Star Operations, Inc. and Great American Insurance Company of New York v. Dig Tech, Inc.

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 ! f 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