IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

WACO DIVISION

TRADESMEN INTERNATIONAL, LLC §

§

Plaintiff, §

§

v. § CAUSE NO. 6:20-CV-371

§

A & J CONSTRUCTION §

MANAGEMENT, LLC and §

DEVELOPERS SURETY AND §

INDEMNITY COMPANY, §

§

Defendants. §

COMPLAINT

COMES NOW the United States of America for the Use and Benefit of Tradesman

International, LLC (“Tradesmen”) and files this its Original Complaint against Defendants, A &

J Construction Management, LLC (“A & J”), and Developers Surety and Indemnity Company

(“Developers”) (collectively referred to herein as "Defendants"), and for cause of action would

respectfully show the Court as follows:

I.

JURISDICTION AND VENUE

1. The court has exclusive jurisdiction over Tradesman’s bond claim under 40

U.S.C. § 3131, et. seq. (the “Miller Act”). Tradesmen furnished labor in carrying out work

provided for in a contract for which a payment bond is furnished under 40 U.S.C. § 3131.

Tradesman has not been paid in full within 90 days after it performed the last of its labor

furnished for which this lawsuit is made. The contracts and the project made the basis of this suit

are for the construction, alteration or repair of facilities at Fort Hood, in Bell County, Texas,
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which is a public building or public work of the Federal Government (“Fort Hood”). A payment 

bond issued by Developers was furnished by A & J pursuant to the Miller Act.

2. Even if the Miller Act does not provide jurisdiction, the court has jurisdiction over 

Tradesman's bond claim under 28 USC § 1352 because the payment bond on which these claims 

are based was executed under the law of the United States. A payment bond was provided by A 

& J pursuant to the Miller Act, 40 U.S.C. § 3131 et. seq., and regulations and rules issuing 

pursuant to the Miller Act, including but not limited to DFAR 970.5204-22 and 48 C.F.R. 28.

3. The court has supplemental jurisdiction over all claims not subject to the above 

paragraphs under 28 U.S.C. § 1367, as these claims for relief arise out of a common nucleus of 

operative facts and form part of the same case or controversy as the other claims.

4. Venue of this action is proper in this federal district court under 40 U.S.C. § 3133, 

et. seq. because the contract governed by the Miller Act and made the basis of this suit was 

performed in a county within this federal district.

5. Also, venue of this action is proper in this federal district court under 28 U.S.C. § 

1391(a) (2) and (b) (2) because a substantial part of the events or omissions giving rise to

Tradesmen’s claims occurred in a county(s) within this federal district, and a substantial part of 

the property that is the subject of Tradesmen's claims is situated in a county(s) within this federal 

district.

II. 

PARTIES

6. Plaintiff Tradesmen International, LLC is a limited liability company organized 

under the laws of the State of Delaware, and it is authorized by the Texas Secretary of State to 

conduct business in the State of Texas. Tradesmen’s principal place of business is in the State of 

Ohio.
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7. Defendant A & J Construction Management, LLC, is a limited liability company 

organized under the laws of the State of Arkansas, with its principal place of business at 1503 W. 

Emma Avenue, Springdale, Arkansas 72764. It may be served with process by serving the Texas 

Secretary of State at 1019 Brazos Street, Austin, Texas 78701, as its agent for service because 

Defendant A & J Construction Management, LLC engaged in business in Texas that arises from 

the transactions that are the subject of this Complaint but has not designated or maintained a 

resident agent for service of process in Texas, for forwarding to its Incorporator and CEO, 

Jeffrey Mann, at 1503 W. Emma Avenue, Springdale, Arkansas 72764, or at such other place as 

it may be found.

8. Defendant Developers Surety and Indemnity Company is a company organized 

under the laws of the State of California, with its principal executive office at 17771 Cowan, 

Suite 100, Irvine, California 92614. It may be served with process by serving the Texas Secretary 

of State at 1019 Brazos Street, Austin, Texas 78701, as its agent for service because Defendant 

Developers Surety and Indemnity Company engaged in business in Texas that arises from the 

transactions the subject of this Complaint but has not designated or maintained a resident agent 

for service of process in Texas, for forwarding to 17771 Cowan, Suite 100, Irvine, California 

92614.

III.

FIRST CLAIM FOR RELIEF - MILLER ACT CLAIM

9. On or about December 20, 2018, A & J executed a contract with the United States 

Department of Defense for work to be performed at Fort Hood, Bell County, Texas, and at 

certain other locations in states other than Texas which are not the subject of this Complaint. 

The specific project that is the subject of this Complaint will be described as the “Fort Hood 

Construction Prime Contract.” Under the Fort Hood Construction Prime Contract, A & J agreed
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to serve as the general contractor on the public work project referred to as “Renovate Build 

91012, Ft. Hood, Texas,” and called for work to be performed at Food Hood, in Bell County, 

Texas (the “Project”).

10. As of February 12, 2019, A & J and Tradesmen executed a Master Services 

Agreement (the “Master Services Agreement”) whereby Tradesmen agreed to provide labor to A 

& J for the Project, without limitation. In exchange for Tradesmen’s labor, A & J agreed to pay 

Tradesmen fees for assigned employees, and other charges, as specified in the agreement and as

invoiced.

11. On or about December 31, 2018, Developers, as surety, and A & J, as principal, 

executed and delivered to the United States of America as Obligee a Payment Bond (“Payment 

Bond”) pertaining to the Fort Hood Construction Prime Contract, which is identified as No. 

W9115119C0006.

12. The Payment Bond was for the benefit of certain specified subcontractors and 

suppliers on the Project, such as Tradesmen. The Payment Bond was executed in accordance 

with the provisions of the Miller Act, 40 U.S.C. § 3131 et. seq. in the penal sum of $236,564.04. 

A true and correct copy of such Payment Bond is attached hereto as Exhibit “A” and is 

incorporated herein by reference.

13. Tradesmen has performed all necessary obligations and conditions under the 

Master Services Agreement and Payment Bond, and all obligations required as a condition 

precedent to payment under the Master Services Agreement and Payment Bond, and/ or all such 

obligations and conditions have been waived or excused. Nevertheless, Tradesmen is still owed 

an amount of at least $61,878.06.

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

Tradesmen has last performed the labor for which the claims herein are
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made. Such labor was furnished in accordance with the Master Services Agreement and used in 

the prosecution of the work set forth in the Fort Hood Construction Prime Contract.

15. Pursuant to the Payment Bond, A & J and Developers are jointly and severally 

liable to Tradesmen for its damages as more fully explained below.

IV.

SECOND CLAIM FOR RELIEF - BREACH OF CONTRACT

16. Tradesmen realleges and incorporates herein all allegations set forth in Section III 

above of this Complaint.

17. Tradesmen has fully performed, or alternatively, has substantially performed or 

has been excused from performing its obligations under the terms of the Master Services 

Agreement.

18. A & J materially breached the Master Services Agreement by failing to perform 

its duties under the Master Services Agreement. Such damages are an amount of at least 

$61,878.06.

19. All conditions precedent to Tradesmen’s recovery, and entitlement to the 

damages, and relief requested above have occurred or have been excused.

V.

THIRD CLAIM FOR RELIEF-QUANTUM MERUIT

20. Tradesmen realleges and incorporates herein all allegations set forth in Section IV 

above of this Complaint.

21. In the alternative, Tradesmen would show that A & J has retained the benefit of 

Tradesmen’s labor and material without making payment therefore. Therefore, A & J has been 

unjustly enriched and should not retain the benefits of Tradesmen’s labor without paying a 

reasonable compensation therefore.

22. Since such labor was provided under circumstances under which A & J knew or
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reasonably should have known that it would be expected to pay for same, Tradesman is entitled to 

recover of and from A & J, based upon quantum meruit, for the reasonable value of the labor provided to 

A & J, which Tradesman alleges to be in the amount of at least $61,878.06.

VI.

FOURTH CLAIM FOR RELIEF-MISAPPLICATION OF TRUST FUNDS

23. Tradesman realleges and incorporates herein all allegations set forth in Section V 

above of this Complaint.

24. Upon information and belief, Tradesman would further show that A & J, as 

trustee, has received payments from the United States for the benefit of Tradesman.

25. Upon information and belief, A & J has misapplied these trust funds by failing to 

disburse said funds to Tradesman. Pursuant to Chapter 162 of the Texas Property Code, A & J is 

liable to Tradesman for the amount of funds paid by the United States to A & J, which were not 

disbursed to Tradesman, plus interest and attorney's fees.

VII.

CLAIM FOR ATTORNEY’S FEES AND INTEREST

26. Tradesman realleges and incorporates herein all allegations set forth in all above 

Sections of this Complaint.

27. By the time this action is tried or otherwise resolved, more than thirty days will 

have elapsed since Tradesman demanded payment of and from A & J and Developers for the 

debt due by A & J to Tradesmen, as alleged above. The Master Services Agreement provides 

that A & J agreed to pay all collection costs and expenses (including reasonable attorney’s fees) 

incurred by Tradesmen in collections of amounts due. Therefore, pursuant to the Miller Act,

§38.001 et. seq. of the Texas Civil Practice & Remedies Code, §28.005 of the Texas Property 

Code and all other applicable Federal and Texas statutory and common law, and the terms and 

conditions of the Master Services Agreement, Tradesman is
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entitled to recover of and from A & J its reasonable attorney’s fees, through and including the 

trial of this cause, plus all post-verdict and post judgment motions and all appeals and appellate 

steps taken in connection with this matter.

28. Tradesman is entitled to prompt pay interest in accordance with Texas Property 

Code §28.001 et. seq. at the rate of 1 1/2% per month on all funds received by A & J for the 

benefit of Tradesmen but not paid to Tradesman.

29. Tradesman is further entitled to recover interest in accordance with the terms of 

the Master Services Agreement at the rate of 1.5% per month.

30. In the alternative, Tradesmen is entitled to prompt pay interest in accordance with 

the Federal Prompt Pay Act, 31 U.S.C. § 3905 and/ or 48 C.F.R. § 52.232-27 on all funds 

received by A & J for the benefit of Tradesmen but not paid to Tradesmen.

31. In the alternative, Tradesman will show that by virtue of the laws of the State of 

Texas and/ or Federal law, Tradesman is entitled to recover legal and equitable interest at the 

highest legal rate of and from A & J.

VIII. 

CONDITIONS PRECEDENT

All conditions precedent necessary for Tradesmen’s recovery under this Complaint have 

been performed, have occurred, or have been waived or excused.

PRAYER

WHEREFORE, Tradesmen prays for judgment against Defendants, jointly and severally, 

as follows:

1. For breach of contract damages in an amount to be proven at trial, but, at the least, in an 

amount in excess of $61,878.06;

2. For pre-judgment and post-judgment interest in an amount as allowed by law;

3. For costs of suit incurred herein, including reasonable attorney’s fees; and
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4. For any and all further relief that the Court may deem just and equitable in this action.

DEMAND FOR JURY TRIAL

Plaintiff Tradesmen International, LLC demands a trial by jury in the above-captioned

action.

Respectfully submitted,

NAMAN HOWELL SMITH & LEE, PLLC

8310 N. Capital of Texas Highway, Suite 490 

Austin, Texas 78731

Telephone: 512.479.0300

Facsimile: 512.474.1901

Email: dlebas@namanhowell.com

Email: Barrett@namanhowell.com

By: /s/ David L. LeBas

Roy L. Barrett

State Bar No. 01814000 

David L. LeBas

State Bar No. 12098600

Attorneys for Plaintiff Tradesmen International, LLC
EXHIBIT A