# FILED
Ap ril 30, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE

OUTPATIE

NT DIAGN OSTIC CENT ER, ) ) Plaintiff/Appellee, ) ) Davidson C ircuit ) No. 94C- 2264 VS. ) ) Appeal N o. ) 01A01-9510- CV-00467 RALPH CHRISTIAN, ) ) Defenda nt/Appella

nt. )

APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE THE HONORABLE BARBARA N. HAYNES, JUDGE

For the Plaintiff/Appellee : F or the Defen dant/Appe llant : John E. Buffaloe, Jr. Ralph Christian, Pro Se Nashville, Tennessee



## VACATED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE-2- 

## O P I N I O N

This appeal inv olves a me dical car e provider ’s effor

ts to hol d a husband liablefor medical services provided to his wife. The husband perfected a de novo ap peal in the Circ uit Court f or Davids on County af

ter the pr ovider obta

ined a judgment against him in gen eral sessi ons court
. Thereafter, the trial court granted the provider’ s motion for summary j udgment, a

nd the husband

appealed to this court. The husba

nd assails t

he summar

y judgment on two grounds : first thatthe record contains no evidence demonstrat ing that the

provider i s entitled t

o a judgment as a matter of l aw and

second that

he should not b e held liab le for his wife’s debt because she was not acting a s his agent in the transact ion and beca

use he did not ratify the debt. We have determinedthat the summary judgment mu st be vacated b ecause of

the absenc e of an evi dentiary f oundation fo r a judgme nt of any sort.
I. Appellat e courts cus tomarily p rovide a f actual co ntext fo r their legal holdings to enable the bench and bar to unders tand th e nature of the dispute. Thesefacts, drawn f

rom the ev idence pr

esented in the trial

court, a ssist the appellate courts in identifying a

nd properly

applying the

relevant legal principle s. The record i n this case contains very little competent evidence. Accordingl y, we have gleaned the following information from the parties’ briefs and the papers filed in the

trial cour t. Regr ettably, we canno t treat this informa tion as fac t.
In mid-1993, Marion Ch ristian’s physician r

eferre d her to Outpatient Diagnostic

Center i n Nashvill e for

necessar y medical tests rel ating to her

diabetes. Ms. Christian had no insurance and could not produce a Medicare card when she arrived fo r her tests on July 2, 1993. Accordingly, she signed an agreeme n t undertakin g to pay the $534 fee in “monthly payments of $25.00 (more if sh e can).” Apparen

tly Ms. Ch

ristian’s husband, R alph Chris tian, did not accom pany his wife and was unaware that she had signed the agreemen t. Thereafter,-3-

Outpatie ntDiagnostic Center performed the tests ordered by Ms. Christian’s physici an.
Ms. Christian’s illness prevented her from paying any par t of Outpat ient Diagnostic

Center’s bill. In M ay 1994 Outpatie nt Diagnost ic Center filed suit on asworn ac count in the Davi dson Cou nty General Session s Court see king to recover Ms. Chri stian’s $534

debt from Mr. Chr is t ian. Mr. Christian

pleaded “ non est factum” in the general sessions court. He also asserted that Ms. Christian was not acting as h is agent o n July 2, 1 993 and t hat he had not ratifi ed her debt

. After the general s essions cour t awarde d a $534 ju dgment to O utpatient D iagnostic Center, Mr. Chr

istian purs ued a

de novo appeal in the Circuit Court for Dav idson County i n accordan ce with Tenn. Co de Ann. § 16- 15-729 (1 994).
Neither party filed formal pleadings or conducted any sort of discovery once the case was docketed in the c ircuit cou rt. In December 1994, Outpatient Diagnostic

C en ter filed a motion for summary judgment supported by an unauthenticated copy of Ms. Ch ristian’s July 2, 1993 agreement to pay the $534 bill alon g with copies of t he briefs the partie s had filed in the gene

ral sessio ns court. Mr. Chr

istian file d an unverif

ied respons e to th e mo tion for summary judgment containing m any factu al assert ions that were not

supported by competent

evidence in the rec ord. Foll owing a hearingon January 13, 1995, the trial court entered an order on April 11, 1995 gra nt ing Outpati ent Diagn ostic Center a $534 judgment

against Mr . Christi an.

II.
The controllin g issue in this case concerns whether Outpatie nt Diagnost

ic Center carrie d its burden of

proof under

Tenn. R . Civ. P . 56.03 todemonstrate that the pleadings and evidentiary materia ls show tha

t there is no genuine is sue as to any materia

l fact an d that it is entitled to a judgment

as a matter of law. More specific ally, this appeal requires us to determ ine wheth er Outpa

tient Diagnostic Center provided the trial co urt wi th a su fficient factual predicat

e to war rant granting a summary ju dgment.1 Motions for summary judgment need not be supporte d by evide

ntiary ma terials outside the pleading s. Biogen Di stribs., Inc. v. Tanner , 842 S.W.2d 253, 255 (Tenn. Ct. App. 1992). However, parties using unverified pleadings to support or to 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 ver ifiedpleading

are com petent evidence

because a verifie d pleading is the functional equivale nt of an a ffidavit

. -4- The party seeking a summary judgment has the initial burden of producing evidence to suppo rt its sum mary judg ment moti on. 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 pa rty must sa tisfy the tr

ial court t

hat there is no genuineissue 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 mo tion. 1 Knight v. Hospital C orp. of America , App. N o. 01A01- 9509-CV- 00408, 1997 W L 5161, a t * 4 (Tenn. Ct. App. Jan. 8, 1997) (No Tenn. R. App. P. 11 application filed); see also Hillhaven Corp. v. State ex rel . Manor Car e, Inc., 565 S.W.2d 21 0, 212 (Tenn

. 1978)

. Stateme nt s contained i n briefs a nd arguments of counse l are like wise not evidence. State v. D

ykes, 803 S.W. 2d 250, 255 (Tenn. Crim. App. 1990) ; Price v. Mercury Su

pply Co., 682 S.W.2d 92 4, 929 n.5 (Te nn. Ct. App. 19 84).
The appellate re c ord contain s unauthenti cated photo copies of O utpatient Diagnostic

Center’s civil warra

nt and the pa

rties’ br iefs file d in genera

l sessions court; however , it pres ently contains no pleadings. It also contains no evidentiary materia ls of the sort identifi ed in Ten n. R. Ci v. P. 56. Accordi ngly, Outp atient Diagnostic

Center ha s failed to carry i ts burden of providing co mpetent

evidence upon which the trial court coul d properly conclude that there are no genuine issues concernin g the fact s relevan t to thedisputebetween

Mr. Chr istian and O utpatient Diagnostic

Center. This being the case, we have n o choice but to vacate

the summary ju dgment.2 The obliga tion to provide necessaries now extends to both the husband and the wife

.

Kilbourne v. Hanzelik, 648 S.W.2d 932, 934 (Tenn. 1983). -5- III.
We have deci ded to addre ss briefly the substantive

legal issue

involved in this c ase to aid t he parties and the tri al court on remand. Even i f Ou tpatien t Diagnostic

Center pr esents com

petent evi dence of t

he circumstances discussed i n Section I of this opinion, Mr. Christian asserts that he c anno t be held lia ble for Ms. Christian ’s medica

l bill beca

use sh e wa s not actingas his agen t when she signed the

agreement to pay on July 2, 199 3 and becau se he has ne ver agre ed to be responsible for this debt. These arguments completel y overl ook a spouse’s common-law obligation to provide medical necessaries for his or her spouse. Deeplyembedded i n the commo n law of t his state is the doc trine that a husband has a duty tofurni sh h is wife suitable support, including medical services , during h er life. Simpson v. Drake, 150 Tenn. 84, 86, 262 S.W. 41, 41 (1924); 2 see also Tenn. C ode Ann. § 47-18-805 ( 1995) (stating that the spouse of a marrie d credit a

pplicant c an be liabl e for debt s and char ges “to the

extent common law liability is imposed for furnishing necessaries”). This doctrine does not depend on

actual or apparent agency fo r

its applica

tion. The only except

ion to the rule a

rises in ci

rcumstanc es where

a spouse ab ando ns the other s pouse without j ust cause
. Brown v. Patton, 22 Tenn. (3 Hum .) 135, 137 (1842).
Other states confronti ng questions s imilar to the oneinvolved in th is case have heldthat the common-law necessaries doctrine creates an obligati on directly between the husband

and the wi fe’s cr

editor and that a husba

nd can be held liable for necessary medical services provided to the wife. See e.g., Medical B usiness Assocs. v. Steiner, 588 N.Y .S.2d 890 , 896-97 (App. D iv. 1992); Landmark M ed. Ctr. v. Ga uthier, 635 A.2d 11 45, 1151-52 (R.I. 1994); Medical Ctr. Hosp. v. Lorrain, 675 A.2d 13 26, 1328 (Vt . 1996); Schilli ng v. Bedfor d County Mem. Hosp., 303 S.E. 2d 905, 907 ( Va. 1983) . Thus, aprovider of medical services can make out a pr

ima faci e claim for

recover y under the necessar

ies doctri ne by proving that (1) i t provided m edical se rvices to t

he recei ving spouse, (2) the medical services were ne cessary f or the re ceiving spou se’s health and wel l-being,(3) the person from whom rec overy is soug ht was ma rried to t he recei ving spouse when the servic es were provided, and (4) payment for the services has not been made. Forsyth Mem’l Hosp. v. Chish olm, 467 S.E.2d 88, 89-90 (N.C. 1996); Trident R eg’l Med

. Ctr. v . Evans, 454 S.E.2d 34 3, 345 (S.C. Ct. Ap p. 1995).
Should Outpatient Diagnostic Center prod uce competent evidence substantiat

ing the circ umstances outlined in S ectionI of this op inion, it w ill have succeeded in making out a prima f

acie cas e of liability o n the part of Mr. Chri stian

. 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 ratific ation of the

wife’s debt

are not via

ble defen ses to a cl aim to recover medical necessaries provided to a spouse during the marriage.
IV.
We vaca te the summary judgment and remand the case for further proceedin gs con si stent with this opinion. We tax th e costs in e qual propor tions to Ralph Chri stian and to Ou tpatie nt Diagnost ic Center for whic h 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.