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Business, Banking and Contracts Click here for the full text of this decision FACTS: Brad Kay appeals a take nothing summary judgment. Kay asserts the trial court erred in transferring venue from Dallas County to Kaufman County and in granting summary judgment in favor of Jack Ellison and North Texas Rod & Custom (collectively Ellison). Kay and Ellison entered into an agreement for Ellison to restore Kay’s 1942 Ford truck. Kay paid Ellison for his work. A dispute later arose as to the quality of the work and Kay sued Ellison alleging causes of action for violations of the Deceptive Trade Practices Act and breach of contract. Ellison moved for and the trial court granted summary judgment. HOLDING: Reversed and remanded. In his first amended petition, Kay alleged causes of action for DTPA violations and breach of contract. The elements of a DTPA claim are 1. plaintiff is a consumer; 2. defendant engaged in false, misleading, or deceptive acts; and 3. the acts were a producing cause of the plaintiff’s injuries. Texas Business and Commerce Code �17.46. A consumer is a person who seeks or acquires goods or services by purchase or lease. �17.45(2). In his affidavit, Kay testified that Ellison promised that he would do a “show quality” refinish of the truck, with a paint job uniform in thickness and color and free of runs, sags, and thin spots. Kay testified that he relied upon the representations in agreeing to allow Ellison to restore the truck. The market value of the truck after Ellison refinished it was $5,000. According to Kay, the market value of the truck, had it been refinished as represented by Ellison, would have been $15,000. Kay also tendered the affidavit of Tommy Boyd who had over 20 years’ experience in the business of painting and restoring cars. Boyd examined Kay’s truck shortly after the restoration was complete. In his opinion, the truck did not meet the “minimum standards of restoration show paint and perfection, and should be completely refinished.” The court concludes Kay’s summary judgment evidence constitutes more than a scintilla of evidence on each element of his DTPA claims. The elements for a breach of contract claim are 1. existence of a valid contract; 2. performance or tendered performance by the plaintiff; 3. breach of the contract by the defendant; and 4. damages to the plaintiff resulting from the breach. Wright v. Christian & Smith,950 S.W.2d 411 (Tex. App. – Houston [1st Dist.] 1997, no pet.). Kay testified in his affidavit that he and Ellison agreed that Ellison would provide his truck with a “show quality” paint job. Ellison disputes that he promised Kay a “show quality” paint job. Kay alleged and Ellison admitted that Kay did not receive a “show quality” paint job. Kay asserts damages as a result of this alleged breach. The court concludes that Kay’s affidavit testimony amounts to more than a scintilla of evidence on each element of the breach of contract claim. Kay contends the trial court erred in granting summary judgment in favor of Ellison on his affirmative defenses. Ellison filed a traditional motion for summary judgment on his affirmative defenses. A defendant may prevail on a motion for summary judgment by conclusively proving all elements of an affirmative defense as a matter of law, such that there is no genuine issue of material fact. Cathey v. Booth, 900 S.W.2d 339 (Tex. 1995). In his answer, Ellison asserted the affirmative defenses of estoppel, laches, unforseeability and contributory negligence. Ellison sought summary judgment on the affirmative defenses of “ratification, contributory negligence, and no recovery under the DTPA.” The court’s review of the record reveals that Ellison did not plead the affirmative defenses of ratification and “no recovery under the DTPA.” The court considers whether summary judgment was proper on his affirmative defense of contributory negligence. To establish contributory negligence, a defendant must prove 1. the plaintiff was negligent; and 2. the plaintiff’s negligence was a proximate cause of his injury. Ned v. E.J. Turner and Co. Inc., 11 S.W.3d 407 (Tex. App. – Houston [1st Dist.] 2000, pet. denied). Ellison alleged that Kay failed to protect the truck from the weather after he picked it up from NTRC. In support of his motion, Ellison included the affidavit of Harry J. Ballard. Ballard inspected the truck on May 8, 2001. In Ballard’s opinion, the truck had been stored outside and inclement weather had taken its toll on both the truck’s finish and metal seams. Kay countered Ellison’s summary judgment evidence with his own affidavit testimony. Kay testified that from the time he picked up his truck from NTRC, he stored it in a specially built trailer within a warehouse. He stated that he took it out of the trailer only two days before taking it to Ellison’s attorney’s office for inspection. It did rain on that day and Kay towel-dried the truck. Kay testified that was the only occasion when the truck was exposed to moisture. The court concludes Kay’s summary judgment evidence of non-negligence was sufficient to raise a fact question on Ellison’s affirmative defense of contributory negligence. OPINION: Wright, J.; Wright, FitzGerald and Lang, JJ.

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