text:
    John EVANS, Appellee, v. OLIN CORPORATION, Appellant.
    Supreme Court of Tennesee, at Knoxville.
    March 4, 1985.

      Denny E. Mobbs, Cleveland, for appellant.
    Conrad Finnell, Cleveland, for appellee.
   OPINION

COOPER, Chief Justice.

In this worker’s compensation case, the employer appeals from a decree awarding appellee benefits for a twenty percent disability to the body as a whole. Appellant insists “there is no material credible evidence establishing the plaintiff has incurred a permanent partial disability causally connected with the three chlorine exposures at work.” Appellee, on the other hand, insists the appeal is frivolous and asks for damages as provided by T.C.A. § 27-1-122.

There were two hearings or trials in this case. At the close of each, the chancellor found the appellee to have a permanent partial disability of twenty (20) percent to the body as a whole from exposure to liquid chlorine.

It is undisputed in the record that appel-lee was exposed to liquid chlorine on three occasions. The first exposure, and the most serious, was on April 16, 1981. Mr. Evans was removing a phlange on a chlorine line, when liquid chlorine under pressure escaped. The chlorine struck Mr. Evans in the face and on the shoulder. Mr. Evans underwent emergency treatment at the plant and was released to go home. His condition worsened and he was admitted to the hospital in Etowah by Dr. Luis Ordonez.

Dr. Ordonez testified that, on admission, Evans was experiencing a choking sensation and that he had congestion in his lungs. X-rays taken on admission revealed that both of appellee’s lungs were covered with a special type of patches and appellee had a chemical type of pneumonia. According to Dr. Ordonez, “it was a typical type of pneumonia for the history he gave, that was the inhaling of the chlorine.” Dr. Ordonez also noted that “the corrosive type chlorine ... it burns the tremendously small bronchial tubes.”

Dr. Ordonez also testified that on admission, Mr. Evans’ white blood count was extremely high, “that [it was] a combustion in his system he was fighting. It is like when you burn yourself. This was more or less a burn inside of his lungs.”

The radiologist’s report relating to the first accident concluded that “the patient was exposed to chlorine gas and there is alveolar infiltration in both lungs primarily on the right side. This represents a chemical pneumonia and with chlorine gas is a very serious condition.”

Mr. Evans was hospitalized for treatment of the chlorine inhalation for a total of two weeks, and was not released to return to work until June 1, 1981. Dr. Sheldon E. Domm, the then treating physician, suggested that Mr. Evans “return to work preferably in a job not involving breathing chlorine.”

Mr. Evans’ second exposure to chlorine occurred on August 18, 1981, when an operator let a tank overfill with chlorine. Appellant sent Mr. Evans back to Dr. Domm for treatment. Two weeks later Mr. Evans was released to return to work. Dr. Domm was not called as a witness by either party, but his medical records are a part of the evidence considered by the chancellor.

A third exposure occurred on September 24, 1981. Mr. Evans returned to Dr. Ordo-nez for treatment. Dr. Ordonez recommended to appellant that Mr. Evans be assigned work “that doesn’t require any contact or inhalation of chlorine.” On September 28, 1981, appellant terminated Mr. Evans’ employment “due to health reasons.”

The chancellor concluded that appellee had a permanent disability of twenty percent to the body as a whole. Neither party, however, was satisfied with the chancellor’s decision. Each party filed a motion, the effect of which was to have the chancellor reconsider his decision.

At a subsequent hearing, the parties introduced the report of Dr. B. Daniel Harns-berger, a specialist in pulmonary diseases, who reported among other things that ap-pellee had “a significant impairment of diffusing capacity [in the lungs], compatible with loss of alveolar surface membrane units.”

The plaintiff also introduced the deposition of Dr. Don Gibson, a general practitioner, who expressed the opinion that Mr. Evans had sustained a twenty (20) percent medical impairment as a consequence of his on-the-job injuries.

The chancellor then reaffirmed his earlier disability evaluation, noting that:

It is obvious to the court that the plaintiff is in physical difficulty and that he suffered an industrial accident just before his disability. No other cause seems to fit or be the reason for the disability. The court is inclined to reaffirm its twenty (20%) percent permanent partial disability. This because the liquid chlorine must do damage where gasious chlorine doesn’t.

Appellant reasons that since the chancellor did not specifically comment one way or the other on Dr. Gibson’s testimony, the chancellor must not have found it credible. Appellant then argues that absent Dr. Gibson’s testimony there is no credible material evidence on the issues of medical causation and permanency of disability.

In a worker’s compensation case, this court does not weigh evidence, nor decide the credibility of witnesses. Those issues are for the trial judge. Liberty Mutual Insurance Co. v. Taylor, 590 S.W.2d 920 (Tenn.1979). The review by this court is limited to a determination of whether there is any material evidence in the record to support the findings of the trial court. If so, we are bound to accept them. Kingsport Press, Inc. v. Van Huss, 547 S.W.2d 572 (Tenn.1977); Davis v. Gulf Ins. Group, 546 S.W.2d 583 (Tenn.1977).

The chancellor refused to exclude Dr. Gibson’s testimony on considering the motion to do so filed by appellant, and so far as the record shows, consider it along with lay and other medical testimony. Under the scope of our review, we are bound to accept Dr. Gibson’s testimony at face value. It, standing alone, is sufficient to support the chancellor’s findings on the issues of medical causation and permanency of disability. But aside from Dr. Gibson’s testimony, there is medical evidence that appellee sustained a burning type injury in his lungs, which was described in the radiologist’s report as “alveolar infiltration,” and that appellee has “a significant impairment of diffusing capacity, compatible with loss of alveolar surface membrane units.” This type injury interferes with appellee’s physical activities. In our opinion, it also supports the chancellor’s finding that appellee has a permanent disability as the result of his exposure to liquid chlorine.

The judgment entered in the trial court is affirmed.

The appellee has moved this court for a declaration that the appeal in this case was frivolous and asks for damages incident to defending against the appeal. We agree with appellee that the appeal had no reasonable chance of success. The material issues raised by the appeal were issues of fact and there unquestionably was material evidence to support the chancellor’s findings. We hold, therefore, that the appeal was frivolous and that appellee is entitled to damages. See Davis v. Gulf Insurance Group, 546 S.W.2d 583 (Tenn.1977). The damages will be fixed by the chancellor on remand of the case and they will consist of the court costs and all of appellee’s reasonable expenses, including attorney’s fees, incident to the appeal.

Affirmed and remanded.

FONES, BROCK, HARBISON, and DROWOTA, JJ., concur.


source: Caselaw Access Project

author: TOMLIN, Judge.

license: Public Domain

text:
    Mary Frances ALCOTT, Sally Banks, Mary Lee Alcott, Richard Alcott, and Love Alcott Poole, Plaintiffs/Appellees, v. UNION PLANTERS NATIONAL BANK, Trustee, Defendant/Appellant.
    Court of Appeals of Tennessee, Western Section at Jackson.
    Aug. 3, 1984.
    Application for Permission to Appeal Denied by Supreme Court Feb. 25, 1985.
    F. Mark Vorder Bruegge, Jr., of Wild-man, Harrold, Allen, Dixon & McDonnell, Memphis, for defendant/appellant.
    Terry C. Cox and James M. Maniré, Memphis, for plaintiffs/appellees.
   TOMLIN, Judge.

The trustee of an inter vivos trust, Union Planters National Bank (hereinafter “bank”), has appealed from an order of the Chancery Court of Shelby County granting a summary judgment motion filed by the plaintiffs in this cause to compel the termination of the trust. The issue presented to us by this appeal is whether or not the courts of this state can terminate an inter vivos trust, without any factual hearing, upon the application of the settlors and remaindermen in being at the time the termination is sought when there are interests of unascertained contingent remaindermen not before the court. For the reasons stated hereafter, we hold that not only can such a termination not be done by summary judgment, but that under the law, it cannot be done at all. Accordingly, we reverse the action of the chancellor and dismiss the complaint.

Inasmuch as this does come to us by way of summary judgment, we treat the pleadings in a factual way. In July of 1957, two of the plaintiffs, Mary Frances Alcott and Sally Banks (hereafter referred to as “sett-lors”) by a trust agreement created an inter vivos trust, naming the bank as trustee. The corpus consisted of the settlors’ undivided one-half interest in farm property located in Crittenden County, Arkansas. Under the terms of the trust agreement, each of the settlors retained a life interest in one-half of the income from the farm property, with a fee simple remainder interest going to the children then living at the time of the deaths of the respective settlors or to the issue of any deceased child. The agreement also provided that should one of the settlors die leaving no children or issue of a deceased child, then in that event the deceased settlor’s share should merge with the issue of the surviving settlor. We will more closely examine the terms of the trust instrument in more detail later in this opinion.

The complaint stated that settlor Alcott was the mother of the plaintiffs Mary Lee Alcott, Richard Alcott, and Love Alcott Poole. There is no allegation that these three children of settlor Alcott are sui jur-is, but since it is not contested, it is presumed that they are. At the time of the filing of the complaint, settlor Alcott was alleged to be 58 years of age and “incapable of bearing children.” The other settlor, Sally Banks, is alleged to have never had children during her lifetime, and is stated to be 55 years of age, and “incapable of bearing children.”

As grounds for termination of the trust the plaintiffs alleged that “the trustee has been minimally involved in management .... ” and “the trustee has been insensitive to settlors’ and settlor’s childrens’ reasonable requests for information, suggestions relating to operation of the farm land, access to property, and the like.” The plaintiffs also contended that termination was desirable as “the use of the trustee in the handling of settlors’ property is an unnecessary burden and expense to them, and plaintiffs would be able to better manage, operate and enjoy this property if it were free of trust.”

The conveyance in trust by the settlors was expressly made irrevocable, with the settlors relinquishing all rights to modify the agreement. The sections of the trust agreement pertinent to this lawsuit read as follows:

THIS CONVEYANCE IS MADE IN TRUST, HOWEVER, and is made for the uses, interests, and purposes of this trust, to-wit:
1. (a) To hold, manage, rent and control, and to pay the income at times fixed by the trustees, but at least as often as annually, and, if practicable, in regular quarterly installments, in equal amounts, to the settlors, for and during the term of their natural lives, with remainders as hereinafter set forth. For accounting purposes the income to be so distributed shall be divided into two equal parts and one of such equal parts shall be paid by the trustees as aforesaid to the said SALLY D. BANKS, for and during the term of her natural life, and at her death one-half of the then remaining corpus of the entire estate hereunder conveyed, and the income for the period between the last income distribution date and the date of said SALLY D. BANKS’ death, shall be distributed, free of the trust, to her then living children, and the living issue of any deceased child, per stirpes, but if, at the time of the distribution of the corpus, any of her children is less than twenty-one years of age, his or her share, shall be held by the aforesaid Trustees until he or she reaches majority, and the income from such share used for his or her benefit during minority.
(b) The remaining equal part of such income shall be paid by the Trustees as aforesaid to the said MARY FRANCES BANKS ALCOTT, for and during the term of her natural life, and at her death one-half of the then remaining corpus of the entire estate hereunder conveyed, and the income for the period between the last income distribution date and the date of said MARY FRANCES BANKS ALCOTT’S death, shall be distributed, free of the trust, to her then living children, and the living issue of any deceased child, per stirpes, but if, at the time of distribution of the corpus, any of her children is less than twenty-one years of age, his or her share shall be held by the aforesaid Trustees until he or she reaches majority, and the income from such share used for his or her benefit during minority.
(c) Should either of said settlors leave no children or descendants surviving, then such share shall go to her sister and the Trustees shall continue with it until the termination of the trust herein created for such survivor and her children or descendants. If both of said Settlors should die, neither of them leaving children or descendants surviving, then upon the death of the survivor, the property remaining in the trust shall be distributed to the heirs at law of the Settlors according to the applicable laws of descent and distribution and the trust shall terminate.

Stated more simply, a one-half interest in both corpus and income was established for each settlor. The income was to be paid to each settlor during her lifetime. The appellant’s brief capsulates the above “legalese” in more readable fashion:

At the time of each settlor’s death, (I) any and each child of that settlor who is then alive, and (II) any and each then-living child or further issue of any settlor’s child who had died before settlor, are to receive the subject property (per stirpes) (with the portion of a settlor’s child younger than twenty-one to continue in trust status until that birthday). If none of the above-defined persons are alive at settlor’s death, that settlor’s half of the total trust would “pour over” into the other, identical distribution. And if no defined distributees were alive at all, then settlors’ heirs became the remain-dermen.

In its answer, the bank admitted all the factual allegations concerning the creation of the trust, the identity of the settlors, the identity and family relationship of the three plaintiffs who are the children of settlor Alcott, the absence of children of settlor Banks, and the ages of the settlors. It also admitted that the copy of the trust agreement attached to the complaint was a valid one. Also in its answer, the bank denied that it had improperly or insensitively administered the trust, and admitted that it opposed the termination of the trust. It affirmatively averred that the trust “creates beneficial interests in unborn children and issue of the named plaintiffs who are not parties to this action, who are not adequately represented in the action except by your defendant trustee, and who claim an interest relating to the subject matter of the action and are so situated that the disposition of the action in their absence may as a practical matter impair or impede their ability to protect that interest In conclusion, the bank asked the court to appoint a guardian ad litem to represent the interests of such children and issue, and unless such an appointment be made, that the complaint should be either stayed or dismissed.

Subsequently, the plaintiffs filed a motion for partial summary judgment in their favor on the issue of termination of the trust by revocation by consent and agreement. Two affidavits were filed in support of this motion, both by doctors. One stated that he had examined settlor Banks and that with reasonable medical certainty she was physically incapable of bearing children. The other stated that he had performed a hysterectomy on settlor Alcott, and that within the realms of reasonable medical certainty she was physically incapable of bearing children. There were no countervailing affidavits. Prior to the disposition of the motion, the chancellor did not appoint any guardian ad litem to represent any unborn or otherwise unascer-tained beneficiaries, and without stating any grounds therefor, he granted summary judgment terminating the trust.

In its brief filed in this Court, the bank seeks a reversal of the trial court’s order granting summary judgment and a remand of this case to the trial court for the appointment of a guardian ad litem to protect the interests of the unborn children that they contend to be contingent remain-dermen. However, after a review of the law applicable to the central issue — that being the voluntary termination of this trust — we are of the opinion that a remand would simply prolong the agony of this litigation. In its answer, the bank also asked for a dismissal of the complaint should the chancellor fail to appoint a guardian ad litem. No such appointment was made. Furthermore, we are of the opinion that we may sua sponte order summary judgment when we find that the pleadings present no disputes as to material facts and we deem that the law compels it. This is the procedure we are following here.

Starting with the premise that none of the facts above outlined are contested, it is our responsibility to determine the law applicable to this case. The law relative to the central issue before us in our state is sparse. We can find but one case that sheds any light at all upon it. That case is Hunter v. Barger, 6 Tenn. App. 559 (1926). However, two factual differences in Hunter distinguish it from the case under consideration, so that its materiality is somewhat diluted. First of all, the trust is a testamentary one, not an inter vivos one. Secondly, inasmuch as the testator (settlor) was deceased, he obviously did not and could not consent to the termination of the trust.

In Hunter the complainant was the only living child of the testator. The defendants, in addition to the trustee, were all the children of the complainant. They were all of age, and were the only living beneficiaries under the will. The will left property in trust for the complainant for life and to her children at her death. Should any of them have predeceased her, then their respective interests would have passed to their issue, if any. The answer filed by the children consented to the prayer of the bill, which in essence sought to vest a life estate in the complainant and to vest the fee simple remainder in themselves in equal interests.

In reversing the decree of the chancellor, the Court of Appeals adopted the assignment of error and the reasons therefor as set forth in the appellant’s brief. However, prior to so doing, the court stated:

It will thus be seen that if the estate is terminated now, and this property turned over to what possibly may be the only beneficiaries, it may be lost or destroyed to such other possible beneficiaries. To prevent this, and to make effective the direction of the will, the trust was created. It is an active, continuing trust, and cannot be terminated by agreement of the parties, or by any decree of the court, thus substituting their will for the will of the testator.

6 Tenn. App. at 566.

Then tracking the language in the appellant’s brief, the court added:

There are two modes in which a trust may be terminated. 1 — When the event happens upon which it is to cease. In the pending case, the time has not expired during which the trust is to exist. 2— When all the beneficiaries are in existence and sui juris, and hold vested interests, and all consent and agree, a court of equity may decree its termination. In the pending case, all the beneficiaries are not in existence; all are not sui juris; none of them hold a vested interest, and all have not consented, and all cannot consent; and the decree is erroneous.

Id. at 567.

The research conducted by this Court does not indicate that Hunter has been modified or overruled in any way since its publication.

In addition to the case law as developed in several other states, our position is clearly supported by respected authorities who have written extensively on this subject, as well as the Restatement (Second) of Trusts. Bogert, Trusts and Trustees, § 1005 (rev. 2d ed. 1983) states:

Termination at Request of Settlor and All Beneficiaries.
If the settlor and all the beneficiaries request the court to terminate the trust, and the beneficiaries are competent, the court will decree termination, even though the purpose which the settlor had in establishing the trust has not been accomplished. He has abandoned his original objectives and taken a new attitude toward the disposition of the property. His donees who constitute all the •persons having any beneficial interest in the trust property consent to this change.
Termination will not be decreed, however, where settlor and only part of the beneficiaries request it. (Emphasis supplied).

Professor Scott writes extensively on the subject of termination and modification. In his highly respected treatise is stated:

The settlor cannot revoke the trust, if he has not reserved a power of revocation, unless all of the beneficiaries consent. ... A nonconsenting beneficiary cannot be deprived of his interest under the trust, whether the interest is vested or contingent whether the beneficiary is ascertained or not, whether he is under a disability or not.
If some of the beneficiaries ... are not ascertained, or are unborn, the settlor cannot revoke the trust although the other beneficiaries consent. (Emphasis supplied).

IV A. Scott, The Law on Trusts, § 340 (2d ed. 1956). Professor Scott then goes on to unequivocally state, “[A] trust cannot be revoked by the settlor even with the consent of all the beneficiaries who are in being if there are other beneficiaries not yet in being, who therefore cannot possibly consent.” (Emphasis supplied). Id. at 2702.

While Scott modifies this somewhat strict view by stating on page 2709 that where some of the beneficiaries are under legal incapacity, such as being unborn or infancy, a court may appoint a guardian to represent them and thus approve on their behalf a termination or modification of the trust, he immediately points out that the English courts have taken a stricter view, stating that the court has no jurisdiction on behalf of the beneficiaries who are under an incapacity, or who are unborn, to consent to a termination or modification. Id. at 2710.

The Restatement (Second) of Trusts § 340(1), reads in part as follows:

§ 3)0. Where Some of the Beneficiaries Do Not Consent
(1) ... [I]f one or more of the beneficiaries of a trust do not consent to its termination or are under an incapacity, the others cannot compel the termination of the trust, except in accordance with the terms of the trust.

Comment “d” to this section and its illustration speaks more clearly to the issue sub judice:

d. Where some beneficiaries not ascertained. The rule stated in Subsection (1) is applicable where one or more of the beneficiaries are unascertained, although all of the other beneficiaries have full capacity and consent to the termination of the trust.
Illustration:
4. A transfers Blaekacre to B in trust for C for life, and if C should die leaving issue, remainder to such issue, and if C should die without issue, remainder to D. C and D cannot compel the termination of the trust in whole or in part.

Other authorities are also in accord with our holding.

Where born and unborn children of a living person were entitled in an estate or interest in a trust fund, it has been held that the possibility of issue in such living person precluded the termination of the trust by the consent of all the living beneficiaries of the fund.

76 Am.Jur.2d, Trusts, § 72, p. 322 (1975).

The same authority then goes on to state that: “A court of equity will not defeat the right of remaindermen, contingent benefi-ciearies, or of any interest that has not vested, by sanctioning the termination of a trust.” Id. at § 80, p. 330.

The better reasoned cases from other jurisdictions in this country are in step with the authorities that we have cited above. In A.B. v. Wilmington Trust Co., 41 Del.Ch. 191, 191 A.2d 98 (1963), the wife, as settlor, created an inter vivos trust that provided that income should be paid to her for life, and in the event of her death without any children, the trustees should pay the net income to her husband for life. At the husband’s death and on default of the wife’s exercising a testamentary power of appointment, the trust instrument stated that payment should be made in trust to her nieces and nephews and their heirs, executors and assigns per stirpes. The settlor-wife brought suit seeking to terminate the trust. Her husband and all her nieces and nephews consented to the termination.

The plaintiff and her three sisters had gone through menopause and arguably were incapable of bearing children. The plaintiff's brother was 65 years of age and separated from his wife.

In affirming the action of the trial court in granting summary judgment for the trustee, the court said:

But we do not reach this question [of the possibility of issue of plaintiff and her brothers and sisters]. Indeed, on the question of whether or not the abolition of the common law conclusive presumption as to the possibility of issue is a matter for judicial or legislative action, the Court is divided. However, we shall assume, without deciding, that as to plaintiff and her sisters possibility of issue is extinct, and that the interest of each of the nephews and nieces is a vested remainder, subject to be divested by the exercise of the power of appointment, but not by the birth of additional members of the class. Even on this assumption, we are of the opinion that the remainder is also subject to be divested by the death of any nephew or niece before the time of distribution leaving issue surviving. Such issue, we think, has a contingent interest in the corpus of the trust. There is, therefore, an interest in respect of which consent to termination cannot be obtained.

191 A.2d at 101.

The court in Wilmington further held that the consent of the nieces and nephews was not effective to bar or eliminate the contingent interest in the trust corpus of their issue.

The case of Wachovia Bank And Trust Co., N.A. v. Sevier, 41 N.C.App. 762, 255 S.E.2d 636 (Ct. 1979), shows the futility of remanding this case for the purposes of appointing a guardian ad litem for the unborn and unascertained descendants. In that case, the trustee filed a declaratory judgment action seeking court approval to terminate the trust, as requested by the settlor. The trustee voiced no objection to the termination of the trust. The trust instrument provided that the settlor retain the right to have the income paid to her for her lifetime. She also retained a general power of appointment by will over the corpus. In the event this power was not exercised by her the instrument directed that the corpus was to be distributed to her issue per stirpes, and in the event she left no issue surviving her, then to her father’s issue per stirpes. Under the terms of the agreement the trust was made irrevocable.

While all of the settlor’s children who were of age filed answers approving the termination, the guardian ad litem appointed for the minor grandchildren and any unborn descendants of the settlor opposed the revocation of the trust on the grounds that the minor grandchildren and unborn lineal descendants of the settlor had a contingent future interest in the corpus and could not consent to the revocation of the trust.

In reversing the trial court’s judgment authorizing the termination of the trust, the North Carolina court stated:

Effective consent may be given by a beneficiary in being, competent, and possessing an indefeasibly vested interest in the trust estate. [Cites omitted] In this case, effective consent to the termination of the trust may not be given at this time by the settlor’s children and grandchildren because none possess an indefeasibly vested interest in the trust estate. In addition, the settlor’s minor grandchildren are legally incapable of giving consent, and issue not yet in being may acquire a vested interest upon the sett-lor’s death.

255 S.E.2d at 639.

The appellees rely strongly on the case of Randall v. Randall, 60 F. Supp. 308 (S.D.Fla.1944). We do not consider the Randall ease reliable authority for several reasons. First of all, it is a decision of a trial court in the federal system. Secondly, the court therein relies in some measure on the case of Thatcher v. Empire Trust Co., 243 App. Div. 430, 277 N.Y.Supp. 874 (1935). The Thatcher case has been discounted by other jurisdictions because of a statute in New York State which materially affects the common law rule. Lastly, we feel that Randall is simply out of step with the majority of the text writers and cases in this country.

For the reasons stated herein, the decree of the chancellor is reversed. The plaintiffs’ suit is dismissed, with costs to be taxed to the plaintiffs, for which execution may issue, if necessary.

CRAWFORD, J., and WEST, Special Judge, concur.


text:
    John OAKLEY, Plaintiff/Appellant, v. Olivia Jane OAKLEY, Defendant/Appellee.
    Court of Appeals of Tennessee, Western Section at Jackson.
    Sept. 12, 1984.
    Application for Permission to Appeal Denied by Supreme Court Dec. 31, 1984.

      T.J. Emison, Jr., of Emison & Emison, P.C., Alamo, and Ivy E. Scarborough, Jackson, for plaintiff/appellant.
    Benjamin M. Huey II, of Flippin, Collins & Huey, Milan, for defendant/appellee.
   TOMLIN, Judge.

Plaintiff appeals to this Court from the judgment of the Law and Equity Court of Gibson County granting defendant’s motion for summary judgment. Plaintiff, decedent’s father, sought to have defendant removed as administratrix of the estate of her deceased husband. He also sought to have himself appointed administrator of his son’s estate and declared to be the deceased’s sole heir at law. The court found the defendant to be the surviving spouse of the deceased and thus entitled to serve in her capacity as administratrix. The principal issue dispositive of this appeal is whether or not the trial court was correct in granting defendant’s motion for summary judgment. In support of his position, plaintiff contends that pursuant to the provisions of Tennessee Code Annotated § 31-1-102, defendant was no longer his son’s “surviving spouse,” and secondly, that defendant was estopped to deny the validity and controlling effects of the Property Settlement Agreement entered into between her and the decedent prior to his death. We are of the opinion that the trial court was correct and affirm.

The facts are not in dispute. Defendant and plaintiff’s son, the decedent Willard E. Oakley, Jr., were married in 1976. Shortly before his death, defendant sued the decedent for a divorce in the Law and Equity Court of Gibson County. Several days after filing the complaint and some six weeks prior to her husband’s death, the parties entered into a written Property Settlement Agreement which sought to dispose of the real and personal property owned by the parties. The preamble in that agreement stated in part, “WHEREAS, the parties desire to agree between themselves, subject to the approval of the Law and Equity Court for Gibson County, Tennessee, concerning the divisions of their property, both real and personal....”

The last paragraph of the agreement read: “IT IS UNDERSTOOD AND AGREED BETWEEN THE PARTIES that the above agreement is subject to ratification by the Law and Equity Court of Gibson County, Tennessee.”

The record before us consists basically of the pleadings and supporting affidavits filed by both parties. The Property Settlement Agreement is also part of the record. Shortly after her husband’s death, defendant petitioned the court for and was granted Letters of Administration. Plaintiff’s affidavit stated that a substantial portion of the Property Settlement Agreement between the parties had been carried out. On the other hand, defendant’s affidavit was to the effect that she was the surviving spouse of the decedent at the time of his death and thus was qualified to serve. As previously noted, the trial judge treated the defendant’s motion to dismiss as a motion for summary judgment in light of the affidavits that had been introduced in support and opposition thereto.

Plaintiff in part relies upon T.C.A. § 31-1-102, a portion of which reads as follows:

Effect of divorce, annulment, and decree of separation.—
(b) For purposes of this title, a surviving spouse does not include:
(3) A person who was a party to a valid property settlement agreement or a valid proceeding concluded by an order purporting to terminate all marital property rights.

Simply put, plaintiff contends that the parties entered into just such an agreement and as a result defendant could no longer be considered his son's “surviving spouse” and he, as the sole blood kin of his son should be declared the decedent’s sole heir at law.

The trial judge was obviously of the opinion in granting defendant’s summary judgment motion that the above-quoted language from the Property Settlement Agreement prevented that agreement from placing the defendant in the exception of T.C.A. § 31-l-102(b)(3). We agree. In its ordinary common sense, the word “valid” means “of binding force, sustainable and effective in law.” It cannot be said that the Property Settlement Agreement between the parties was “binding,” since by the express language contained therein its validity was made contingent upon the approval of the court. Therefore, there could be no “valid” Property Settlement Agreement until such time as the Law and Equity Court of Gibson County approved it.

We are also of the opinion that the principles laid down by this Court in the case of Montesi v. Estate of Montesi, 8 T.A.M. 43-5, application for permission to appeal granted by the Supreme Court February 27, 1984 (682 S.W.2d 906 (Tenn. 1984)), control as to the construction and application of T.C.A. § 31-102(b)(3).

Insofar as the argument of estoppel is concerned, since that issue was never presented in any way to the trial court under the pleadings, and inasmuch as this theory was introduced for the first time on appeal, we will not consider it here. Top’s B-B-Q, Inc. v. Stringer, 582 S.W.2d 756 (Tenn.Ct.App.1977) cert. denied (1978).

The judgment of the trial court is affirmed. Costs in this cause are taxed to the plaintiff, for which execution may issue, if necessary.

CRAWFORD and HIGHERS, JJ., concur.


author: LEWIS, Judge.

text:
    Sam TUCKER, Administrator of the Estate of Robert L. Tucker, Plaintiff-Appellant, v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, Tennessee; Metropolitan Board of Hospitals; Metropolitan Nashville General Hospital; Vanderbilt Hospital, and D.R. Doyle, M.D., Defendants-Appellees, and Duke A. Shackleford, and Clarksville Volkswagen, Inc., Defendants.
    Court of Appeals of Tennessee, Middle Section, at Nashville.
    Nov. 7, 1984.
    Application for permission to Appeal Denied by Supreme Court Feb. 25, 1985.

      Ben W. Hooper, II, Newport, for plaintiff-appellant.
    William F. Howard, Nashville, for defendants-appellees, Metropolitan Government and Metropolitan Board of Hospitals.
    H. Lee Barfield, II, Nashville, for defendants-appellees, Vanderbilt Hospital and D.R. Doyle, M.D.
   OPINION

LEWIS, Judge.

Plaintiff Sam Tucker, Administrator of the Estate of Robert L. Tucker, filed his complaint against defendants, Metropolitan Government of Nashville and Davidson County (Metro), Metropolitan Nashville General Hospital (General), Vanderbilt Hospital (Vanderbilt), and D.R. Doyle, M.D.

The complaint alleged that Metro, General, Vanderbilt, and Dr. Doyle were jointly negligent in that their actions jointly fell below the professional standard of care and skill required and expected of them in rendering medical treatment and services to Robert L. Tucker and their alleged acts of negligence were a direct and proximate cause of the injuries and wrongful death of Robert L. Tucker.

Metro and General filed their motions for summary judgment on grounds which included that they were governmental entities and that the required statutory notice was not given to them.

Vanderbilt and Dr. Doyle filed their answer and, also, motions for summary judgment.

Subsequent to a hearing, the Trial Court granted each defendant’s motion for summary judgment.

The facts out of which this case arose are as follows:

On August 4, 1978, Robert L. Tucker, a thirty-seven-year-old male was found by the Metropolitan Police on a street in downtown Nashville in a catatonic state. The police took him to the emergency room at General at approximately 6:40 P.M. Dr. Doyle, the physician on duty, and other medical personnel in the emergency room at General performed a physical and neurological examination of Mr. Tucker. They determined that his vital signs were stable, that he was in good physical condition, that he did not have any significant heart and lung disease, or abdominal disease, and that he had not suffered from any obvious traumas. Other than the movement of his eyes, Mr. Tucker made no response during the examination either to the questions of medical personnel or to manipulations of his body.

Medical personnel, according to the complaint,

as part of their treatment procedure, contacted the plaintiff, father of the deceased, at which time the plaintiff fully advised of all medical and mental problems of his son, as well as what could be expected in the way of unusual behavior. Plaintiff also advised that the Veterans’ Administration Hospital at Murfrees-boro, Tennessee, had medical records concerning the deceased.

Dr. Doyle and General deny that any specific information concerning Mr. Tucker’s past mental problems was given by the plaintiff.

Based upon the examinations given by the medical personnel at General, Dr. Doyle determined that Mr. Tucker probably had a psychological disease, rather than physical illness, and placed him on a stretcher in the center of the rectangular single-room emergency room for observation by herself and other medical personnel. For several hours, Dr. Doyle and other medical personnel in the emergency room did not observe any movement, resistance, or any aggressive conduct by Mr. Tucker. Mr. Tucker was in a catatonic state and was not restrained.

Dr. Doyle contacted the Veterans Administration Hospital in Nashville and arranged to transfer Mr. Tucker from the emergency room to the Nashville VA Hospital for psychiatric evaluation.

After arranging that transfer, Dr. Doyle resumed her normal responsibilities of treating other patients and supervising the medical personnel in the emergency room. At approximately 11:00 P.M., with Dr. Doyle standing only a few feet behind Mr. Tucker’s stretcher, Mr. Tucker, suddenly and without any notice, bolted upright on his stretcher and ran out of the emergency room. Security guards and medical personnel pursued Mr. Tucker but were unable to apprehend him. The Metropolitan Police Department was notified of the incident and advised to return Mr. Tucker to the Nashville VA Hospital or to General if they found him.

At approximately 12:30 A.M., on August 5th, Mr. Tucker was brought back to General’s emergency room after having been struck by a motor vehicle. Dr. Doyle pronounced Mr. Tucker dead on arrival at the emergency room.

The complaint alleges that a vehicle driven by Duke Shackleford and owned by Clarksville Volkswagen struck Mr. Tucker.

We first discuss plaintiff’s issue regarding the motion for summary judgment granted in favor of Metro and General.

Metro and General moved for summary judgment

in their favor upon the ground that there is no genuine issue as to any material fact and defendants are entitled to a judgment as a matter of law in that:
Plaintiff has failed to state a claim upon which relief can be granted because these defendants are governmental entities as defined in T.C.A. Section 23-3302(1) and, as such, are immune from all claims stated by Plaintiff because Plaintiff:
a. Failed to give the statutory notice required by T.C.A. Sections 23-3313, 23-3314 and 23-3315,

Attached to the motion for summary judgment was the affidavit of John M. Stone, Director of Hospitals, which is as follows:

John M. Stone, after being first duly sworn, does state as follows:
1.Prior to and on August 4 and 5, 1978, he was the Director of Hospitals. He is presently the Director of Hospitals. He was appointed to this position by the Metropolitan Board of Hospitals, a Board of the Metropolitan Government of Nashville and Davidson County, a governmental, municipal and public corporation created and existing by virtue of an[d] under the Constitution and laws of the State of Tennessee.
2. As Director of Hospitals, he is the chief administrative officer of the Metropolitan Board of Hospitals.
3. Under his jurisdiction are Metropolitan Nashville General Hospital and Nashville Metropolitan Bordeaux Hospital.
4. Neither on August 4 or 5, 1978, nor at any other time subsequent to those dates, did The Metropolitan Government of Nashville and Davidson County, the Metropolitan Board of Hospitals, he or Metropolitan Nashville General Hospital, have, provide and/or maintain professional liability insurance coverage for the negligence, carelessness and/or malpractice of the employees, agents and/or servants of Metropolitan Nashville General Hospital committed during the course of their said employment except for the personnel in the anesthesia department.
5. He has never received the notice required by the Tennessee Governmental Tort Liability Act, set forth in Title 23, Chapter 33 of Tennessee Code Annotated.

Plaintiff filed a response to Metro and General’s motion for summary judgment which is, in pertinent part, as follows:

[T]he plaintiff would show that the alleged required notice was not in fact required because said defendants, The Metropolitan Government of Nashville and Davidson County and Metropolitan Nashville General Hospital had been reasonably apprised of the occurence [síc] of the incident from which this complaint results, as shown by the attached copies of the record of Metropolitan Nashville General Hospital.

Tenn.Code Ann. § 29-20-301 provides:

Any person having a claim for injury to person or property against a governmental entity or its employee must give written notice, as provided for in § 29-20-302, to said governmental entity as a condition precedent to any recovery from said governmental entity or employees.

Tenn.Code Ann. § 29-20-302 provides:

(a) A claim against a governmental entity shall be forever barred whether or not this statute be pled in bar of such action, unless notice thereof is filed within one hundred twenty (120) days after the cause of action arises except where the cause of action arises out of injury resulting from the operation of a motor vehicle.
(b) Any claim filed against a governmental entity shall be in the form of a registered or certified letter by United States mail, postage prepaid, to the may- or or city attorney or the chief executive officer of the municipality in which the incident occurred or to the chairman of the county legislative body, the county attorney or the chief executive officer of the county in which the incident occurred. The claimant shall state in such letter the governmental entity against which the claim is being made, the time and place of the incident from which the claim arises and the nature of the injury sustained by the claimant.
(c) This section shall not be strictly construed where the municipality should have reasonably apprised itself of the occurrence of the incident or could have done so with the exercise of proper diligence.

Tenn.Code Ann. § 29-20-303 states that failure to comply with the notice requirements shall be a valid and complete defense to any liability of a governmental entity.

Plaintiff admits that he did not give the notice required by Tenn.Code Ann. § 29-20-302. However, he argues that Metro and General have been reasonably apprised of the occurrence of the incident from which his claim results and that, with the exercise of proper diligence, they could have apprised themselves of the circumstances relating to the incident. He bases this argument on the fact that in response to Metro and General’s motion for summary judgment, he attached the hospital records and these records “reveal the entire story of the patient entering the hospital, running away, and being returned dead on arrival.”

Plaintiff seeks to hang his hat on Tenn. Code Ann. § 29-20-302(c) by using General’s own records as notice to General. He argues that General’s own records establish that it was “reasonably apprised ... of the occurrence of the incident” out of which the claim arose.

However, a reading of Tenn.Code Ann. § 29-20-302 reveals that it is the “municipality” which is to be reasonably apprised of the incident. Since, for the purposes of this opinion, we will consider “municipality” to be synonymous with “governmental entity,” the question arises as to what person in the governmental entity must be “reasonably apprised.” We believe that the intent of the legislature was to stipulate that even the less than strict construction as to notice provision was to refer to the same party who must receive written notice, that is, the chief administrative officer. In the instant case, at the very least, the chief administrative officer of General would have to be “reasonably apprised ... of the occurrence of the incident” out of which the claim arose. There is no evidence that the chief administrative officer had any such knowledge merely by virtue of the plaintiff’s deceased medical records.

Where a plaintiff relies upon subsection (c) to avoid the strict notice requirements, the burden is upon the one making the reliance to come forward with facts in affidavit form to at least create a debatable issue as to whether it could be reasonably concluded that the governmental entity could have or should have reasonably apprised itself of the occurrence of the incident with the exercise of proper diligence.

The party who must receive the written notice or the notice from which it could be reasonably concluded that the governmental entity was able to reasonably apprise itself of the occurrence was and is the chief administrative officer.

Mr. Stone, the Director of Hospitals for the Metropolitan Board of Hospitals, is the chief administrative officer. He states in his affidavit that he never received the notice as required by the Tennessee Governmental Tort Liability Act. Plaintiff does not counter that statement.

The Trial Judge correctly granted Metro and General’s motion for summary judgment.

Plaintiffs next issue is: “Whether the Court erred in granting a summary judgment motion to defendants, Vanderbilt University and D.R. Doyle, M.D., when the plaintiff argued that the facts of this case brought it under the common knowledge exception to the requirement for countervailing affidavits by medical experts.”

Plaintiff correctly argues that summary judgment is not to be rendered unless it is shown 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.” Tenn.R.Civ.P. 56.03. The burden of showing that there is no genuine issue of material fact falls on the party moving for summary judgment. Taylor v. Nashville Banner, 573 S.W.2d 476, 480 (Tenn.App.1978), and in ruling on the motion for summary judgment, courts must view the pleadings and evidence in the light most favorable to the party opposing the motion. Wyatt v. Winnebago Industries, Inc., 566 S.W.2d 276, 279 (Tenn.App.1977).

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 form of negligence may be established without expert testimony. For example, any lay person would know that leaving a sponge in the plaintiffs body is negligence. Rural Educational Association v. Bush, 42 Tenn.App. 34, 298 S.W.2d 761 (1956).

In Bowman v. Henard, 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, plaintiff contends. that the affidavits submitted by Vanderbilt and Dr. Doyle should not have been held to be conclusive because the acts complained of were negligent as a matter of common knowledge.

This Court has held that the common knowledge exception is applicable only in “exceptional cases.” German v. Nichopoulos, 577 S.W.2d 197 (Tenn.App.1978). In German, the Court stated that for the common knowledge exception to apply, “medical negligence [should be] as plain as a fly floating in a bowl of buttermilk.” Id. at 202.

The Tennessee Supreme Court, in Baldwin v. Knight, 569 S.W.2d 450 (Tenn.1978), held that the common knowledge exception applied where plaintiff suffered a cut just below his knee while mowing his lawn. There, the physician treated the plaintiff but failed to take x-rays. The plaintiff continued to have problems with the cut and later consulted another physician who removed a one-inch piece of wire from the wound. In Baldwin, the Court noted the location of the wound and, reasoning that it probably was caused by a flying object, held that expert testimony was not required to show the possibility of a foreign body in the wound. The Court simply held that where a plaintiff suffered a cut while mowing his lawn, the physician should have recognized the possibility that a foreign object might be present and that a lay person could also understand this simple proposition.

In Runnells v. Rogers, 596 S.W.2d 87 (Tenn.1980), a case in which the plaintiff also suffered an injury while mowing his lawn, plaintiff immediately consulted his physician, who discovered through x-rays that a small piece of wire was imbedded in his foot. The physician initially attempted to remove the wire but was unsuccessful. The physician continued to treat the plaintiff for some three weeks. Plaintiffs condition grew steadily worse, but the physician never made another attempt to remove the wire. Plaintiff sought the advice of another physician, who removed the wire, and plaintiff recovered from the foot injury-

At trial, plaintiff presented no expert medical evidence, and the physician did not testify or offer any proof. Part of the plaintiffs proof was the statement of the Medical Malpractice Review Board which found that defendant “did not conform to reasonable standards as would be expected of an emergency room physician in that he failed after several visits to recommend appropriate consultation.” Id. at 89. In Runnells, the Court found that “in the totality of the circumstances,” this was a proper case for application of the common knowledge exception. The Court went on to state:

It is within the common knowledge of laymen that where a patient is injured by a piece of wire imbedded in his foot, the foot has swollen to the point that the shoe may not be worn, the patient has difficulty in walking, there is soreness resulting from probing in an unsuccessful effort to remove it, and the foot is oozing and running, then the wire must be removed. These facts must be considered in the light of the action of [the second doctor] in reducing the infection and removing the wire.
Even a barefoot boy knows that when his foot is infested by a sticker, splinter, thorn, pin, or other foreign object, it must be removed. Most assuredly this lies within the ken of a layman.

Id. at 90. The Court, in Runnells, further stated: “We stand four-square behind Bowman v. Henard, supra, and the general rule requiring medical testimony,” Id. at 91, and emphasized that the common knowledge exception was to be applied only in limited exceptional circumstances.

Courts in other states also recognize the limited applicability of the “common knowledge” exception. The Illinois Court of Appeals has held that “the exception is rarely applied and strictly limited to its facts.” Taber v. Riordan, 83 Ill.App.3d 900, 38 Ill.Dec. 745, 403 N.E.2d 1349, 1354 (1980). The Connecticut Supreme Court, in commenting upon the exception, stated as follows:

It is well settled that the plaintiff cannot prevail unless there was positive evidence of an expert nature from which the jury could reasonably conclude that the defendant was negligent, except where there is manifest such gross want of care or skill as to afford, of itself, an almost conclusive inference of negligence that the testimony of an expert is not necessary.

Puro v. Henry, 188 Conn. 301, 449 A.2d 176, 178 (1982) (citations omitted).

Plaintiff complains that the decedent was “unrestrained and unsupervised.” He characterizes the decedent as having been left on a stretcher in the emergency room. The facts clearly show that Dr. Doyle made an informed medical decision to place decedent, who was at the time in a catatonic state, on a stretcher in the center of the rectangular emergency room for observation. Neither Dr. Doyle nor other medical personnel observed any movement, resistance, or aggressive conduct by the decedent for some three or four hours. When the decedent jumped up and bolted from the emergency room, Dr. Doyle was only a few feet behind him. Security guards and medical personnel ran after him but were unable to apprehend him.

The decedent was not left unsupervised. However, plaintiff seems to find fault with the degree of supervision. We are of the opinion that these are matters requiring expert medical evidence and are not within the knowledge of ordinary lay persons.

We do not believe it can be said that the ordinary layman possesses the knowledge concerning whether a mental patient in a catatonic state should or should not be restrained. We are of the opinion that only a medical expert is competent to testify whether the decedent should have been put in a strait jacket or locked in a room alone, or kept in an area where medical personnel were standing over him.

We hold that when taken in the totality of the circumstances, the alleged negligent acts of Dr. Doyle do not fall within the common knowledge exception. The proper treatment of a patient with serious mental problems who had previously been hospitalized for such problems, and who is in a catatonic state, is not within the common knowledge of ordinary lay persons. Plaintiff in no way sets out what Dr. Doyle should or should not have done in this case. He merely sets out certain facts and then states: “Plaintiff believes that these facts reveal medical negligence and make expert opinion unnecessary.”

The affidavit of Dr. Norman Hasty, an emergency room physician at Baptist Hospital in Nashville, states:

[T]he decision not to restrain the patient on the emergency room stretcher complied with the standard of acceptable medical practice recognized in this community.... [T]he doctor and medical personnel on duty in the emergency room acted properly by leaving the patient unrestrained on a stretcher in an area where he could be observed by the physician and staff in the emergency department.

Dr. Hasty concludes: “There are no other medical tests or examinations that would be required of a reasonably prudent physician in order to determine whether a patient would become excited or agitated to the point that he might suddenly run from the emergency room.”

Plaintiff also insists that the affidavits of Dr. Doyle and Dr. Hasty should not be viewed as conclusive because after their affidavits were filed, plaintiff filed an affidavit which contained “new and pertinent facts not considered by Dr. Doyle and Dr. Hasty.” Plaintiff insists that his affidavit shows that he advised Dr. Doyle that the decedent was “subject to run away.” He reasoned that since this fact is not specifically addressed by either Dr. Doyle or Dr. Hasty, summary judgment was inappropriate.

Plaintiff did not provide the required expert testimony to show that even if Dr. Doyle had known that the decedent was subject to run away, she should have done anything differently in her treatment of decedent. The fact that the decedent had run away on prior occasions does not mean that he might or might not run away again. He was in a catatonic state and remained that way for several hours. We are of the opinion that this fact is not within the common knowledge of an ordinary lay person. We are of the opinion that it was necessary for plaintiff to submit expert medical proof to rebut defendants’ expert medical proof. The Trial Judge properly granted summary judgment for Dr. Doyle and Vanderbilt.

The judgment of the Trial Court is affirmed and costs are assessed against plaintiff. The cause is remanded to the Trial Court for the collection of costs and any further necessary proceedings.

TODD, P.J., and KOCH, J., concur.

      . Also named as defendants were Duke A. Shackleford and Clarksville Volkswagen, Inc. However, all claims as to these two defendants were settled and an order of dismissal entered as to them.


author: TODD, Presiding Judge.

text:
    Jack Westmoreland DERRYBERRY, Jr., Petitioner-Appellee, v. Thomas Glen MARTIN, Respondent-Appellant.
    Court of Appeals of Tennessee, Middle Section, at Nashville.
    Dec. 4, 1984.
    Application for Permission to Appeal Denied by Supreme Court Feb. 25, 1985.

      Horace E. Johns, Nashville, for petitioner-appellee.
    Mary Leech, Nashville, for respondent-appellant.
   OPINION

TODD, Presiding Judge.

Jack Westmoreland Derryberry filed a petition to adopt Jeremy Thomas Martin Edwards, natural son of Thomas Glen Martin and Harriette Jeanne Edwards, now the wife of petitioner. The natural father has appealed from the Trial Court’s adjudication of abandonment by the natural father and decree of adoption by the petitioner.

Appellant’s first issue is as follows:
I. Whether Martins’ conduct constitutes abandonment under Tennessee law.
A. Whether Martin had the requisite settled purpose to relinquish all claims to Jeremy.
B. Whether the proof shows that Martin absolutely, completely, and intentionally relinquished all interest in Jeremy.
C. Whether Martin’s failure to pay support, legitimate and visit Jeremy are justifiable under Tennessee law.
D. Whether a finding of abandonment based on Martin’s failure to pay child support constitutes a denial of Martin’s constitutional right to the equal protection of the laws.

In respect to abandonment, the Trial Judge filed the following findings of fact:

1. The minor child was born out of wedlock on January 11, 1976, to the natural mother, then, Harriette Edwards.
2. The infant has been in the care, custody and control of the natural mother since its birth.
3. That the infant bears the mother’s maiden name as stated in the Adoption Petition and Answer of father.
4. The natural father of the child is Thomas Glenn Martin, and he is a resident of Davidson County, Tennessee.
5. The natural mother and the natural father never married but did live together when the child was an infant.
6. The natural mother supported herself and the child as well as the natural father when he was unemployed.
7. The natural father did not legitimate the child or attempt to so do until the Adoption Petition was filed and an abandonment hearing requested.
8. This Court has found said child to be an abandoned child by Order dated November 9, 1982, as regarding the natural father, ...

The evidence supports more detailed findings as follows:

1. The natural father refused to marry the mother to legitimate the child.

2. He paid none of the expenses of the birth of the child.

3. In September, 1977, the mother and child permanently separated from the natural father.

4. Because of a violent episode, the child feared his father.

5. The natural father was told that he could not see the child again until he took steps to legitimate and support the child. He did not do so.

6. Documents were prepared to accomplish legitimation and assumption of support, but the natural father refused to execute them.

7. Since March, 1979, the natural father has had no contact with the child except a chance meeting when the child declined to talk to him.

8. There is no evidence of any support, gifts, or other evidence of concern for the child.

From the evidence, this Court concludes, as did the Trial Judge, that the natural father evidenced a settled purpose to relinquish all legitimate claims to the child; that his behavior evidenced an absolute, complete and intentional relinquishment of all legitimate interest in the child; that his failure to support legitimate and visit the child are not justifiable under Tennessee law; that any denial of rights of visitation were justified and conditioned upon the continued refusal to legitimate and support; that the finding of abandonment is justified, based upon the behavior of the natural father taken as a whole and not limited to failure to support; and that there has been no denial of equal protection of the law.

Appellant cites In re: Knott, 138 Tenn. 349, 197 S.W. 1097 (1917), in which the father and mother were separated, the mother consented to the adoption, but the father had no notice of the proceedings and did not consent thereto. The father filed a petition to set the adoption aside which was sustained by the Supreme Court which found that the father had not abandoned the child and was entitled to its custody. The case is distinguishable from the present case upon its facts.

Appellant also cites In re: Dearing, Tenn.App.1978, 572 S.W.2d 929. In that case, the natural father had filed a legitimation petition six months before the petition for adoption. The Trial Court enjoined the prosecution of the legitimation suit, granted the subsequent petition for adoption, but limited the adoption by awarding the natural father visitation rights. This Court held that adoption and visitation rights of the father were irreconcilable, reversed the adoption decree and remanded for a hearing on legitimation prior to further proceedings on the adoption. The case is distinguishable from the present case upon timing of the proceedings and results reached.

Appellant cites Fancher v. Mann, 58 Tenn.App. 471, 432 S.W.2d 63 (1968) wherein this Court reversed an adoption by a stepfather over the objection of a natural father who was legally married to the mother and had regularly visited and supported the children under a divorce decree and had suspended support payments only because of extreme financial reverses. The case is distinguishable from the present ease on its facts.

Appellant relies upon an unfortunate choice of words quoted from a New York trial court that a natural parent should “be given the benefit of every controverted fact”. If this statement means what it purports to mean, and is the law, then the Courts have no power to resolve contradictions in testimony, but must accept all of the testimony as true. This cannot be the law. The quoted statement may be interpreted to mean that, where two equally reasonable inferences may be drawn from facts found by the Court, the inference favoring the natural parent should be adopted. This latter interpretation is an accurate statement of the law.

Appellant asserts that Tennessee Courts have always searched and found justification for the parents’ failure to visit and support the child. The Trial Judge found no justification in the present case, and this Court agrees.

Appellant cites Ex Parte Wolfenden, 48 Tenn.App. 433, 348 S.W.2d 751 (1961). A casual perusal of the opinion in that case would have disclosed that the father of the child was constantly attentive to the child until he remarried and sought to remove himself and child from the home of a relative who refused to allow the child to move. The case is clearly not in point.

Likewise, the opinion of this Court in Pierce v. Bechtold, 60 Tenn.App. 478, 448 S.W.2d 425 (1969), cited by appellant, is readily distinguishable upon the facts.

Appellant has a seemingly inex-haustable store of excuses and rationales for his cavalier attitude toward his offspring. The Trial Judge did not consider them adequate, and neither does this Court. Appellants whole pattern of conduct has been that he accepts no responsibility as a parent but reserves to himself the privilege of injecting himself into the life of the child at such times as it pleases him to do so. Parenthood is not made of such flexible fabric. No parent has the right to abandon all responsibility, yet insist that the child be fed, housed, clothed, and nurtured by others but remain available to be claimed as an offspring to be visited at the whim of a derelict parent who would thereby deny the child the security and stable environment of an adoption.

Appellant insists that he has a right to “repent”. This is a most unusual argument from one who claims that he has done no wrong.

In the view of this Court, the conduct of appellant is such as to disclose a settled disposition of irresponsibility such that whatever resolution might be belatedly expressed, probability of performance is remote, indeed.

Having refused to legitimate his offspring and create a stable home for him by marrying the mother, having refused to otherwise legitimate him, having failed and effectively refused to support him, and, with isolated exceptions, failed to show any attention to him, appellant has little standing to ask this Court to deprive the innocent child of the opportunity for a wholesome parental relationship in order to satisfy a claim of blood which has been ignored by appellant.

Appellant’s third argument is that the Trial Court erred in failure to allow him to present proof as to the best interests of the child. Appellant’s “Statement of the Case” has presented considerable difficulty to this Court because of failure to cite pages of the technical record where various proceedings may be found. The Trial Court heard evidence on three issues simultaneously, i.e. (1) abandonment, (2) adoption, and (3) legitimation. Appellant conceives that he was denied some right by the simultaneous hearing, but fails to cite the record which shows any timely objection by him or the tender by him of any evidence which was excluded. The complaint therefore will not be considered by this Court. Rule 6(b), Rules of Court of Appeals.

Finally, appellant insists that his rights to due process were denied in five respects.

First appellant complains of failure to conduct “a full hearing on the best interests of the child”. This Court is satisfied that a sufficiently full hearing on this issue was held, and appellant cites nothing in the record to show otherwise.

Second, appellant complains that the child was not allowed to “testify in his own behalf”. There is no citation to the record to support this complaint as required by Rule 6(b). Moreover, if such ruling occurred, in view of the tender years of the child it was within the discretion of the Trial Judge and was justified.

Next, appellant complains that the Trial Court refused to order a psychological examination of the child. Again the complaint is unsupported by citation to the record; and, if the ruling was made, it was discretionary and justified.

Appellant next complains that the Trial Court failed to appoint a guardian ad litem for the child. The complaint is supported by neither citation to the record nor authority.

Finally, appellant asserts that his constitutional rights were violated by penalizing him for non support. This complaint is likewise unsupported by citation to the record or authorities.

In summary, this Court concurs in each and every finding of fact of the Trial Judge, and each and every conclusion reached by her.

The judgment of the Trial Court is affirmed. Costs of this appeal are taxed against appellant. The cause is remanded to the Trial Court for such further proceedings, if any, as may be necessary and proper.

Affirmed and remanded.

LEWIS and CANTRELL, JJ„ concur.


author: PER CURIAM.

text:
    Elton and Leslie GEORGE et al., Petitioners, v. Jack VICK et al., Respondents.
    No. C-3098.
    Supreme Court of Texas.
    Dec. 19, 1984.
    Rehearing Denied March 20, 1985.
    Plunkett, Gibson & Allen, Lewin Plunk-ett, Strickland & Dailey, Robert L. Strickland, San Antonio, for petitioners.
    Bernie Martinez, San Antonio, for respondents.
    Calvin L. Vick, pro se.
   ON APPLICATION FOR WRIT OF ERROR

PER CURIAM.

Elton and Leslie George and Walter and Sharon Stellges sued Calvin Vick, Jack Vick, Penny McLean, John Askew and James C. Baxter seeking rescission of certain oil and gas contracts and for damages. The trial court rendered judgment on a jury verdict for the plaintiffs against Jack Vick, McLean and Askew. It rendered judgment that plaintiffs take nothing against Calvin Vick and Baxter. It awarded defendant Baxter his attorney fees, because the plaintiffs brought a deceptive trade practice action against him that was groundless and in bad faith or for harassment. Plaintiffs appealed from that part of the judgment that they take nothing against Calvin Vick and from that part of the judgment that awarded attorney fees to Baxter. Defendants Jack Vick and Baxter also appealed. The court of appeals after approving parts of the trial court’s judgment reversed the judgment as to all parties and remanded the entire cause for another trial. 671 S.W.2d 541.

The court of appeals correctly adjudicated the points on appeal, but because its remand for a new trial of all parties and issues is contrary to Rule 434, TEX.R. CIV.P., we grant the writ of error and without hearing oral argument reverse the judgment in part and partially remand the cause to the court of appeals.

No party appealed from the trial court’s judgment insofar as it disposed of the actions by and against Penny McLean and John Askew. The trial court’s judgment as to them is affirmed and need not be tried again.

The court of appeals correctly held that the trial court erred in failing to render judgment for the Georges and Stellges against Calvin Vick for violations of the deceptive trade practice act. We reverse the judgment of the court of appeals remanding that part of the cause, sever plaintiffs’ action against Calvin Vick and render judgment that plaintiffs recover from him their treble damages.

The court of appeals because of its decision to remand the entire cause, did not reach Jack Vick’s points on his appeal from the trial court’s judgment against him. We remand that part of the cause to the court of appeals for its disposition of Jack Vick’s points of error.

The trial court denied plaintiffs a judgment against defendant James Baxter. The trial court, instead, rendered judgment that Baxter recover from plaintiffs his attorney fees both in the trial court and on appeal. On appeal, there was no attack upon that part of the trial court judgment that plaintiffs recover nothing. There is accordingly no need for a retrial of that part of the judgment. Rules 434 and 503 were amended in 1976 to afford partial retrials when error affects a part only of the matter and is clearly separable without unfairness to the parties. See J. Pope, Try, Try, Again ... A Proposal to Limit the Scope of New Trials in Texas, 7 ST. MARY’S L.J. 1 (1975). The court of appeals ruled upon plaintiffs’ point that attacked only the legal sufficiency of the evidence to support the trial court judgment for Baxter’s attorney fees. The court’s opinion stated that the evidence to support the award was “insufficient.” We construe the holding, in light of the point and response, that the court meant legal insufficiency. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965). We find no error in and affirm that part of the court of appeals judgment.

We reverse the judgment of the court of appeals that ordered a general remand of all parties and causes. Rule 434, TEX.R. CIV.P. Rules 320, 434, and 503 are designed to avoid unnecessary retrials of those parts of causes that have been tried without error.

We remand to the court of appeals only that part of this cause that concerns plaintiffs’ action against Jack Vick. Costs are adjudged against Calvin Vick and James Baxter.


author: McGEE, Justice.

text:
    Jean HOLLOWAY, Individually and as Independent Executrix, et al., Petitioners, v. The COUNTY OF MATAGORDA, Respondent.
    No. C-2985.
    Supreme Court of Texas.
    Jan. 30, 1985.
    Rehearing Denied April 3, 1985.

      Levbarg, Miller & McGowan, Mark Z. Levbarg, Austin, for petitioners.
    Fred P. Holub and Daniel W. Shindler, Bay City, for respondent.
   McGEE, Justice.

This is a condemnation proceeding brought by the County of Matagorda to condemn four parcels of land owned by Jean Holloway, Individually and as Independent Executrix of the Estate of Sterling Holloway, Pat Sterling Holloway, Joan K. Holloway, and Michael Sterling Holloway. A trial was held in the district court upon timely objection to the award of the special commissioners. The trial court rendered judgment for the Holloways in the amount of $13,284.55, in addition to the $35,995.85 previously deposited into the registry of the court. The court of appeals affirmed the judgment of the trial court. 667 S.W.2d 324. We granted the application for writ of error in this cause to consider whether the County complied with the requirements of the Open Meeting Act. Tex. Rev.Civ.Stat.Ann. art. 6252-17 § 3A(d, h) (Vernon 1984). We hold that the Hollo-ways have waived this argument, and therefore, affirm the judgment of the court of appeals.

Complaints as to procedural irregularities in a condemnation case “must be preserved at the trial court level by motion, exception, objection, plea in abatement, or some other vehicle.” PGP Gas Products, Inc. v. Fariss, 620 S.W.2d 559, 560 (Tex.1981). In the present cause, the Holloways never objected or called the trial court’s attention to the alleged lack of proper notice. We hold that the Holloways have waived their right to complain on appeal that the County failed to show compliance with the notice requirements of the Open Meeting Act.

The judgment of the court of appeals is affirmed.


text:
    ESTATE OF L.W. STONECIPHER et al., Petitioners, v. ESTATE OF Thomas L. BUTTS et al., Respondents.
    No. C-3724.
    Supreme Court of Texas.
    Feb. 20, 1985.
    Rehearing Denied March 27, 1985.

      Gilbert T. Adams, Richard J. Clarkson, Beaumont, for petitioners.
    Wood, Lucksinger & Epstein, Scott Douglas Cunningham, Houston, Dunn, Alford & Kelley, Donald B. Kelley, Orange, for respondents.
   ON APPLICATION FOR WRIT OF ERROR

PER CURIAM.

This case has been in and out of the courts since 1950 when L.W. Stonecipher obtained a judgment against Thomas and Irene Butts for $21,080.36. Only $5,000 was paid on the judgment and during discovery proceedings to ascertain assets subject to execution of the judgment, Thomas Butts testified that he had conveyed 160 acres of Louisiana land to his banker, Elmer Newman, shortly before trial. Irene Butts testified she did not have, either before or after the trial, assets subject to execution. Stonecipher did not extend the judgment and it became dormant in 1961.

In 1970, Stonecipher discovered that Newman had conveyed the 160 acres back to Butts in 1967. He also discovered that Newman deeded back 80 acres to Irene Butts that she had conveyed just prior to her deposition in 1951. In 1971, Stoneci-pher brought this action against the Butts and Newman, alleging that a conspiracy of these defendants prevented him from collecting the judgment lien and that the fraudulent acts tolled the limitations of Tex.Rev.Civ.Stat.Ann. art. 3773.

After a jury verdict favorable to Stoneci-pher, the trial court rendered a judgment non obstante veredicto that Stonecipher take nothing. That judgment was affirmed by the court of civil appeals, 579 S.W.2d 27 (Tex.Civ.App. — Beaumont 1979), but was reversed and remanded by this court. 591 S.W.2d 806 (Tex.1979).

In the first Stonecipher opinion, this court held that Stonecipher had no lien on the Louisiana land. Thus, as to that land, he was no more than a general creditor and did not have a cause of action for conspiracy to prevent the collection of a judgment lien. Id. at 808. However, this court also ruled that one guilty of fraudulent acts cannot escape liability for acts by saying the fraud should have been discovered with ordinary care. Relying upon Morris v. House, 32 Tex. 492 (1870), we said, “fraud vitiates whatever it touches,” and held that limitations on Stonecipher’s original judgment would not begin to run until the time the fraud was discovered or could have been discovered by the defrauded party by exercise of reasonable diligence. Because reasonable diligence is a question of fact, this court remanded the cause to the trial court for a new trial.

After remand, Stonecipher amended his petition, seeking, in addition to the amount not collected on the 1950 judgment, actual damages and exemplary damages against Irene Butts Babington and Elmer W. Newman. After a lengthy trial, the jury found for Stonecipher in all regards. In particular, the jury found that Stonecipher had exercised reasonable diligence in attempting to discover assets of the judgment debtors. In an unpublished opinion, the court of appeals reversed the judgment of the trial court and remanded the case for new trial. Pursuant to Tex.R.Civ.P. 483 and without hearing oral argument, we reverse the court of appeals’ judgment and affirm the trial court judgment in all respects.

In the first Stonecipher opinion, we expressly remanded to the trial court for a finding of fact on whether or not Stoneci-pher exercised reasonable diligence in attempting to discover assets of the judgment debtors. That issue was submitted to the jury and a finding of fact in favor of Stonecipher was part of the jury’s verdict. Thus, Stonecipher’s action to enforce the judgment against the Estate of Thomas Butts, deceased, and Irene Butts Babington cannot now be barred. It was improper for the court of appeals to remand for a new trial when a jury finding to support Stone-ciphers’ original action to enforce his judgment existed.

The court of appeals also erred in its reversal of the jury findings on Stoneei-pher’s other causes of action. Here, the court of appeals based its decision on its belief that the first Stonecipher opinion was a limited mandate prohibiting all other causes of action except for enforcing the original judgment following a finding of fact that reasonable diligence was exercised in attempting to discover assets of the judgment debtors. Even if this were true, respondents under Tex.R.Civ.P. 90 have waived any point of error in this regard. Stonecipher’s intent to seek other causes of action was clear on the face of his petition. No special exceptions, motion to strike pleadings, or summary judgment motion specifically attacking those claims were directed against that petition prior to trial. No objections during trial were made to evidence on those causes of action. Thus, under decisions of this court and Tex.R.Civ.P. 90, the Butts’ estate, Newman and Babington have waived this point of error. Roark v. Allen, 633 S.W.2d 804 (Tex.1982); Agnew v. Coleman County Electric Cooperative, Inc., 153 Tex. 587, 272 S.W.2d 877 (1954).

The court of appeals’ opinion is inconsistent with our prior holding in this case. We therefore reverse the judgment of the court of appeals and affirm the judgment of the trial court.


text:
    Hygirene REDD, a/n/f of Rodney Redd, a Minor, Petitioner, v. STATE AND COUNTY MUTUAL FIRE INSURANCE COMPANY, Respondent.
    No. C-3655.
    Supreme Court of Texas.
    Feb. 27, 1985.

      Delk & Delk, Russell Delk, Dallas, for petitioner.
    Oster & Kaufman, Aaron S. Kaufman, Dallas, for respondent.
   ON APPLICATION FOR WRIT OF ERROR

PER CURIAM.

This is a suit to recover personal injury protection (PIP) benefits under an automobile liability insurance policy. The sole issue is whether, as a matter of law, the insured’s rejection of PIP coverage was effective at the time of the accident. The trial court rendered summary judgment in favor of State and County Mutual. In an unpublished opinion, the court of appeals affirmed that judgment. We reverse the judgments of the courts below and we remand the cause to the trial court.

In 1982, Rodney Redd was involved in an automobile accident while driving a car belonging to his grandfather, Vince Booty. As next friend, Hygirene Redd sued to recover PIP benefits under an insurance policy issued to Vince Booty by State and County Mutual. The policy was issued on June 21, 1980. At that time, Booty signed a PIP rejection form. The policy was renewed on June 21, 1981. The parties stipulate to the following additional facts: (1) Booty signed no other PIP rejection form after June 21, 1980; (2) Booty made no written request for PIP coverage; (3) Booty never paid any specific premium for PIP coverage.

The law which controls is the law in effect at the time the insurance policy was issued. Camden Fire Insurance Ass’n v. Harold E. Clayton & Co., 117 Tex. 414, 6 S.W.2d 1029, 1030 (1928); Lee v. Universal Life Insurance Co., 420 S.W.2d 222, 226 (Tex.Civ.App. — Houston [14th Dist.] 1967, writ ref’d n.r.e.); see also 12 Appleman, Insurance Law and Practice § 7041 (1981). Article 5.06-3(a) of the Texas Insurance Code, in effect at that time, provided as follows:

No automobile liability insurance policy ... shall be delivered or issued ... in this state unless personal injury protection coverage is provided therein .... The coverage provided in this article shall be applicable unless the insured named in the policy rejects the coverage in writing, and the coverage shall be provided in or supplemental to a re newal policy unless it is rejected in writing by the insured named in the policy.

Under the plain language of the statute, an insurance policy automatically included PIP coverage unless the insured rejected the coverage with each renewal of the policy. Booty’s PIP rejection expired on June 21, 1981, the renewal date of the policy. Thereafter, the policy automatically included PIP coverage because State and County Mutual failed to obtain a PIP rejection form at the time the policy was renewed.

The PIP rejection form which Booty signed in 1980 purported to apply to all future renewals of the policy. However, this contractual provision is repugnant to the statute and therefore void. See Unigard Security Insurance Co. v. Schaefer, 572 S.W.2d 303, 307 (Tex.1978).

As a matter of law, Booty’s insurance policy included PIP coverage. Pursuant to Tex.R.Civ.P. 483, and without hearing oral argument, we reverse the judgments of the courts below and we remand the cause for trial on the merits.

      . The statute was amended, effective August 1, 1981, to provide that PIP coverage need not be provided in a renewal policy "if the named insured has rejected the coverage in connection with a policy previously issued to him by the same insurer ....”


author: GONZALEZ, Justice.

text:
    Reuben M. GINSBERG, et al., Relators, v. The FIFTH COURT OF APPEALS, et al., Respondents.
    Nos. C-3248, C-3393.
    Supreme Court of Texas.
    March 6, 1985.

      Johnson & Swanson, Thomas A. Graves, Dallas, for relators.
    Nall, Stagner & Pelley, David M. Stag-ner, Sherman, for respondents.
   GONZALEZ, Justice.

This is a mandamus proceeding brought to contest the authority of the court of appeals to issue a mandamus directing the trial court to cease discovery into certain allegedly privileged matters.

The primary issue is whether a plaintiff has the right to use the psychotherapist-patient privilege offensively to shield information which would be material and relevant to the defendant’s defense of claims made against him by the Plaintiff. We disapprove of such a use and conditionally grant the writ.

Underlying Facts

Reuben M. Ginsberg is an attorney. Over the years, he had done legal work for William M. Gaynier and had been a partner with Gaynier in several business ventures. In 1971, Ginsberg and Gaynier purchased a building. Gaynier owned a 75% interest and Ginsberg owned a 25% interest. After they bought the building, Gaynier died. Ginsberg claims ownership of the building under a January 3, 1972 deed from Gaynier to Ginsberg conveying all of Gaynier’s interest to Ginsberg. On March 27, 1972, sixteen days after her husband’s death, Mrs. Gaynier signed a deed to “ratify and confirm” the January 3, 1972 deed.

In November, 1981, Mrs. Gaynier filed a trespass to try title suit against Ginsberg and the other relators (hereinafter called Ginsberg) contesting the validity of the two deeds. She claims the first deed was forged. Among other things, Mrs. Gaynier also contends that Ginsberg fraudulently tricked her into signing the second deed. During her deposition, she testified that she could not remember signing the second deed and that she was not aware until 1981 that the ownership of the building had been transferred to Ginsberg. Without objection, Mrs. Gaynier revealed that she had been treated by a psychiatrist in 1972 and subsequent years. Ginsberg sought to gain access to the medical records relating to that treatment. Mrs. Gaynier objected, claiming the records were protected by the psychotherapist-patient privilege under Tex.Rev.Civ.Stat.Ann. art. 5561h. The trial court ordered Mrs. Gaynier to produce the records. After an in camera inspection the trial court released the records to Ginsberg, stating in its order that they were likely to be relevant and were discoverable.

The medical records contain information that is materially relevant to, and possibly validates, the statute of limitations defenses asserted by Ginsberg. The medical records show that Mrs. Gaynier told her psychiatrist in August of 1972, “the building was sold while we were in Padre Island.”

Ginsberg then sought to depose the psychiatrist. Mrs. Gaynier again objected on the basis of the privilege contained in Tex. Rev.Civ.Stat.Ann. art. 5561h and Tex.R. Evid. 510. The trial court denied Mrs. Gay-nier’s motion for a protective order, but imposed numerous restrictions on the right to depose the psychiatrist. Mrs. Gaynier ultimately petitioned the Fifth Court of Appeals to issue a writ of mandamus denying Ginsberg the right to depose the psychiatrist and the court of appeals did so. Gaynier v. Johnson, 673 S.W.2d 899 (1984). The psychiatrist died before the court of appeals considered Ginsberg’s motion for rehearing. The court of appeals dismissed the pending mandamus proceeding, yet refused Ginsberg’s request that its opinion be withdrawn. Ginsberg then filed a petition for writ of mandamus in this court relating to the actions and opinion of the court of appeals.

Later Ginsberg sought to authenticate the medical records by deposing the custodian, the doctor’s secretary. Faced with the appellate opinion in the first mandamus proceeding, the trial court denied Ginsberg the right to depose the custodian. Ginsberg pursued a petition for writ of mandamus in the Fifth Court of Appeals and was denied relief. Ginsberg v. Johnson, 673 S.W.2d 942. He now seeks review of the actions of the Fifth Court of Appeals by a second petition for writ of mandamus. The two petitions for writ of mandamus will be considered jointly.

The proceeding in this court is an original mandamus proceeding. Tex.Rev.Civ. Stat.Ann. art. 1733 authorizes this court to issue writs of mandamus to appellate courts as well as to other entities. Therefore, this court has jurisdiction to review the issuance of the writ of mandamus by the court of appeals, to determine if that issuance constituted a clear abuse of discretion. Jampole v. Touchy, 673 S.W.2d 569 (Tex.1984).

Privilege

Ginsberg contends that the court of appeals abused its discretion in allowing Mrs. Gaynier to maintain this action and also shield relevant and damaging information behind the curtain of an asserted privilege. We agree.

Mrs. Gaynier claims that the information Ginsberg seeks is protected by the psychotherapist-patient privilege. Tex.R. Evid. 510. This privilege, like the related physician-patient privilege, did not exist at common law. 8 J.H. Wigmore, Evidence in Trials at Common Law § 2380 (McNaughton rev. 1961); C. McCormick, Evidence § 98 (3rd ed. 1984); Comment, The Psychotherapist-Patient Privilege in Texas, 18 Hous.L.Rev. 137 (1980). The justification for this privilege lies in the policy of encouraging the full communication necessary for effective treatment of a patient by a psychotherapist. C. McCormick § 72. The protection against disclosure of confidences is primarily erected to protect the patient against an invasion of his privacy. Ex Parte Abell, 613 S.W.2d 255 (Tex.1981).

Mrs. Gaynier, however, occupies a different position in relation to the privilege she attempts to assert. She has invoked the jurisdiction of the courts in search of affirmative relief against Ginsberg; yet she would attempt, on the basis of privilege, to deny Ginsberg the benefit of evidence which would materially weaken or defeat her claims against him. This is an offensive, rather than defensive, use of the privilege, and it lies outside the intended scope of Tex.R. Evid. 510 and its predecessor, Tex.Rev.Civ.Stat.Ann. art. 5561h.

In Henson v. Citizens Bank of Irving, 549 S.W.2d 446 (Tex.Civ.App. — Eastland 1977, no writ), the plaintiff sought to avoid certain questions put to him in discovery by asserting the privilege against self-incrimination guaranteed by the Fifth Amendment to the United States Constitution. The court recognized the plaintiff’s fundamental right to assert the privilege, but noted that he “may be forced to elect whether to claim his privilege or abandon his claim” based on principles of fundamental fairness. Id. at 448. Other jurisdictions also prohibited a plaintiff from using the Fifth Amendment privilege against self-incrimination as an offensive weapon. See Baker v. United States, 722 F.2d 517 (9th Cir.1983); Lyons v. Johnson, 415 F.2d 540 (9th Cir.1969) cert. denied, 397 U.S. 1027, 90 S.Ct. 1273, 25 L.Ed.2d 538 (1970). Pavlin-ko v. Yale-New Haven Hosp., 192 Conn. 138, 470 A.2d 246 (1984); Minor v. Minor, 240 So.2d 301 (Fla.1970); Master v. Savannah Surety Associates, Inc., 148 Ga.App. 678, 252 S.E.2d 186 (1979); Galante v. Steel City National Bank of Chicago, 66 Ill.App.3d 476, 23 Ill.Dec. 421, 384 N.E.2d 57 (1978); Christenson v. Christenson, 281 Minn. 507, 162 N.W.2d 194 (1968); Frank lin v. Franklin, 365 Mo. 442, 283 S.W.2d 483 (1955); Mahne v. Mahne, 124 N.J.Super. 23, 304 A.2d 577 (1973); Pulawski v. Pulawski, R.I., 463 A.2d 151 (1983).

“A plaintiff cannot use one hand to seek affirmative relief in court and with the other lower an iron curtain of silence against otherwise pertinent and proper questions which may have a bearing upon his right to maintain his action.” Pavlinko, 470 A.2d at 251. This theory has also been applied in cases involving privileges other than the Fifth Amendment. See Mull v. String, 448 So.2d 952, 954 (Ala.1984) (physician-patient, health put into issue); Bond v. Dist. Ct. In and For Denver City, 682 P.2d 33 (Colo.1984) (physical or mental condition put into issue); Clark v. District Court, 2nd Judicial District, 668 P.2d 3 (Colo.1983) (physical or mental condition put into issue); Sagmiller v. Carlsen, 219 N.W.2d 885 (N.D.1974) (physician-patient); Mattison v. Poulen, 134 Vt. 158, 353 A.2d 327 (1976) (physician-patient privilege, physical and mental health put into issue). We find these cases, and those involving the Fifth Amendment, persuasive.

This holding, however, should not be construed as granting license to litigants to engage in “fishing expeditions” into privileged matters. A similar issue was before the court in West v. Solito, 563 S.W.2d 240 (Tex.1978). In West, we did not reach the merits of the argument because the evidence in question was not before the trial court. In the instant case, the medical records have been examined in camera by the trial court and found to be relevant to the subject matter of this suit.

The admission of evidence and the scope of discovery largely rests within the discretion of the trial court. The trial court was properly within its discretion when it deemed Mrs. Gaynier’s medical records discoverable. The court of appeals, therefore, abused its discretion by ordering the trial court to refrain from further discovery pertaining thereto, for the denial of proper discovery constitutes a “clear abuse of discretion.” Jampole, 673 S.W.2d at 572. We do not address the waiver issues raised by Ginsberg.

We conditionally grant Ginsberg’s writ of mandamus. If the court of appeals does not withdraw its order of mandamus, thus permitting the trial judge to make an independent determination of the discovera-bility and admissibility of the medical records in question, writ will issue.


author: WALLACE, Justice.

text:
    Alan T. PATTON, Petitioner, v. CITY OF GRAND PRAIRIE, Texas, et al., Respondents.
    No. C-3495.
    Supreme Court of Texas.
    March 13, 1985.

      Joseph R. Gilbreath and Kenneth W. Hale, Austin, for petitioner.
    R. Clayton Hutchins, City Atty., Grand Prairie, for respondents.
   WALLACE, Justice.

This is an appeal by a city police officer who was suspended pursuant to the Firemen’s and Policemen’s Civil Service Act.

Alan T. Patton was indefinitely suspended on November 23, 1981, by the Chief of Police of the City of Grand Prairie, Texas. Patton appealed the suspension to the Grand Prairie Civil Service Commission which reduced the suspension to ten days without pay. Patton then appealed the Commission order to the District Court of Dallas County which dismissed the appeal after determining that it did not have subject matter jurisdiction. The court of appeals affirmed the judgment of the trial court. 675 S.W.2d 794. We reverse the judgment of the court of appeals and remand the cause to the trial court.

The pivotal issue in this case is whether the civil service commission of a city may, after hearing, reduce an indefinite suspension to a disciplinary suspension of 15 days or less, and thus foreclose the affected officer’s right to appeal the commission’s order to a district court. Section 16 of the Act, pertaining to an indefinite suspension, provides in pertinent part:

... The Commission shall hold a hearing and render a decision in writing within thirty (30) days after it receives said notice of appeal. Said decision shall state whether or not the suspended officer or employee shall be permanently or temporarily dismissed from the ... Police Department or to be restored to his former position or status....

Section 18 of the Act provides in pertinent part:

In the event any ... Policeman is dissatisfied with any decision of the Commission, he may, within ten (10) days after the rendition of such final decision, file a petition in the District Court, asking that the decision be set aside, and such case shall be tried de novo. (The underlined word “any” was substituted for “the” by amendment in 1977).

Section 20 of the Act provides in pertinent part:

The head of ... the ... Police Department shall have the power to suspend any officer or employee under his jurisdiction or supervision for disciplinary purposes, for reasonable periods, not to exceed fifteen (15) days; provided, that in every such case, the department head shall file with the Commission within one hundred and twenty (120) hours, a written statement of action, and the Commission shall, upon appeal from the suspended officer or employee, hold a public hearing under Section 17 of this Act. (The underlined portion was added by amendment in 1979).

The Act, as amended, thus provides that the commission may reduce an indefinite suspension to a temporary suspension. However, Section 18, as amended, unequivocally provides that the affected officer may appeal any decision of the commission to the district court. Section 20, as amended, provides that the commission must hold a hearing upon appeal to the commission by the suspended officer. We, therefore, hold that it is immaterial whether the suspension handed down by the police chief was an indefinite suspension or a disciplinary suspension. Any decision of a city’s civil service commission concerning a suspension is now appealable to the district court whether it arises from a Section 16 indefinite suspension or from a Section 20 temporary suspension. The decision of this court in Firemen’s and Policemen’s Civil Service Commission of the City of Fort Worth v. Blanchard, 582 S.W.2d 778 (Tex.1979), and the courts of civil appeals’ decisions in Fox v. Carr, 552 S.W.2d 885 (Tex.Civ.App. — Texarkana 1977, no writ) and Crawford v. City of Houston, 600 S.W.2d 891 (Tex.Civ.App. — Houston [1st Dist.] 1980, no writ), are no longer controlling due to the above mentioned amendments to Sections 18 and 20 of the Act. We approve the reasoning of City of Laredo v. Solis, 665 S.W.2d 523 (Tex.App. — San Antonio 1983, no writ) to the extent that it holds any suspension, indefinite or temporary, which gives rise to a hearing before the civil service commission, entitles the affected officer to appeal the commission order to a district court.

We further hold that the record before us does not support the motion for summary judgment of Officer Patton. The judgment of the court of appeals is reversed and the cause is remanded to the trial court.

      . All references are to TEX.REV.CIV.STAT. ANN. art. 1269m (Vernon's Supp.1983).