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The Letco Group, LLC v. Kossman Contracting Co.

Court of Appeals of Texas, Fourteenth District

July 30, 2019

THE LETCO GROUP, LLC, Appellant
v.
KOSSMAN CONTRACTING CO. D/B/A KOSSMAN CONTRACTING AND ROBERT KOSSMAN, Appellees

          On Appeal from the County Civil Court at Law No. 3 Harris County, Texas Trial Court Cause No. 1073300

          Panel consists of Justices Christopher, Hassan, and Poissant.

          MEMORANDUM OPINION

          MEAGAN HASSAN JUSTICE.

         Appellant The Letco Group, LLC ("Letco") sued appellees Kossman Contracting Co. d/b/a Kossman Contracting and its president, Robert Kossman (collectively, "KC"), to collect money owed under several construction agreements. After a bench trial, the trial court signed a judgment in favor of KC. Letco appealed and asserts KC made a judicial admission that entitles Letco to a recovery of approximately $5, 700 in retainage funds. For the reasons below, we affirm.

         Background

         Pursuant to several agreements, Letco supplied compost to KC for use in a toll road construction project. Alleging that KC did not fulfill its obligations under the agreements, Letco sued KC to collect $29, 724.19.

         The parties proceeded to a bench trial in February 2018. Letco called Robert Kossman, an adverse witness, to testify with respect to the parties' business dealings. Kossman testified that KC ordered approximately 11, 000 cubic yards of compost from Letco and paid Letco $130, 723.31. Kossman stated that, "after a final accounting," KC concluded that Letco had been overpaid by approximately $2, 000. Kossman stated that KC did not owe Letco any additional funds. Testifying with respect to the parties' retainage agreement, Kossman stated Letco was "not owed any retainage funds" because it had "been paid in full."

         Letco also called Brent McWaters to testify as its corporate representative. McWaters acknowledged that KC paid Letco $130, 723.31 and said KC still owed $29, 724.19. According to McWaters, KC had offered to tender Letco approximately $5, 700 in retainage funds on the condition that, "if [Letco] accepted that payment[, ] that the account would be satisfied." McWaters stated that Letco declined the retainage payment because it "was far less than what [Letco] had showed being owed."

         Describing the $5, 700 offer further, McWaters stated the payment "wasn't necessarily offered as retainage." McWaters also testified that Letco was "not claiming retainage" but instead was "simply stating we are owed what we feel we delivered."

         The trial court signed a final judgment in KC's favor and issued findings of fact and conclusions of law. Letco timely appealed.

         Analysis

         In two issues, Letco summarily asserts (1) KC judicially admitted that Letco was owed $5, 704.61; and (2) it is entitled to collect $9, 500 in attorney's fees.

         I. Judicial Admission

         Letco argues KC judicially admitted that it owes Letco $5, 704.61 in retainage funds. Letco supports its argument with reference to the following testimony, during which Kossman ...


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