RICKHOFF, Justice.
This is a products liability case. Appellants, Tina and Alton Nebgen, appeal a summary judgment rendered in favor of appellee, 3M Company a/k/a Minnesota Mining and Manufacturing Company (3M). The Neb-gens sought to recover damages for personal injuries on theories of negligence, strict products liability, and breach of warranty. [365]*365The trial court granted appellee’s motion for summary judgment “in all things.” The dis-positive issue in this appeal is whether 3M’s summary judgment proof was legally sufficient to negate all of appellants’ claims. We conclude that it was, and affirm the judgment.
BACKGROUND
In September 1989 the Nebgens purchased a new stain-resistant carpet from S & H Carpets Company, which was delivered and installed in their home. They alleged that as a result of exposure to the carpet, Mrs. Neb-gen suffered injuries, including rashes, sinus and respiratory allergies and ailments, severe headaches, weight and hair loss, and numbness of her left arm. Mr. Nebgen claimed loss of consortium. They brought suit against 8M Company, E.I. DuPont de Nemours & Company, S & H Carpets Company (the local retailer), and JPS Company (the distributor). In their second amended petition, the Nebgens claimed the “Stainmas-ter” carpet they purchased was designed, manufactured, and marketed by DuPont and 3M, and that it had been treated with “Scotchgard Stain Release,” a product designed, manufactured, and sold by 3M. Alternatively, appellants alleged that 3M placed the carpet treatment on the market and represented that the carpet treatment “was designed, manufactured and marketed in a manner so that there would be no risk of suffering serious and disabling bodily injuries.”
Appellee 3M filed a motion for summary judgment and severance from the other three defendants based on the grounds that it did not manufacture, distribute, sell, or otherwise place into the stream of commerce the stain-resistant component of the carpet, nor did it manufacture the finished carpet in question; it did not manufacture any compound or treatment applied to the carpet in question, nor did it provide bulk chemicals or materials to the carpet mill for the manufacture of the carpet; there was no evidence that Mrs. Nebgen was ever exposed to or provided with any product manufactured or distributed by 3M; and there was no showing that any product manufactured by 3M was defective or unreasonably dangerous.
Appellee supported its motion with an affidavit sworn to by Bradley C. Sweet, Senior Counsel for 3M, which averred, based on his own personal knowledge as Senior Counsel, that
3M does not manufacture, distribute or sell carpet. 3M did not manufacture, distribute, sell or place the carpet made the basis of this lawsuit into the stream of commerce. 3M does not manufacture nylon 66 fiber, or any other component of the carpet. In addition, 3M did not supply the carpet manufacturer with products to make the carpet stain resistant and soil resistant. 3M does manufacture “Scotch-gard,” a product designed to make carpets stain resistant and soil resistant, but “Scotchgard” was not used in the manufacture of the carpet at issue in this case. Scotchgard is not defective nor unreasonably dangerous.
Appellants did not file a response to the motion for summary judgment. The trial court granted the motion and severed appellants’ case against 3M from their case against the other three named defendants.
DISCUSSION
The party moving for summary judgment has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 646, 548 (Tex.1985); Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972). See also Tex.R.Civ.P. 166a(c). In deciding whether a disputed material fact issue precludes summary judgment, the reviewing court will take as true all evidence favoring the nonmovant. Nixon, 690 S.W.2d at 549; Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex.1984). Every reasonable inference from the evidence will be indulged in favor of the nonmovant, and any doubts will be resolved in his favor. Nixon, 690 S.W.2d at 549; Montgomery, 669 S.W.2d at 311. Because appellants did not file a response to the motion for summary judgment, however, the only contention they may raise on appeal is that the grounds expressly presented to the [366]*366trial court by the movant’s motion are insufficient as a matter of law to support the judgment. City of Houston v. Clear Creek Basin Auth, 589 S.W.2d 671, 678 (Tex.1979).
In them third point of error, appellants claim the summary judgment proof was legally insufficient to negate essential elements of their causes of action. Summary judgment for a defendant is proper when at least one element of a plaintiffs cause of action has been established conclusively against the plaintiff. Walton v. Harnischfeger, 796 S.W.2d 225, 228 (Tex.App. — San Antonio 1990, writ denied). An actionable tort, whether based on negligence or strict liability, includes the element of causation or cause in fact. Id. Moreover, a fundamental principle of products liability law is that the plaintiff must prove that the defendant supplied the product that caused the injury. Gaulding v. Celotex Corp., 772 S.W.2d 66, 67 (Tex. 1989).
When the defense is in the nature of a denial, as it is here, the burden of the defendant moving for summary judgment is to establish that the plaintiff does not have sufficient evidence to go to a jury on a controlling issue that is essential to his recovery. Peek v. Oshman’s Sporting Goods, Inc., 768 S.W.2d 841, 843 (Tex.App. — San Antonio 1989, writ denied). See also State v. Seventeen Thousand and no/100 Dollars U.S. Currency, 809 S.W.2d 637, 639 (Tex.App. — Corpus Christi 1991, no writ). In this case, 3M’s summary judgment evidence consists, among other things, of Mr. Sweet’s affidavit, which denied that 3M manufactured, distributed, supplied, or placed into the stream of commerce either the carpet in question or the treatment product alleged to have caused the appellants’ injuries. This testimony is clear, positive, and direct, free of contradictions and inconsistencies, and could have been readily controverted. See Tex.R.Civ.P. 166a(c). The Texas Supreme Court, in Casso v. Brand, 776 S.W.2d 551 (Tex.1989), defined the phrase “could have been readily controverted” as meaning “that testimony at issue is of a nature which can be effectively countered by opposing evidence.” Id. at 558. The court continued, “[I]f the non-movant must, in all likelihood, come forth with independent evidence to prevail, then summary judgment may well be proper in the absence of such controverting proof.” Id.
Free access — add to your briefcase to read the full text and ask questions with AI
RICKHOFF, Justice.
This is a products liability case. Appellants, Tina and Alton Nebgen, appeal a summary judgment rendered in favor of appellee, 3M Company a/k/a Minnesota Mining and Manufacturing Company (3M). The Neb-gens sought to recover damages for personal injuries on theories of negligence, strict products liability, and breach of warranty. [365]*365The trial court granted appellee’s motion for summary judgment “in all things.” The dis-positive issue in this appeal is whether 3M’s summary judgment proof was legally sufficient to negate all of appellants’ claims. We conclude that it was, and affirm the judgment.
BACKGROUND
In September 1989 the Nebgens purchased a new stain-resistant carpet from S & H Carpets Company, which was delivered and installed in their home. They alleged that as a result of exposure to the carpet, Mrs. Neb-gen suffered injuries, including rashes, sinus and respiratory allergies and ailments, severe headaches, weight and hair loss, and numbness of her left arm. Mr. Nebgen claimed loss of consortium. They brought suit against 8M Company, E.I. DuPont de Nemours & Company, S & H Carpets Company (the local retailer), and JPS Company (the distributor). In their second amended petition, the Nebgens claimed the “Stainmas-ter” carpet they purchased was designed, manufactured, and marketed by DuPont and 3M, and that it had been treated with “Scotchgard Stain Release,” a product designed, manufactured, and sold by 3M. Alternatively, appellants alleged that 3M placed the carpet treatment on the market and represented that the carpet treatment “was designed, manufactured and marketed in a manner so that there would be no risk of suffering serious and disabling bodily injuries.”
Appellee 3M filed a motion for summary judgment and severance from the other three defendants based on the grounds that it did not manufacture, distribute, sell, or otherwise place into the stream of commerce the stain-resistant component of the carpet, nor did it manufacture the finished carpet in question; it did not manufacture any compound or treatment applied to the carpet in question, nor did it provide bulk chemicals or materials to the carpet mill for the manufacture of the carpet; there was no evidence that Mrs. Nebgen was ever exposed to or provided with any product manufactured or distributed by 3M; and there was no showing that any product manufactured by 3M was defective or unreasonably dangerous.
Appellee supported its motion with an affidavit sworn to by Bradley C. Sweet, Senior Counsel for 3M, which averred, based on his own personal knowledge as Senior Counsel, that
3M does not manufacture, distribute or sell carpet. 3M did not manufacture, distribute, sell or place the carpet made the basis of this lawsuit into the stream of commerce. 3M does not manufacture nylon 66 fiber, or any other component of the carpet. In addition, 3M did not supply the carpet manufacturer with products to make the carpet stain resistant and soil resistant. 3M does manufacture “Scotch-gard,” a product designed to make carpets stain resistant and soil resistant, but “Scotchgard” was not used in the manufacture of the carpet at issue in this case. Scotchgard is not defective nor unreasonably dangerous.
Appellants did not file a response to the motion for summary judgment. The trial court granted the motion and severed appellants’ case against 3M from their case against the other three named defendants.
DISCUSSION
The party moving for summary judgment has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 646, 548 (Tex.1985); Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972). See also Tex.R.Civ.P. 166a(c). In deciding whether a disputed material fact issue precludes summary judgment, the reviewing court will take as true all evidence favoring the nonmovant. Nixon, 690 S.W.2d at 549; Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex.1984). Every reasonable inference from the evidence will be indulged in favor of the nonmovant, and any doubts will be resolved in his favor. Nixon, 690 S.W.2d at 549; Montgomery, 669 S.W.2d at 311. Because appellants did not file a response to the motion for summary judgment, however, the only contention they may raise on appeal is that the grounds expressly presented to the [366]*366trial court by the movant’s motion are insufficient as a matter of law to support the judgment. City of Houston v. Clear Creek Basin Auth, 589 S.W.2d 671, 678 (Tex.1979).
In them third point of error, appellants claim the summary judgment proof was legally insufficient to negate essential elements of their causes of action. Summary judgment for a defendant is proper when at least one element of a plaintiffs cause of action has been established conclusively against the plaintiff. Walton v. Harnischfeger, 796 S.W.2d 225, 228 (Tex.App. — San Antonio 1990, writ denied). An actionable tort, whether based on negligence or strict liability, includes the element of causation or cause in fact. Id. Moreover, a fundamental principle of products liability law is that the plaintiff must prove that the defendant supplied the product that caused the injury. Gaulding v. Celotex Corp., 772 S.W.2d 66, 67 (Tex. 1989).
When the defense is in the nature of a denial, as it is here, the burden of the defendant moving for summary judgment is to establish that the plaintiff does not have sufficient evidence to go to a jury on a controlling issue that is essential to his recovery. Peek v. Oshman’s Sporting Goods, Inc., 768 S.W.2d 841, 843 (Tex.App. — San Antonio 1989, writ denied). See also State v. Seventeen Thousand and no/100 Dollars U.S. Currency, 809 S.W.2d 637, 639 (Tex.App. — Corpus Christi 1991, no writ). In this case, 3M’s summary judgment evidence consists, among other things, of Mr. Sweet’s affidavit, which denied that 3M manufactured, distributed, supplied, or placed into the stream of commerce either the carpet in question or the treatment product alleged to have caused the appellants’ injuries. This testimony is clear, positive, and direct, free of contradictions and inconsistencies, and could have been readily controverted. See Tex.R.Civ.P. 166a(c). The Texas Supreme Court, in Casso v. Brand, 776 S.W.2d 551 (Tex.1989), defined the phrase “could have been readily controverted” as meaning “that testimony at issue is of a nature which can be effectively countered by opposing evidence.” Id. at 558. The court continued, “[I]f the non-movant must, in all likelihood, come forth with independent evidence to prevail, then summary judgment may well be proper in the absence of such controverting proof.” Id.
In the present case, such competent, uncontroverted proof negated, as a matter of law, the elements of duty and causation, which are essential elements of the appellants’ causes of action for negligence, strict products liability, and breach of warranty. Once a defendant has negated elements of the plaintiffs causes of action, the plaintiff has the burden of introducing evidence that raises an issue of fact regarding those elements. Goldberg v. United States Shoe Corp., 775 S.W.2d 751, 751 (Tex.App.— Houston [1st Dist.] 1989, writ denied). The record in this case is devoid of any evidence that raises a material fact issue of whether 3M manufactured or supplied the product that caused appellants’ injuries, save for the pleadings. Pleadings, however, are not summary judgment proof, and pleadings are not to be considered when determining whether fact issues are presented in summary judgment motions. Clear Creek, 589 S.W.2d at 678. Appellants also claim their answer to 3M’s Interrogatory No. 18, which 3M attached to its motion as summary judgment proof, raises an issue of fact, which therefore conflicts with 3M’s motion and precludes summary judgment. However, a non-mov-ant’s answers to interrogatories “cannot be used to defeat a motion for summary judgment on the ground that they raise a material fact issue.” Elliott v. State, 818 S.W.2d 71, 73 (Tex.App. — San Antonio 1991, writ denied). Answers to interrogatories “may be used only against the party answering the interrogatories.” Tex.R.Civ.P. 168(2). We hold that 3M’s uncontroverted summary judgment evidence negates, as a matter of law, appellants’ causes of action. The third point is overruled.
In their second point of error, appellants claim their pleadings alleged that Scotchgard was used to treat the carpet “at some undetermined time” after manufacture, and that Mr. Sweet’s affidavit is legally insufficient to support the summary judgment on this theory. Appellee argues that appellants are attempting to raise this issue for the first [367]*367time on appeal, and that the pleadings alleged only that the carpet was treated during manufacture with a stain retardant. We first note that although a nonmovant is not required to answer or respond to a motion for summary judgment, he may not raise any new issues as grounds for reversal on appeal. Clear Creek, 589 S.W.2d at 678. Although appellants now assert that their second amended petition “does not allege that the carpet was treated in manufacture, nor that it was a component part of the carpet,” a fair reading of their pleadings reveals the following allegations: “The carpet was in the same condition at the time TINA NEBGEN was injured as it was when it originally manufactured and at the same time it was sold to plaintiffs”; “[Djefendants DUPONT and 3M COMPANY designed, manufactured, and marketed the Dupont ‘Stainmaster’ carpet”; “[Djefendants were jointly engaged in the business of introducing the ... carpet into the stream of commerce”; and “When defendants placed the carpet into the stream of commerce, it contained certain defects which caused the carpet to be unreasonably dangerous to the ordinary user, including plaintiffs.” It is disingenuous for appellants to argue now, on appeal, that their carpet was treated with Scotchgard at some unspecified tone after manufacture. This point is without merit.
In their first point of error, appellants claim that the summary judgment proof was legally insufficient to establish that Scotchgard is not defective or unreasonably dangerous. However, because we have found that BM has established as a matter of law that it had no duty to appellants, nor caused appellants’ injuries, any allegedly “defective” or “dangerous” condition of Scotch-gard is immaterial to the case at hand. Also under point one, appellants raise several challenges to defects of form in 3M’s summary judgment motion and evidence. Objections to summary judgment proof, however, must be timely lodged in the trial court and may not be raised for the first time on appeal. Archambault v. Archambault, 846 S.W.2d 359, 361 (Tex.App. — Houston [14th Dist.] 1992, no writ); Thompson v. Dart, 746 S.W.2d 821, 825 (TexApp. — San Antonio 1988, no writ). Appellants raised no objections to the complained-of defects, and therefore cannot raise these defects for the first tone on appeal. See Clear Creek, 589 S.W.2d at 678. The first point is overruled.
The judgment is affirmed.