Construction [ADT]” and “introduce[d] [its] lending partner, Spectrum Credit Union

[Chevron].” Infra. The Chevron Loan Agreement purportedly bound Plaintiff and Defendant

Chevron, and any subsequent holder of the note. Upon information and belief, Sunlight Financial

was a farce entity, existing solely to create the illusion of corporate separation between ADT – the

company which made misrepresentations regarding the solar system to be installed, and Chevron

– the lender financing the installation. Upon information and belief, all three entities capitalized

on this scam in unison and acted as one through ADT’s salesman agent to carry out this conspiracy.

Ps’ Reply Brief in Support of M4C&R, and Resp to Chevron MSJ
Page 15 of 36
Electronically Submitted
5/2/2024 10:01 PM
Hidalgo County Clerk
Accepted by: Nancy Flores

See Exhibit 2.

3.25. While ADT may attempt to distance itself by referring to terms in its own contract

(infra.), these arguments fail in light of the facts and circumstances actually surrounding the

transaction.

See Exhibit 1.

In fact, the Chevron Loan Agreement repeatedly refers to and relates back to the ADT Contract:

Ps’ Reply Brief in Support of M4C&R, and Resp to Chevron MSJ
Page 16 of 36
Electronically Submitted
5/2/2024 10:01 PM
Hidalgo County Clerk
Accepted by: Nancy Flores

See Exhibit 2. The Chevron Loan Agreement refers to the “Contractor” thirty-three distinct times,

and specifically incorporates references to the ADT Contract throughout it, including within the

Arbitration provision itself:

See Exhibit 2.

3.26. Texas courts have long recognized that, under appropriate circumstances,

“instruments pertaining to the same transaction may be read together to ascertain the parties’

intent, even if the parties executed the instruments at different times and the instruments do not

expressly refer to each other.” Rieder v. Woods, 603 S.W.3d 86, 94 (Tex. 2020). (emphasis added).

3.27. As explained above, Plaintiff executed the ADT Solar Contract contemporaneously

with the Chevron Loan Agreement, purportedly agreeing to contradictory arbitration provisions.

These contracts expressly reference one another, were executed contemporaneously, were

Ps’ Reply Brief in Support of M4C&R, and Resp to Chevron MSJ
Page 17 of 36
Electronically Submitted
5/2/2024 10:01 PM
Hidalgo County Clerk
Accepted by: Nancy Flores

provided by ADT Solar’s salesman Bimpong, were both opened by Bimpong on his iPad and

were purportedly “signed” within seven minutes of each other, and indicate that ADT Solar and

Chevron are “partnered” in the transaction. Therefore, these two instruments should most certainly

be read together. However, the two arbitration provisions contain stark differences in scope of

issues subject to arbitral resolution, forum selection, arbitrator selection, procedural rules and

substantive law, location, appellate rights, and cost and attorney’s fees allocations. The effect of

these contradictions is that there is no meeting of the minds and thus, there can be no arbitration.

Leon v. Sanderson Farms Inc., 632 F. Supp. 3d 726, 733 (S.D. Tex. 2022). Simply put, to posit a

scenario: “If the Court does order the parties to arbitrate this matter, what rules govern the

arbitration?” The rules stipulated in the two contracts do not only not match one another, they

actually contradict one another, thereby prejudicing all parties’ rights.

3.28. The facts of this case are thus similar to Ragab v. Howard, 841 F.3d 1134 (10th Cir.

2016). In Ragab, an individual entered into six separate agreements, all of which contained

arbitration clauses.26 The six agreements contained conflicts regarding which rules governed, how

the arbitrator would be selected, and how attorneys’ fees were awarded and on what showings

were required (precisely the issues in dispute between these two appraisal provisions, see Exhibit

C). Id. The Tenth Court of Appeals found that, “the conflicting details in the multiple arbitration

provisions indicate that there was no meeting of the minds with respect to arbitration.”27

3.29. Here, because there are two opposing arbitration provisions with contradictory

information, both purporting to have exclusive jurisdiction of some of the claims raised in this

lawsuit, there is similarly no meeting of the mind

Case Info

Judge

Alberto Garcia Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

May 02, 2024

Case Filing Date

June 30, 2023

County

Parties

ADT SOLAR LLC F/K/A MARC JONES CONSTRUCTION LLC D/B/A SUNPRO SOLAR Defendant
AGYEKUM-BIMPONG, TONNY Defendant
CHEVRON FEDERAL CREDIT UNION DBA SPECTRUM CREDIT UNION Defendant
Jared C. Lampson Attorney for the Defendant
MARTIN A CANALES Attorney for the Defendant
MICHAEL A. SALDANA Attorney for the Plaintiff
PALKER, JASON Plaintiff
PALKER, MELANIE Plaintiff
Randall Gomez Attorneys for Plaintiffs
Kelly Bagnall Attorneys for Defendants
Raul Acevedo Attorneys for Plaintiffs
Gregory Kerr Attorneys for Defendants

For full print and download access, please subscribe at https://www.trellis.law/.

Motion-Secondary: JASON PALKER, MELANIE PALKER VS. ADT SOLAR LLC F/K/A MARC JONES CONSTRUCTION LLC D/B/A SUNPRO SOLAR, CHEVRON FEDERAL CREDIT UNION DBA SPECTRUM CREDIT UNION, TONNY AGYEKUM-BIMPONG

Preview

Case Info

Parties