Sava Gumarska v. Advanced Polymer Sciences, 128 SW 3d 304 - Tex: Court of Appeals, 5th Dist. 2004

1. Who won the case? Advanced Polymer Sciences, Inc. (APS), won in this appeals case on 3 of the 5 issues in this case. The appeals court reversed the trial court’s judgment awarding damages to AAPS, and rendered judgment that APS take nothing against SAVA. The appeals court reversed the trial court's judgment refusing to award SAVA attorneys' fees and awarding APS attorneys' fees and expenses under the declaratory judgment act and remanded the issue of whether to award attorneys’ fees to the trial court for further proceedings. On all other issues the appeals court affirmed the trial court’s judgment.

2. Why did that person win? On the issue of the trial court's conclusion that the alleged failure of APS's resin coating products was not a material breach of the Equipment Agreement between SAVA and APS. APS won as neither the Company Formation Agreement nor the Equipment Agreement between SAVA and APS contained a warranty of the performance of the resin coating products. Nor was there an express condition in the Equipment Agreement that the resin coatings to be sold to SAVA AP would perform as warranted. Further, there was evidence that the equipment covered by the Equipment Agreement was not product specific; it could be used with any resin coating products. The evidence supportted the trial court's conclusion that the alleged failure of APS's resin coating products was not a material breach of the Equipment Agreement between SAVA and APS.

On the issue of APS repudiated and breached the Equipment Agreement on August 30, 2000, when it notified SAVA that it had stopped the production of the filament winding equipment. Repudiation consists of words or actions by a contracting party which indicate that it is not going to perform its contract in the