ACCEPTED
03-15-00423-CV
7479727
THIRD COURT OF APPEALS
AUSTIN, TEXAS
10/21/2015 3:13:12 PM
JEFFREY D. KYLE
CLERK
IN THE THIRD COURT OF APPEALS
FILED IN
3rd COURT OF APPEALS
NO. 03-15-00423-CV AUSTIN, TEXAS
10/21/2015 3:13:12 PM
STAR OPERATIONS, INC. JEFFREY D. KYLE
AND Clerk
GREAT AMERICAN INSURANCE COMPANY OF NEW YORI(
Appellants
vs.
DIG TECH, INC.
Appellee
Appealed from the 22n Judicial District Court
Caldwell County, Texas
APPELLANTS' AND CROSS-APPELLANT'S JOINT MOTION
TO EXTEND RESPECTIVE DEADLINES TO FILE INITIAL BRIEFS
TO THE HONORABLE COURT OF APPEALS:
Appellant/Cross-Appellee Star Operations, Inc. ("Star"), Appellant/Cross-
Appellee Great American Insurance Company of New York ("GAIC"), and
Appellee/Cross-Appellant Dig Tech, Inc. ("Dig Tech") file this Joint Motion for
Extension of time to file their respective initial briefs pursuant to TEX. R. APP.
38.6(d). In support hereof, all parties assert the following:
1. This motion is filed within the 15-day period to file a motion to
extend the time to file the parties' respective initial briefs.
2. All parties agree to this motion.
{C1197934.DOCX:2} Page 11
3. The Court may grant an extension of time under Texas Rule of
Appellate Procedure 10.5(b).
4. The current deadline to file the parties' respective initial briefs is
November 2, 2015. Appellants and Cross-Appellant each request an additional 20
days to file their respective initial briefs, extending the time until November 22,
2015.
5. Appellants Star and GAIC need an extension to allow the trial court
Reporter to ·supplement the Repmier' s Record, which is currently incomplete.
During the course of finalizing their brief, Appellants' counsel discovered that
pages 68 and 69 were missing from DX-119 (Facilities Concession Agreement)
that was admitted in its entirety in the trial court below. It is presumed that the
omission of pages 68 and 69 was simply an inadvertent copying error on the part of
the Reporter. As reflected in the letter attached hereto as Exhibit "1," counsel for
Appellants have requested that the Reporter supplement the Reporter's Record to
include the missing pages. Cross-Appellant is unopposed to the requested
supplementation. (Exhibit 2, Rule 11 Agreement).
6. Appellants request a 20-day extension of time to file their initial brief
to allow the Reporter to supplement the record with the missing pages 68 and 69 of
DX-119.
{C1197934.DOCX:2} Page 12
7. Cross-Appellant requests a reciprocal 20-day extension of time to file
their initial brief so the pmties' initial briefs will be due on the same day.
Appellants are unopposed to this reciprocal extension.
8. There have been no previous extensions requested or granted.
PRAYER
FOR THE FOREGOING REASONS, Appellants and Cross-Appellant
request that the Court: ( l) extend Appellants' deadline to file their initial brief to
November 22, 2015; and (2) extend Cross-Appellant's deadline for filing its initial
brief to November 22,2015.
Respectfully submitted,
900
. . tchaux cobranscomb c.com
Clinton W. Twaddell, III
SBN 2407153 7
ctwaddell@branscombpc.com
ATTORNEYS FOR APPELLANTS AND
CROSS-APPELLEES STAR
OPERATIONS, INC. AND GREAT
AMEruCAN INSURANCE COMPANY
OF NEW YORK
{C1197934.DOCX:2} I' " ~~ ,, I3
By: ~~~----r-~T-----~-
Brian . Melton
Texas State Bar No. 24010620
Chanler A. Langham
Texas State Bar No. 24053314
1000 Louisiana Street Suite 51 00
Houston, TX 77002-5096
Telephone: (713) 651-9366
ATTORNEYS FOR APPELLEE AND
CROSS-APPELLANT DIG TECH, INC.
CERTIFICATE OF CONFERENCE
I certify that I have conferr-ed with Chanler Langham by email, and the
parties agree to the relief requested in this motion.
Clinton W. Twaddell III
CERTIFICATE OF SERVICE
I hereby certify that the foregoing has been forwarded to counsel of record in
accordance with the applicable Tex. R. Civ. P. as listed below on this the _ _ day
ofOctober, 2015.
Brian Melton
Chanler A. Langham
SUSMAN GODFREY L.L.P.
1000 Louisiana Street Suite 5100
Houston, TX 77002-5096
James H. Robichaux
{C11979 34.DOCX:2} Pa g e 14
SUSMAN GODFREY L.L.P.
By:
Brian D. Melton
Texas State Bar No. 24010620
Chanler A. Langham
Texas State Bar No. 24053314
1000 Louisiana Street Suite 5100
Houston, TX 77002-5096 .
Telephone: (713) 651 ~9366
ATTORNEYS FOR APPELLEE AND
CROSS-APPELLANT DIG TECH, INC.
CERTIFICATE OF CONFERENCE
I certifY that I have conferred with Chanler Langham by email, and the
parties agree to the relief requested in this motion.
CM~t~Ji~t~
Clinton W. Twaddell Ill
CERTIFICATE OF SERVICE
I hereby certify that the foregoing has been forwarded to cou.nsel of record in
accordance with the applicab le Tex. R. Civ. P. as listed below on this the.1/s-t day
of October, 2015.
Brian Melton
Cl1anler A. Langham
SUSMAN GODFREYL.L.P.
1000 Louisiana Street Suite 51 00
Houston, TX 77002-5096
{C1197934.DOCX:2}
VEIUFICATION
STATE OF TEXAS §
COUNTY OF NUECES §
BEFORE ME, the undersigned a uthority, on thi s day personally appeared JAMES H.
ROBICHAUX, who being by me first duly sworn upon his oath deposed und stated the
following:
"My name is James H. Robichaux. I am the attorney of record in the trial court below for
the Appellants and am the lead eoLmsel on appeal for Appellants Star Operations, Inc. J have
read the foregoing Motion for extension of time to fil e Appellants' Brief and state
·-- -- -
statements contained in paragraph 5 are within my pers01
SWORN AND SUBSCRIBED T ME, which \:o.1 itness my hand and seal of
office, by the said JAMES H. ROBICHAUX on theJ/ Sf day of October, 20l5.
(SEAL)
fk>~
{C1197934.DOCX:2} rav,c IS
EXHIBIT # 1
LETTER TO COURT REPORTER DATED 10/19/15
RE: SUPPLEMENTAL REPORTER'S RECORD
B IZ A N S C 0 1Vl B :p c
46147-0104
I
i
r
I
i
October 19,2015
!
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f
Ms. Aisha K.. White-Thompson
Official Court Reporter 4 21st District Court
1703 South Colorado, Suite 1317
Lockhart, Texas 78644
Via Electronic Mail and Federal Express
Re: Cause No. 12-0-337; Dig Tech, Inc. v. Star Operations, et. al.; In the 22ud Judicial
District Court, Caldwell County Texas; appeal fil ed, No. 03-15-00423-CV in the
Third Comt of Appeals, July 10, 2015
Dear Ms. White-Thompson:
We represent the Defendant, Appellant and Cross-Appellee, Star Operations, Inc., in tl1is
case. In reviewing Volume 33 of the Reporter's Record you prepared, it came to our attenpon
that pages 68 and 69 of Defendant's Exhibit 119 were omitted from the record.
Attached to this letter are pages 68 and 69 of Defendant's Exhibit 119. I am forwarding
to you via Federal Express a complete copy of DX-19 as it was offered and admitted into
evidence, including pages 68 and 69. Pursuant to Texas Ru1e of Appellate Procedure 34.5(c)(1),
Star Operations requests that you prepare, certify and file a supplemental clerk's record
containing the missing pages 68 and 69.
As always, should your office have any questions, please do not hesitate t o let us know.
Cif:::t~JI~pr
~~dell,
Clinton W. III
legs
Enclosmes
Cc via electronic mail:
Chanler Langham
Star Operations, Inc.
GAIC
EXHIBIT
I J I
, {C ll97375.DOCX:l}
802 N. Carancahua , Stc. 1900, Corpus C hristi,T X 7840 t - 00.\6j P: 3(,·1- 8!\6- 3800 1°: 36 1 --8!ln~3lS05j www.br;mscombpc.com
and Facility Manag~ment Pl~n and (c) to Verify the Independent Engineer's. proper performan9e
of its responsibilities and obligatrons. TxDOT shall conduct such activity in accordance with
Developer's safety procedures and manuals, qlld in a. manner that does not unreasonably
interfere with normal cpnstructiori activity or normal operation and maintenance of the Facility.
. .
9.3.2.2 Refer to Section 22.2 for TxDOT's rights to audit Developer an~:f its
. Contractors. Developer acknowledges and agrees that TxDOT will have the right to audit,
monitor and ir1spect the Independent Engineer and its compliance. with Good Industry Practice:
and its responsibilities and obligations under the lndepend~:mt Engineer Agre.ement. ·
. 9.3.2.3 TxDOT will not conduct formal prior reviews of Desfgn Documents
ex~ept 'to the extent necessary or advisable to comply with FHWA requirements or unless
TxDOT <:;hooses .to do so during any period there exists an uncured Persistent Developer
Default for which TxDOT has given notice to Developer.
. . .
9.3.3 Rights of
Cooperation and Access; Increased Oversight
9.3.3.1 . Dev.eloper at all times shall coordinate and cooperate, and require
its Contractors .to coordinate and cooperate, with the Independent Engineer to facilitate the full,.
·effldent, effective and timely performance by the Independent Engineer of his or her monitoring,
inspection, sampling, measuring, testing, reporting; auditing, and other. 9versight functi0ns.
9.3.3.2 Developer at all ·times shall coor~linate and cooperate, and require
its Contractors to coordinate and cooperate, with TxDOT .arid its Authorized Representative to
. facilitate TxDOT's oversight activities. Developer shall cause its representatives to be available
at all reasonable times for consultation with TxDOT arid the Independent Engineer.
9.3.3.3 Without limiting the foregoing, Developer $hall afford TxDOT, its
Authorized Representative and the Independent Engineer (a) safe and unrestricted access to
the Facility at all times, (b) safe access duririg normal business hours to Developer's Facility
offices and operations buildings and (c) ·unrestricted acces·s to data -respecting the Facility
design, construction, operati'ons and maintenance, and the Utility Adjustmer}t Work. Without
limiting the foregoing, Developer shall deliver. to· TxDOT and the Independent Engineer. upon
request accurate and· complete books, records, data and information regarding Work, ·the
Facility and the Utility Adjustment Worl<, in the f9rmat required by ~he Technical Requirements,
9.3.3.4 TxDOT and the Independent Engineer shall have the right to
mcrease the type and level of their oversight during any period the~e e)l::ists an. uncured
Persistent Developer Default for which TxDOT has given notice to Developer.
9.3.4 Testing and Test Results
Each of the Independent Engineer and TxDOTshall have the right to attend and witness .
any tests and verifications td be conducted pursuant to the Technical Requirements alid
applicable Management Plans, including accuracy, availability and performance tests of the
Electronic Toll Collection System. Developer shall provide to the .Independent Engineer and
TxDOT all test results and reports (which may be provided in electronic format in accordance
with th~Technk:al Requirements) within ten days after Developer receives them.
TEXAS DEPARTMENT OF TRANSPORTATION - .Ga - EXECUTION VERSION ·
· SH 130 Segments 5 and 6 FACILITY CONCESSIO~ AGREEMENT
· . 324869_12.DOC
•'
ARTICLE 10. CONTRACTING AND LABOR PRACTICES
10.1 Disclosure of Contracts and Contractors
·10.1.1 . Developer shall provide TxDOT a.nd the Independent Engineer with a list of all
. Contract9, the Contractors thereunder, guarantees of l"all · .
Cohtracts and records regarding · Contracts, inCluding amendments and supplements. to Key
Contracts and guarantees thereof; provided, however, that Developer may provide access
theretq by ~epositing unredacted copies in the Intellectual Property Escrow as provided in
Section 22.5.
1·0.1 .2 ·Within five days after Developer enters into a definitive agreement with any
Contfador, Developer shall notify TxDOT irt wri~ing of the name, address, phone number and
authorized representative of such Contractor. ·
10.2 Responsibility for·Work, ·Cont~actors and Employees
10.2.1 Developer shall retain or cause to be retained only Contractors 'that are
qualified, experienced and capable ih the performance of the portion of ·th~ Work assigned.
Developer shall a_ssure that each Contractor has at the time of execution of the ContraCt, and
.maintains at all times during PE?rformance of the assigne.d Work, all licenses required by
applicable Laws. · ·
. .
10.2.2 The retention of Contractors b.y Developer will not relieve Developer of" its
responsibilities hereunder or fo.r the quality of the Work or materials or services provided by it.
Developer will at all times be held fully .respo'nsible· to T)\DOT for' the. a·qtions, omissions,
· negligence, willful miscondu.ct, or breach of applicable Law or contract by· Contractors..
· 10.2.3 Each Contract shall Include· terms and conditions sufficient to ensure.
compliance by the Contractor with the requirements. of the FCA Doquments, and shall include
those terms that are specifically required by the . FCA Documents to be included therein
Including, to the extent applicable, those set forth In Exhiolt 8.
1Q.2.4· Nothing in this Agreement will create any contractual relat[onship between
TxDOt .and any Contractor. No Contract entered into by or under Developer shall impose· any
obligation or liability upon TxDOT to any Contractor or any of its employees.
10.2,5 Developer shall supervise and be fully responsible for the actions, omissions,
negligence, willfl,ll misconduct, or breach .of applicable Law or contract by any member or
employee of Developer or any Developer-Related· Entity, its though all . such individuals were
direc~ly employed by. Developer.
10.3 Key Contracts; Contractor Qualific~tions
10.3.1 Use of and Change in Key Contractors
Developer shall retain, employ and utilize the'firms and organizations specifically listed
in the Facility Management Plan to fill the corresponding Key Contractor positions listed therein.
Developer shall not terminate any Key Contract with a KE?Y Contractor, or permit or suffer any
TEXAS DEPARTMENT OF TRANSPORTATION -69- EXECUTION VERSION
SH 130 Segments 5 and 6 FACILITY CONCESSION AGREEMENT
· 3248~9_'12.DOC
EXHIBIT#2
RULE 11 AGREEMENT
RE: SUPPLEMENTAL REPORTER'S RECORD
BRANSCOMB PC
C linton W. Twaddell, III
D irect Dial: (5 12)735-7809
Email: ctwad de ll@branscombpc.com
46147.0104
October 21, 2015
VIA ELECTRONIC MAIL
Chanler A. Langham
SUSMAN GODFREY LLP
1000 Louisiana Street, Suite 51 00
Houston, Texas 77002-5096
Re: Cause No . 03-15-00423, Star Operations, Inc. and Great American
Insurance Company of New York vs. Dig Tech, Inc., pending before the
Third Court of Appeals, Austin, Texas
Dear Chanler:
Please allow your signature in the space provided below to indicate your agreement that
Dig Tech does not oppose Star and GAIC's request to supplement the reporter' s record with the
attached pages 68 and 69 of the Facility Concession Agreement w hich was admitt ed in evidence
at trial as Defendants' Exhibit 119.
Respectl'ully,
ftu.<).~Jl~lbr-
C!inton W. Twaddell, III
Enclosure
EXHIBIT
I ~~
(Cl l99547.DOC:l)
802 N. Cammd\Ua, Ste. 1900, Corpus Christi, TX 7840 1.()036 I P:361·886-3800 F:361-886-3805 I www.bra.nscornbpc.com
and Facility Manag~ment Plan and (c) to verify the Independent Engineer's. proper performan(::e
of Its responsibilities and obligations. TxDOT shall conduct such activity In accordance with
Developer's safety .proce'dures and manuals, :;Jnd In a. manner that does not .unreasonablY
Interfere with normal cpnstruction activity or normal operation and maintenance of the Facility.
9.3.2.2 Refer to Section 22.2 for TxDOT's rights to audit Developer an~:f its
Contractors. Developer acl