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Click here for the full text of this decision FACTS:Site Work Group Inc. (SWG) was a subcontractor on a project to build a new sanctuary for the Unity Church of Christianity in Houston. Chemical Lime Ltd. supplied lime to SWG for the project on a credit account. Richard Waller and Raymond Smith, SWG’s individual guarantors, personally guaranteed payment to Chemical Lime. Though SWG supposedly notified Chemical Lime on two occasions that the project was tax-exempt, Chemical Lime nonetheless charged sales tax on the materials it delivered. SWG refused to pay the amounts due. Chemical Lime sued SWG for failure to pay, breach of contract and quantum meruit. It also sued Waller and Smith for breach of guaranty. SWG and Waller filed a general denial and a verified denial that each and every item in the statement of the account was not just or true. The trial court then granted summary judgment to Chemical Lime. SWG and Waller claim on appeal that summary judgment was improper because they raised a fact issue as to the justness of the amount on the account. This is so, they argue, because, by affidavit, they stated that Chemical Lime charged them sales tax even after being notified that the project was tax-exempt; therefore, the amount listed on the account was not true or just. HOLDING:Affirmed. The court notes that an affidavit filed by Chemical Lime’s credit analyst provides evidence that the sales prices of the materials were reasonable, and the usual and customary prices for such materials. Thus, Chemical Lime met its burden to prove that the amount of the account is just. The burden then shifted to SWG and Waller, the court finds, to present summary judgment evidence to raise a fact issue. If SWG did not want a sales tax applied to its account, the court continues, Chemical Lime should have been provided with an exemption certificate under Tax Code 151.054(e) at the time of the transaction. “[SWG's and Waller's] burden was not to prove the tax-exempt status of the Project, but was to present summary-judgment evidence to bring a fact issue relating to whether or not they provided Chemical Lime with a tax-exemption certificate. We find [they] failed to meet their burden.” OPINION:Bill Vance, J.; Gray, C.J., Vance and Reyna, JJ. DISSENT:Tom Gray, C.J. “The majority misses the importance of a single word in their opinion. A word that comes directly from the statute; should.” The dissent would find that under 151.054(e) a seller should have a completed tax exemption certificate at the time of the sale, but it is not mandatory. “I need not decide today whether tax exempt status is a defense to Chemical Lime’s debt collection action, or whether the tax exempt status is an affirmative defense to the debt. If it is only a defense, the non-movant must present some evidence of it because Chemical Lime has otherwise presented its prima facie case. . . . If it is an affirmative defense, the movant must affirmatively negate at least one element of the affirmative defense before the movant is entitled to judgment as a matter of law. . . . Because the defense was raised and some evidence of the tax exempt status of Site Work was presented, it does not matter if it is merely a defense or if it is an affirmative defense. In either circumstance, Chemical Lime did not prove itself entitled to judgment as a matter of law.”

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