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Bissell v. Legends Underground Utilities, Inc.

United States District Court, E.D. Texas, Sherman Division

January 3, 2020

LUKE BISSELL d/b/a JB&L UTILITY CONTRACTORS, Plaintiff,
v.
LEGENDS UNDERGROUND UTILITIES, INC., AMERICAN CONTRACTORS INDEMNITY COMPANY d/b/a TEXAS BONDING COMPANY and NORTH AMERICAN CONSTRUCTION SERVICES, Defendants.

          MEMORANDUM OPINION AND ORDER

          AMOS L. MAZZANT UNITED STATES DISTRICT JUDGE

         Pending 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 GRANTED.

         BACKGROUND

         I. Factual Summary

         In June 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.

         Mr. 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 line.

         Near 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 minimized.
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 above.
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 substantially complete.
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 ...

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