author: LEWIS, Judge.

text:
    Cory L. AYERS, a minor by his parents and natural guardians Lynn L. AYERS and Virginia W. Ayers, and Lynn L. Ayers and Virginia W. Ayers, Individually, Plaintiffs-Appellants, v. RUTHERFORD HOSPITAL, INC., Dr. Terry J. Witt, and Dr. Charles Smith, Defendants-Appellees.
    Court of Appeals of Tennessee, Middle Section at Nashville.
    Oct. 23, 1984.
    Application for Permission to Appeal Denied by Supreme Court April 22, 1985.
    Charles Fraley, Knoxville, for plaintiffs-appellants.
    William C. Moody, Moody & Moody, Nashville, for Rutherford Hosp., Inc.
    John B. Carlson, Watkins, McGugin, McNeilly & Rowan, Nashville, for Dr. Terry J. Witt.

      Mary Martin Schaffner, Douglas Fisher, Howell, Fisher, Branham & North, Nashville, for Dr. Charles Smith.
   OPINION

LEWIS, Judge.

This is an appeal by plaintiffs from the Trial Judge's sustaining of motions for summary judgment for each of the defendants.

The pertinent facts are as follows:

Plaintiff Virginia W. Ayers gave birth to a son, Cory L. Ayers, in the Rutherford Hospital on August 14, 1975. Mrs. Ayers stated in her deposition that she had had no complications in her pregnancy except that around the sixth month of her pregnancy, Dr. Fisher had x-rays made because of his feeling that the child was too large for her to deliver. Dr. Fisher referred Mrs. Ayers to defendant, Dr. Terry J. Witt, who first saw her on August 6, 1975. After examining Mrs. Ayers, Dr. Witt was of the opinion that she should be allowed to go into labor and deliver the baby normally.

During the August 6, 1975 examination, Dr. Witt informed Mrs. Ayers that he would be out of town the following week but that an obstetrician would be on call at all times at the Rutherford Hospital. He also informed Mrs. Ayers that if she had not given birth when he returned to town, he would probably induce labor.

On August 13, 1975, Mrs. Ayers went into labor. She called Rutherford Hospital and was informed that Dr. Witt was not in town. At approximately 8:00 P.M., plaintiffs, Mr. and Mrs. Ayers, drove from their home in McMinnville to the Rutherford Hospital where Mrs. Ayers was admitted. Dr. Witt was out of town and knew nothing concerning her admittance to the hospital until after Cory’s birth.

Defendant Dr. Charles Smith, who delivered Cory, saw Mrs. Ayers for the first time at Rutherford Hospital at 9:00 A.M., on August 14,1975. Prior to that time, Dr. Smith had no knowledge of her condition. Dr.- Witt and Dr. Smith had not discussed Mrs. Ayers or her pregnancy and Dr. Smith was not informed by anyone, including Rutherford Hospital personnel, that Mrs. Ayers was anything but a typical obstetric patient. Dr. Smith, after seeing Mrs. Ayers at 9:00 A.M., repeatedly assured himself of the normalcy of her progression of labor. Mrs. Ayers’ progress in labor to full dilation was normal. Dr. Smith was continuously available to deliver the baby and, according to Dr. Smith, “[tjhere was never any indication that a Caesarean section should be performed in order to avoid injury to the baby.”

Immediately prior to delivery, Dr. Smith rotated the baby with forceps to position it correctly for delivery. There were no complications, except for an injury to his left brachial plexis which resulted in a temporary weakness in his left arm. However, Cory was delivered without difficulty and was in good condition at birth. Cory was completely normal until he was eighteen or twenty months old when he experienced high fever and seizures.

Dr. Gerald M. Fenichel, Neurologist in Chief at Vanderbilt University Hospital and the Children’s Regional Medical Center, first saw Cory in May of 1977 “when he was admitted to Vanderbilt University Medical Center due to a ‘seizure disorder.’ ” Dr. Fenichel admitted Cory to the Medical Center on four other occasions and continues to treat him on an out-patient basis. Dr. Fenichel examined the medical records and stated:

In my opinion, based upon reasonable degree of medical certainty, Cory Ayers did not sustain brain injury when he was born; his seizure disorder is wholly unrelated to events at birth. While the specific etiology of his seizure disorder cannot be identified with certainty, the course of his disorder is most compatable with an infectious process which began when he was approximately twenty months old.

Cory was also seen and treated for several years by Dr. Lawrence Ch’ien, Chief of Neurology and Psychology at St. Jude’s Children’s Research Hospital in Memphis. Dr. Ch’ien also concluded that Cory’s “seizure disorder is not related to events at birth.”

Dr. Stephen C. Prinz, Director of Neona-tology of the Children’s Intensive Care Nursery at East Tennessee Children’s Hospital in Knoxville, reviewed hospital and medical records and reached the same conclusion.

Dr. Witt, in support of his motion for summary judgment filed on December 2, 1981, filed his affidavit in which he set forth his lack of involvement in the delivery of Cory and further stated: “I am now and was at the time of my consultation with Mrs. Ayers licensed to practice medicine in Tennessee, and familiar with the accepted and prevailing medical standards in this community among physicians and obstetricians. My examination of Mrs. Ayers fully complied with these standards.”

Dr. Smith filed his motion for summary judgment on January 18, 1982, and, in support of that motion, filed his affidavit which set forth his involvement with Mrs. Ayers and Cory. Also in support of his motion, affidavits of Dr. Fenichel, Dr. Ch’ien, and Dr. Stephen C. Prinz were filed. He also included the affidavits of Dr. Jerry Campbell, who is in the private practice of pediatrics in Murfreesboro, and Dr. John Alexander, who is in the private practice of obstetrics and gynecology in Murfreesboro and who, after examining the medical records, stated that he was “familiar with the standard of care required of obstetricians practicing in Murfreesboro within the time in question. In my opinion, the medical care given by Dr. Charles Smith to Virginia Ayers during her labor and delivery and the care given to her infant son, Cory Ayers, conformed in every respect to the standard of care required of obstetricians practicing in Murfreesboro, Tennessee in August of 1975.”

On January 21, 1982, defendant Rutherford Hospital, Inc. filed its motion for summary judgment and adopted “the brief, affidavits, and stipulated material submitted by the co-defendants.”

Dr. Witt’s motion had been set for hearing prior to the filing of Dr. Charles Smith and Rutherford Hospital’s motions for summary judgment. After Dr. Smith and Rutherford Hospital filed their motions, plaintiffs moved to continue the hearing. Plaintiffs’ motion was granted on the condition that they produce an expert witness in the Middle Tennessee area to give a deposition by March 8, 1982. No such witness was produced; however, on March 15th, in opposition to defendants’ motions for summary judgment, plaintiffs filed the affidavit of Dr. David C. Abramson, which states the following:

DAVID C. ABRAMSON, M.D., of full age, being duly sworn according to law upon his oath deposes and says:
1. I am a physician boarded in pediatrics with a sub-specialty in NEWBORN AND PERINATAL MEDICINE, and being a chartered member of the American College of Emergency Physicians, licensed in Washington, D.C., Maryland and Virginia, and residing in Virginia.
2. At the request of J.D. Lee, Esquire, of Knoxville, Tennessee, I have reviewed and studied the following sources of information:
a. Correspondence from Esquire: March 4, 1980;
b. Admission Records of Virginia Ayers, (maternal) Rutherford Hospital, Inc., Murfreesboro, Tennessee: Hospitalization I: August 13-18, 1975;
c. Admission Records of Cory Ayers, (infant) Rutherford Hospital, Inc., Mur-freesboro, Tennessee: Hospitalization I: August 14-48, 1975; Hospitalization II: May 26-27, 1977;
d. Admission Records of Cory Ayers, Vanderbilt University Hospital, Nashville, Tennessee: Hospitalization III: May 30-31, 1977; Hospitalization IV: June 5-8, 1977; Hospitalization V: September 28 — October 1, 1977; Hospitalization VI: November 9-11, 1977; Hospitalization VII: November 13-15, 1977;
e. Admission Records of Cory Ayers, Rutherford Hospital, Inc., Murfrees-boro, Tennessee: Hospitalization VIII: December 28 — January 1, 1978; Hospitalization IX: May 24-29, 1979
f. Doctor’s Reports;
g. Emergency Room Records;
h. Baptist Memphis Hospital Records, Memphis, Tennessee.
i. St. Jude’s Children’s Research Hospital Records, Memphis, Tennessee;
Cj) Pleadings;
k. EEG Reports.
3. Virginia Ayers, having a high risk pregnancy in August, 1975, failed to progress normally in labor, should have been delivered by Cesarean section, however, was delivered by traumatic forceps which resulted in life long injury to her son, Cory Ayers.

The motions for summary judgment were reset for hearing for June 21, 1982. On June 18, 1982, plaintiffs filed a second affidavit, which states the following:

DAVID C. ABRAMSON, M.D., of full age, being duly sworn according to law upon his oath deposes and says:
l. I am a physician boarded in pediatrics with a sub-specialty in NEWBORN AND PERINATAL MEDICINE, and being a chartered member of the American College of Emergency Physicians, licensed in Washington, D.C., Maryland and Virginia, and residing in Virginia.
2. I was licensed in the State of Virginia, and practiced in Virginia in the year 1974 and all years thereafter.
3. I am familiar with the standard of care required of physicians in delivery and perinatal care of newborns as it would pertain to a community such as Murfreesboro, Tennessee.
4. I have carefully reviewed the Rutherford Hospital records for both Cory and Virginia Ayers, dated 8-13-18-75, and the same hospital admissions of 5-26-77 and 12-19-77, the Vanderbilt University Hospital records dated 5-30-77, 6-5-77 and 11-9-77. I have also reviewed the report of the computed axial tomography, the St. Jude out-patient records, and the EEG report from Le Bonbeur Children’s Hospital. Based on this review, I have the following opinions in this case.
Mrs. Ayers pregnancy had progressed normally but became “high risk” when she progressed more than two weeks beyond her due date. She presented to the hospital and doctor with a small pelvis and a fetus that was engaged at term. Her labor failed to progress normally, and Cory was delivered after a mid-forceps rotation and had clear evidence of birth trauma including bruising and paralysis of the left upper extremity.
As a direct result of the breaches in standard perinatal care, Cory suffered profound injury to his central nervous system which has left him with severe learning disabilities and a resistant seizure disorder which will demand lifelong care,
5.I am of the opinion that to allow Virginia Ayers to deliver vaginally was a departure from the standard of care required of the physicians caring for the pregnancy and that such is the proximate cause of Cory Ayers’s condition.

The motions for summary judgment were heard on June 22, 1982, and sustained as to Rutherford Hospital, Inc. and Dr. Terry J. Witt. The suit was dismissed as to them. The Trial Court, in its order, further stated: “Unless plaintiffs produce for the purpose of giving deposition testimony in the Middle Tennessee-area an expert witness to testify on their behalf by July 5, 1982, this suit shall stand dismissed as to Dr. Charles Smith.”

Plaintiffs did not comply with this order but did produce Dr. Abramson for deposition on January 13, 1983. He testified that from 1972 through 1978 he was the “Chief of the Division of Newborn and Perinatal Medicine in the Department of Pediatrics and Obstetrics and Gynecology at Georgetown University” and that he resided in Washington, D.C. from approximately 1962 until “approximately 1979 or ’80.” He resided in Alexandria, Virginia, until 1982 when he moved back to Washington, D.C.

During the year preceding the birth of Cory Ayers, Dr. Abramson was a “geographic full-time” faculty member at Georgetown University Medical Center in Washington, D.C. and was also engaged in private practice with a group “called either Georgetown Perinatal Association or Georgetown Neonatal Associates.” His office for seeing patients on a private basis was in the hospital at Georgetown, but he also saw patients during the year preceding Cory’s birth at his home, also located in Washington, D.C.

Dr. Abramson stated in his second affidavit that he was “familiar with the standard of care required of physicians in delivery and perinatal care of newborns as it would pertain to a community such as Mur-freesboro, Tennessee.” However, in his deposition, he testified that he had never been to Murfreesboro, that he did not know where in Tennessee Murfreesboro was located, that he knew nothing about the size of the community, that he did not know how large the hospital was, that he knew no one from Murfreesboro, and that he knew no one who had ever practiced medicine in the city. He was asked if he was “familiar with the skills of the practitioners in Murfreesboro,” and he answered: “Insofar as they are trained and examined and have developed the same sets of skills, read the same literature, update their skills, go to the same conferences for continuous education that I do, come to my conferences when I give them in Tennessee.” He testified that the standard of care “does not vary throughout the country,” that it is a national standard, and “doesn’t change with the locality.”

Dr. Abramson further testified that the national standard requires

that when a woman goes into labor more than fourteen days post-estimated date of confinement, that she be continuously monitored by a physician in attendance or someone capable of delivering that fetus at the earliest sign of fetal compromise. And by 1975 that was well understood and appreciated.

He further testified that

the physician must come and evaluate his or her patient, or be certain that someone is there capable of delivering that infant at the earliest sign of fetal compromise. The fetus has a tremendously high risk.

He further testified that the standard of care in Murfreesboro, Tennessee in 1975 was “the same as the standard of care for human beings under medical care and supervision in Tennessee, Virginia, Maryland, the District, and throughout the area of adjacent states,” that the standard “required physician evaluation of the post-dated pregnancy at the onset of labor and continuous assurance of fetal well-being and normal progress of labor throughout the duration of that labor” and that “delivery be able to be effectuated by a competent physician at the first sign of fetal compromise.” Further, “the attendant physician must do an initial evaluation.”

It was Dr. Abramson’s opinion that Dr. Smith violated the national standard of care because “he didn’t appear at the onset of labor; so he ignored the medical emergency that way. He didn’t appear to evaluate.”

Dr. Frank Boehm, Director of Vanderbilt’s Maternal/Fetal Medicine Division and an Obstetrician who had practiced at Vanderbilt University Hospital in Nashville since 1972, stated in his affidavit that “[t]he standard of accepted practice applicable to physicians practicing obstetrics varies significantly between localities.” Dr. Boehm, also a member of the Tennessee Perinatal Advisory Committee, further stated:

[TJhere is a clear difference between the standard of care applicable to physicians practicing in smaller hospitals such as the hospital located in Murfreesboro, Tennessee, and the standard applicable to physicians practicing in large teaching hospitals such as Vanderbilt.... To state that the standard of care applicable to obstetricians does not vary throughout the United States is to ignore these variables and to misrepresent the true situation.

This record is devoid of any evidence that Dr. Smith knew Mrs. Ayers was more than fourteen days post-estimated date of confinement, or that Dr. Smith had any of the knowledge of the operative facts upon which Dr. Abramson based his opinion that Dr. Smith violated the national standards.

Dr. Smith’s affidavit states that he was not informed when Mrs. Ayers was admitted to the hospital that she was more than fourteen days past her estimated date of confinement. He was not aware of this fact until he saw her in the hospital at 9:00 A.M. on August 14, 1975. Dr. Smith saw Mrs. Ayers for the first time when she was in the hospital, in labor, at 9:00 o’clock on August 14th.

Plaintiffs present two issues for our determination. They are:

1. Whether or not the Honorable Trial Judge erred in granting Motions for Summary Judgment filed on behalf of all named Defendants, specifically, Rutherford Hospital, Inc., Dr. Terry J. Witt, and Dr. Charles Smith.
2. Whether or not the Honorable Trial Judge erred in finding that Plaintiff’s expert witness, Dr. David Abramson, was not competent to testify in this case for the reasons set forth in the Trial Court’s final Order filed on January 17, 1984.

Summary judgment

was designated to provide a quick, inexpensive means of concluding cases, on issues as to which there is no dispute regarding material facts, but was in no wise designed for the trial of factual issues. It can be granted only when the pleadings, stipulations, and affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Brookins v. The Round Table, Inc., 624 S.W.2d 547, 550 (Tenn.1981).

In Tennessee, expert testimony is required to establish negligence and proximate cause in malpractice actions unless the alleged malpractice is within the common knowledge of laymen. Phelps v. Vanderbilt University, 520 S.W.2d 353 (Tenn.App.1974). In medical malpractice cases, only the most obvious forms of negligence may be established without expert testimony. For example, any lay person would know that leaving a sponge in the plaintiff’s body is negligence. Rural Educational Association v. Bush, 42 Tenn.App. 34, 298 S.W.2d 761 (1956).

In Bowman v. Hennard, 547 S.W.2d 527 (Tenn.1977), our Supreme Court held that while motions for summary judgment are generally inappropriate in professional malpractice cases, if the only issue is one which requires expert testimony and there is no expert response to an affidavit by an expert, then summary judgment is proper. Id. at 530.

Here, there is no contention that the alleged negligence of the defendant is so obvious that it may be established without expert testimony.

We discuss plaintiffs’ issues in reverse order, for if the Trial Judge correctly refused to consider Dr. Abramson’s testimony, there is no evidence in the record upon which plaintiffs’ allegations of negligence may be based.

The affidavits of Dr. Smith and Dr. John Alexander refute plaintiffs’ allegations of negligence. Dr. Alexander, a physician engaged in the practice of obstetrics and gynecology in Murfreesboro before and at the time of Cory’s birth, states that he is familiar with the standard of care required of obstetricians practicing in Murfreesboro during the time in question and that Dr. Smith “conformed in every respect to the standard of care required of obstetricians practicing in Murfreesboro, Tennessee, in August, 1975.”

The only medical evidence offered by plaintiffs to counter defendants’ expert evidence is Dr. Abramson’s affidavits and deposition.

Tennessee Code Ann. § 29-26-115(b) provides:

No person in a health care profession requiring licensure under the laws of this state shall be competent to testify in any court of law to establish the facts required to be established by subsection (a) unless he was licensed to practice in the state or a contiguous bordering state a profession or specialty which would make his expert testimony relevant to the issues in the case and had practiced this profession or specialty in one of these states during the year preceding the date that the alleged injury or wrongful act occurred. This rule shall apply to expert witnesses testifying for the defendant as rebuttal witnesses. The court may waive this subsection when it determines that the appropriate witnesses otherwise would not be available.

The Trial Court entered the following order on January 17, 1984:

This action was heard on January 9, 1984, upon plaintiffs’ motion to amend the court’s order entered June 24, 1982 which dismissed this action as to Dr. Charles Smith unless, by July 5, 1982, plaintiffs produced for the purpose of giving deposition testimony in the Middle Tennessee area an expert witness to testify on their behalf in opposition to the motion for summary judgment filed on behalf of Dr. Smith. Upon reviewing the entire record in this cause and after hearing argument of counsel for the plaintiffs and of counsel for Dr. Smith, the court is of the opinion that Dr. David Abramson, the expert witness ultimately produced by plaintiffs for a deposition on January 13, 1983, is not competent to testify in this action as to the local standard of practice or as to Dr. Smith’s failure to conform to such standard in that Dr. Abramson did not practice medicine in Tennessee or in a contiguous bordering state during the year preceding the date that the alleged injury or wrongful act occurred as required by T.C.A. § 29 — 26—115(b); because plaintiffs have made no showing that appropriate witnesses otherwise would not be available, this requirement will not be waived. The court is further of the opinion, based upon Dr. Abramson’s deposition testimony, that Dr. Abramson is not familiar with the community in which the defendant practiced or with the treatment, care, and skill of practitioners in Murfreesboro and, therefore, that Dr. Abramson is not qualified to testify as a medical expert regarding the local standard of practice in Murfreesboro or a similar community or as to Dr. Smith’s alleged failure to conform to such standard in his care of Mrs. Ayers and her baby as required by T.C.A. § 29-26-115(a). The court is further of the opinion that Dr. Abramson has not testified as to negligence for which Dr. Smith can be held responsible in this action. The court, therefore, is of the opinion that the order entered June 24, 1982, properly disposes of plaintiffs’ claim against Dr. Smith, that plaintiffs’ motion to amend that order should be overruled, and that this action should stand dismissed as to Dr. Smith.

We are of the opinion after a review of this record that the Trial Court correctly found that Dr. Abramson was not competent to testify “as to the local standard of practice or as to Dr. Smith’s failure to conform to such standard in that Dr. Abramson did not practice medicine in Tennessee or a contiguous bordering state during the year preceding the date of the alleged injury_” We are further of the opinion that the record fully supports his finding that the plaintiffs made no showing that Tenn.Code Ann. § 29-26-115(b) should be waived since there is nothing in the record to show that an “appropriate witness otherwise would not be available.”

Dr. Abramson stated in his second affidavit that he “was licensed in the State of Virginia and practiced in Virginia in the year 1974 and all years thereafter.” His deposition testimony demonstrates, however, that he did not practice in Virginia in 1974. He testified that during the year preceding the date of Cory’s birth, he was a “geographic full-time” faculty member at Georgetown University Medical Center which is located in Washington, D.C. He further testified that while he was engaged as a full-time faculty member, he also engaged in private practice through a group called Georgetown Perinatal Association or Georgetown Neonatal Associates, Inc., seeing patients in the hospital and that his fees for private practice were billed through this group. He did see patients during this time at his office located in his home; however, this office was located in Washington, D.C.

Despite Dr. Abramson’s assertion in his second affidavit that he practiced in Virginia in the year 1977, his deposition clearly states that his actual practice was in Washington, D.C. during the year preceding Cory’s birth.

Dr. Abramson’s affidavit and his deposition regarding the location of his practice are contradictory and thus cancel each other out and force us to disregard them as a matter of law. Tibbals Flooring Co. v. Stanfill, 219 Tenn. 498, 410 S.W.2d 892 (Tenn.1967). Therefore, there is no testimony in the record as to the location of Dr. Abramson’s practice in the year preceding the date of the alleged injury.

We are also of the opinion that the Trial Court did not abuse its discretion in determining that Dr. Abramson was not qualified to testify as an expert regarding the local standard of care required of physicians practicing obstetrics in Murfreesboro.

Tenn.Code Ann. § 29-26-115(a)l provides:

(a) In a malpractice action, the claimant shall have the burden of proving by evidence as provided by subsection (b):
1. The recognized standard of acceptable professional practice in the profession and the specialty thereof, if any, that the defendant practices in the community in which he practices or in a similar community at the time the alleged injury or wrongful action occurred;
2. That the defendant acted with less than or failed to act with ordinary and reasonable care in accordance with such standard; and
3. As a proximate result of defendant’s negligent act or omission, the plaintiff suffered injuries which would not otherwise have occurred.

In Scarborough v. Knoxville Orthopedic Clinic, (Tenn.App. at Knoxville, July 19, 1977), commenting on Tenn.Code Ann. § 29-26-115(a)l, Judge Goddard, writing for the Court, stated:

While this statute did not become effective until July 1, 1975, it is not applicable to this case, it is nevertheless the legislature’s expression of policy regarding the standard of care of Tennessee. Thus, while prior cases may appear to present a trend toward relaxation of the locality rule, it is clear that the legislature by the enactment of the foregoing statute intended to continue its application.

Id. Tenn.Code Ann. § 29-26-115(a)l is applicable in this case.

Prior to the enactment of Tenn.Code Ann. § 29-26-115(a)1, this Court, in McKay v. Mitchell, 62 Tenn.App. 424, 463 S.W.2d 710 (1970), held that “[t]o qualify as expert witness in a malpractice action, it must appear he is familiar with the treatment and care and skill of practitioners in the locality” in which the cause of action arose. In McKay, the trial judge refused to allow plaintiff’s expert, a physician from Pennsylvania, to testify as to the standard of care and skill required of orthopedic surgeons and general practitioners in Memphis. The expert’s testimony as to standard of care in Memphis was based on his attendance at medical meetings, his study of medical papers, and his familiarity with the works of eminent physicians and surgeons in various fields of medicine. He had never practiced medicine in Memphis. The court acknowledged that “the knowledge possessed by a physician which renders him competent to testify as an expert can be from sources and experiences other than in the locality in which the cause of action arose.” Id. at 718. This Court noted that “the qualification of a witness as an expert is a matter largely within the determination of the trial court. Id.

The trial judge has broad discretion in dealing with the qualifications and admissions of testimony of expert witnesses. See, e.g., Shelby County v. Barden, 527 S.W.2d 124 (Tenn.1975); Cordell v. Ward School Bus Manufacturing, Inc., 597 S.W.2d 323 (Tenn.App.1980).

In this case the court had before it Dr. Abramson’s testimony that he had never been to Murfreesboro, did not know where in Tennessee the city was located, had no knowledge of whether Murfreesboro was a large or small town, knew no individuals in Murfreesboro, knew no physicians, other than the defendants in this suit, who practiced medicine in Murfreesboro, and that he did not know where defendant physicians were trained or the size of the hospital in which Cory was born.

He also had before him the testimony of Dr. Frank Boehm who stated:

[Tjhere is a clear difference between the standard of care applicable to physicians practicing in smaller hospitals such as the hospital located in Murfreesboro, Tennessee, and the standard applicable to physicians practicing in large hospitals such as Vanderbilt.... To state that the standard of care applicable to obstetricians does not vary throughout the United States is to ignore the variables and to misrepresent the true situation.

Our review of this record fails to disclose that the Trial Judge abused his discretion in refusing to allow Dr. Abramson’s testimony as an expert. This issue is without merit.

However, even if Dr. Abramson s testimony was considered, there is no disputed issue of material fact as to Rutherford Hospital, Inc. and Dr. Terry J. Witt. We find nothing either in the two affidavits submitted by Dr. Abramson or in his deposition which in any way touches upon negligence of Rutherford Hospital, Inc.

In fact, the motions for summary judgment on behalf of both Dr. Witt and Rutherford Hospital had been sustained prior to the taking of Dr. Abramson’s deposition. Therefore, if the Trial Judge erred, it must be on the basis of Dr. Abramson’s affidavits.

Dr. Witt’s affidavit, filed in support of his motion for summary judgment, set forth the fact that he saw Mrs. Ayers only on August 6, 1975, and that he had no involvement at all in the delivery of Cory. This is admitted by Mrs. Ayers. Dr. Witt’s affidavit also states that he is familiar with the accepted and prevailing medical standards in the Murfreesboro community among physicians and obstetricians and that his examination of Mrs. Ayers fully complied with these standards. There is nothing in the record to refute Dr. Witt’s affidavit.

Dr. Abramson’s affidavits list the medical records which he reviewed and upon which he predicated his opinion expressed in his affidavits. He did not review any medical records concerning Mrs. Ayers’ condition prior to her admission to Rutherford Hospital on August 13, 1975. His opinion, as stated in the affidavit, is that “Virginia Ayers, having a high risk pregnancy, in August, 1975, failed to progress normally in labor, should have been delivered by Cesarean section, however, was delivered by traumatic forceps which resulted in life long injury to her son, Cory Ayers.”

Dr. Abramson's second affidavit is in slightly greater detail than his first affidavit. However, his opinion still pertains to Mrs. Ayers’ labor in the hospital and the treatment she received while undergoing childbirth.

The Trial Judge for the reasons set out herein correctly sustained each defendant’s motion for summary judgment.

The judgment of the Trial Court, therefore, is affirmed with costs assessed to plaintiffs and the cause remanded to the Trial Court for the collection of costs and any further necessary proceedings.

TODD, P.J., M.S., and CANTRELL, J., concur.


source: Caselaw Access Project

author: CRAWFORD, Judge. NEARN, Presiding Judge, Western Section,

license: Public Domain

text:
    TENNESSEE DEPARTMENT OF HUMAN SERVICES, Plaintiff-Appellee, v. Tommy Lee RILEY and Peggy Sue Riley, Defendants-Appellants.
    Court of Appeals of Tennessee, Western Section at Jackson.
    Dec. 5, 1984.
    Application for Permission to Appeal Denied March 4, 1985.

      Leland Dale Wilson, Dyersburg, for defendants-appellants.
    Dianne Stamey, Asst. Atty. Gen., Nashville, for plaintiff-appellee.
   CRAWFORD, Judge.

Tommy Lee and Peggy Sue Riley (hereinafter the Rileys) appeal from the judgment of the Circuit Court of Obion County which terminated their parental rights to their two minor children Peggy Lee, born April 26,1974 and Charles, born January 1,1977. The Tennessee Department of Human Services (hereinafter TDHS) initiated this action by a petition filed in the Juvenile Court of Obion County which entered an order terminating the Rileys’ parental rights. On appeal to the Circuit Court the case was heard de novo, resulting in a judgment terminating the parental rights of the Ri-leys.

The court terminated the Riley’s parental rights pursuant to Tenn.Code Ann. § 37-246(d)(1) (1977), the applicable statute of termination, which provided in pertinent part:

* * * * * *
(d) After hearing evidence on a termination petition, the court may terminate parental rights if it finds on the basis of clear and convincing evidence that termination is in the child’s best interest and that ... the following conditions exist: (1) The child has been removed from the custody of the parent by the court for at least one (1) year and the court finds that:
(A)The conditions which led to the removal still persist:
(B) There is little likelihood that these conditions will be remedied at any early date so that the child can be returned to the parent in the near future; and
(C) The continuation of the legal parent and child relationship greatly diminishes the child’s chances of early integration into a stable and permanent home.
⅜5 ⅜ * * * ⅜

Thus, in order to terminate parental rights under subparagraph (1) of Section 37-246(d), the court must find five elements: (1) The termination must be in the best interest of the children. § 37-246(d); (2) The children must have been removed from the custody of the parent by the court for at least one year. § 37-246(d)(l); (3) The conditions which led to the removal must still exist. § 37-246(d)(l)(A); (4) There must be little chance that these conditions will be remedied so that the children can be returned to the parent at an early date. § 37 — 246(d)(1)(B); and (5) The continuation of the parent-child relationship must greatly diminish the children’s opportunities for early integration into a stable and permanent home. § 37 — 246(d)(1)(C). Each requirement necessary for a termination under this subparagraph must be found by clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). The judgment of the trial court recited that the findings of that court were based on clear and convincing evidence and specifically found the existence of the five elements set out above.

The Rileys present the following issues for review:

1. Whether TDHS followed the foster care review procedures?
2. Whether the visitation arrangements were conducive to achieving the goal of reuniting the family?
3. Whether TDHS provided rehabilitative services to help the Rileys after the removal of their children.

Prior to addressing these specific issues, we turn to an examination of the record. We shall outline the judicial and administrative procedures followed and summarize each witness’ testimony since this evidence provides a background for understanding our disposition of this case.

The record indicates that the Rileys’ two minor children, then ages 5 and 2, were removed from their natural parents in June, 1979. On July 27, 1979, the Obion County Juvenile Court found the children “dependent and neglected.” Pursuant to statute, TDHS filed a Foster Care Plan with the court on August 28,1979, and that report was approved by the court on March 6, 1980. Subsequent TDHS reports were timely filed and approved and a guardian ad litem was appointed for the children in September, 1981. These actions occurred before an order to permanently terminate the Rileys’ rights was filed on December 8, 1982.

The children were placed with seven different foster families before they went to live in Blakeman’s home in August, 1982. That home has been approved for adoption should the Riley children, who have continued to live with the Blakemans, be available.

At the Circuit Court trial, the first witness was Ruth Carlisle who, as a TDHS caseworker, had worked with the Rileys since 1977. She was the TDHS representative when it initiated these proceedings in June, 1979.

Mrs. Carlisle testified to the living conditions in which the Rileys lived at the time the children were removed. She described the house as being built from junkyard parts and sparsely furnished. She testified that it was littered with dirty clothes and bed linens, filth and waste food, and dirty pots and pans. The only running water in the house was cold water available at the kitchen sink.

Later, Mrs. Carlisle described the home in which Mr. and Mrs. Riley currently live. It is a more substantially built four rooms, although it has cracks large enough to enable one to see through to the outside. There is still no running water. Mrs. Car-lisle testified that on one trip the only food she saw in the house was a bag of potatoes and a half a bottle of Coke. Significantly, as to whether conditions had improved, the record reflects the following question to and response of Mrs. Carlisle:

Q. Have you noticed any improvements in the living conditions enough that the children could be returned ... ?
A. No sir.

During Mrs. Carlisle’s testimony, she outlined programs the TDHS had provided the Rileys from 1977 until the children’s removal in 1979. She noted that a state employed housekeeper had made weekly visits to the Rileys’ home for counseling, that the children had been placed in day care, and that the department had worked to provide the family with all available government subsidies.

Contrasted with the above programs provided the Rileys prior to their children’s removal, Mrs. Carlisle reported that since the children had become wards of the state, TDHS had continued to provide counseling; however, she admitted on cross examination that this service was limited to the times she could catch the Rileys at home. In addition, she reported that TDHS had arranged visits and provided transportation in order for the Rileys to see their children. On cross-examination, Mrs. Carlisle conceded that Mrs. Riley had made numerous phone calls inquiring about her children and requesting visits. The caseworker testified that visits were arranged whenever possible.

The second witness, a psychologist, testified that he had tested Mr. Riley and found his IQ to be 72 on an individually administered test. According to the psychologist’s further testimony, Mr. Riley’s IQ range enabled him tó do unskilled work and possibly, with training, to perform lower level skilled tasks.

The next witness, another psychologist, testified that she had given Mrs. Riley IQ tests. These tests had determined that Mrs. Riley’s IQ was 46, which in the psychologist’s opinion was the equivolent age of a 7 year old. The testimony continued:

Q. Can you identify some of the capabilities a person with this age would have?
A. Well, they would be able to dress themselves, feed themselves, do simple household chores. A seven year old, you know, might be able to cook some simple foods, but probably couldn’t read a recipe to follow it, you know, to the “t”. They could do the basic self-help skills.
Q. What about limitations; are there certain limitations attributable to moderate mental retardation?
A. Usually, well, not usually, but nearly all the time, these people function on a very concrete level. They are able to deal with concrete things such as I said simple chores, but when it comes to making judgments such as legal, moral, and those kinds of things, they would not be able to think abstractly enough to do these sorts of things. They would really need supervision in caring for themselves.
Q. Even in the daily running of a household?
A. I would not want to leave a seven year old child in a household by themselves. Basically, that’s what you can sort of relate it to.
Q. I guess the answer of this question is obvious from what you just stated, but would she be able to perform the duties of parenting and supervision and the general care of children?
A. Well, my test didn’t really test that, but I would say that a person that is functioning at this level, as I said, would need supervision themselves in taking care of their daily lives, and I would, therefore, think that it would be extremely difficult for them to care for children and care for them adequately.
Q. Would her judgment be the same as that of a seven year old, or does your test measure that?
A. Well, one of the subtests is called verbal comprehension, and it measures social judgment and logical reasoning, and she scored in the moderate range on that subtest. So, I would say that her logical reasoning and judgment would be impaired, also.

The fourth trial witness, a cook for the day care center the Riley children attended before they were taken from the Rileys’ home, stated that the children were “poorly dressed” and not clean. Following that testimony, Peggy Lee’s day care teacher testified that Peggy Lee “was unkept. She was not clean.”

The TDHS homemaker, Mrs. Spurgeon, in her testimony recounted her contacts with the Rileys. When asked what she had hoped to accomplish on her weekly visits to the Riley home from 1977 until 1979, she stated that she wanted to help Mrs. Riley learn homemaking skills, to take the children for appointments, and to be a family friend. She stated: “[t]he children were very outgoing, smiling, happy, but they were dirty. Food was not — There was bologna, soup and things of that nature. No really well prepared meals were given to them. The dirt was really the worst ... [The house] was not fit for humans to live in.” Mrs. Spurgeon stated further that all of her efforts to help Mrs. Riley were in vain because she had difficulty remembering what she had learned on the previous visit. Mrs. Spurgeon testified as to the following specific instances: she had seen Charles playing in chicken manure; she had observed Mr. Riley’s mother, who lived adjacent to her son and his family, drunk and in a rage one morning; she had been told by Mrs. Riley that Mr. Riley had on one occasion set their bed on fire, that he had used a portion of their food stamp money to buy beer, and finally that her husband’s brother had forced her to have sex with him and had sexually molested Peggy Lee.

On cross examination, Mrs. Spurgeon noted that she quit working for TDHS approximately six months prior to her position being cut from the state budget and that there was no replacement for her during this six month period. She stated that she believed that Mrs. Riley loved her children although Mrs. Spurgeon had, on one occasion, observed bruises on Peggy Lee’s body that were the result of Mrs. Riley having whipped her.

Following the homemaker’s testimony, the proposed adoptive mother, Mrs. Blake-man, testified. Mrs. Blakeman stated that she and her husband have been married 13 years, that they have no natural children, and that they have been approved for adoption. She further testified that since the children arrived in their home in August, 1982, she and her husband had received no financial compensation, but had provided for the children from her salary as an inventory clerk at a local retail store and her husband’s farm profits. When asked about her intentions with regard to the children, she replied that she loved the children and wished to adopt them. Her husband, Mr. Blakeman, later substantiated this testimony.

Following the Blakeman’s testimony, the Riley children’s teacher testified that Charles had made “significant progress— ... two years worth” during the last year and that “Peggy [had] started being more outgoing and opening up and doing better at school, also.” The teacher also pointed out that Charles, as a special education student, and Peggy Lee, as a hyperactive child, needed individualized assistance and a highly structured environment.

The next witness, Hazel Watt, the Carroll County TDHS worker, reported having worked with the Riley children since 1980. When asked whether their current home would be suitable for adoption, she replied that it was one of the best, was stable, and that the children seemed to have adjusted well while there. She stated that she felt it would be in the children’s best interest to be adopted.

To the TDHS proof outlined above, the Rileys offered the following witnesses: First, Mr. Riley was called to testify. He stated that he worked at various farming jobs most of which were seasonal, and the majority of which were unsupervised. With regard to his present house, he stated that the roof does not leak, that the house is heated adequately by a wood-burning stove, and that the house is wired for electricity. He stated that his wife cooks lunch and dinner for him daily. He added that they have to bring water from his mother-in-law’s home which is approximately 100 yards away, but that he has water-line connections available. When questioned about his efforts to find improved housing, he stated that TDHS had done nothing to help him with his problem. With regard to his visitations with the children, Mr. Riley stated that he had had difficulty arranging for transportation and a suitable time to see his children. In addition, he testified that he had received no counseling and no help from TDHS since his children had been removed. He testified that he and his wife currently receive no foodstamps and no social security payments to supplement his $60 per week salary. He admitted having made no monetary contributions to his children’s support since they had been removed from his home. He does not use alcohol, and he loves his children and wants them back.

The defense’s second witness was Mrs. Riley. She testified that she had not seen her children in a long time, but admitted having seen Mrs. Carlisle and the children’s guardian ad litem recently. She said that she loves her children and “[is] trying real hard to get them back,” and promised to do better if the children were returned to her care.

With regard to her homemaking skills, Mrs. Riley stated that she could and does cook and clean on a regular basis and that she babysits with her brother’s children frequently during the day. She testified that their present house has neither an outdoor bathroom nor an outhouse, but said “we go to the junkyard.” On cross-examination Mrs. Riley responded that she did not know the date of her birth and that she could not tell which letter came after “N” or “W” in the alphabet.

James Beasley, Mrs. Riley’s brother, was the third defense witness called. He supported Mrs. Riley’s statement that she had kept his three children from 5:30 a.m. until 3:30 p.m. every day for one year and that she did that job well. He stated further that Mr. Riley had made home improvements on the current house in which the Rileys live. On cross examination, he admitted that his sister had some “mental problems.”

In addition to the testimony summarized above, the record also includes two reports prepared by the Riley children’s guardian ad litem Mr. Bruce Moss. Mr. Moss’ first report was prepared subsequent to his February 8, 1982 visit to the Riley home. At the time he evaluated the house with its “gaping cracks,” “numerous broken windows” and general filth to be “most definitely not suited for or conducive to the proper rearing of anyone, much less, minor children.” He went further and noted that the neighborhood was cluttered with abandoned vehicles and garbage. Both parents, whom he described as being “unkept and in need of cleansing,” suffered from mental infirmities which were not likely to worsen or to improve. Finally, he concluded that he saw no way that the Rileys could ever care for their children. He, therefore, recommended that the children’s best interest be served by terminating the Riley’s parental rights.

Mr. Moss’ second report included a finding that, while the Rileys had moved since his last visit, their house was “of very similar conditions.” Dirt, clutter and flies were observed throughout the house and metal, glass and other discarded objects were in the yard. The only food in the kitchen had been a sack of potatoes. There was no running water. Moss observed that during this visit Mrs. Riley could not remember the simplest bit of information— she did not remember him or his visit 18 months earlier.

The guardian ad litem also visited in the home of the proposed adoptive parents and found it favorable in every way. In addition, the children, when questioned, indicated that they wished to stay with the Blakemans. Mr. Moss’ report concludes with the observation “that the conditions which lead [sic] to removal over three years ago still persists and there seems little likelihood that it will be remedied in the near future.” His report cites specifically the dangerous physical conditions, the parents’ limited mental abilities, and the parents’ lack of efforts to remedy the problem areas as the bases for his conclusion.

Although the Rileys have presented three issues for review we must keep in mind that all issues in a case of this type are premised on the foundation issue of “what is in the best interest of the child.” With this observation we turn to an examination of the issues the Rileys raise through their counsel. For simplicity, we consider issues one and three together:

Whether TDHS provided the rehabilitative services to help the Rileys after their children were removed and whether TDHS followed the proper foster care plan review procedures.

Tenn.Code Ann. § 37-246 provided guidance for the court in ruling whether termination is in the best interests of children and whether there is a chance for an early remedy to the conditions that led to foster care:

(e) In determining whether there is likelihood that the child can be returned to the parent in the near future and whether termination of parental rights is in the best interests of the child, the court shall consider, but is not limited to, the following:
(1) Whether the parent has made such an adjustment of circumstances, conduct or conditions as to make it in the child’s best interests to return home in the foreseeable future;
(2) Whether the parent has failed to effect a lasting adjustment after reasonable efforts by available social agencies for such duration of time that lasting adjustment does not reasonably appear possible;
(3) Whether there is brutality, abuse or neglect toward other children in the family;
(4) Whether there is such use of alcohol or controlled substances as may render the parent consistently unable to care for the child;
(5) Whether the parent has paid a reasonable portion of substitute physical care and maintenance when financially able to do so;
(6) Whether the parent has maintained regular visitation or other contact with the child which was designed and implemented in a plan to reunite the child with the parent.

The major thrust of the Riley’s argument is that the failure of TDHS to comply with the requirements governing foster care set out in Tenn.Code Ann. § 37-1502, 1503 and 1505 should prevent the court’s finding that TDHS made reasonable efforts to rehabilitate the family unit. The weakness in Riley’s argument is two-fold. First, as to the actual foster care plans required by the statute there is neither allegation nor proof that these plans were not executed. The Rileys do contend that the plans were not timely prepared. We note that the original plan was prepared within thirty days after the court found the children dependent and neglected and was ratified within thirty days thereafter. While the progress reports were not within the letter of the law requiring that they be made every six months for the first year, the first report was filed within four months of the court’s approval of the plan and the second report some seven and one-half months later.

The Rileys also allege that § 37-1505 requires an independent advisory board review of the foster care plan. We do not find the absence of this review to be fatal. At the time the Riley children were in the state’s custody, there was no review board in Obion County, and even had there been such a board, its “assessment and reports are advisory.” T.C.A. § 37-1505 (Supp.1979).

The second weakness in the Riley’s argument dealing with TDHS’s failure to comply with the statutory requirements lies in their assertion that the available social agency (in this instance TDHS) did not make reasonable efforts to assist the parents in an effort to rehabilitate the family unit. See Tenn.Code Ann. § 37-246(e)(2) (Supp.1979). We do not take this to mean that a failure by TDHS to strictly comply with the foster care plan statute precludes a finding of “reasonable efforts” within the meaning of the parental rights termination statute.

The Riley’s third issue is whether the visitation arrangements were conducive to achieving the goal of reuniting the family. They allege that TDHS did not fulfill its obligation with regard to maintaining a visitation program for them to visit their children. With regard to the sixth statutory requirement, the courts shall consider “whether the parent has maintained regular visitation with the children. 37-246(e)(6) Admittedly, Mrs. Riley inquired numerous times about the children and visiting with them. Difficulties arose because the Rileys had no telephone, seldom had transportation, and the children were in homes, many of which were not in Obion County. Testimony indicates TDHS did its part in arranging reasonable visitation up until the time that the state began termination of parental rights proceedings.

Since this case was tried by the court sitting without a jury, we review the case de novo upon the record with a presumption of correctness of the findings of fact by the trial court. Unless the evidence preponderates against the findings, we must affirm, absent error of law. T.R.A.P. 13(d).

At the conclusion of the evidence the trial court, as required by statute, filed written findings of fact. From our examination of the record we do not find that the evidence preponderates against the trial court’s written findings that TDHS made reasonable rehabilitative efforts pursuant to an adequate foster care plan, that TDHS fulfilled its obligation in helping the parents arrange visitation and transportation, and that the best interest of the children require termination of their natural parents’ rights.

We point out, as the trial judge did, that the Rileys had notice of all proceedings and were either represented by counsel or had matters explained to them so that they understood as well as they were capable of understanding. The children also had a guardian ad litem during the time the termination proceedings were taking place.

We are not unmindful of the trauma involved in removing children from their natural parents and in terminating those parents’ rights. Neither do we intend to say that children should be placed with foster and/or adoptive parents simply because those parents can provide more material possessions and opportunities for them than can their natural parents. We base our holding in this case upon what we have found in the record that indicates that for physical safety and psychological maturation the best interest of Peggy Lee and Charles Riley will be best served by upholding the trial court’s decision and the rights of their natural parents should be permanently terminated.

Accordingly, the judgment of the trial court is affirmed, costs are assessed against TDHS, and the case is remanded for further proceedings as necessary.

TOMLIN, J., concurs.

NEARN, P.J., W.S., dissents.

NEARN, Presiding Judge, Western Section,

dissenting.

I respectfully dissent from the opinion of my brothers.

I agree for the most part with the facts and conclusions as set forth in the majority opinion. It is the majority’s disposition of the issue on appeal with which I am primarily in disagreement.

The record shows without a doubt that the conditions in which the Riley children lived at the time they were placed in the custody of the Department of Human Services were such that if they were compared with the conditions described in Erskine Caldwell’s Tobacco Road,, Caldwell’s conditions would seem like Fifth Avenue, New York, in comparison with the Rileys’ circumstances. Further, I find that the Rileys’ circumstances at the time of trial, although improved, were dismal at best. Even with these admissions, I must still dissent.

An understanding of my dissent requires that we examine the statutes by which TDHS acquired custody in addition to examining the statute under which the Ri-leys’ parental rights were forever terminated. TDHS acquired custody because the Riley children were found to be “dependent and neglected” within the meaning of the laws. From the reports filed, it is evident that, insofar as Mrs. Riley is concerned, the children qualified as dependent and neglected under T.C.A. § 37-l-102(10)(B) (Supp.1984), because Mrs. Riley, by reason of “mental incapacity,” was unfit to care properly for the children. As to Mr. Riley, it would seem that because of his inability to provide financially for his family subsection (10)(G) of the statute would have application.

A fair reading of this entire record impels one to the conclusion that the cause of the conditions which have existed and now exist is the mental incapacity of Mrs. Riley and the inability of Mr. Riley, try as hard as he might, to procure an adequate income. Mrs. Riley is moderately retarded and has been tested as having the mentality of a seven year old. Mr. Riley is, at best, a borderline case. The psychologist who examined Mr. Riley measured his I.Q. at 72; he further testified that a finding of less than 70 qualified the subject for the designation of mentally retarded and that there was a 3 per cent margin of error in the 72 rating given Mr. Riley. Therefore, if the error in Mr. Riley’s I.Q. were on the high side, Mr. Riley would be considered to be mentally retarded. On top of that, Mr. Riley has a limited formal education. It ended at the seventh grade. Because of all of this, Mr. Riley has been able to obtain only menial employment, seasonal in nature. The record shows that he is a willing worker and is trying to make an honest living. On occasions he has worked for less than minimum wage in order to try to better his family’s living conditions. In short, he is playing the cards life has dealt him, the best he knows how to play them. He just was not dealt much of a hand.

There is nothing in this record to indicate that any of the existing conditions are the result of any willful act or willful neglect of either Mr. or Mrs. Riley. The record does show without doubt that both are doing their pathetic best to furnish a proper home for the children. Sad as it is, it must be admitted that their very best is simply not enough for the proper well being of the children. The record further shows that both parents love their children and want to have them with them and to be a family. One simply cannot read this record and not be emotionally moved. There are the many phone calls by the mother wanting to visit the children, but being unable to do so because of lack of transportation and the continued efforts of the father to obtain transportation and his inability to do so. At the time of trial he was making payments on a 1970 vehicle, but was unable to obtain possession until he had completely paid for it. However, no matter the pathos involved, a Court, insofar as custody is concerned, must look to the best interests of the children. This brings me to my disagreement with the majority over the issue presented by the case.

The best interest of the child is the paramount issue in the matter of custody. Walker v. Walker, (1983 Tenn.App.W.S.) 656 S.W.2d 11, 17. If this were simply a custody matter, there would be no dissent, for I believe the facts require that, for now, custody remain with the state. However, this is not a custody matter; it is a matter of the final termination of all parental rights of Mr. and Mrs. Riley. As noted in Ex parte Wolfenden, (1961 M.S.) 48 Tenn.App. 433, 348 S.W.2d 751, it is one thing to say to parents that they are deprived of custody; but it is an altogether different thing to say that they are no longer parents. Simply put, it is my opinion that before the state, operating through a Court, may say to parents that you may never see your child again, that you may never touch and embrace your child again, that you may never hear your child say “Mommy” or “Daddy” again, before the State can say all that, the parent must have willfully done something wrong.

The state has the right to terminate one’s life only when some heinous wrong has been willfully done. If that be true, then under which constitutional power granted by the people does the state have the right, without a finding of willful wrongdoing, to terminate forever the parental relationship, which in most cases is more precious than life itself? I believe none exists. It certainly cannot be done under the guise of the best interests of the child. If that were so, then every child living in dire poverty would be subject to being taken away from poor parents so that they could be adopted by more affluent and equally caring parents. Our law clearly provides for the element of willfulness in abandonment cases. Even if a technical abandonment is shown, if the abandonment is not willful because of some circumstance such as incarceration, there can be no abandonment. See T.C.A. § 37-1-102(1) (Supp.1984). As has been said, honest poverty is no disgrace and is not a justifiable cause for the loss of fundamental rights such as the “freedom of personal choice in matters of family life.” See San-tosky v. Kramer, (1982) 455 U.S. 745, 753, 102 S.Ct. 1388, 1394, 71 L.Ed.2d 599. Neither is mental incompetence. If a mental incompetent commits an act that ordinarily would be considered a crime, the law does not consider it as such. Of course, such a person may be deprived of liberty when the person is a danger to himself or others, but even so, the deprivation of liberty is never considered in law to be permanent. The deprivation of liberty exists only so long as the mental condition exists. See Jones v. United States, (1983) 463 U.S. 354, 103 S.Ct. 3043, 3053, 77 L.Ed.2d 694. The law is ever hopeful that the condition will change for the better, although it recognizes that such improvement may never happen. The point is that the sentence is not final. The termination of parental rights, however, is just as final as a death sentence.

In Santosky v. Kramer, supra, the Supreme Court of this nation recognized that, in parental termination matters, due process constitutional issues are presented. The termination is not to be decreed solely on the best interests of the child; parental rights must be considered as well.

In the instant case, custody was taken from the parents and placed in and retained by the state because of the failings of the parents. As stated, this was proper and I find in that action nothing offensive to my constitutional sensibilities. However, under our statutory scheme, if the “conditions which led to the removal ... still persists, [sic]” such persistent conditions may be the basis of a termination order. T.C.A. § 37-l-147(d)(l)(A) (1984). That statutory provision, applied to the facts of this case, means that the parental rights may be forever terminated because of the mental and monetary deficiency of the parents with no showing of any deleterious willful act of the parents. If these parents had been normal parents and then had suffered brain damage in an automobile accident and were unable to care for their children, would the state have the right to terminate parental rights because of the injuries? I think not. To take custody, yes, but not to terminate rights forever. The fact that these parents happen to have been born with their “injuries” is no reason for them to lose their right to see and know their children.

I would not hold the statutes involved facially unconstitutional, but I would hold that this case represents an unconstitutional application of the laws.

In closing, I cannot help but note that the record reveals that the children are now under the care of a couple who seem truly to love the children. They are caring for them without any financial support from the state. This fact makes this dissent even more difficult for me to write. I would hope that if some higher Court should agree with the position I take that the children would remain there. However, be that as it may, that which appears to be an unconstitutional deprivation of an inalienable right is, to me, paramount. Of course, the state in this case does not act out of bad motive; it has the best of motives, for now. If, however, a power is once recognized in the state to terminate parental rights forever without a finding of willfully deleterious acts on the part of the parents, such power would render meaningless other constitutional guarantees. As for me, I would forego all the others rather than give the state the power to deprive me forever of my right to see my children again without willful fault on my part.

      . This statute has been amended in several respects and is now T.C.A. 37-l-147(d) (1984).

      . This section is now 37-l-147(e) (1984).

      . These sections are now 37-2-403, 37-2-404 and 37-2-406 (1984) respectively.

      . Erskine Caldwell, Tobacco Road (Cambridge, Mass., Bentley Pub. Co., 1970).


author: KOCH, Judge. KOCH, Judge.

text:
    Warren CHAILLE, Dorris Warren Stewart, Elizabeth Warren Guthrie, David L. Warren, Jr., and Ella Warren Henslee, Plaintiffs/Appellees, v. Max H. WARREN, Sr., Max H. Warren, Jr., Edward R. Warren, John L. Warren, Patty Henslee Anderson, Eloise Henslee Corwin, Martha Warren Dowling, and Guy M. Warren, Defendants, and Vallie Dee Warren Johnson and Christine Warren Collier, Defendants/Appellants, Federal Land Bank, Intervenor.
    Court of Appeals of Tennessee, Middle Section at Nashville.
    Jan. 15, 1985.
    Rehearing Granted Feb. 7, 1985.
    Application for Permission to Appeal Denied by Supreme Court April 22, 1985.

      Claude Callicott, Mark H. Collier, Nashville, for defendants/appellants.
    Charles N. Griffith, Waverly, for plaintiffs/appellees.
   OPINION

KOCH, Judge.

This appeal involves a dispute over the award of attorneys fees to counsel representing various children and grandchildren of Henry E. Warren whose will, executed in December, 1896 and probated in March, 1897, was the subject of a four year controversy over its meaning. The payment of these attorneys fees comes from the proceeds of the court-ordered sale of certain real property that was the subject of Mr. Warren’s will. While the dispute over the intention of the testator has abated, the dispute among counsel over their respective fees continues. In their prolixity, the legal theories and pleadings of counsel in this suit rival those of the endlessly contesting scriveners in the case of Jamdyce and Jamdyce, the subject of Charles Dickens’ Bleak House.

Following the remand by this Court pursuant to its opinion in Chaille v. Warren, 635 S.W.2d 700 (Tenn.App.1982), the Chancery Court for Humphreys County entered an order on August 11, 1982, affirming its earlier decisions of August 18, 1980 and August 3, 1981, relating to attorneys fees. Thereafter, on February 21, 1984, the trial court entered a final order awarding counsel for certain heirs an additional $1,800 in attorneys fees and counsel representing other heirs an additional $1,200. The two attorneys receiving the additional joint award of $1,200 have perfected this appeal. For the reasons stated herein, we affirm the decision of the trial court.

Mr. Henry E. Warren and his wife, Lula, had six children. He executed a will in December, 1896, and died shortly thereafter. The will was admitted to probate at the March, 1897 term of the Humphreys County Court. Lula Warren died intestate in September, 1941. The family home place was then occupied by various members of the Warren family, principally their son, Guy M. Warren. Guy M. Warren made various repairs and improvements to the home place. There was also proof that Warren Chaille, one of Henry Warren’s grandchildren, paid property taxes on this property for five years from 1973 through 1977.

This dispute arose when two of Henry Warren’s grandchildren, the sisters Vallie Dee Warren Johnson and Christine Warren Collier, who are the nominal appellants in this case, attempted to purchase all of Henry Warren’s real property from his other heirs for $37,500. To this end, in June, 1976, Mrs. Johnson and Mrs. Collier attempted unsuccessfully to obtain the signature of all remaining heirs on a written contract.

On August 8, 1977, two of Henry Warren’s children, and four of his grandchildren filed this action seeking a judicial construction of Henry E. Warren’s will. Named as defendants were Henry Warren’s other surviving son, Guy M. Warren, and eight of his grandchildren including the two grandchildren who had attempted to purchase all of Henry Warren’s property. The plaintiffs in this action were represented by Charles N. Griffith of Waverly while the defendants were represented jointly by Claude Callicott of Nashville and Mark H. Collier of Dickson.

Alleging that the property had fallen into a state of disrepair, the original action sought the permission of the court to sell the property. The complaint alleged that Mr. Warren’s will either vested fee simple title of all property in Lula Warren or, in the alternative, awarded Lula Warren a life estate and vested a fee simple remainder in his children.

In answer to this complaint, Guy M. Warren and his two daughters, Yallie Dee Warren Johnson and Christine Warren Collier, who were attempting to purchase all of Henry E. Warren’s remaining real property, alleged that Mr. Warren’s will vested a life estate in his wife and living children and vested a fee simple remainder in his grandchildren. While these parties agreed that the trial court should order the sale of the property, their sole purpose was to persuade the trial court to compel their relatives to sell the property to them for $37,500. The other children and grandchildren named as defendants took no continuing interest in this litigation.

In an opinion and order entered on January 26, 1979, and February 13, 1979, respectively, the trial court found that the effect of Mr. Warren’s will was to vest a life estate in each of Mr. Warren’s surviving children with a fee simple remainder in his grandchildren per stirpes. The trial court’s order also permitted the sale of the property by the consent of all the children and grandchildren or by a judicially ordered sale should the trial court determine later that such sale was necessary.

On November 8, 1979, the trial court entered an order directing that a portion of Henry Warren’s real property be sold and the proceeds be distributed in accordance with its February 13, 1979 order. The master submitted a report of sale on March 11, 1980, reporting that the property had been sold for $75,000 to three purchasers who were not members of the Warren family. On March 25, 1980, Guy M. Warren and his two daughters, represented still by the husband of one of the daughters and another counsel, moved to confirm the master’s report and requested “reasonable fees to all attorneys in this case” to be paid out of the proceeds of the sale.

Counsel for the plaintiffs then prepared a proposed order confirming this sale wherein counsel for the plaintiffs was awarded $5,500 in attorneys fees and counsel for the appellants were awarded a joint fee of $1,500. Counsel for the appellants vigorously opposed this order on the basis that it was “wholly inadequate” and that their services were of as much value as those of counsel for the plaintiffs. Stating that they had no objection to counsel for the plaintiff “being paid and paid well,” the two counsel for the appellants demanded a fee equal to that received by plaintiff’s counsel.

The trial court entered an order confirming these sales on April 25,1980, wherein it reserved making a final decision with regard to attorneys fees. On August 18, 1980, the trial judge entered an order directing that Henry E. Warren’s remaining property be sold. On the same day, he entered an order providing that the total amount of funds from the first sale to be used for attorneys fees would be $7,500. He apportioned this by awarding $4,500 to counsel for the plaintiffs and $3,000 to counsel for the appellants. Appellants’ counsel excepted to this award.

On September 12, 1980, counsel for the plaintiffs moved the trial court to reconsider its action with regard to reducing his attorneys fees from $6,000 to $4,500. Counsel sought the trial court to

[Ajmend its order of counsel fees for parties counsel to provide adequately for the work required of plaintiffs’ counsel in continuing to work for the disposition of this case despite the delays and objections to hearing, orders, sale, award of fees, payment of heirs shares, entry of this Court’s orders and frustration generally by Defendants’ counsel in all stages of this lawsuit as to its orderly and timely progress.

The trial court denied counsel’s motion to reconsider on November 14, 1980, but directed that no attorneys fees should be paid because of the possibility that this would be an issue on appeal. This order also provided for the disbursement of certain proceeds from the first sale of this property.

On January 19, 1981, the special commissioner filed a report that Henry Warren’s remaining realty had been sold for $26,500 in accordance with the trial court’s previous order. On February 13, 1981, the plaintiffs moved the trial court to set aside this sale and to order a new sale because one of the appellants’ counsel — the husband of one of the grandchildren — had disrupted the courthouse sale by appearing and warning prospective purchasers that they would not receive good title to the property. On March 20, 1981, the trial court entered an order directing that the sale of the property be held open for an additional period of time and that new advertisements be made. There being no other interest in this property, the trial court entered an order on April 20,1981, confirming the second sale for $26,500. Again, the trial court reserved ruling upon disbursing attorneys fees from the proceeds of this sale. Counsel for the appellants disagreed with this order.

In an order entered on August 3, 1981, the trial court awarded counsel for the plaintiffs an additional $1,800 in attorneys fees and the two counsel representing the appellants an additional $1,000.

Counsel for the appellants filed their notice of appeal on September 2, 1981 wherein they stated, in part:

Said parties especially appeal from all Orders of the Court which fixed and allowed attorney fees for their attorneys, Mark H. Collier and Claude Callicott, in amounts less than those awarded to the attorney for the Plaintiffs.

In their briefs filed in this Court in 1982, counsel for the appellants contended that the trial court had erred in construing Henry E. Warren’s will and that the effect of the will was to give a life estate to his widow, then a life estate to his children and vested the remainder in his grandchildren per stirpes. Counsel also took issue with the award of attorneys fees and for the first time requested additional fees for their work performed in perfecting this appeal.

In Chaille v. Warren, 635 S.W.2d 700 (Tenn.App.1982), this Court disagreed with the trial court and with the appellants and held that Henry E. Warren’s will gave a life estate to his wife and that there was a partial intestacy as to the real property so that at the death of Lula Warren, the property descended as if there had been no will. Thus, this Court ruled that a one-sixth, undivided interest in the fee of Henry E. Warren’s real property vested in each of his children at the time of his death subject to their mother’s life estate. Chaille v. Warren, 635 S.W.2d 700, 702 (Tenn.App.1982).

With specific regard to attorneys fees, this Court affirmed the trial court’s awards of attorneys fees contained in its orders of August 18, 1980 and August 3,1981. With specific regard to the appellants' counsel's request for attorneys fees on appeal, this Court ruled:

Defendants do insist that they are entitled to attorneys fees for their services regarding this appeal. We are of the opinion that, on remand, the Chancellor should consider whether additional attorneys fees should be awarded to defendants’ attorneys for their services regarding this appeal and, if so, the amount of such fee. Chaille v. Warren, 635 S.W.2d 700, 703 (Tenn.App.1982).

Dissatisfied with the decision of this Court, counsel for the appellants filed an application for permission to appeal pursuant to Tenn.R.App.P. 11 in the Tennessee Supreme Court. Again the appellants contended that Mr. Warren’s will vested a life estate in his widow and children with a fee simple remainder in his grandchildren. They also contended that the trial court's award of attorneys fees was in error and that this court had refused, improperly, to award additional attorneys fees for their work in perfecting these appeals.

The Tennessee Supreme Court declined to review this Court’s decision.

Upon the remand, counsel for the plaintiffs sought additional attorneys fees for the work he performed on appeal. In support of his request for an additional $2,000 in fees, counsel for the plaintiff submitted his own affidavit as well as an affidavit of independent counsel stating that the value of his services was $3,000 at a minimum.

In support of their request for an additional $1,500 for each counsel, counsel representing the appellants filed their affidavit concerning their work on appeal as well as affidavits of two independent lawyers to the effect that the value of these services was $3,000 at a minimum.

In an order entered on August 11, 1982, the trial court affirmed its earlier awards of attorneys fees that had been upheld by this Court and directed that all proceeds from the sale of the Warren property be disbursed except for $5,000 which would be retained for additional attorneys fees. While it did not finally decide the issue of attorneys fees, the trial court’s order stated:

The prayer or request in plaintiffs’ motion for the allowance to the plaintiffs’ attorney of an additional fee for his services rendered on appeal is beyond the scope of the remand and is accordingly denied.

Eighteen months later, the trial court, apparently having reconsidered its decision to deny additional fees to counsel for the plaintiffs, filed a memorandum opinion on January 25,1984, awarding counsel for the plaintiffs an additional fee of $1,800 and the two counsel for the appellants an additional joint fee of $1,200. An order incorporating this memorandum was entered on February 21, 1984. Counsel for the appellants filed lengthy exceptions to this decision and have duly perfected this appeal.

While somewhat obtuse, the brief submitted on behalf of the defendants-appellants appears to raise four matters for this Court’s consideration: (1) whether counsel for the plaintiff is estopped to claim additional attorneys fees on remand having not requested such fees prior to the appeal; (2) whether the chancellor went beyond the scope of the remand order of this Court by awarding additional attorneys fees to counsel for the plaintiff; (3) whether the trial court erred by changing its mind between its order entered on August 11, 1982, and its final order entered on February 21, 1984, with regard to the payment of additional fees to plaintiffs’ counsel; and (4) whether the trial court, in deciding upon attorneys fees, erred by considering whether the attorneys’ work benefited the estate involved and which party prevailed on appeal.

I.

Estoppel of Plaintiffs' Counsel to Request Attorneys Fees for Services Performed on Appeal

We find no merit in appellants’ contention that counsel for the plaintiffs is estopped to claim additional attorneys fees for the services he performed on the first appeal from the trial court’s construction of Mr. Warren’s will, the sale of his property, and the disbursement of the proceeds to his heirs. It would have been premature to request these fees prior to the appeal, see Evans v. Evans, 558 S.W.2d 851, 854 (Tenn.App.1977), thus, the only proper time to request fees for legal services performed on appeal would be on the remand of the case. See Folk v. Folk, 210 Tenn. 367, 379, 357 S.W.2d 828, 828-29 (1962) and Salisbury v. Salisbury, 657 S.W.2d 761, 771 (Tenn.App.1983). Counsel for the plaintiffs cannot be faulted for making his request for attorneys fees at the proper time.

II.

Adherence by the Trial Court to the Court of Appeals’ Remand Order

The appellants next contend that the trial court improperly went beyond the scope of this Court’s remand order contained in Chaille v. Warren, 635 S.W.2d 700 (Tenn.App.1982) by-awarding attorneys fees to counsel for the plaintiffs. This argument is untenable for two reasons. First, it ignores the fact that the proper time and place to request attorneys fees for services performed on appeal is on remand in the trial court. See Folk v. Folk, 210 Tenn. 367, 379, 357 S.W.2d 828-29 (1962). Second, it fails to recognize that the issue of plaintiffs’ counsel’s entitlement to attorneys fees for services performed on the first appeal was not addressed by this Court in Chaille v. Warren, 635 S.W.2d 700 (Tenn.App.1982) because it was not an issue, and, therefore, was not part of the first appeal in this case.

Upon the remand ordered by this Court, the trial court, pursuant to Tenn. Code Ann. § 29-27-121, had the jurisdiction to make proper awards of attorneys fees from the proceeds of the sale of Mr. Warren’s property. We cannot find fault with the trial judge’s exercise of the discretion vested in him by statute.

III.

The Trial Court’s Change of Opinion

The appellants also claim that the trial court somehow committed reversible error because between the time it entered its orders of August 11, 1982, and February 21, 1984, it changed its mind and decided that it could award additional attorneys fees to counsel for the plaintiffs for the work he performed on appeal. We also find this argument untenable.

It is clear that the trial court’s order of August 11, 1982, was not a final order because it did not adjudicate all the claims pending before the Court. Tenn.R.App.P. 3(a) provides, in part:

[A]ny order that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before entry of a final judgment adjudicating all the claims, rights, and liabilities of all parties.

From this rule, it is clear that the trial court was acting within its authority when it finally determined that counsel for the plaintiffs could receive additional attorneys fees for the work he performed on appeal.

IY.

The Award of Attorneys Fees

The appellants also contend that the trial court erred in the criteria it employed to determine the amount of attorneys fees to be awarded to respective counsel for their work during the first appeal. Particularly, they take issue with the trial court’s consideration of whether the work benefited the estate and which legal position prevailed on appeal. Relying upon Montgomery v. Hoskins, 222 Tenn. 45, 432 S.W.2d 654 (1968), counsel for the appellants insist that they are entitled to a fee equal to that received by plaintiffs’ counsel. We do not agree with this contention. It is based upon a clear misreading of the Tennessee Supreme Court’s opinion in Montgomery v. Hoskins, 222 Tenn. 45, 432 S.W.2d 654 (1968). Even in that case, counsel for the respective parties did not receive identical fees.

While holding that Tenn.Code Ann. § 29-27-121 [formerly Tenn.Code Ann. § 23-2125] required the trial court to award attorneys fees to counsel for both litigants in a partition case where each litigant had rights in the property entitled to be defended, the Tennessee Supreme Court held that

[T]he attorney who represents one party is as much entitled to a fee fixed on the basis of those principles applying generally to the fixing of fees as the attorney for another party. Montgomery v. Hoskins, 222 Tenn. 45, 48, 432 S.W.2d 654, 655 (1968).

The Tennessee Supreme Court has discussed the factors that trial courts can consider in awarding attorneys fees. See Connors v. Connors, 594 S.W.2d 672, 676 (Tenn.1980). The Supreme Court has specifically approved the trial court’s consideration of the necessity of the appeal. Folk v. Folk, 210 Tenn. 367, 379, 357 S.W.2d 828, 829 (1962), which party prevailed on appeal, Gilpin v. Burrage, 188 Tenn. 80, 91, 216 S.W.2d 732, 737 (1948), and whether the work performed by the attorney requesting a fee benefited the estate or was primarily for a litigant’s benefit. First American National Bank v. Charlton, 557 S.W.2d 500, 501 (Tenn.1977) and Vaccaro v. Cical la, 89 Tenn. 63, 78, 14 S.W. 43, 46-47 (1890).

The award of attorneys fees in cases like this one is left largely to the discretion of the trial court. Scott v. Marley, 124 Tenn. 388, 413, 137 S.W. 492, 498 (1911) and Chaille v. Warren, 635 S.W.2d 700, 703 (Tenn.App.1982). Upon our review of this record, we conclude that the trial court’s decision to award counsel for the plaintiffs an additional $1,800 as attorneys fees for the services he performed on appeal and to award both counsel for the appellants $1,200 for their services on appeal is fully supported by this record.

V.

Counsel’s Renewed Request for Attorneys Fees

Finally, counsel for the appellants request that this Court award them additional attorneys fees for the services they have rendered on this appeal. They specifically request that these funds be paid from the $1,800 fee the trial court awarded to counsel for the plaintiffs.

As this Court held in Chaille v. Warren, 635 S.W.2d 700, 703 (Tenn.App.1982), the trial court is the proper forum for the determination of whether attorneys fees should be awarded and their amount. Folk v. Folk, 210 Tenn. 367, 379, 357 S.W.2d 828, 828-29 (1962). Thus, upon remand, the trial court should consider whether counsel should be awarded fees for this appeal to be paid out of the funds still held by the trial court resulting from the sale of the Warren property. We note in this regard, however, that the test adopted by the Tennessee Supreme Court to determine whether fees should be paid out of an estate requires a determination of whether the legal services performed for which payment from the estate is sought inured to the benefit of the estate itself or to the individuals claiming an interest in the estate. Leaver v. McBride, 506 S.W.2d 141, 145 (Tenn.1974) and Pierce v. Tharp, 224 Tenn. 328, 338, 455 S.W.2d 145, 149 (1970), reh. denied, 224 Tenn. 328, 457 S.W.2d 529, reh. denied, 224 Tenn. 328, 461 S.W.2d 950, cert. denied, 402 U.S. 929, 91 S.Ct. 1527, 28 L.Ed.2d 863 (1971). While it is not without some question whether the services of counsel for the appellants in the trial court inured to the benefit of the estate or were for the benefit of only the appellants themselves, it appears that the labor of all counsel on this appeal has been for the sole purpose of obtaining their fee. This would not seem to be of any benefit to Henry E. Warren’s estate or will, and thus, it would appear that this is not the proper case wherein the estate, rather than the litigants, should bear these additional costs.

For the reasons stated herein, the judgment of the trial court is affirmed, and the case is remanded to the trial court. The costs in this cause are not taxed against the proceeds of the sale of Henry E. Warren’s real property in the hands of the Clerk and Master of Humphreys County, rather they are taxed against the defendants-appellants and their sureties for which execution, if necessary, may issue.

TODD, P.J., M.S., and LEWIS, J., concur.

OPINION ON PETITION TO REHEAR

KOCH, Judge.

The appellants, Vallie Dee Warren Johnson and Christine Warren Collier, have filed a petition to rehear requesting this Court first, to clarify its opinion filed on January 15, 1985, 689 S.W.2d 173, with regard to the taxation of court costs and second, to tax the costs of the appeal against the proceeds of the sale of certain real property belonging to the estate of Henry E. Warren and presently in the hands of the Clerk and Master of the Chancery Court for Humphreys County, Tennessee.

The opinion filed by this Court on January 15, 1985, at page 181 provided:

The costs in this cause are not taxed against the proceeds of the sale of Henry E. Warren’s real property in the hands of the Clerk and Master of Humphreys County, rather they are taxed against the defendants-appellants and their sureties for which execution, if necessary, may issue.

Acting upon the assumption that the clerk and master has already paid the court costs of the proceedings in the trial court occurring after the remand by this Court from the funds of the estate, and with proper deference to the orders regarding the payment of costs entered earlier by the trial court and by this Court, the opinion on this appeal was never meant to be construed as doing anything more than taxing the costs of the present appeal to the defendants-appellants and their sureties rather than the estate’s funds being held by the clerk and master.

To the extent that this petition to rehear again requests that the costs of the second appeal be paid out of the estate’s funds being held by the clerk and master, the petition is respectfully denied since it presents no new matter that has not already been considered fully by this Court.

TODD, P.J., and LEWIS, J., concur.

      . The Tennessee Supreme Court denied certain heirs’ application for permission to appeal from this Court’s decision on July 12, 1982.

      . Lula Ethel Warren Chaille died leaving her son, Floyd Warren Chaille, as sole heir. John L. Warren died with no children. David L. Warren died in 1952 leaving four children: Elizabeth Warren Guthrie, David L. Warren, Jr., Dor-ris Warren Stewart, and Florence Warren. Max H. Warren survives and has four children. Ella Warren Henslee survives and has two children. Guy M. Warren died while this action was pending leaving two children Vallie Dee Warren Johnson and Christine Warren Collier.

      . Mrs. Johnson and Mrs. Collier, the buyers, were successful in obtaining the agreement of their father, Guy M. Warren, and his wife. They also obtained the agreement of Warren Chaille and his wife. They could not obtain an agreement from Max H. Warren and Ella Warren Henslee. They did not attempt to obtain an agreement from the surviving children of David L. Warren. In an order dated August 18, 1980, the trial court found that this contract was of no force and effect because its terms and conditions were never met.

      . Ella Warren Henslee and Max H. Warren. Max H. Warren later became a defendant.

      . Warren Chaille (the only son of Lula Ethel Warren Chaille) and David Warren, Jr., Dorris Warren Stewart, and Elizabeth Warren Guthrie (three of David L. Warren’s four children).

      . Patty Henslee Anderson and Eloise Henslee Corwin (the daughters of plaintiff Ella Warren Henslee); Max H. Warren, Jr., Ray Warren, Jack Warren, and Martha Warren (the four children of Max H. Warren, Sr.); and Vallie Dee Warren Johnson and Christine Warren Collier, the prospective purchasers who were the children of defendant Guy M. Warren.

      . Mr. Collier is married to one of the parties, Christine Warren Collier.

      . This order was subsequently amended on November 27, 1979. However, this amendment is not relevant to this opinion.

      . The husband of one of the grandchildren, as counsel for the appellants, filed exceptions to this order on November 25, 1980, even though it had been prepared and approved by his co-counsel and counsel for the plaintiffs.

      . See “Brief of Vallie Dee Warren and Christine Warren Collier, Defendants-Appellants,” filed on January 4, 1982, in the Court of Appeals in Warren Chaille, et al. v. Max H. Warren, Sr., et al., Appeal No. 81-288-11, at pp. 1-2.

      . See "Application of Defendants-Appellants for Permission to Appeal Under Rule 11 of the Rules of Appellate Procedure," filed on May 11, 1982, in the Tennessee Supreme Court in Warren Chaille, et al. v. Max H. Warren, Sr., et al., Appeal No. 81-288-11, at pp. 1 and 28-30.

      . In Montgomery v. Hoskins, 222 Tenn. 45, 432 S.W.2d 654 (1968), counsel for the successful plaintiffs received a fee of §1,000 while counsel for the defendants received §500 even though the defendants had an interest in the property equal to that of the plaintiffs.