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D2 Excavating, Inc. v. Thompson Thrift Construction No. 19-40745

http://www.ca5.uscourts.gov/opinions/pub/19/19-40745-CV0.pdf
Before STEWART, CLEMENT, and COSTA, Circuit Judges.
AFFIRMED in part, REVERSED in part, and REMANDED. (September 2, 2020).
D2 Excavating, Inc. (“D2”) filed suit against Thompson Thrift Construction (“TTC”) asserting claims of breach of contract, quantum meruit, violations of the Texas prompt pay statute, and to foreclose on a statutory and constitutional lien. TTC, in turn, alleged that D2 breached the excavation contract between the parties. The District Court held in D2’s favor on all claims and ordered TTC to pay for unpaid work and for “excess” excavating work D2 had to perform, as well as interest and attorneys’ fees. TTC appealed. The Fifth Circuit affirms the judgment for the $81,068 in unpaid work and the related prompt payment statute as well as the lien remedies for that breach of contract. The Court, however, reverses the judgment of $257,588.53 for the “excavation of unanticipated excess soil” and renders judgment for TTC on those breach of contract and quantum meruit claims. The Court remands for modification of the judgment consistent with its opinion.
On Appeal from the United States District Court for the Southern District of Texas (Nelva Gonzales Ramos).
Attorney for Appellant – Marc James Ayers, Birmingham, AL
Attorney for Appellee – Sara S. Murray, San Antonio, TX

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