Appeal from the County Civil Court at Law No. 3 Harris
County, Texas Trial Court Cause No. 1073300
consists of Justices Christopher, Hassan, and Poissant.
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.
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.
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
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."
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."
trial court signed a final judgment in KC's favor and
issued findings of fact and conclusions of law. Letco timely
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.
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