                                  NUMBER 13-08-00214-CV

                                  COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


GREGORY A. BEAVERS, ET AL.,                                                               Appellants,

                                                    v.

ALUMINIUM COMPANY OF AMERICA, ET AL.,                                                      Appellees.


                       On appeal from the 347th District Court
                             of Nueces County, Texas.


                              MEMORANDUM OPINION

               Before Justices Rodriguez, Garza, and Benavides
                  Memorandum Opinion by Justice Rodriguez

        This is a negligence, gross negligence, and strict liability action filed by appellants,1

former employees asserting asbestos-related claims against product manufacturers,

premises owners, equipment manufacturers, and contractors. Appellants appeal the trial


        1
         Appellants are Gregory A. Beavers; Alfredo A. Aguilar; Juan R. Curiel; Hum berto De La Vina; Lazaro
F. Garcia; Consuelo G. Gutierrez, individually and as representative of the estate of Alfredo C. G utierrez;
David C. Rodriguez; Gerald D. Sheets; Sam uel S. Steele; and Nabbie Roberts, individually and as
representative of the estate of Raym ond J. Roberts.
court's granting of a no-evidence summary judgment in favor of several appellees.2 By one

issue, appellants contend that the trial court erred when it granted summary judgment in

favor of appellees. We affirm.

                                               I. BACKGROUND 3

         Appellants filed their fifth amended petition on June 25, 2004, alleging, inter alia,

negligence, gross negligence, and strict liability claims against 143 defendants, some of

which are appellees in this appeal. Throughout May and June 2004, appellees filed no-


         2
          Appellees are A. O. Sm ith Corporation; Anadarko E&P Com pany, LP, f/k/a and sued as RME
Petroleum Com pany f/k/a Union Pacific Resources Com pany f/k/a Cham plin Petroleum Com pany, individually
and as successor by m erger to Pontiac Refining Corporation; Atlantic Richfield Com pany; Union Carbide
Corporation; H. B. Fuller Com pany; Foster Products Corporation, individually and as successor in interest to
Childers Products Com pany, Inc.; Aventis Anim al Nutrition, Inc., individually and as successor in interest to
Rhone-Poulenc AG Com pany, Inc. and Union Carbide Chem icals and Plastics Co., Inc.; Bayer Cropscience,
Inc., individually and as successor in interest to Rhone-Paulenc AG Com pany, Inc. and Union Carbide
Chem icals and Plastics Co., Inc.; Certainteed Corporation; Lam ons Metal Gasket Com pany; E.I. Du Pont de
Nem ours and Com pany; General Electric Com pany; Kelly-Moore Paint Com pany, Inc.; Georgia-Pacific LLC
f/k/a Georgia-Pacific Corporation; Goodrich Corporation f/k/a The B.F. Goodrich Com pany, individually and
as successor in interest to Garlock, Inc.; Lockheed Martin Corporation, individually and as successor in
interest to Martin Marietta Corporation, Martin Marietta Materials, Inc., and Martin Marietta Cem ent, Inc.;
Pharm acia Corporation f/k/a Monsanto Com pany; Shell Oil Com pany, Inc.; Saint-Gobain Abrasives, Inc. f/k/a
Norton Com pany; Norton Com pany (Safety Products Division-USA Norton Com pany), individually and as
successor in interest to W elsh and W elsh, a Division of Textron; Sears, Roebuck and Co.; CBS Corporation,
a Delaware Corporation, f/k/a Viacom , Inc., successor by m erger to CBS Corporation, a Pennsylvania
Corporation, f/k/a W estinghouse Electric Corporation; Sepco Corporation; W eil McLain, incorrectly nam ed
as SPX Corporation, individually and as successor to United Dom inion Industries, The Marley Com pany,
W ylain, Inc., W eil McLain, a Division of W ylain, Inc., and W eil McLain Com pany; Goodyear Tire & Rubber
Com pany; ConocoPhillips Com pany f/k/a Phillips Petroleum Com pany and Phillips Petroleum Com pany;
G.H.X., Incorporated, individually and as successor in interest to Houston Gasket & Packing Com pany,
Corpus Christi Rubber & Gasket Com pany, and Corpus Christi Rubber and Specialty Com pany; Beazer East,
Inc.; Corpus Christi Gasket & Fastener, Ltd.; Bechtel Corporation; Aqua-Chem , Inc. d/b/a Cleaver-Brooks
Division; The Dow Chem ical Com pany; Lam ons Metal Gasket Com pany; A. W . Chesterton Com pany; Garlock
Sealing Technologies LLC, individually and as successor in interest to Garlock, Inc.; EnPro Industries,
individually and as successor in interest to Garlock, Inc.; Anchor Packing Com pany; The Okonite Com pany;
Reynolds Metals Com pany; Garlock, Inc.; Fluor Enterprises, individually and as successor in interest to Fluor
Daniel, Inc., Fluor Engineers, Inc., and Fluor Engineers and Constructors, Inc.; Fluor Corporation; Zurn
Industries, Inc., individually and as successor in interest to Erie City Iron W orks, Inc.;Teadit, N.A., Inc.; Alcoa,
Inc.; Alum inum Com pany of Am erica and/or as successor by m erger and/or successor in interest to Reynolds
Metals Com pany; Am erican Optical Corporation; AstenJohnson, Inc. a/k/a Asten Group, Inc., individually and
as successor in interest to Asten G roup, Inc. and Asten, Inc.; Asten, Inc. d/b/a Asten Group, Inc.; Rapid
Am erican Corporation; Superior Boiler W orks, Inc.; and Asarco Incorporated f/k/a Am erican Sm elting &
Refining Com pany.

         3
           Because this is a m em orandum opinion and the parties are fam iliar with the facts, we will not recite
them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See
T EX . R. A PP . P. 47.4.

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evidence motions for summary judgment arguing, among other things, that appellants had

presented no evidence of causation, strict liability, duty, breach, premises liability, and/or

gross negligence. On June 18, 2004, appellants filed a collective response attaching

evidence as exhibits. In reply, appellees filed objections to the evidence and motions to

strike.4 On June 24, 2004, appellants filed a collective response to appellees' replies.

        On June 25, 2004, the trial court heard and considered appellees' no-evidence

motions, appellants' responses, and appellees' objections and motions to strike appellants'

summary judgment evidence. At the hearing, finding all of appellants' summary judgment

evidence to be inadmissible, the trial court sustained appellees' objections. According to

appellees, at the hearing, the trial court also orally granted appellees' no-evidence motions

for summary judgment on the basis of its evidentiary ruling striking all of appellants'

summary judgment evidence. Appellants do not dispute these facts. See TEX . R. APP. P.

38.1(g).

        On July 15, 2004, the trial court signed and entered a final judgment sustaining

appellees' objections and motions to strike appellants' responses and exhibits and ordering

all of appellants' summary judgment evidence stricken. The trial court ordered that, even

if appellants' responses and exhibits were not stricken, such evidence was legally

insufficient to overcome appellees' no-evidence motions for summary judgment. The trial

court then granted appellees' no-evidence motions for summary judgment and rendered


        4
          For exam ple, appellees objected that various reports and articles constituted unauthenticated and
inadm issible hearsay. They also objected that certain "expert" depositions constituted inadm issible hearsay,
failed to qualify under rule 702 or rule 804(b)(1) of the Texas Rules of Evidence, and failed the adm issibility
standards dictated by E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W .2d 549 (Tex. 1995) and Merrell
Dow Pharmaceuticals, Inc. v. Havner, 953 S.W .2d 706 (Tex. 1997). Further, they com plained that plaintiff
and coworker depositions and affidavits constituted inadm issible hearsay, were not based on personal
knowledge, and failed to qualify under rule 804(b)(1).

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judgment that appellants take nothing from these appellees. Finally, appellants' claims and

causes of action against appellees were severed out and docketed as a separate action,

trial court cause number 04-3820-H.5 Appellants appeal from the trial court's judgment.

                                             II. DISCUSSION

        By a single issue, appellants contend that the trial court erred when it granted

summary judgment. They assert that there was sufficient evidence in the summary

judgment record to demonstrate the existence of a genuine issue of material fact, thus,

summary judgment was not proper.

        Appellants filed their notice of appeal and requested that the district clerk include

their responses dated June 18 and June 24, 2004, as part of the appellate record. When

the record was filed, however, appellants' responses and attached evidence were not

included. Appellants note in their brief that they "filed contemporaneously with their Brief

a Motion to allow amended briefing out of time, to allow them to correct the Clerk's Record

and supplement this Brief with citations to the Clerk's Record." This Court has received

no such motion from appellants, and the appellate record has not been supplemented with

the stricken documents.

        Moreover, "[w]here evidence has been held to be inadmissible and that holding has

not been challenged on appeal, this [C]ourt cannot consider the excluded evidence."

Taylor-Made Hose v. Wilkerson, 21 S.W.3d 484, 493 (Tex. App.–San Antonio 2000, pet.

denied) (op. on reh'g) (en banc) (quoting Frazier v. Yu, 987 S.W.2d 607, 610 (Tex.



        5
          The trial court also severed into cause num ber 04-3820-H all claim s and causes of action against
these appellees which had previously been resolved by non-suit or dism issal, as well as dism issals ordered
by the trial court regarding claim s for contribution and indem nity.

                                                     4
App.–Fort Worth 1999, writ denied) and citing Inglish v. Prudential Ins. Co., 928 S.W.2d

702, 706 (Tex. App.–Houston [1st Dist.] 1996, writ denied) (op. on reh'g); Rhodes v.

Interfirst Bank Fort Worth, N.A., 719 S.W.2d 263, 265 (Tex. App.–Fort Worth 1986, no

writ); Talbott v. Hogg, 298 S.W.2d 883, 889 (Tex. Civ. App.–Amarillo 1957, writ dism'd)).

"Where excluded evidence is not the subject of a point of error, 'plaintiffs have waived any

right to complain about the exclusion.'" Rhodes, 719 S.W.2d at 265 (quoting Talbott, 298

S.W.2d at 889). Appellants do not now assert that the trial court erred by striking the

evidence, thus they have waived any right to complain about the exclusion.6 See id.

        In a no-evidence summary judgment case, the nonmovant, here the plaintiffs, "must

produce summary judgment evidence raising a genuine issue of material fact to defeat the

summary judgment under [section 166a(i)]." Ford Motor Co. v. Ridgway, 135 S.W.3d 598,

600 (Tex. 2004) (citing TEX . R. CIV. P. 166a(i)). "A genuine issue of material fact exists if

more than a scintilla of evidence establishing the existence of the challenged element is

produced." Id. (citing Morgan v. Anthony, 27 S.W.3d 928, 929 (Tex. 2000)). Without the

stricken evidence, appellants have no summary judgment evidence before this Court; they



        6
          Appellants state in their argum ent sum m ary that "[i]t was error for the trial court to strike the
Appellants' evidence from the sum m ary judgm ent record." In support of this statem ent, they advance no
substantive legal analysis or argum ent in that sum m ary or in the argum ent section of their brief. In the
argum ent section, after citing authority, appellants do urge that "[i]t is incum bent on the objecting party to
obtain the court's ruling on the objections before the court rules on the m otion and have the ruling
m em orialized by a written order," and "[w]hen an objection is sustained, the opposing party m ust be given an
opportunity to am end the instrum ent to cure the defect, if possible." However, appellants provide neither a
factual basis nor a substantive analysis addressing how these principles of law were violated here. "It would
be inappropriate for this [C]ourt to speculate as to what appellant[s] m ay have intended to raise as an error
by the trial court on appeal. To do so would force this [C]ourt to stray from our role as a neutral adjudicator
and becom e an advocate for appellant[s]." Canton-Carter v. Baylor College of Med., 271 S.W .3d 928, 931
(Tex. App.–Houston [14th Dist.] 2008, no pet.). Therefore, even if appellants properly raised this issue, we
would conclude that it has been inadequately briefed. See T EX . R. A PP . P. 38.1(i) (providing that a brief m ust
contain "a clear and concise argum ent that includes appropriate citations to legal authority and to the appellate
record"); Valadez v. Avitia, 238 S.W .3d 843, 845 (Tex. App.–El Paso 2007, no pet.).

                                                        5
have failed to produced more than a scintilla of evidence establishing the existence of any

element of their claims. See id.

      Accordingly, the trial court did not err in granting appellees' motions for no-evidence

summary judgment. We overrule appellants' sole issue.

                                     III. CONCLUSION

      We affirm the judgment of the trial court.




                                                    NELDA V. RODRIGUEZ
                                                    Justice

Delivered and filed the
11th day of March, 2010.




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