"In the context of an implied warranty of merchantability case, the word 'defect' means a condition of the goods that renders them unfit for the ordinary purpose for which they are used because of a lack of something necessary for adequacy." Para-Chem Southern, Inc. v. Sandstone Products, Inc., No. 01-06-01073-CV, 2009 WL 276507, at *14 (Tex. App.--Houston [1st Dist.] Feb, 5, 2009), citing Plas-Tex, 772 S.W. 2d at 444. It may also be unmerchantable if it fails to conform to the promises or affirmations of fact on the product's container or label.
Walden, 97 S.W.3d at 322. See also Para–Chem S., Inc. v. Sandstone Products, Inc., No. 01–06–01073–CV, 2009 WL 276507 at *17 (Tex.App.-Houston [1st Dist.] Feb. 5, 2009, pet. denied) ("A trial court may summarily dispose of issues at a Rule 166 pretrial conference when the trial court determines that no fact issues remain and the issues may be determined as a matter of law."). Because the fair notice ground was raised as part of the pretrial conference, we apply the standard of review for directed verdicts to this basis for the trial court's ruling.