Dowtech Specialty Contractors, Inc. v. City of Nacogdoches and Aeromix Systems, Inc.

ACCEPTED 12-15-00236-CV TWELFTH COURT OF APPEALS TYLER, TEXAS 9/30/2015 3:17:18 PM Pam Estes CLERK Cause No. C1228865 DOWTECH SPECIALTY § IN THE DISTRICT COURT FILED IN CONTRACTORS, INC., § 12th COURT OF APPEALS Plaintiff § TYLER, TEXAS § 9/30/2015 3:17:18 PM v. § OF NACOGDOCHESPAM COUNTY ESTES § TEXAS Clerk § CITY OF NACOGDOCHES, TEXAS § AND AEROMIX SYSTEMS, INC., § Defendants § 145TH JUDICIAL DISTRICT _____________________________________________ PLAINTIFF’S DESIGNATION OF ITEMS TO BE INCLUDED IN CLERKS RECORD _____________________________________________ TO: Jessica Hill Deputy District Clerk of Nacogdoches County, Texas 101 W. Main, Suite 120 Nacogdoches, TX 75961 936-560-7740 – Tele 936-560-7839 – Fax PLAINTIFF, DOWTECH SPECIALTY CONTRACTORS INC., is appealing this case to the 12th Court of Appeals. The trial court signed the final judgment in this case on August 28. Plaintiff filed a notice of appeal on September 16, 2015 and has made arrangements with the clerk to pay the clerk’s fee. Plaintiff requests that the following documents be included in the clerk’s record, as specified in Texas Rule of Appellate Procedure 34.5: 12/17/12 Plaintiff’s Original Petition 1/25/13 Plea to Jurisdiction, Original Answer, Counterclaim and Cross-Claim of Defendant, City of Nacogdoches, Texas 1 7/2/14 Rule 11 Agreement 8/8/14 Plaintiff’s First Amended Petition 8/8/14 Notice of Revocation of Consent to Rule 11 Agreement 11/25/14 Plea to the Jurisdiction and Amended Answer of Defendants 12/1/14 Plea to Jurisdiction, First Amended Answer and Counterclaim of Defendant, City of Nacogdoches, Texas 1/5/15 Plaintiff’s Answer to Counterclaims 1/30/15 Defendant’s Motion for Partial Summary Judgment 3/12/15 Plaintiff’s Supplemental First Amended Petition (with attached Exhibits 1 – 15) 3/12/15 Plaintiff’s Motion to Strike Defendant’s First Amended Answer (with attached Exhibits 1 – 9) 3/13/15 Plaintiff’s First Supplemental Petition 6/3/15 Defendant’s Supplemental Motion for Partial Summary Judgment 6/10/15 Plaintiff’s Motion for Partial Summary Judgment 6/10/15 Appendix to Plaintiff’s Motion for Partial Summary Judgment (with attached Exhibits A – H) 6/23/15 Defendant’s Response to Plaintiff’s Motion for Partial Summary Judgment 6/24/15 Plaintiff’s Combined Response to Defendant’s Motion for Partial Summary Judgment and Supplemental Motion for Partial Summary Judgment 6/24/15 Plaintiff’s Notice of Intent to Use Summary Judgment Evidence 6/24/15 Affidavit of Bob Click 6/24/15 Exhibits to Affidavit of Bob Click (Exhibit 1- 52 in Volumes 1, 2, and 3) FOR THE CLERK’S CONVENIENCE A LIST OF THE 52 EXHIBITS TO THE AFFIDAVIT OF BOB CLICK IS ATTACHED HERETO AS “APPENDIX TO PLAINTIFF’S DESIGNATION” 6/24/15 Affidavit of Gerald Downing 6/24/15 Defendant’s Response to Request for Admissions of Plaintiff Dowtech Specialty Contractors, Inc. 6/24/15 Defendant’s Response to Plaintiff’s Motion to Strike Defendant’s First Amended Answer 2 6/30/15 Defendant’s Objections to Plaintiff’s Summary Judgment Evidence Presented in Opposition to Defendant’s Motion for Partial Summary Judgment 7/2/15 Order Sustaining Defendant’s First Amended Plea to Jurisdiction 7/24/15 Plaintiff’s Demand for Jury Trial 8/7/15 Defendant’s Motion for Separate Trial 8/19/15 Plaintiff’s Response to Defendant’s Motion for Separate Trial 8/21/15 Plaintiff’s Notice of Intent to Use Summary Judgment Evidence 8/21/15 Second Affidavit of Bob Click 8/25/15 Defendant’s Motion to Strike Second Affidavit of Bob Click 8/25/15 Plaintiff’s Response to Defendant’s Objections to Summary Judgment Evidence 8/28/15 Order on Defendant’s Motion for Separate Trial 8/28/15 Order Granting the Defendant’s Motion for Partial Summary Judgment 8/28/15 Order Denying Plaintiff’s Motion for Partial Summary Judgment 8/28/15 Order on Defendant’s Motion to Strike Second Affidavit of Bob Click 8/28/15 Order Ruling on the Defendant’s Objections to the Plaintiff’s Summary Judgment Evidence (Plaintiff’s Motion) 9/16/15 Plaintiff’s Notice of Appeal, dated September 16, 2015 9/29/15 This Plaintiff’s Designation of Items to be Included in Clerks Record Dated 9/29/15 IN ADDITION TO THE DATED ITEMS SET FORTH ABOVE, REQUEST IS ALSO MADE FOR THE FOLLOWING ITEMS: 1. The court’s docket sheet. 2. The certified bill of costs. 3 Respectfully submitted, LAW OFFICE OF BLAKE C. NORVELL 37 Cypress Point St. Abilene, Texas 79606 325-695-1708 tel 325-695-1708 fax /s/ Blake Norvell By: Blake C. Norvell State Bar No. 24065828 ATTORNEY FOR PLAINTIFF 4 CERTIFICATE OF SERVICE I certify that on this 29th day of September, 2015, a true copy of PLAINTIFF’S DESIGNATION OF ITEMS TO BE INCLUDED IN CLERKS RECORD was forwarded to counsel of record via electronic transmission: THOMAS L. BELANGER P.O. Box 631248 Nacogdoches, Texas 75963 tom@abal-law.com /s/ Blake Norvell ___________________ BLAKE NORVELL 5 “APPENDIX TO PLAINTIFF’S DESIGNATION” The Exhibits to the Affidavit of Bob Click which are requested to be in the record are: 1. Selected pages of the Standard Conditions of the construction contract made the basis of this lawsuit. 2. Selected pages of the Special Conditions of the construction contract made the basis of this lawsuit. 3. Selected pages of the Technical Specifications of the construction contract made the basis of this lawsuit. 4. Drawings of the PROPOSED FLOATING BRUSH AERATORS/OXIDATION DITCH dated July 2009 showing the original bridge mount position with the aerators pushing on the swing arms 5. Electrical Expertise Inc. Letter dated October 22, 2009 6. Selected portions of Submittal No. 3 , including: a. The submittal cover sheet b. The submittal table of contents c. The scope of supply document showing four 25 hp aerators with 20-foot swing arms d. Selected pages of the Installation, Operation, and Maintenance Manual for the 25-30 HP Aeromix (MONSOON) Paddlewheel Surface Splash Aerator including pages showing features “pulling” a two post mooring and a four post mooring with soft starts or VFDs e. Selected Monsoon Drawings f. The Aeromix Warranty for the Aerators 6 7. Selected pages of ECS House Industries, Inc.’s FLOATING BRUSH AERATOR SPECIFICATIONS including a diagram illustrating proper mooring 8. Selected pages from Defendants Responses to Requests for Admissions in this case showing that the Aeromix submittal showed a recommendation for the installation of “soft start” mechanisms and that soft starts are gentle on the equipment (RFA# 94, 101, 103, 220, and 270). 9. A January 8, 2010 e-mail from Catalin Petrescu to Clint Carlile at Dowtech showing the need for swing arms to be bolted to a “structure.” 10. Selected pages from Defendants Responses to Requests for admissions in this case showing a. August 19, 2010 flexing of the swing arms (RFA # 125) b. August 20, 2010 failure of the swing arms (RFA # 127, 128, and 129) c. August 30, 2010 Engineer Mark Mann discovered for first time that the aerators must be installed in a “pull” position (RFA #144) d. September and October 2010 changes in the contract were made to require a setup wherein the swing arms would be mounted to a mooring cable with the aerators in the pull position (RFA # 160-166) e. An October 11, 2010 letter signed by Mark Mann admitted that the aerators had been installed in a “push” configuration (RFA #244) 11. Drawing sheet 4 A of 13 of the PROPOSED FLOATING BRUSH AERATORS/OXIDATION DITCH made in the fall of 2010 (original dated July 2009) showing the swing arms in a tension/pull configuration on a cable mount and showing the clockwise flow of water 7 12. August 30, 2010 e-mail from Josh Perfetti to Mark Mann regarding the requirement of a “pulling” configuration and Mark Mann’s reply insisting on a push configuration 13. September 2, 2010 e-mail from Mark Mann to Dowtech enclosing drawings of a cable and swing arm combination mount 14. Selected pages from Defendants Responses to Requests for admissions in this case showing a. On December 17, 2010 the aerators were again started up (RFA #181) b. Upon the start up of the aerators after the cable mooring set up, the aerators began to move around in the water and were again shut down (RFA # 184 and 185) 15. Six December 17, 2010 photographs of the aerators in the cable mooring configuration showing lack of stability and sway when in operation 16. A January 6 2012 letter from Mark Mann to Steve Bartlett recommending rejection of work and curiously omitting the initial August 19 and August 20 failure of the push configuration of the swing arms. 17. A January 30, 2012 “Rejection of Work” letter from Rob Atherton to Gerald Downing containing a warning about Civil and Criminal Penalties for installing defective aerators 18. A March 21, 2012 e-mail from Charlie Self to Teresa Picot including an e-mail from Mark Mann indicating the City will withhold payments pending resolution of the “alignment issue” 19. A March 6, 2012 Demand Letter from Charles Self to Steve Bartlett requesting payment and indicating Dowtech’s total compliance with the contract 8 20. A March 27, 2012 Correction letter amending the demand letter from Charles Self to Steve Bartlett 21. An August 2, 2012 email from Buddy Harris to Dowtech and From Dowtech to Buddy Harris 22. An August 2, 2012 string of emails from Charlie Self to Teresa Picot and from Doug Reeves to a Gerald indicating the existence of too much torque and the recommendation of soft start mechanisms and offering to install them for free 23. A copy of Plaintiff’s Original Petition filed December 17, 2012 in this case. 24. A May 28, 2013 e-mail from Charlie Self to Teresa requesting print of an May 23, 2012 email from Tom Belanger to Charlie Self with handwritten notes. 25. The July 2, 2013 Rule 11 Agreement in which the parties agree that the aerators will be re-engineered and repaired and “re-installed” 26. A Drawing Revision dated August 16, 2013 showing a Tension Mount of the Aerators. 27. A January 13, 2014 email from Doug Reeves to Dowtech and prior e-mails relating to installation of the aerators. 28. A January 14, 2014 12:44 pm email from Doug Reeves to Dowtech relating to non- use of mooring cable 29. A January 14, 2014 1:16 pm email from Doug Reeves to Dowtech relating to inadequacy of mooring cables. 30. A January 14, 2014 1:28 pm email from Doug Reeves to Dowtech relating to swingarm configuration 9 31. A January 14, 2014 1:46 pm email from Doug Reeves to Dowtech relating to use of a taught mooring cable and indicating that the City had requested they re-engineer the aerators for use in the original bridge mount configuration. 32. Selected pages from Defendants Responses to Requests for Admissions in this case showing the City admitted that Douge Reeves of Aeromix indicated that the city had instructed Aeromix to re-design around the bridge mount configuration (RFA #208) 33. A January 14, 2014 2:40 pm email from Doug Reeves to Dowtech relating to non- compression on bridge mount 34. A January 15, 2014 3:52 pm reply email from Doug Reeves to Dowtech and prior January 15, 2014 3:48 pm e-mail from Dowtech to Doug Reeves relating to change of proposed configuration 35. January 31, 2014 letter from Gerald Downing to Steve Bartlett, Thomas Belanger, and Mark Mann 36. A February 14, 2014 11:17 am reply email from Doug Reeves to Dowtech and prior February 14, 2014 11:15 am e-mail from Dowtech to Doug Reeves relating to the Aeromix $1,000.00 payment required under the Rule 11 Agreement that Dowtech had not received 37. A February 17, 2014 letter from Charles Self to Thomas Belanger regarding problems with original push position and the need for soft starts and breach of Rule 11 agreement 38. A March 18, 2014 letter from myself, Bob Click, to Steve Bartlett and Mark Mann relating to e-mails showing negligence of City 10 39. A March 19, 2014 letter from Steve Bartlett to Thomas Belanger recognizing that soft starts were recommended but refusing to use soft starts and recognizing that a pull configuration is required, but return to the “original position’ 40. An April 2, 2014 1:42 pm reply email from Doug Reeves to Dowtech and prior April 2, 2014 1:42 pm email from Dowtech to Doug Reeves relating to the Aeromix $1,000.00 payment required under the Rule 11 Agreement that Dowtech still had not received 41. An April 4, 2014 email from Doug Reeves to Dowtech indicating that the failure to use soft starts on the aerators is “irresponsible” and showing that the City instructed them to re-engineer for the original bridge mount 42. An April 4, 2014 e-mail from Doug Reeves to me (Bob) relating to the recommended use of soft starts and the City’s instruction to re-engineer for a bridge mount configuration 43. An April 15, 2014 letter to Tom Belanger from Charles Self explaining breach of Rule 11 and requesting compliance 44. A May 13, 2014 proposed amendment to the Rule 11 Agreement that purports to waive the 90 day running requirement of the Rule 11, but still allows a 20 day delay in payment and dismissal of claims 45. An undated “Construction Investigation Report” undertaken by me in March but finalized on July 23, 2014 46. A July 25, 2014 letter from Charles Self to Tom Belanger relating to my investigative Report. 47. The August 7, 2014 Notice of Revocation of the Rule 11 agreement 11 48. The August 7, 2014 First Amended Petition indicating breach of the Rule 11 and containing facts sworn to by Gerald Downing 49. The November 25, 2014 Plea to the Jurisdiction and Amended Answer of Defendants 50. The January 5, 2015 Answer to Counterclaims 51. The January 15, 2015 e-mail from Chad House to Dowtech regarding soft starts required on all heavy-duty aerators 52. Plaintiff’s March 13, 2015 First Supplemental Petition 12