dissenting.
I believe the majority erroneously sustains this judgment as disposing of all of the appellants’ causes of action. I therefore respectfully dissent.
Appellants argue that 3M’s summary judgment proof was legally insufficient to negate essential elements of all their causes of action. As noted by the majority, it is well settled that 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). Therefore, the movant must establish entitlement to summary judgment only on the issues expressly presented to the trial court by conclusively establishing all essential elements of its defense. Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex. 1990).
In their second and third points of error, appellants point out that their pleadings alleged that Scotchgard was used to treat the carpet “at some undetermined time” after manufacture, and that Mr. Sweet’s affidavit was legally insufficient to support the summary judgment on this theory. Appellee 3M, on the other hand, argues that the pleadings alleged solely that the carpet was treated during manufacture with a stain retardant. To support this contention, 3M directs us to several passages in appellants’ pleadings which plainly assert that 3M was either involved in the manufacture of the carpet or that the allegedly harmful compound was used as a component in, or to treat, the new carpet.
Appellants, however, direct our attention to paragraph X of their Second Amended Petition, which states:
Alternatively, by placing the carpet treatment on the market for use by ultimate *368consumers such as [appellants], and by its accompanying sales and advertising literature, 3M COMPANY represented to [appellants] and others 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.
In the absence of special exceptions, we must liberally construe a petition in favor of the pleader. Roark v. Allen, 633 S.W.2d 804, 809 (Tex.1982); see Tex.R.Civ.P. 45. The petition is sufficient if it gives fair and adequate notice of the facts upon which the pleader bases his claim. Roark, 633 S.W.2d at 810. Moreover, a party may state separate claims regardless of their consistency. Tex.R.Civ.P. 48. The record reflects that no special exceptions were filed by the appellee. In liberally construing these pleadings, as we must, and in indulging every reasonable inference in favor of appellants, we should conclude that appellants raised the issue below that the carpet was treated with a 3M carpet treatment at some time other than during manufacture, and that the product was harmful and defective.
In stretching to affirm, the majority adopts a novel standard for interpreting pleadings which, as here, have not been attacked by special exceptions. Instead of liberally construing the pleadings as the law requires, the majority adopts a novel “fair reading” standard. Thus, the majority contends that their personal and individual “fair reading” of the pleadings justifies ignoring completely the alternative pleading which specifically addressed a cause of action alleging that “3M Company represented to [appellants] and others that the carpet treatment [which 3M admits marketing] was designed, manufactured and marketed in a manner so that there would be no risk of suffering serious and disabling bodily injuries.” The majority ignores these allegations further by contending that pleadings do not raise fact issues without realizing that, although pleadings do not raise fact issues, they do indeed raise causes of actions, which must all be addressed and disposed of in order to justify a summary judgment “in all things.”
Appellee 3M now contends that the Second Amended Petition was insufficient to give it fair notice of the claim that the carpet was treated with its product at some time other than at manufacture. The record, however, reflects otherwise. Appellee 3M’s Motion for Summary Judgment and Severance avers: (1) “3M did not even manufacture a component part of the finished carpet, nor did it manufacture any compound or treatment applied to the carpet in question.” (emphasis added); (2) “There is no evidence that Plaintiff was even exposed to 3M’s product, much less that any such product that 3M did manufacture was defective and unreasonably dangerous....”; and (3) “Where there is no evidence that any product manufactured or distributed by 3M was ever provided to plaintiffs and there has been no showing that any such product was in any respect unfit or below merchantable quality....” (emphasis added). These statements, combined with the last sentence of Mr. Sweet’s affidavit declaring that “Scotehgard is not defective nor unreasonably dangerous,” clearly would have no relevance in the summary judgment proceeding if 3M had no reasonable notice of the issues presented in paragraph X of appellants’ pleadings.
Appellee 3M argues that appellants narrowed the timing issue to the time of manufacture when they specifically asserted in their cross-motion for summary judgment that the product “‘Scotehgard’ was used in the manufacture of the carpet at issue in this case.” While it is true that factual issues raised in a pleading can be abandoned by the nonmovant who affirmatively narrows its theories in a counter-motion for summary judgment, Valdes v. Moore, 476 S.W.2d 936, 939-41 (Tex.Civ.App. — Houston [14th Dist.] 1972, writ ref d n.r.e.), the record reveals that the appellants’ motion was not timely filed, which fact was pointed out to the trial court in a handwritten motion filed by 3M’s attorney. There is no indication that the trial court considered or acted on appellants’ late motion, and a response that was not properly before the trial court will not be considered on appeal. Murphy v. McDermott, Inc., 807 S.W.2d 606, 609 (Tex.App. — Houston [14th Dist.] 1991, writ denied).
*369Appellants’ claims that Mrs. Nebgen’s injuries were caused by an application of 3M’s compound Scotchgard at some time other than manufacture, and that the compound is dangerous and defective, were raised in the pleadings with sufficient notice to 3M. Therefore, we should next analyze 3M’s summary judgment proof to determine whether all of appellants’ claims were negated as a matter of law.
Appellee urges that its summary judgment proof, as a matter of law, negated the elements of duty and causation, which are essential elements of appellants’ causes of action in negligence, products liability, and breach of warranty. Appellants, on the other hand, contend that 3M’s summary judgment proof is legally insufficient to negate their causes of action in negligence, products liability, and breach of warranty arising from their claim that Mrs. Nebgen suffered injury when exposed to Scotchgard, which they allege was applied to the carpet at some undetermined time after manufacture. 3M has conceded that it manufactures Scotchgard, the compound alleged to have caused Mrs. Nebgen’s injuries. 3M’s sole summary judgment proof to counter appellants’ claim that Mrs. Nebgen was harmed by an application of Scotchgard is that Scotchgard is not defective or unreasonably dangerous. Appellants argue that this statement is a legal conclusion and therefore insufficient as a matter of law. Appellants are correct. A legal conclusion in an affidavit is insufficient to establish the existence of a fact in support of a motion for summary judgment. Mercer v. Daoran Corp., 676 S.W.2d 580, 583 (Tex.1984). Testimony that is comprised only of legal conclusions is insufficient to support a summary judgment as a matter of law, as is a eoncluso-ry statement made by an expert witness. Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991). The affidavit testimony of Mr. Sweet, Senior Legal Counsel for 3M, is manifestly insufficient, both legally and factually, to support the summary judgment as to this cause of action. As the Senior Legal Counsel, it can perhaps be reasonably inferred that he is an expert in his legal profession, the law. Nothing in the affidavit, however, establishes him as an expert in the field of dangerous defective products. Moreover, the affidavit evidence does not include any legal or factual basis or reasoning for his conclusion that Scotchgard is not defective or unreasonably dangerous. See id. As such, the evidence is wholly conclusory and, therefore, incompetent to support a summary judgment as to the Nebgens’ claims that Mrs. Nebgen was injured by 3M’s product, Scotchgard. If the Texas Supreme Court would not accept con-clusory statements from a lawyer in a legal malpractice case to support a summary judgment, what authority does this court have to accept conclusory statements from a lawyer in a products liability case? See Anderson, 808 S.W.2d at 55.
Appellee 3M contends that appellants’ failure to raise in a response the defect of a conclusory statement precludes their raising the issue on appeal. The majority erroneously confuses substance with form in endorsing the contentions of the appellee. The presence of a conclusion in an affidavit is a defect of substance rather than form, and therefore no objection or response in the trial court is necessary to contend on appeal that the proof is legally insufficient to support the summary judgment. Sorrells v. Giberson, 780 S.W.2d 936, 938 (Tex.App. — Austin 1989, writ denied); Harley-Davidson Motor Co. v. Young, 720 S.W.2d 211, 213 (Tex.App.— Houston [14th Dist.] 1986, no writ); see Timothy Patton, Summary Judgments in Texas 76 (1992). Thus, appellants’ assertion that the statement is conclusory is properly before this court, and we should find that the conclusory statement is insufficient as a matter of law to support the summary judgment as to the claim that Mrs. Nebgen was exposed to, and harmed by, 3M’s product, Scotchgard.
Consequently, the summary judgment was erroneously rendered when, under the record, at least one of the appellants’ theories was not conclusively disproved by appellee’s summary judgment proof. A summary judgment for the defendant which disposes of the entire case is proper only if, as a matter of law, the plaintiff could not succeed upon any theories pleaded. Delgado v. Burns, 656 S.W.2d 428, 429 (Tex.1983). When only some of the alleged theories pleaded are disposed of by summary judgment, a severance must *370be obtained in order to make the resulting partial summary judgment final and appeal-able. Mafrige v. Ross, 866 S.W.2d 590, 591 (Tex.1993).
Although the summary judgment purports to be final and dispose of “all things,” it “grants more relief than requested” and “should be reversed and remanded.” Maf-rige, 866 S.W.2d at 592.