                                                                                                        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
