United States District Court, E.D. Texas, Sherman Division
MEMORANDUM OPINION AND ORDER
L. MAZZANT UNITED STATES DISTRICT JUDGE
before the Court is Plaintiff Luke Bissell d/b/a JB&L
Utility Contractor's Motion for Partial Summary Judgment
Against Defendant Legends Underground Utilities, Inc. (Dkt.
#45). Having considered the motion and relevant pleadings,
the Court finds that the motion should be
2017, Delta County, Texas hired Defendant Legends Underground
Utilities, Inc. (“Legends”) to complete the Mount
Joy and Pecan Gap Water System Improvement Project-a project
calling for the installation of approximately 17, 000 feet of
4-inch water line. Legends used a large track hoe with a
3-foot bucket to dig a 3-foot wide trench for 4-inch water
line. As it turns out, Legends' use of such equipment
caused problems for Delta County, its citizens, and the Delta
County Municipal Utility District (“MUD”). Many
citizens complained of damage to their property, crops, and
farmland and reached out to Matt Ingram, the General Manager
of the Delta County MUD, to inform him of their concern that
Legends had hit the main water line and failed to repair it.
Asbill, the Delta County Commissioner; Judge Murray, the
Delta County Judge; Mr. Douglas, the Delta County MUD
president; and Mr. Ingram inspected a damaged property and
confirmed that Legends had indeed damaged the main water
line, not called it in, and left the site without remedying
the problem. Moreover, they apparently discovered that
Legends had not installed the water line according to
contract specifications, as the line was not deep enough and
needed to be lowered. After discovering these problems, Delta
County decided to change contractors. Up to this point,
Legends had installed approximately 4, 800 feet of water
the end of February 2018, Delta County hired Plaintiff
JB&L Utility Contractors (“JB&L”) to
complete the installation of the remaining water line.
Shortly thereafter, Delta County representatives met with
Legends representatives, Richard Cayer and Mike Talbert, and
Legends agreed to lower the 4, 800 feet of water line already
installed. They further agreed to transfer all materials to
JB&L and to have JB&L take over and complete the
project. The agreement between Legends and JB&L was
reduced to a Memorandum of Understanding (“MOU”),
dated March 5, 2018 and signed by both Legends and JB&L.
The terms of the MOU are reproduced in full below.
1. Legends Underground Utilities, Inc.
(“Legends”) has installed approximately 4, 800
feed of 4” HDPE pipe along FM 904 south of the
intersection with FM 64 in Pecan Gap. The method of
installation thus far has been open-cut trenching.
2. JB&L Utility (“JB&L”) will complete
the remainder of the job for Legends. JB&L will install
the remainder of the pipe with directional drilling as much
as possible so that the disturbance of cultivated fields,
pastures, front yards, and TXDoT right-of-way will be
3. JB&L will provide a performance bond to Legends for
the completion of the job as shown on the Hayter Engineering
drawings (dated April 21, 2017), except that the remainder of
the job will be completed with boring as described in note #2
4. Legends will still be the general contractor; and will be
responsible for the final completion of the job.
5. Legends agrees to pay $155, 230.60 to JB&L for the
arrangement mentioned above.
6. Final payment to both parties will not be made until all
of the job is installed, successfully tested, cleaned up, and
proper paperwork submitted.
7. Legend[s] will provide all of the pipe and related
materials for JB&L. JB&L will meet with Legends and
verify that all of the materials (as shown on the Core and
Main invoices) necessary to complete the job are already on
site. Legends will make arrangements to attain the necessary
components to complete the job (with the exception of rock,
gravel, asphalt, etc. for driveway repairs).
8. Once the materials have been attained and documented,
JB&L will be responsible for securing these materials
from theft or damage.
9. Liquidated damages shall be $500 per day for each day
beyond the contract completion date that the job is not
10. JB&L shall have 90 days from the date of the signing
of this contract to attain substantial completion.
11. Any other materials needed such as stone, sand, gravel,
asphalt, and etc. will be the ...