Plaintiff’s Original Complaint - Page 1

IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS 

SAN ANTONIO DIVISION 

UNITED STATES OF AMERICA for the use 

and benefit of REECE ALBERT, INC. 

Plaintiff,

vs. 

MILCON CONSTRUCTION, LLC, and 

DEVELOPERS SURETY AND INDEMNITY 

COMPANY 

Defendants.

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CIVIL ACTION NO. 5:20-cv-00235 

PLAINTIFF’S ORIGINAL COMPLAINT 

TO THE HONORABLE COURT: 

Reece Albert, Inc. (“RAI”), plaintiff in the above-entitled and numbered case, complains 

of defendants Milcon Construction, LLC (“MILCON”) and Developers Surety and Indemnity 

Company (“DSIC”), files its Original Complaint, and would respectfully show the Court the 

following: 

JURISDICTION 

1. Subject matter jurisdiction over Count Four set forth herein is conferred upon this 

Court pursuant to the Miller Act, 40 U.S.C. § 3131, et seq. This Court has original jurisdiction 

over this case pursuant to 28 U.S.C. § 1352 because Count Four is a claim upon a surety bond 

executed under the laws of the United States. Furthermore, this Court has supplemental jurisdiction 

over the remaining Counts set forth herein pursuant to 28 U.S.C. § 1367, as these claims for relief 

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arise out of a common nucleus of operative facts, and form part of the same case and controversy 

as Count Four. 

VENUE 

2. Venue is proper in the United States District Court for the Western District of 

Texas, San Antonio Division, pursuant to the forum selection clause mandating this venue 

contained within the contract between RAI and MILCON. 

PARTIES 

3. RAI is a corporation organized under the laws of the State of Texas. RAI is 

authorized to conduct business in the State of Texas, and its principal place of business is in Texas. 

4. MILCON is a Limited Liability Company organized under the laws of the State of 

Texas. MILCON is authorized to conduct business in the State of Texas, and its principal place 

of business is in Texas. MILCON can be served through its registered agent, Armando A Aranda, 

Jr. at 225 E. Locust, San Antonio, TX 78212. 

5. DSIC is a corporation organized under the laws of the State of California. DSIC is 

licensed to conduct insurance business in Texas, and its principal place of business is in California. 

DSIC can be served through its registered agent, Corporation Service Company, at 211 E. 7th St., 

Suite 620, Austin, TX 78701-3218. 

FACTS 

6. MILCON is a general contractor who performs and provides construction services 

for its clients. MILCON entered into Prime Contract No. F41999-17-0033 with the United States 

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of America through AFNAPO/SVC and the United State Air Force (“USAF”) to construct a 

Temporary Lodging Facility at Goodfellow Air Force Base in San Angelo, Texas (the “Project”). 

MILCON at all times was the prime contractor on the Project. 

7. RAI and MILCON entered into a Standard Subcontract Agreement on or about 

April 12, 2017 for RAI to perform labor and provide materials including, inter alia, sitework, 

landscaping, concrete curbs, and asphalt paving for the Project (“Subcontract”). RAI’s work 

involved sitework, landscaping, concrete curbs, and asphalt paving. RAI commenced its work in 

a timely manner and completed its contractual obligations in a good and workmanlike manner. 

RAI completed its work and is entitled to payment. 

8. The original Subcontract amount was $244,000.00. RAI has received payment of 

some prior invoices, however, the amount of $79,029.60 remains due and is unpaid. RAI is entitled 

to payment of $79,029.60 from Milcon. 

9. MILCON, as principal, contracted with DSIC, as surety, for DSIC to provide a 

payment bond in favor of the obligee United States of America and/or USAF, being Bond No. 

714330P (the “Bond”), in an amount equal to the total amount of the contract between MILCON 

and USAF, for the protection of entities such as RAI for providing labor and materials on the 

Project. The Bond is intended to give RAI a source of payment if MILCON does not pay RAI for 

the work it performs on the Project. 

10. RAI completed its work on the Project in February of 2019. As of February 26, 

2020 MILCON and DSIC have not made any payments to RAI for the work it performed and 

materials it supplied on the Project. RAI is entitled to payment from MILCON and DSIC for 

$79,029.60. 

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COUNT ONE - BREACH OF CONTRACT 

11. RAI incorporates the allegations contained in paragraphs 1 through 10 as if 

fully set forth herein. 

12. RAI entered into the Subcontract with MILCON under which RAI agreed to 

provide labor and materials on the Project. These labor and materials were provided by RAI on 

the Project. MILCON has breached the Subcontract between the parties by failing to provide 

payment for labor performed and materials provided by RAI. 

13. MILCON’s breach of the Subcontract has caused RAI to suffer actual, incidental, 

and consequential damages for which it seeks judgment against MILCON. 

14. All conditions precedent have been performed by RAI. 

COUNT TWO - IMPLIED CONTRACT 

15. RAI incorporates the allegations contained in paragraphs 1 through 14 as if fully 

set forth herein. 

16. Without waiving the foregoing and pleading in the alternative, RAI would show 

that it entered into implied contracts with MILCON under which RAI supplied labor and materials 

on the Project on behalf of MILCON. MILCON agreed to pay RAI for such labor and materials. 

17. Although RAI has fully performed and demanded payment, MILCON has failed to 

pay, harming RAI. MILCON’s actions have caused RAI to incur actual, incidental, and 

consequential damages for which it seeks judgment against MILCON. 

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18. All conditions precedent have been performed by RAI. 

COUNT THREE - UNJUST ENRICHMENT/QUANTUM MERUIT 

19. RAI incorporates the allegations contained in paragraphs 1 through 18 as if fully 

set forth herein. 

20. Without waiving the foregoing and pleading in the alternative, RAI provided labor 

and materials on the Project on behalf of MILCON, and MILCON knowingly accepted the labor 

and materials provided by RAI. The labor and materials provided by RAI were of great benefit to 

MILCON, and MILCON would be unjustly enriched if it were not required to pay for such labor 

and materials. Although requested by RAI to pay the outstanding amounts due, MILCON has 

refused to do so and continues to refuse to do so. 

21. RAI is entitled to reimbursement for the reasonable value of the labor and materials 

provided by RAI under the theory of quantum meruit. The reasonable value for such labor and 

materials is $79,029.60, for which RAI seeks judgment against MILCON. 

COUNT FOUR - MILLER ACT PAYMENT BOND CLAIM 

22. RAI incorporates the allegations contained in paragraphs 1 through 21 as if fully 

set forth herein. 

23. DSIC, as surety, and MILCON, as principal, executed and delivered to the USAF, 

as obligee, the Bond. The Bond was for the benefit of certain subcontractors and suppliers on the 

Project, such as RAI. The Bond was executed in accordance with the provisions of the Miller Act, 

40 U.S.C. § 3131 et seq. and named the USAF as the obligee on the Bond. 

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24. RAI has performed all necessary obligations and conditions precedent under the 

Subcontract. Alternatively, all such obligations and conditions have been waived or excused. 

25. A period of more than ninety days, but less than one year, has expired since RAI 

has last performed the labor and furnished the materials for which the claims herein are made, such 

labor and materials being performed and furnished in accordance with the Subcontract, and used 

in the prosecution of the work set forth in the Subcontract. 

26. MILCON and DSIC are jointly and severally liable to RAI for its work performed 

on the Project in the amount of $79,029.60, and any and all consequential damages incurred. 

COUNT FIVE ATTORNEYS’ FEES 

27. RAI incorporates the allegations contained in paragraphs 1 through 26 as if fully 

set forth herein. 

28. RAI has been required to obtain legal counsel to institute and prosecute this action 

because MILCON committed the improper actions referenced herein and breached the Subcontract 

with RAI. Due to the facts set forth above, RAI is entitled to recover its reasonable and necessary 

attorneys’ fees and expenses as compensation against MILCON pursuant to Section 38.001 et seq. 

of the Texas Civil Practice and Remedies Code. RAI is entitled to recover its attorneys’ fees 

through and including the trial of this case, plus all post-verdict and post-judgment motions, as 

well as all appeals and appellate steps taken in connection with this matter. 

 

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COUNT SIX - INTEREST 

29. RAI is entitled to pre-judgment and post-judgment interest on all damages it has 

incurred in this matter. 

CONDITIONS PRECEDENT 

30. All conditions precedent to RAI’s entitlement to judgment for its claims and causes 

of action have occurred, or have been satisfied, waived, or excused. 

WHEREFORE, for the foregoing reasons, RAI requests that MILCON and DSIC be cited 

to appear and answer, and that upon final hearing or trial, that the Court enter judgment against 

MILCON and DSIC, jointly and severally, in favor of RAI for all actual damages, incidental 

damages, consequential damages, expenses, attorneys’ fees, interest, pre-judgment interest, postjudgment interest, and costs of Court. 

Respectfully submitted, 

JACKSON WALKER LLP 

By: 

Samuel S. Allen 

State Bar No. 01057000 

136 W. Twohig Avenue, Suite B 

San Angelo, Texas 76903 

(325) 481-2558 

(325) 481-2571 - Fax 

Email: sallen@jw.com 

ATTORNEYS FOR PLAINTIFF 

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