Southern Equipment & Services, LLC v. Windamir Development, Inc.
CourtCourt of Appeals for the Eleventh Circuit
Date FiledNovember 2, 2026
Docket26-10601
StatusUnpublished
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Full Opinion
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NOT FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 26-10601
Non-Argument Calendar
____________________
SOUTHERN EQUIPMENT & SERVICES, LLC,
Plaintiff-Counter Defendant-Appellant,
UNITED STATES OF AMERICA,
for the Use and Benefit of Southern Equipment & Services, LLC,
Petitioner,
versus
WINDAMIR DEVELOPMENT, INC.,
BERKSHIRE HATHAWAY SPECIALTY INSURANCE
COMPANY,
Defendants-Counter Claimants-Appellees.
____________________
Appeal from the United States District Court
for the Southern District of Georgia
D.C. Docket No. 4:22-cv-00047-JRH-CLR
____________________
Before ROSENBAUM, GRANT, and ED CARNES, Circuit Judges.
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2 Opinion of the Court 26-10601
PER CURIAM:
This is a government contract case. Those involved are: the
United States Army Corps of Engineers (Corps); Windamir Devel-
opment, Inc., the general contractor; Berkshire Hathaway Spe-
cialty Insurance Company, the surety; and Southern Equipment &
Services, LLC (SES), the sub-contractor. The Corps awarded Con-
tract No. W912HN-19-C-3001 (the contract) to Windamir, under
which it would construct in Fort Stewart, Georgia a facility meant
for vehicle paint preparation (the project). Windamir then entered
into a subcontract agreement with SES, under which SES was to
provide all equipment, materials, tools, labor, certificates, docu-
ments, and management necessary to construct an abrasive blast
booth system as required for the project. 1
The underlying dispute arose when Windamir didn’t pay
SES the last remaining balance and costs that SES contends it is
owed under an adjusted subcontract price. SES sued Windamir
and Berkshire in federal court, asserting a claim under the Miller
Act, 40 U.S.C. §§ 3131–3133, for the amounts it believes it’s owed. 2
SES and the two defendants filed cross-motions for partial
summary judgment. The district court concluded that the Miller
Act’s statute of limitations barred SES’s claim. And based on that,
it granted summary judgment in favor of the defendants. That is
1 This particular blast booth was a $1.4 million blasting facility for military use.
2 SES pleaded other claims in its complaint, but it does not appeal the district
court’s judgment on those.
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the only part of the district court’s judgment that SES challenges in
this appeal. Because we conclude that SES performed labor within
one year of filing the lawsuit, we conclude that its Miller Act claim
was timely and vacate the part of the district court’s judgment rul-
ing to the contrary.
I.
After the Corps awarded Windamir the contract, Windamir,
as general contractor, and Berkshire, as surety, provided the Corps
a “payment bond.” See 40 U.S.C. § 3131(b)(2). The law required
the bond for the benefit and protection of all individuals “supplying
labor and material” in the performance of the project. See id. Then
Windamir subcontracted with SES, and according to the terms of
their agreement, SES was to be paid to “perform certain work” for
the project, including “providing equipment, materials, tools, and
labor to construct an abrasive blast booth system.” As part of that
subcontract, SES was obligated to provide a training video with au-
dio. And the blast booth’s operating procedures include that only
trained operators are authorized to operate it and that all operators
must have viewed the training video. SES began its work on the
project on May 29, 2020.
Throughout the time it worked on the project, SES submit-
ted periodic invoices to Windamir for payment and provided a
schedule that showed the value of the work completed through the
date of the payment request. By December 7, 2020, SES had com-
pleted all subcontract work except training government personnel
on equipment use and “certain testing.” It is undisputed that SES
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4 Opinion of the Court 26-10601
achieved “substantial completion of its work on December 21,
2020.”
In January 2021, SES conducted an in-person training session
on how to use the blast booth equipment. Windamir video-rec-
orded that training session. But the Corps rejected the video be-
cause the audio was inaudible.
Windamir then created a punch list of tasks that needed to
be completed before the final inspection. 3 SES was working on that
list as late as February 16, 2021. The punch list didn’t mention the
training video. But after being informed by Windamir’s Quality
Control Manager, Pat Edwards, that the Corps had rejected the
training video due to poor audio quality, SES went to the project
site on March 15, 2021, and refilmed the training video itself; it also
addressed two specific items on the punch list. SES did not send
Windamir an invoice for any work completed on that day.
After March 15, SES completed other punch list tasks and
work, such as replacing a pressure gauge and submitting paper-
work, which included “drawings and warranties.” SES also contin-
ued email correspondence with Windamir, stating that it “re-
mained ready, willing, and able to continue to assist in regard” to a
possible addition to SES’s scope of work, which would have in-
volved the installation of a fire monitoring and suppression system.
3 While the punch list is dated March 10, 2021, it contained a list of all tasks
SES had to complete after December 21, 2020, the date SES had achieved sub-
stantial completion.
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When it came time for Windamir to finish paying up, ac-
cording to SES, it didn’t. At least not the amount SES claims it is
owed. SES filed this lawsuit on February 22, 2022, against
Windamir and its surety Berkshire. As we’ve mentioned, it as-
serted, among other things, a Miller Act claim seeking to recover
pursuant to the terms of the payment bond the remaining amount
due for the work performed but not paid.
In their motion for summary judgment, the defendants con-
tended that the Miller Act claim was time barred because SES had
failed to file its complaint within one year of the last day it per-
formed labor or supplied materials for the project. According to
the defendants, that date was February 16, 2021, making SES’s law-
suit, filed on February 22, 2022, untimely. Any work that SES per-
formed after February 16, the defendants contended, constituted
“repair” work, which is insufficient to extend the time for a sub-
contractor to file a Miller Act claim. The district court granted
summary judgment for the defendants, concluding that SES failed
to produce evidence that it performed qualifying labor within the
statutory one-year timeframe. SES appealed. 4
II.
We review de novo a grant of summary judgment. Ave. CLO
Fund, Ltd. v. Bank of Am., N.A., 723 F.3d 1287, 1293 (11th Cir. 2013).
“Summary judgment is appropriate only when there is no genuine
issue as to any material fact and the moving party is entitled to a
4 Windamir was a party in the district court but is not a party to this appeal.
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judgment as a matter of law.” Id. at 1293–94 (quotation marks and
ellipses omitted). “An issue of fact is material if it might affect the
outcome of the suit under the governing law” and is “genuine if
the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” W. Grp. Nurseries, Inc. v. Ergas, 167 F.3d
1354, 1360–61 (11th Cir. 1999) (quotation marks omitted). We view
all evidence in the light most favorable to the nonmoving party.
Ave. CLO Fund, 723 F.3d at 1294.
III.
The crux of this case is a determination of when the “last of
the labor was performed or material was supplied” by SES, at
which point the Miller Act’s statute of limitations began to run. 40
U.S.C. § 3133(b)(4). If any of the tasks that SES completed after Feb-
ruary 21, 2021, constitutes “labor” under the Miller Act, as SES con-
tends, then its complaint was timely and summary judgment im-
proper. If it does not, as Berkshire contends, the complaint was un-
timely and summary judgment was properly granted against SES.
The Miller Act provides a right of civil action to individuals
who’ve “furnished labor or material in carrying out work provided
for in a contract for which a payment bond is furnished.” 40 U.S.C.
§ 3133(b)(1); see also United States ex rel. Sherman v. Carter, 353 U.S.
210, 216 (1957) (explaining that the Act was enacted to “protect per-
sons supplying labor and material for the construction of federal
public buildings in lieu of the protection they might receive under
state statutes with respect to the construction of nonfederal build-
ings”). But an action under the act “must be brought no later than
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26-10601 Opinion of the Court 7
one year after the day on which the last of the labor was performed
or material was supplied by the person bringing the action.” 40
U.S.C. § 3133(b)(4).
Generally, repairs, final inspections, and taking final meas-
urements in order to provide a final estimate or statement do not
qualify as “labor” for purposes of determining when the statute of
limitations begins to run. See Gen. Ins. Co. of Am. v. United States ex
rel. Audley Moore & Son, 406 F.2d 442, 443–44 (5th Cir. 1969) (Moore
& Son I) 5; United States ex rel. Dillon Constr., Inc. v. Cont’l Ins. Co., 776
F.2d 962, 964 (11th Cir. 1985) (“In determining the last day that ‘la-
bor’ was performed, repairs made on the original project are not
taken into consideration.”). Just because a subcontract requires the
completion of a task, that doesn’t automatically make it “labor” ei-
ther. See Gen. Ins. Co. of Am. v. United States ex rel. Audley Moore &
Son, 409 F.2d 1326, 1327 (5th Cir. 1969) (Moore & Son II).
“[L]ast labor” does include, however, work performed “to
correct defects in the work as originally completed” when a gov-
ernment inspector demands it. Trinity Universal Ins. Co. v. Girdner,
379 F.2d 317, 318 (5th Cir. 1967) (explaining that where a govern-
ment inspector refuses to approve the original work, the replace-
ment of defective parts constitutes labor for purposes of the statute
of limitations); see also Moore & Son II, 409 F.2d at 1327 (distinguish-
ing the facts in Trinity where “the inspector refused to approve the
5 Decisions of the former Fifth Circuit handed down on or before September
30, 1981, are binding precedent. Bonner v. City of Prichard, 661 F.2d 1206, 1207
(11th Cir. 1981).
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original work unless defective parts were replaced” from the situa-
tion before the court where “labor [was] supplied or material fur-
nished to correct defects after the work ha[d] been completed”)
(emphasis added).
What counts as “labor” under the Miller Act depends on the
facts of each case. See Ex parte Sw. Sur. Ins. Co., 247 U.S. 19, 20
(1918); S. Steel Co. v. United Pac. Ins. Co., 935 F.2d 1201, 1204 (11th
Cir. 1991). And the statute should be given “liberal construction,”
in favor of a subcontractor being paid for its services. Trinity Uni-
versal Ins. Co., 379 F.2d at 318; see Clifford F. MacEvoy Co. v. United
States ex rel. Calvin Tomkins Co., 322 U.S. 102, 107 (1944). The statute
is, after all, designed “to protect those whose labor and materials
go into public projects.” Clifford F. MacEvoy Co., 322 U.S. at 107; see
also United States ex rel. Am. Civ. Constr., LLC v. Hirani Eng’g & Land
Surv’ing, PC, 58 F.4th 1250, 1252 (D.C. Cir. 2023) (“The Supreme
Court has interpreted the Miller Act broadly in view of its highly
remedial nature.”) (quotation marks omitted).
The district court relied on other district court decisions to
conclude that “repairs that are significant or crucial to the opera-
tions or functioning of the project will constitute labor.” But there
is the Trinity exception, which extends the limitations deadline for
repairs that the government requires as a condition to approving
the work. See United States ex rel. Benefit of Light & Power Utilities
Corp. v. Liles Const. Co., 440 F.2d 474, 477–78 (5th Cir. 1971). It ap-
plies here.
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SES submitted as evidence the affidavit of Jim Cerny, “man-
aging member” of SES. 6 In Cerny’s sworn statement, he explained
that one of the reasons why a video is so “critical” to operator train-
ing is because there “is typically high turnover of operators on
many military bases.” Training was “crucial” to the project, and
therefore an effective video was a “necessary part of SES’s work in
order [to ensure] that the equipment c[ould] be safely, efficiently,
and effectively operated.” And he explained how he’d been con-
tacted on March 9, 2021, by Edwards who had relayed information
from the Corps and instructed SES to re-shoot the training video
because the government rejected the first one due to poor audio
6 Berkshire contends that Cerny’s affidavit is “conclusory”; insufficient to es-
tablish that the video was “crucial” to the project’s operation; and doesn’t
count as supporting evidence to create a genuine issue of material fact. But
whether the video was crucial to the project’s operation is not the question
here. The question is whether the work was required for government ap-
proval. And the relevant parts of Cerny’s affidavit are not conclusory. They
point to project specifications and the subcontract requiring a training video
and include Cerny’s personal experiences. There are enough “specific support-
ing facts” to have “probative value.” See generally Evers v. Gen. Motors Corp., 770
F.2d 984, 986 (11th Cir. 1985) (explaining that a party may not rest on “conclu-
sory allegations without specific supporting facts” to defeat a properly sup-
ported summary judgment motion). Affidavits are sources of evidence to
“support or oppose” a motion for summary judgment. Fed. R. Civ. P. 56(c)(4);
see also United States ex rel. v. Mortg. Invs. Corp., 987 F.3d 1340, 1346 (11th Cir.
2021) (“Even self-serving and uncorroborated statements can create an issue
of material fact.”); United States v. Stein, 881 F.3d 853, 856 (11th Cir. 2018) (en
banc) (“Nothing in Rule 56 prohibits an otherwise admissible affidavit from
being self-serving. And if there is any corroboration requirement for an affida-
vit, it must come from a source other than Rule 56.”).
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quality. Cerny reshot the training video on March 15, 2021, and
submitted it.
These facts are unrefuted: training was an essential part and
requirement of the subcontract, the subcontract required produc-
tion of a training video with audio, and the Corps rejected the first
version of the video because it had poor audio quality. SES “on the
demand of [the Corps],” was required to reshoot the video, and it
did so on March 15, 2021. Trinity Universal Ins. Co., 379 F.2d at 318.
The Corps “accepted the project as complete” on April 14, 2021.
“Particularly in view of the liberal construction which must
be given the Miller Act,” Trinity Universal Ins. Co., 379 F.2d at 318,
and in light of the facts of this case, we are persuaded that SES car-
ried its burden of establishing that, at least the training video
reshoot, completed on March 15, 2021, constitutes labor for the
purposes of the statute of limitations, Dillon Constr. Inc., 776 F.2d at
964. That means the Miller Act claim, which SES filed on February
22, 2022, was timely. 7
The part of the district court’s judgment granting summary
judgment against SES is VACATED, and the case is REMANDED
to the district court for proceedings consistent with this opinion.
7 SES contends other work it completed after February 16, 2021, qualifies as
labor for purposes of the Miller Act. But we need not decide that because of
our conclusion that its claim was timely anyway.