                                                                                     ACCEPTED
                                                                                 12-15-00236-CV
                                                                    TWELFTH COURT OF APPEALS
                                                                                  TYLER, TEXAS
                                                                            11/5/2015 5:03:53 PM
                                                                                       Pam Estes
                                                                                          CLERK

                      No. 12-15-00236-CV
__________________________________________________________________
                                                          FILED IN
                     IN THE COURT OF APPEALS       12th COURT   OF APPEALS
                                                        TYLER, TEXAS
               FOR THE TWELFTH DISTRICT OF TEXAS
                                                   11/5/2015 5:03:53 PM
                           TYLER, TEXAS
                                                          PAM ESTES
__________________________________________________________________
                                                            Clerk


          DOWTECH SPECIALTY CONTRACTORS, INC.,
                       Appellants

                                   V.

                    CITY OF NACOGDOCHES
                  AND AEROMIX SYSTEMS INC.
                             Appellees
__________________________________________________________________

                     Appeal from Cause No. C1228865
         In the 145th District Court of Nacogdoches County, Texas
__________________________________________________________________

                      APPELLANTS’ MOTION
           TO CORRECT CLERK’S RECORD AND FOR
              EXTENSION OF TIME TO FILE BRIEF
__________________________________________________________________

TO THE HONORABLE COURT OF APPEALS:

     Appellant, Dowtech Specialty Contractors, Inc. requests that

this Court issue a letter directing the trial court clerk to correct and

re-file the clerk’s record the record and would shows as follows:

     Appellees is the City of Nacogdoches.
       Texas Rule of Appellate Procedure 34.5(d) provides:

            (d) Defects or inaccuracies.
             If the clerk’s record is defective or inaccurate, the appellate
       clerk must inform the trial clerk of the defect or inaccuracy and
       instruct the clerk to make the correction.

Tex. R. App. P. 34.5(d).

MISTAKEN ORDER SUBSTITUTION

        During the process of preparing its brief, Appellant discovered

that the August 28, 2015 Order Denying Plaintiff’s Motion for Partial

Summary Judgment was not in the clerk’s record. It was designated

by Appellant for inclusion in the record prior the date on which the

clerk’s record was filed. See APPELLANT’S DESIGNATION OF ITEMS TO        BE

INCLUDED IN CLERK’S RECORD (Exhibit “A”). This item is relevant to this

appeal and was a subject of Appellant’s Notice of Appeal. See NOTICE

OF   APPEAL (Exhibit “B”).

       In reviewing Volume 6 of the record currently on file, it became

apparent that the clerk erroneously (and quite accidentally) included

the wrong order in its place.        Set forth below is the portion of

Appellant’s Designation which mentions five orders issued on August

28, 2015. As one can see, the third order in the August 28 list is an

Order Denying Plaintiff’s Motion for Partial Summary Judgment:
APPELLANT’S DESIGNATION   OF ITEMS TO BE INCLUDED IN   CLERK’S RECORD

(Exhibit “A”). The exact same five orders were listed on the Notice of

Appeal in the same order. See NOTICE OF APPEAL (Exhibit “B”). But,

when looking in Volume 6 of the Clerk’s Record (at the same list of

five August 28 orders), one can see that in place of the requested

order, the Clerk accidentally included an “Order Denying Plaintiff’s

Motion for Sanctions” which is not in Appellant’s Designation:
CLERKS RECORD VOLUME 6, p. 1469 (showing bookmarks). The actual

document designated was an order denying a motion for partial

summary judgment.         See ORDER DENYING PLAINTIFF’S MOTION           FOR

PARTIAL SUMMARY JUDGMENT (Exhibit “C”).

        Appellant requests that this Court instruct the trial court, to

correct the error by removing the order denying sanctions and

replacing it with the “Order Denying Plaintiff’s Motion for Partial

Summary Judgment.”

ILLEGIBLE ILLUSTRATIONS AND LOW QUALITY TEXT IN KEY
    DOCUMENTS

        A key part of the appellate record are the documents which

comprise Appellant’s summary judgment response.                  They are

attached hereto as listed exhibits (clear) and cross referenced in

Clerk’s Record (less legible). They are as follows:

        (1) PLAINTIFF'S COMBINED RESPONSE      TO   DEFENDANT’S MOTION   FOR

PARTIAL SUMMARY JUDGMENT         AND   SUPPLEMENTAL MOTION     FOR   PARTIAL

SUMMARY JUDGMENT (Exhibit “D”) (Clerk’s Record Volume 4, pp. 939-

972);

        (2) PLAINTIFF’S NOTICE   OF   INTENT   TO   USE SUMMARY JUDGMENT

EVIDENCE (Exhibit “E”) (Clerk’s Record Volume 5, pp. 981-982);
     (3) AFFIDAVIT   OF   GERALD DOWNING (Exhibit “F”) (Clerk’s Record

Volume 5, pp. 1350 -1356);

     (4) AFFIDAVIT OF BOB CLICK (Exhibit “G”) (Clerk’s Record Volume

5, pp. 983-1001);

     (5) EXHIBITS    TO   BOB CLICK AFFIDAVIT VOLUME 1 (Exhibit “H”)

(Clerk’s Record Volume 5, pp. 1002 – 1100);

     (6) EXHIBITS TO BOB CLICK AFFIDAVIT VOLUME 2 (Exhibit “I”) (Clerk’s

Record Volume 5, pp. 1101 – 1208);

     (7) EXHIBITS    TO   BOB CLICK AFFIDAVIT VOLUME 3 (Exhibit “J”)

(Clerk’s Record Volume 5, pp. 1209 – 1349); and

     (8)   DEFENDANT’S RESPONSES        TO   PLAINTIFF’S   REQUESTS   FOR

ADMISSIONS (Exhibit “K”) (Clerk’s Record Volume 5, pp. 1357-1392)

     All of the above listed documents were filed electronically (as

attached hereto) with the trial court.       However, due to possible

hardcopy printing and re-scanning, the copies of such filings

contained in the record are significantly less legible.          This is

demonstrably apparent when the referenced pages of the Clerk’s

Record are viewed.

     This has two significant results.           First it reduces the

effectiveness of word searching the record, because of inaccuracies
in the Optical Character Recognition (OCR) process. Second, it has

significantly reduced the quality of photographs and illustrations

contained in the record. Because this case involves breach of an

engineering and construction contract, the Court’s understanding of

the mounting and operation of the aerators in question is paramount.

     An example of the quality degradation is shown below. First is

a picture which was an exhibit to Bob Click’s Affidavit (as set forth in

the Clerk’s Record at Vol. 5 p. 1102). It shows the cable mount and

resultant sway of an aerator.       Second, is the same picture as

electronically filed:
     Below are versions of an illustration contained in exhibit “6d” of

the Bob Click affidavit. The first version is shown as presented in the

Clerk’s Record at Volume 5 p. 1029. The second version is as filed

in EXHIBITS TO BOB CLICK AFFIDAVIT VOLUME 2, p. 2 (Exhibit “H”).
A similar degradation in legibility is present throughout the record as

to the listed exhibits.   See generally, CLERK’S RECORD VOLUME 4, p.

939 through CLERK’S RECORD VOLUME 5, p. 1392.

     WHEREFORE, APPELLANTS PRAYS that this Court: send an

instruction to the trial court clerk, directing the trial court clerk to

create and file a “Corrected Clerk’s Record” by (1) correcting the

defect in the Clerk’s Record by replacing the “Order Denying

Plaintiff’s Motion for Sanctions” (at Clerk’s Record Volume 6, p. 1469)

with the “Order Denying Plaintiff’s Motion for Partial Summary

Judgment” (attached as Exhibit “C”); and (2) correcting the

inaccuracies in the Clerk’s Record by replacing CLERK’S RECORD

VOLUME 4, p. 939 through CLERK’S RECORD VOLUME 5, p. 1392 with the

documents attached hereto as Exhibits “D” through “K”.

     APPELLANT FURTHER PRAYS that this Court grant it an

extension to file its Brief to and including the 20th day from the date

the Corrected Clerk’s Record is filed with this Court.
Respectfully submitted,

LAW OFFICE OF BLAKE C. NORVELL
37 Cypress Point St.
Abilene, Texas 79606
325-695-1708 telephone
325-695-1708 facsimile

     /s/ Blake Norvell
By:
Blake C. Norvell
State Bar No. 24065828

ATTORNEY FOR APPELLANT
               CERTIFICATE OF CONFERENCE
     I certify that I have conferred with Tom Belanger by telephone

and he has agreed and is unopposed to APPELLANTS’ MOTION TO

CORRECT CLERK’S RECORD AND FOR EXTENSION OF TIME TO

FILE BRIEF.

                         LAW OFFICE OF BLAKE C. NORVELL

                        37 Cypress Point St.
                        Abilene, Texas 79606
                        325-695-1708 telephone
                        325-695-1708 facsimile

                              /s/ Blake Norvell
                        By:
                        Blake C. Norvell
                        State Bar No. 24065828

                        ATTORNEY FOR APPELLANT
                   CERTIFICATE OF SERVICE
     I certify that on November 5, 2015, I served a copy of

APPELLANTS’ MOTION TO CORRECT CLERK’S RECORD AND FOR

EXTENSION OF TIME TO FILE BRIEF on the parties listed below by

electronic service and that the electronic transmission was reported

as complete. My e-mail address is norvell2007@gmail.com.


                          LAW OFFICE OF BLAKE C. NORVELL
                          37 Cypress Point St.
                          Abilene, Texas 79606
                          325-695-1708 telephone
                          325-695-1708 facsimile

                               /s/ Blake Norvell
                          By:
                          Blake C. Norvell
                          State Bar No. 24065828

                          ATTORNEY FOR APPELLANT

Tom Belanger
TX Bar No. 02060400
ADAMS, BELANGER, & LoSTRACCO, P.C.
305 E. Main St. Nacogdoches, TX 75961
936-564-4315 telephone
936-560 – 0280 facsimile
