       IN THE COURT OF APPEALS OF TENNESSEE
            MIDDLE SECTION AT NASHVILLE

                                          FILED
                                            April 30, 1997
OUTPATIENT DIAGNOSTIC CENTER,     )
                                          Cecil W. Crowson
                                  )      Appellate Court Clerk
       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
                                OPINION

      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,




                                        -2-
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.



                                        -3-
       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.




       1
         Motions 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 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 verified pleading are competent evidence because a
verified pleading is the functional equivalent of an affidavit.

                                              -4-
                                           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);2 see 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,

       2
       The obligation to provide necessaries now extends to both the husband and the wife.
Kilbourne v. Hanzelik, 648 S.W.2d 932, 934 (Tenn. 1983).

                                           -5-
(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.
