TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-20-00431-CV
Scientific Machine & Welding, Inc., Appellant
v.
FlashParking, Inc., Appellee
FROM THE 459TH DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-GN-19-003816, THE HONORABLE TIM SULAK, JUDGE PRESIDING
DISSENTING OPINION
The question of repudiation generally “is one of fact, to be determined by the trier
of facts,” Hudson v. Wakefield, 645 S.W.2d 427, 430 (Tex. 1983); see Tubb v. Aspect Int’l, Inc.,
No. 12-14-00323-CV, 2017 Tex. App. LEXIS 362, at *6 (Tex. App.—Tyler Jan. 18, 2017, pet.
denied) (mem. op.) (“Whether a party has repudiated an agreement is a question of fact.” (citing
Berg v. Wilson, 353 S.W.3d 166, 176 (Tex. App.—Texarkana 2011, pet denied))), although
“when the pertinent facts are undisputed, repudiation may be established as a matter of law,”
King Rach, Inc. v. Chapman, 118 S.W.3d 742, 756 (Tex. 2003). Here, however, the pertinent
facts are disputed.
In my opinion, the question of repudiation before this Court is not a matter of law,
but one for the trier of facts. Viewing the summary judgment evidence in the light most
favorable to Scientific Machine and Welding, Inc., I conclude that FlashParking, Inc. did not
conclusively establish its affirmative defense of repudiation. See Tex. R. Civ. P. 166a(c).
Among my disagreements with the Court’s analysis, I do not agree that the summary judgment
evidence conclusively established that (i) Scientific intentionally and unequivocally repudiated
the FlashParking contract, (ii) Scientific did not refuse in good faith to sign a third party contract,
and (iii) Scientific knew when it refused to sign the third party contract without modification that
Scientific would no longer be authorized to deliver UL-compliant SmartStations. Because
I would reverse the trial court’s summary judgment and remand the case for trial, I
respectfully dissent.
__________________________________________
Melissa Goodwin, Justice
Before Justices Goodwin, Triana, and Kelly
Filed: November 12, 2021
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