## 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

## 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 initi al 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 finalizin g 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.

{C11979 3 4 . DOCX:2} 

### Respectfully submitted , 900

. . tchaux c o branscomb c.com Clinton 

## W. Twaddell, 

## III SBN 2407153 7 ctwaddell @ branscombpc.com ATTORNEYS FOR APPELLANTS AND 

## CROSS-APPELLEES STAR OPE RATIONS, INC. AND GREAT AM EruCAN 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 reliefrequested 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 appl icable 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 Hou ston , TX 77002-5096

{C11979 34 .DO CX:2} 

## James H. Robichaux
Pa g e 

## 14SUSMAN 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 

### 5 100 Hous ton, TX 

### 77002-5096 . Telephon e: (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 th i s 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, 20 1 5. B rian 

## Melton C l1anler 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 , th e undersigned a uthority, 

### on thi s day 

### p erso n all y appeared JA MES H. ROBICHAUX, who being by me fir st duly sworn upon his oath deposed u nd stated the following: 

### "M y nam e is Jame s 

### H. Rob ichau x. 

### I am the attorney of record in the tri al court below f or the Appellants and am the lead eoLmsel on appe a l f or Appellant s Star Ope rations, In c. J 

### have read th e foregoing Motion for ext e nsion of time to fil e Appellants' Brief and state



### · - - -- - stateme nt s contained in paragraph 5 

### a r e within my pers01

SWORN AND SUBSCRIB ED T ME, whic h \:o.1 

### itness my hand and seal of
o ffic e, by 

### the said J AMES H . 

### ROB IC HA UX on 

### theJ / Sf day of Octo be r, 2 0l5. 

### (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 C ourt Reporter 4 21st District Court 17 03 So uth Colorado, Suite 

### 13 17 Lockhart, Texas 78644 

### Via E lectronic Mail a nd 

### Fede ral Express 

# :p 

# c

46 147-010 4



### Re: Cause No. 12-0-337 ; 

### Dig 

### Te ch, 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 Dea r Ms. White- Thompson: We r epresent the Defendant, Appellant and Cross-Appellee, Star Op eration s , Inc., in 

### tl1is case. 

### In reviewing Vo lume 

### 33 of the Reporter's R ecord you prepared, it came to our attenpon that pages 68 and 69 of Defendant's Exhibit 1 19 were omitted from the record. Attached to thi s le tter are pages 68 and 69 of D efendant's Exhib it 119 . I am 

### forwarding to you via Federa l Express a compl ete copy of 

### DX-19 as it was offered an d 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 s upplemental clerk's record containing the missing pages 68 and 69 . As al ways, should your office have any questi ons, please do not h es itate t o l et us 

## know .

legs Enclosmes Cc 

### via electronic mail: Chanler Langham Star Operations, Inc. GAIC

, { C ll97375.DOCX:l}

# Cif:::t~JI~pr C lin ton W.

# ~~dell**,** III

EXHIBIT 

# I J I
802 N. Caran cahua , S tc. 1900, Corpu s C hr isti ,T X 7 8 40 t - 00 . \6j P: 3(,· 1
- 8 !\6
- 38 00 1 °:**36 --8** **!l n~3lS** **5j** www . br;m sco mb p c.c om 

# I i 

# r I 

### i 

## ! f 

### fand Facility**Manag~ment Pl~n**  and (c) to Verify the Ind ependent 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 int e rfere 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 aud it , monitor and ir1spect the Independ ent Engineer and its compliance
.with Good Industry Practice: and its respon si bilit ie s and obligations under the**lnde pend~:mt**  Engineer Agre .e ment. ·



### . 9.3.2 .3 TxDOT will not conduct formal prior rev ie ws of Desfgn Documents**x~e pt**  'to the extent necessary or advisable to comply with FHWA requir ements or unless TxDOT <:;hooses
. . to do so during any period the re exists an uncured Persistent Developer Default for which 

### TxDOT has given notice to Deve lop er.

. 

### . . 9 . 3.3 Rights 

# of Cooperation and Access; Increased Oversight 9.3.3 . 1 . Dev.eloper at all times sha ll coord inate and cooperate, and require its Contractors
. to coordinate and cooperate, with the Independent Eng ineer to facilitate the f u ll,. ·effldent, effective and timely performance 

### by the Indep endent Engineer of his or her monitoring, in spection, sampling, measuri ng, t esting, reporting; auditing, and other. 9versight functi0ns
. 

### 9.3.3.2 Developer at all · times shall**coor~linate** and cooperate, and require i ts Contractors to coordinate and cooperate, with TxDOT
. arid its Authorized Representative to

. facilitate TxDOT's oversight activities. Developer shall cause its repr ese ntatives to be available



# at all reasonable times for consu ltation with TxDOT arid the I ndependent Engineer. 

### 9.3.3.3 Without limiting the foregoing, Develop e r $hall afford TxDOT, its Authorized Representative and the Independent Engineer (a) safe and unrestricted access to the Facility at all t i mes, (b) safe access duririg normal business hours to Developer's Facility offices and op e rations buildings and (c) ·unrestricted acces·s 

# to data -respecting the Facility de s ign, construction, operati'ons and maintenance, and the Utility Adjustmer}t Work. Without l im iting the foregoing, Developer sha ll deliver. to· TxDOT and the Ind ependent 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** Technica l Requirements, 

### 9 .3.3.4 TxDOT and the Ind ependent Engineer shall have the right to mcrease the type and l evel 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 Test in g and Test Results Each of the Independent Engineer and TxDOTshall have the right to attend and witness
. any tests and verifi cations 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
. In dependent Engineer and TxDOT all test results and reports (which may be provided in electronic format in accordance with**th~Technk:a l**  Requirements) within ten days after Developer receives them.

TEXAS DEPARTMENT OF TRANSPORTATION · SH 130 Segments 5 and 6 · . 324869_12.DOC
• ' - . Ga - EXECUTION VERS ION · FACILITY**CONCESSIO~** AG REEME NTARTICLE 10. CONTRACTING AND LABOR PRACTICES 10.1 Disclosure of Contracts and Contractors ·10.1.1 . Develop er shall provide TxDOT a.nd the Indep enden t Engineer with a li st 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 Te chn ica l · Requirements. -oevelop
. er'" shall allow T x DOT 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 Inte llectual 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 a u thor ized representative of such Contractor. · 10.2 Responsibility for·Work,**·C ont~actors**  and E mployees 10.2.1 Developer shall reta in or cause to be retained only Cont ractors '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 l icenses required by applicab le 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 h eld fully .respo'nsible· to T)\DOT for' the. a·qtions, omissions, · negligence, willful miscondu.ct, or breach of applicab l e 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 th e FCA Doquments, and shall include those terms that are specifically required by th e . FCA Documents to b e inc luded therein Including, to the extent app li cable, 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 Develop er shall supervise and be fully responsible for th e actions, om i ssions, negligence, willfl,ll misconduct, or breach .of applicable Law or contract by any member or emp loyee of Developer or a ny Developer-Related· Entity, 

### its though all
.such individuals were**direc~ly** emp loyed by. Dev e lop e r. 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 specifi cally listed in the Facility Management P lan to fill the cor respond ing Key Contractor positions listed therein
. Developer sha ll not terminate any Key Contract with a KE?Y Contractor, or permit or suffer any TEXAS DEPARTMENT OF T RANSPORTATION SH 130 Segments 5 an d 6 ·**3248~9 '12.DOC**  -69- EXECUTION VERSION FACI LITY CONCESS I ON AGREEMENT

## EXHIBIT#2 RULE 

## 11 AGREEMENT RE: SUPPLEMENTAL REPORTER'S RECORD

# BRANSCOMB C lint o n W . T w addell, III D ire ct D ial : (5 12) 7 35-7809 E mail: ctwad de ll@bran sco mbpc.com

VIA ELECTRONIC MAIL 

### Chanl er A. Langham SUSMA N GODFREY 

### LLP 1000 Louisiana Street, Suite 51 00 Houston, Texa s 77002-5096 October 21, 2015 

# PC

46147.0104

Re: Cause No . 03-15-00423, 

### Star Operations, Inc. and Great American Ins urance C ompany of New York vs. Dig Tech, Inc. , pending before th e Third Court of Appeal s , Austin, Texas Dear Chanler: Please allow your signature in the s pac e provid e d belo w to indi c ate your agree ment th at Dig Tech doe s not oppose Star and GAIC' s requ es t to s upplement the reporter' s rec ord with 

### the attached page s 68 and 69 of the Fac ility C o ncess io n Ag r eement w hi c h w as admit t ed in e vid e nce a

t tri a l a s Defendants' Exhibit 119.
Re s pectl'ull y , 

# ftu
.**<).~Jl~ lb** **r-** C!inton W. T wadde ll, III Enclo s ure



### EXHIBIT 

# I**~~** ( Cl l9954 7 .DOC:l) 802 N . Cammd\Ua, Ste. 1 900, Corp u s C hrist i, TX 7840 1.()036 I P:36 1 ·8 86-3800 F:361-886-3 8 05 I www. bra.nscornbpc.comand Facility**Manag~ment** Plan and (c) to verify the Independent Engineer ' s. proper performan(::e of Its responsibilities and obligations. T xDOT 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 ri g h ts to audit Developer**an~:f** its Contractors. Developer acl<nowledges and agrees that TxDOT will have the righ t to audit, monitor and iMspect the Independent Engineer and Its comp lia nce . with Good Industry Practi ce: and Its responsibilities and obligations under the**lndepend~nt** Eng inee r Agre
. ement. ·

. 9.3.2.3 Tx00T will not conduct formal prio r 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** . Develo per 

### at all times shall qoordlnate and cooperate, and require its· Contractors .to coordinate and cooperate, with the Independent Engineer to faci litate the full,
. ·effici ent, effective and timely performance by the Independent Engineer of his or her monitoring, inspection, sampling, measuring, testing, reporting; auditing, and ot he r 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 rep re sentatives to be availabl e 

# 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 Deve loper's Facil ity offices and operations building s and (c) · unrestricte d access to data ·res pe c ting the Facil i ty design, construction, operations and maintenance, and tRe Utll!ty Adjustmel')t Worl<. Without limiting the foregoing, Developer s hall deliver. to · TxDOT and the Independent Engineer. upon requ est accu rate and · complete bool<s, records, data and In fo rmation regarding Wo rk, 'the Facility 

### ahd lhci Utili ty Adjustment Worl<, In the f9rmat re. qulred by**~he** Technical Requirements; 9.3.3.4 TxDOT and the Independent Enginee r 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 riot ice to Develop er. 9.3.4 Testing and Test Results Each of the Independent E ngi n eer and TxDOT shall have the right to attend and witness , any tests and verifications 

## to be conducted pursua nt to t he Te c hnical Requirements an · d applicab le Manager:nent Plans, in clud ing acct:.Jracy, ava ilability and perfonm1nce tests of t he Electronic Toll Collection System. Developer shall provide to the
. Independent Engineer and TxDOT all test r es ults and reports (which 'i'nay be provid ed In e le ctronic format In accordance with**th~** Technical Requirements) within ten days after Developer re ce ives them.

TEXAS DEPARTMENT OF TRANS P ORTATION · SH f 30 Segments 5 a nd 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 I ndependent 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 cop i es In t he 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 , Deve loper shall no t ify TxDOT i n wri t ,ing of the name , address, phone nurnber and authorized representati ve of such Contractor. · 10.2 Responsibility for · Work,**Cont~actors** and Employees



### . 

## . 10 . 2. 1 De veloper shall retain or cause to be retained only Contractors 'that are qua li fied, experienced and capable i h the performa nce of the portion of ' the Work assigned. Developer shall assure that ea ch Cont r actor J1as at 

### ttw t ime of executi on of the ContraCt, and

. maintains at all times during PE?rformance o f the assigned Work, all licenses required by appli cable Laws. · ·



### . . · · 10.2.2 The retention of Contractors by Developer will not r elieve Dev
. eloper of · its respons i biliti es here under or fo.r the quality of the Work or materials or services prbvlded by it. Developer will at all t i mes be held fully .respo'nsible· to TxDOT 

### for' the
. a · ctlons, omissions, · neg li gence, willful mlscondupt, or breach of app li cable Law or contract by · Contractors
..
· 10.2.3 Each Contract shall Include · terms and cond itions sufficient to ensure . compliance by the Contracto r w ith t he requirements
. of the FCA Doyuments, and shall i nclude those terms that are specifically required by the
. FCA Documents to be incl uded therein Including, to the extent applica ble, those set forth In Exh i bit 8. 1Q
. 2.4 · Nothing In this Agreement will create any contrac t ual relationship between Tx DOt
. and any Cont r actor. No Contract ente r ed Into by or under Developer shall imp ose ' any ob li gation 

## or liabil ity upon TxDOT to an y Contra ctor or any of its employees
. 10 . 2 . 5 Developer shall supervise and be**~ully** responsible fo r the actions, omissions, neg li gence , wl.flft,JI m i sconduc t , or breach
.of applicable Law or contract by a ny member or employee 

### of Develop e r 

### or any Develo p er

- Related ' Entity, as though all
. suc h I nd ividuals were**dire c~** **ly** employed by
_ Develop e r. · ·


# .. 10.3 Key 

### Contracts; Contractor**Qualific~tlons** 10 . 3.1 Use of and Change i n Key Contractors Develope r shall retaif), employ and uti li ze the ' firms and org anizat ions**spe~if cally**  listed In t he Facility Manag e ment Pl a n to ffll the corresponding Key C ontractor positrons listed therein. Developer sh all not te rminate any Key Contract with a**K~y** Con t ractor, or perm i t or suffer a'ny TE XA S DEPAR TM E NT OF TRANSPORTATION SH 130 Segments 5 an d 6 · 3 248 p9_1 2 . PO C -69
- E XECUT ION VERSION F A

CI LITY CONCES SION AGREE MENT 

# I
.