dissenting.
In this summary judgment proceeding, we have to determine whether Chemical Lime as a matter of law proved it was entitled to payment. It did not. When Site Work and Waller asserted the tax exempt status of the buyer, Chemical Lime had to prove, in this traditional motion for summary judgment, that either the buyer was not tax exempt or some other reason that Site Work could not assert a tax exemption.
The issue in this appeal is as old as summary judgment practice. This old issue is what is the burden on the movant. It has frequently been stated that the burden is for the movant to prove it is entitled to judgment as a matter of law. Sounds easy enough. I sympathize with the majority’s struggle to apply this seemingly simple rule.
The simple rule begins to get complicated when there are sworn denials of verified accounts, defenses, affirmative defenses, and counter defenses. See Sonnichsen v. Baylor Univ., 47 S.W.3d 122, 124 (Tex.App.-Waco 2001, no pet.).
This seemed like a simple case. Suit on an account. The seller moved for summary judgment. The buyer then filed a verified denial. The buyer also filed a response to the motion for summary judgment asserting that the purchases were exempt from the collection of sales taxes, an item that was included in the invoices, and for which the seller had sued. A proper assertion that the invoice includes an entry for an item not owed defeats the justness of the invoice.
The majority misses the importance of a single word in their opinion. A word that comes directly from the statute; should. A seller should have a completed tax exemption certificate at the time of the sale. Tex. TaxCode Ann. § 151.054(e) (Vernon 2002). It is not, however, mandatory. See id.
The statute makes clear that the exemption certificate can be provided by the buyer to the seller long after the sales transaction is complete. The comptroller does not disallow the deduction claimed by the seller unless the certificate is not in the possession of the seller within 60 days from the date the comptroller gives notice to the seller. Id.
If 60 days has not passed after the comptroller has given notice requiring possession of the buyer’s tax exemption certificate, the buyer can simply provide the certificate and the seller is not required to collect and remit the sales tax. This suit is not about the preferable practice for collecting the sales taxes. And why the buyer would not have provided the certificate by now escapes reason and logic, but that does not impact the proper analysis of this summary judgment proceeding.
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. See ’’Moore” Burger, Inc. v. Phillips Petroleum Co., 492 S.W.2d 934, 936-937 (Tex.1972); Sonnichsen v. Baylor Univ., 47 S.W.3d 122, 124 (Tex.App.-Waco 2001, no pet.). 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. Id. 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 *516prove itself entitled to judgment as a matter of law.
Because Chemical Lime failed to overcome the defense/affirmative defense of Site Work, Chemical Lime has not shown that it is entitled to collect the full amount for which it has sued. Before it is entitled to collect the full amount, including the sales tax, Chemical Lime must show that Site Work is not tax exempt or has waived its right to assert its tax exempt status by failing to timely provide an exemption certificate.
Accordingly, I would reverse the judgment of the trial court and remand for further proceedings consistent with this opinion. The majority affirms the trial court. Accordingly, I dissent.