IN THE THIRD COURT OF APPEALS 

NO. 03-15-00423-CV 

STAR OPERATIONS, INC. 

AND 

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/CrossAppellee 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 

ACCEPTED

03-15-00423-CV

7479727

THIRD COURT OF APPEALS

AUSTIN, TEXAS

10/21/2015 3:13:12 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 10/21/2015 3:13:12 PM JEFFREY D. KYLE Clerk
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. 

{C1197934.DOCX:2} 

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 

I' " ~~ ,, I 3 
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 

{C11979 34.DOCX:2} 

James H. Robichaux 

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 applicable 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 authority, on this 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.1itness 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 

October 19,2015 

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 

:p c 

46147-0104 

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. 

legs 

Enclosmes 

Cc via electronic mail: 

Chanler Langham 

Star Operations, Inc. 

GAIC 

, {C ll97375.DOCX:l} 

Cif:::t~JI~pr Clinton W. ~~dell, III 

EXHIBIT 

I J I 

802 N. Carancahua , Stc. 1900, Corpus Christi, TX 7840t -00.\6j P: 3(,·1-8!\6-3800 1°: 36 --8!l n~3lS 5j www.br;mscombpc.com 

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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 

x~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 

· SH 130 Segments 5 and 6 

· . 324869_12.DOC •' 

-.Ga - EXECUTION VERSION · 

FACILITY CONCESSIO~ AGREEMENT 
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 

1 0.3.1 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 

SH 130 Segments 5 and 6 

· 3248~9 '12.DOC 

-69- EXECUTION VERSION 

FACILITY CONCESSION AGREEMENT 
EXHIBIT#2 

RULE 11 AGREEMENT 

RE: SUPPLEMENTAL REPORTER'S RECORD 
BRANSCOMB 

Clinton W. Twaddell, III 

Direct Dial: (5 12)735-7809 

Email: ctwadde ll@branscombpc.com 

VIA ELECTRONIC MAIL 

Chanler A. Langham 

SUSMAN GODFREY LLP 

1000 Louisiana Street, Suite 51 00 

Houston, Texas 77002-5096 

October 21, 2015 

PC 

46147.0104 

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 which 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 78401.()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 

· SH f 30 Segments 5 and 6 

324869_12.000 

• 68. EXECUTION VERSION 

FACILITY CONCESSIOfl! AGREEMENT 
.· 

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 

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 

dire c~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~if cally 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 

SH 130 Segments 5 and 6 

· 3248p9_12.POC 

-69 - EXECUTION VERSION 

FACILITY CONCESSION AGREEMENT 

I .