                                                                                              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<ey Contracts and. the guarantors
  thereunder with each monthly report . required under this Agreement oF the Technical ·
  Requirements. -oevelop.er'"shall allow TxDOT and th~ lndepenaenfEiigineer· ready ac-cess tl'>"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<nowledges and agrees that TxDOT will have the right to audit,
 monitor and iMspect the Independent Engineer and Its compliance. with Good Industry Practice:
 and Its responsibilities and obligations under the lndepend~nt Engineer Agre.ement.      ·

    .              9.3.2.3  Tx00T will not conduct formal prior reviews of Design Documents
 expept '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 rxDOT has given notice to Developer.                              .
                                   .                             .             .
         9.3.3     Rights o.f Cooperation and Access; Increased Oversight

                      9~3.3.1 . Developer at all times shall qoordlnate and cooperate, and require
  its· Contractors .to coordinate and cooperate, with the Independent Engineer to facilitate the full, .
 ·efficient, effective and timely performance by the Independent Engineer of his or her monitoring,
  inspection, sampling, measuring, testing, reporting; auditing, and other qverslght functions .
                                                                     .
                    9.3.3.2    Developer at ail times shall coor!jlnate and cooperate, ~md require
 its ·Contractors to coordinate and co.operate, with TxDOT and 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 shall afford TxDOT, its
 Authorized Representative and the Independent Engilleer (a) safe and unrestricted access to
 the Facility at all times, (b) safe access during normal busi~es~ hours to Developer's Facility
 offices and operations buildings and (c) ·unrestricted access to data ·respecting the Facility
 design, construction, operations and maintenance, and tRe Utll!ty Adjustmel')t Worl<. Without
 limiting the foregoing, Developer shall deliver. to· TxDOT and the Independent Engineer. upon
 request accurate and· complete bool<s, records, data and Information regarding Work, 'the
 Facility ahd lhci Utility Adjustment Worl<, In the f9rmat re.qulred by ~he Technical Requirements;

                  9.3.3.4    TxDOT and the Independent Engineer shali have the 'right to
 increase the type and level of their oversight during any period the~e e)!:lsts an , uncured
 Persistent Developer Default for which TxDOT has given riotice to Developer.

         9.3.4     Testing and Test Results

         Each of the Independent Engineer and TxDOT shall have the right to attend and witness ,
 any tests and verifications to be conducted pursuant to the Technical Requirements an·d
 applicable Manager:nent Plans, including acct:.Jracy, availability and perfonm1nce tests of the
 Electronic Toll Collection System. Developer shall provide to the .Independent Engineer and
 TxDOT all test results and reports (which 'i'nay be provided In electronic format In accordance
 with th~ Technical Requirements) within ten days after Developer receives them.




  TEXAS DEPARTMENT OF TRANSPORTATION               • 68.                              EXECUTION VERSION
· SH f 30 Segments 5 and 6                                               FACILITY CONCESSIOfl! AGREEMENT
 324869_12.000
                             ARTICLE 10. CONTRACTING AND LABOR PRACTICES

      10.1    Disclosure of Contract$ and Contractors

             ·10.1.1 . Developer shall provide TxDOT a.nd the Independent Engineer with a list of all
      Contract~?, the Contractors thereunder, guarantees of Key Contracts and. the guarantors
.·    thereunder with each monthly report . required under this AgreBment or the Technical'
      Requirements. ·oeveloper shall allow TxDOT and th~ lndeperiae·nrEnglileer ready access to air ·
      Contracts and records regarding · Contracts, indudin'g amendments and supplemel')ts. to Key            I .
      Contracts and guarantee's thereof; provided, however, th<;~t Developer may provide access
      theretq by depositing unredacted copies In the Intellectual Property Escrow as provided In
      Section 22.5.              ·

              10.1.2 Within five days after Developer enters into a definitive agreement with any
      Contractor, Developer shall notify TxDOT in writ,ing of the name, address, phone nurnber 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 'the Work assigned.
      Developer shall assure that each Contractor J1as at ttw time of execution of the ContraCt, and
     .maintains at all times during PE?rformance of the assigned Work, all licenses required by
      applicable Laws.                                       ·                          ·
                                                   .                 .
       ·   · 10.2.2 The retention of Contractors by Developer will not relieve Dev.eloper of· its
       responsibilities hereunder or fo.r the quality of the Work or materials or services prbvlded by it.
       Developer will at all times be held fully .respo'nsible· to TxDOT for' the. a·ctlons, omissions,
     · negligence, willful mlscondupt, 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 Doyuments, 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 Exhibit 8.

              1Q.2.4· Nothing In this Agreement will create any contractual relationship 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 ~ully responsible for the actions, omissions,
      negligence, wl.flft,JI misconduct, or breach .of applicable Law or contract by any member or
      employee of Developer or any Developer-Related 'Entity, as though all .such Individuals were
      direc~ly employed by_Developer.                       ·                                        ·
                       ..
      10.3    Key Contracts; Contractor Qualific~tlons

              10.3.1        Use of and Change in Key Contractors

              Developer shall retaif), employ and utilize the' firms and organizations spe~ifically listed
      In the Facility Management Plan to ffll the corresponding Key Contractor positrons listed therein.
      Developer shall not terminate any Key Contract with a K~y Contractor, or permit or suffer a'ny

       TEXAS DEPARTMENT OF TRANSPORTATION                -69 -                          EXECUTION VERSION
       SH 130 Segments 5 and 6                                             FACILITY CONCESSION AGREEMENT
     · 3248p9_12.POC
