OPINION ON PETITION FOR REHEARING
The appellants and two of the amici curiae have filed petitions for rehearing. The petitioners make two points. First, they argue that we overlooked the recent Supreme Court decision in the consolidated cases of Herbert Wyatt, et ux1 v. ACandS, Inc., et al., and James W. Kyle, et ux, et al. v. ACandS, Inc., et al., 910 S.W.2d 851, Supreme Court at Knoxville (1995) (hereinafter referred to as “the Supreme Court’s Wyatt decision”). They contend that our opinion conflicts with that decision.
The petitioners’ second point is that we were incorrect when we stated in our opinion that “it is undisputed that none of the defendants sold or distributed any asbestos-containing products relevant to this action within ten years of July 1, 1978, the effective date of the original enactment of the TPLA.”
We will consider these contentions in the order stated.
The petitioners are incorrect; we did not overlook the Supreme Court’s Wyatt decision. We were well aware of that decision before we filed our opinion in the instant case. It is our judgment that the Supreme Court’s Wyatt decision is not controlling on the issues raised in this appeal.
The Supreme Court’s Wyatt decision addressed two questions, i.e., “what degree of certainty of a medical condition is sufficient to place a plaintiff on notice and trigger the commencement of the statute of limitations,” and “whether a tentative, preliminary diagnosis, insufficient by itself to commence the statute, activates a duty to make, with due diligence, further inquiries into the cause of a plaintiffs condition.” 910 S.W.2d 851, 856-57. Both of these issues were examined by the Supreme Court in the context of the one-year statute of limitations found at T.C.A. § 28-3-104. The statute of repose at issue in the instant case was not at issue or even discussed in the Supreme Court’s Wyatt decision. The Supreme Court’s focus was on the issue of when a cause of action accrues, a concept that is immaterial to the expiration *108of a statute of repose. The petitioners’ argument based on the Supreme Court’s Wyatt decision is without merit.
Moving to the second point raised by the petitioners, we have again reviewed the record in this case. We have concluded that we were incorrect when we stated, at two places in our opinion,2 that the parties were in agreement that all of the appellees ceased to manufacture and distribute asbestos-containing products more than ten years prior to July 1, 1978, the effective date of the TPLA. There was no such global stipulation. What the trial court did find and what is “undisputed” in the record before us is the following, taken verbatim from the trial court’s final judgment:
There is no dispute that none of the above defendants sold, distributed or otherwise placed into the stream of commerce any asbestos-containing products relevant to this action within ten (10) years of the filing of this action.
(Emphasis added). Since the trial judge found the asbestos exception to be unconstitutional, he naturally focused on the TPLA’s ten-year statute of repose and the “ten years [immediately preceding] the filing of this action.” Our focus was different. Since we found the asbestos exception to be constitutional, we were concerned with the appellees’ activities prior to July 1, 1979, the effective date of that exception.
We held in our opinion that the Wyatts’ action against all of the appellees was barred because we thought that all of the appellees ceased to manufacture and distribute asbestos-containing products more than ten years prior to July 1, 1978, the effective date of the TPLA and its ten-year statute of repose. The Wyatts concede that our rationale was correct as to the appellee Owens-Illinois, Inc. This being the case, our original decision with respect to Owens-Illinois, Inc., stands. To the extent that the petitions for rehearing challenge our holding as to Owens-Illinois, Inc., they are DENIED in toto.
The Wyatts’ petition for rehearing contends that “there is no evidence on the record that Defendant Owens-Coming Fiberglas stopped manufacturing and distributing asbestos material prior to July 1, 1968.” While this assertion only involves Owens-Corning Fiberglas, it has prompted us to carefully examine the record before us as to all of the other defendants who were awarded summary judgment. For ease of reference, the defendants who were granted summary judgment, other than Owens-Illinois, Inc., will be referred to as “the other defendants” or “the other defendants who were granted summary judgment.”
Our review of the record fails to disclose undisputed evidence of the type contemplated by Tenn.R.Civ.P. 56.03 reflecting that the other defendants ceased to manufacture and distribute asbestos-containing products more than ten years prior to July 1, 1979, the effective date of the asbestos exception. It may be that some of them did; but the evidence before us does not so indicate at this stage of the proceedings.3 Since the record before us does not support the other defendants’ right to summary judgment (given our ruling with respect to the asbestos exception), those defendants are not entitled to summary judgment. The other defendants, as the moving parties, had the burden of “persuading the court that no genuine and material factual issues exist and that [they *109are], therefore, entitled to judgment as a matter of law.” Byrd v. Hall, 847 S.W.2d 208, 211 (Tenn.1993). If the record is factually deficient, and we find that it is, that deficiency is fatal to the moving parties, in this case, the other defendants.
In our original opinion, we indicated on page 104 that we were addressing the constitutionality of the asbestos exception “[b]e-cause this case may be subject to further appellate review.” We now realize that our review of this exception was necessary, not because of possible further appellate review, but because a resolution of that issue was essential to our review of the other defendants’ entitlement to summary judgment. Had Judge Rosenbalm’s constitutional evaluation of the asbestos exception been sustained by us, all of the defendants would have been entitled to summary judgment based on the undisputed proof that none of the defendants placed any asbestos-containing products into the stream of commerce within ten years of the filing of this action; however, under our ruling with respect to the asbestos exception, the other defendants, based on the record before us, are not entitled to the bar of the ten-year statute of repose, and hence are not entitled to judgment in a summary fashion.
For the reasons stated herein, the petitions for rehearing as to the other defendants who were granted summary judgment are GRANTED. We modify our opinion and judgment in this case to delete our statements that it is undisputed that none of the defendants sold or distributed any asbestos-containing products within ten years of July 1, 1978, except to the extent those statements refer to Owens-Illinois, Inc. As previously indicated, those statements are true as to Owens-Illinois, Inc.
We further modify our opinion and judgment so that we now find and hold that only Owens-Illinois, Inc., is entitled to summary judgment. Our decision affirming the trial court’s judgment as to that defendant stands. The judgment of the trial court awarding summary judgment to the other defendants is vacated and this case is remanded to the trial court for further proceedings not inconsistent with our original opinion as modified by this opinion.
We further modify our original opinion and judgment regarding the costs on appeal to provide that those costs are taxed one-half to the appellants and one-half to the other defendants.
Except as modified herein, we adhere to our original opinion.
IT IS SO ORDERED.
GODDARD, P.J., and FRANKS, J., concur.
. The plaintiffs in the Supreme Court case are the same as those in the instant case. The former case was pursued on appeal pursuant to the provisions of Tenn.R.Civ.P. 54.02.
. At page 101, of the slip opinion we said that
it is undisputed that none of the defendants sold or distributed any asbestos-containing products relevant to this action within ten years of July 1, 1978, the effective date of the original enactment of the TPLA.
At page 103, we prefaced a statement with the following comment:
Since it is undisputed that all of the products complained of in this case were sold more than ten years prior to the passage of the 1978 enactment of the TPLA, ...
. In fact, there are comments in the record made by some defense counsel to the effect that their clients had not been out of the asbestos market for ten years or more when the asbestos exception was enacted. While there are comments of other counsel indicating that their clients had been out of this business for more than ten years prior to the asbestos exception, we do not find a stipulation by the Wyatts to these statements, except as to Owens-Illinois, Inc. Statements of counsel, not stipulated to by the other side, do not qualify for consideration by us under Tenn. R.Civ.P. 56.03.