FILED

April 30, 1997

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

OUTPATIENT DIAGNOSTIC CENTER, )

)

Plaintiff/Appellee, )

) Davidson Circuit

) No. 94C-2264

VS. )

) Appeal No.

) 01A01-9510-CV-00467

RALPH CHRISTIAN, )

)

Defendant/Appellant. )

APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE BARBARA N. HAYNES, JUDGE

For the Plaintiff/Appellee: For the Defendant/Appellant:

John E. Buffaloe, Jr. Ralph Christian, Pro Se

Nashville, Tennessee

VACATED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE
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O P I N I O N

This appeal involves a medical care provider’s efforts to hold a husband

liable for medical services provided to his wife. The husband perfected a de novo

appeal in the Circuit Court for Davidson County after the provider obtained a

judgment against him in general sessions court. Thereafter, the trial court granted

the provider’s motion for summary judgment, and the husband appealed to this

court. The husband assails the summary judgment on two grounds: first that the

record contains no evidence demonstrating that the provider is entitled to a

judgment as a matter of law and second that he should not be held liable for his

wife’s debt because she was not acting as his agent in the transaction and because

he did not ratify the debt. We have determined that the summary judgment must

be vacated because of the absence of an evidentiary foundation for a judgment of

any sort.

I.

Appellate courts customarily provide a factual context for their legal

holdings to enable the bench and bar to understand the nature of the dispute.

These facts, drawn from the evidence presented in the trial court, assist the

appellate courts in identifying and properly applying the relevant legal principles.

The record in this case contains very little competent evidence. Accordingly, we

have gleaned the following information from the parties’ briefs and the papers

filed in the trial court. Regrettably, we cannot treat this information as fact.

In mid-1993, Marion Christian’s physician referred her to Outpatient

Diagnostic Center in Nashville for necessary medical tests relating to her diabetes.

Ms. Christian had no insurance and could not produce a Medicare card when she

arrived for her tests on July 2, 1993. Accordingly, she signed an agreement

undertaking to pay the $534 fee in “monthly payments of $25.00 (more if she

can).” Apparently Ms. Christian’s husband, Ralph Christian, did not accompany

his wife and was unaware that she had signed the agreement. Thereafter,
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Outpatient Diagnostic Center performed the tests ordered by Ms. Christian’s

physician. 

Ms. Christian’s illness prevented her from paying any part of Outpatient

Diagnostic Center’s bill. In May 1994 Outpatient Diagnostic Center filed suit on

a sworn account in the Davidson County General Sessions Court seeking to

recover Ms. Christian’s $534 debt from Mr. Christian. Mr. Christian pleaded “non

est factum” in the general sessions court. He also asserted that Ms. Christian was

not acting as his agent on July 2, 1993 and that he had not ratified her debt. After

the general sessions court awarded a $534 judgment to Outpatient Diagnostic

Center, Mr. Christian pursued a de novo appeal in the Circuit Court for Davidson

County in accordance with Tenn. Code Ann. § 16-15-729 (1994). 

Neither party filed formal pleadings or conducted any sort of discovery

once the case was docketed in the circuit court. In December 1994, Outpatient

Diagnostic Center filed a motion for summary judgment supported by an

unauthenticated copy of Ms. Christian’s July 2, 1993 agreement to pay the $534

bill along with copies of the briefs the parties had filed in the general sessions

court. Mr. Christian filed an unverified response to the motion for summary

judgment containing many factual assertions that were not supported by

competent evidence in the record. Following a hearing on January 13, 1995, the

trial court entered an order on April 11, 1995 granting Outpatient Diagnostic

Center a $534 judgment against Mr. Christian.

II.

The controlling issue in this case concerns whether Outpatient Diagnostic

Center carried its burden of proof under Tenn. R. Civ. P. 56.03 to demonstrate that

the pleadings and evidentiary materials show that there is no genuine issue as to

any material fact and that it is entitled to a judgment as a matter of law. More

specifically, this appeal requires us to determine whether Outpatient Diagnostic

Center provided the trial court with a sufficient factual predicate to warrant

granting a summary judgment.
1Motions for summary judgment need not be supported by evidentiary materials outside

the pleadings. Biogen Distribs., Inc. v. Tanner, 842 S.W.2d 253, 255 (Tenn. Ct. App. 1992).

However, parties using unverified pleadings to support orto oppose a summary judgment motion

may rely only on the judicial admissions contained therein. Neil P. Cohen, et al., Tennessee Law

of Evidence § 803 (1.2).10 (3rd ed. 1995); 4 John H. Wigmore, Evidence in Trials at Common

Law § 1064, at 67 (Chadbourn rev. 1972). Factual averments in an unverified pleading are not

evidence; however, factual averments in a verified pleading are competent evidence because a

verified pleading is the functional equivalent of an affidavit.

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The party seeking a summary judgment has the initial burden of producing

evidence to support its summary judgment motion. Byrd v. Hall, 847 S.W.2d 208,

213 (Tenn. 1993); Burgess v. Harley, 934 S.W.2d 58, 62 (Tenn. Ct. App. 1996).

Using the pleadings and the evidentiary materials identified in Tenn. R. Civ. P.

56.03 and 56.05, the moving party must satisfy the trial court that there is no

genuine issue as to any material fact. Unverified pleadings help frame the issues

to determine relevancy but for the most part are not evidence of the type required

to support or to oppose a summary judgment motion.1 Knight v. Hospital Corp.

of America, App. No. 01A01-9509-CV-00408, 1997 WL 5161, at * 4 (Tenn. Ct.

App. Jan. 8, 1997) (No Tenn. R. App. P. 11 application filed); see also Hillhaven

Corp. v. State ex rel. Manor Care, Inc., 565 S.W.2d 210, 212 (Tenn. 1978).

Statements contained in briefs and arguments of counsel are likewise not

evidence. State v. Dykes, 803 S.W.2d 250, 255 (Tenn. Crim. App. 1990); Price

v. Mercury Supply Co., 682 S.W.2d 924, 929 n.5 (Tenn. Ct. App. 1984). 

The appellate record contains unauthenticated photocopies of Outpatient

Diagnostic Center’s civil warrant and the parties’ briefs filed in general sessions

court; however, it presently contains no pleadings. It also contains no evidentiary

materials of the sort identified in Tenn. R. Civ. P. 56. Accordingly, Outpatient

Diagnostic Center has failed to carry its burden of providing competent evidence

upon which the trial court could properly conclude that there are no genuine issues

concerning the facts relevant to the dispute between Mr. Christian and Outpatient

Diagnostic Center. This being the case, we have no choice but to vacate the

summary judgment.
2The obligation to provide necessaries now extends to both the husband and the wife.

Kilbourne v. Hanzelik, 648 S.W.2d 932, 934 (Tenn. 1983). 

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III.

We have decided to address briefly the substantive legal issue involved in

this case to aid the parties and the trial court on remand. Even if Outpatient

Diagnostic Center presents competent evidence of the circumstances discussed in

Section I of this opinion, Mr. Christian asserts that he cannot be held liable for

Ms. Christian’s medical bill because she was not acting as his agent when she

signed the agreement to pay on July 2, 1993 and because he has never agreed to

be responsible for this debt. These arguments completely overlook a spouse’s

common-law obligation to provide medical necessaries for his or her spouse.

Deeply embedded in the common law of this state is the doctrine that a

husband has a duty to furnish his wife suitable support, including medical

services, during her life. Simpson v. Drake, 150 Tenn. 84, 86, 262 S.W. 41, 41

(1924);2see also Tenn. Code Ann. § 47-18-805 (1995) (stating that the spouse of

a married credit applicant can be liable for debts and charges “to the extent

common law liability is imposed for furnishing necessaries”). This doctrine does

not depend on actual or apparent agency for its application. The only exception

to the rule arises in circumstances where a spouse abandons the other spouse

without just cause. Brown v. Patton, 22 Tenn. (3 Hum.) 135, 137 (1842). 

Other states confronting questions similar to the one involved in this case

have held that the common-law necessaries doctrine creates an obligation directly

between the husband and the wife’s creditor and that a husband can be held liable

for necessary medical services provided to the wife. See e.g., Medical Business

Assocs. v. Steiner, 588 N.Y.S.2d 890, 896-97 (App. Div. 1992); Landmark Med.

Ctr. v. Gauthier, 635 A.2d 1145, 1151-52 (R.I. 1994); Medical Ctr. Hosp. v.

Lorrain, 675 A.2d 1326, 1328 (Vt. 1996); Schilling v. Bedford County Mem.

Hosp., 303 S.E.2d 905, 907 (Va. 1983). Thus, a provider of medical services can

make out a prima facie claim for recovery under the necessaries doctrine by

proving that (1) it provided medical services to the receiving spouse, (2) the

medical services were necessary for the receiving spouse’s health and well-being,
(3) the person from whom recovery is sought was married to the receiving spouse

when the services were provided, and (4) payment for the services has not been

made. Forsyth Mem’l Hosp. v. Chisholm, 467 S.E.2d 88, 89-90 (N.C. 1996);

Trident Reg’l Med. Ctr. v. Evans, 454 S.E.2d 343, 345 (S.C. Ct. App. 1995). 

Should Outpatient Diagnostic Center produce competent evidence

substantiating the circumstances outlined in Section I of this opinion, it will have

succeeded in making out a prima facie case of liability on the part of Mr.

Christian. At that point, the burden of going forward will shift to Mr. Christian

to present whatever proof he has to substantiate any viable defenses he may have.

Lack of agency or ratification of the wife’s debt are not viable defenses to a claim

to recover medical necessaries provided to a spouse during the marriage.

IV.

We vacate the summary judgment and remand the case for further

proceedings consistent with this opinion. We tax the costs in equal proportions

to Ralph Christian and to Outpatient Diagnostic Center for which execution, if

necessary, may issue.

____________________________

WILLIAM C. KOCH, JR., JUDGE

CONCURS:

________________________________

SAMUEL L. LEWIS, JUDGE 

CONCURS IN SEPARATE OPINION:

HENRY F. TODD, P.J., M.S.