{
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    "judges": [
      "Judges LEWIS and WALKER concur."
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    "parties": [
      "RICHARD ZANONE, Plaintiff-Appellant v. RJR NABISCO, INC., Defendant-Appellee"
    ],
    "opinions": [
      {
        "text": "MARTIN, MARK D., Judge.\nPlaintiff Richard Zanone (Zanone) appeals from entry of summary judgment in favor of defendant RJR Nabisco (RJR) on his breach of contract and fraudulent misrepresentation claims. We affirm.\nIn 1987, Zanone, then an RJR employee, was relocated by RJR to Atlanta where he and his wife purchased a home. In 1989, as a result of the RJR buy-out, the corporate headquarters was moved from Atlanta and several employees, including Zanone, were released. In an effort to ease the financial burden on these released employees, RJR initiated the Atlanta-Based Special Moving & Relocation Policy (ABSMR), an \u201copt-in\u201d policy. ABSMR was created to reimburse eligible employees for losses, and expenses incurred in locating other jobs, including relocation expenses and losses incurred in selling their homes. After meeting with RJR management to discuss ABSMR, Zanone \u201copted-in\u201d to the policy.\nOn 7 September 1991 Zanone sold his home. Zanone\u2019s request for certain benefits under ABSMR was denied because Karl F. Yena (Yena), Director of Organizational Development for RJR and overseer of ABSMR, determined the request came after the policy deadline. Zanone appealed the denial by letter to RJR\u2019s New York Headquarters dated 14 October 1991. The New York office reviewed Zanone\u2019s request and agreed to provide compensation for finding suitable housing, shipping Zanone\u2019s household goods, and moving Zanone\u2019s family to Raleigh. The primary reason for RJR\u2019s reconsideration was the impending surgery on Zanone\u2019s son.\nUnder ABSMR Zanone initially received $15,040.79 in benefits. Zanone objected to the $1960.83 amount RJR assigned as his recoverable \u201closs-on-sale.\u201d RJR reconsidered its previous valuation and, on the advice of an independent appraiser, paid Zanone another $2500 for loss on the sale of his home. Despite accepting the $2500 check, Zanone continued to complain and wrote a letter to RJR requesting $15,778 as \u201cfinal settlement.\u201d\nOn 22 July 1992 Yena notified Zanone by letter that RJR considered the $5000 payment to follow \u201cfull and final payment of [his ABSMR] benefits.\u201d Zanone responded by letter dated 12 August 1989 stating, \u201cAs of today I have not, as yet, received your payment... I assume this is an accounting delay. ... I regret, as much as I would like this situation to be concluded, that I cannot accept your offer as final. I wish to review my position on a number of issues.\u201d RJR subsequently sent Zanone a check for $5000 ($5000 check) on 20 August 1992 which Zanone deposited on 31 August 1992. The check, on its face, did not indicate RJR considered it \u201cfull and final\u201d payment. Since 20 August 1992 RJR has refused to pay Zanone any further benefits under ABSMR.\nOn 10 November 1992 Zanone filed his complaint seeking reimbursement for the difference between the amount he claimed he lost on the sale of his house and the benefits already provided by RJR under ABSMR. Zanone seeks recovery alleging, in the alternative, RJR breached the terms of ABSMR and RJR fraudulently misrepresented the terms of ABSMR. After discovery, the trial court granted RJR\u2019s motion for summary judgment on both of Zanone\u2019s claims.\nWe address two issues on appeal \u2014 whether summary judgment was proper as to Zanone\u2019s (1) breach of contract claim; and (2) fraud claim.\nI.\nTo prevail in summary judgment, the moving party must \u201cpositively and clearly\u201d show there is no genuine issue as to any material fact and it is entitled to judgment as a matter of law. James v. Clark, 118 N.C. App. 178, 180, 454 S.E.2d 826, 828, disc. review denied, 340 N.C. 359, 458 S.E.2d 187 (1995). Further, all material filed in support of or opposition to the summary judgment motion must be viewed in the light most favorable to the nonmoving party. Id. at 181, 454 S.E.2d at 828.\n\u201c[A] genuine issue is one which can be maintained by substantial evidence.\u201d Kessing v. Mortgage Corp., 278 N.C. 523, 534, 180 S.E.2d 823, 830 (1971) (quoting 3 Barron and Holtzoff, Federal Practice and Procedure 1234 (Wright Ed., 1958)). An issue is material if the facts alleged \u201caffect the result of the action, or if the resolution of the issue is so essential that the party against whom it is resolved may not prevail.\u201d Id.\nThe moving party can establish it is entitled to judgment as a matter of law by: \u201c \u2018(1) proving that an essential element of the plaintiffs case is nonexistent, or (2) showing through discovery that the plaintiff cannot produce evidence to support an essential element of his or her claim, or (3) showing that the plaintiff cannot surmount an affirmative defense which would bar the claim.\u2019 \u201d James, 118 N.C. App. at 181, 454 S.E.2d at 828 (quoting Watts v. Cumberland County Hosp. System, 75 N.C. App. 1, 6, 330 S.E.2d 242, 247 (1985), rev\u2019d. on other grounds, 317 N.C. 321, 345 S.E.2d 201 (1986)).\nA.\nZanone first contends the trial court erred in granting summary judgment to RJR on his breach of contract claim because material facts were still at issue regarding the existence of an accord and satisfaction.\nAlthough the existence of accord and satisfaction is generally a question of fact, \u201cwhere the only reasonable inference is existence or non-existence, accord and satisfaction is a question of law and may be adjudicated by summary judgment when the essential facts are made clear of record.\u201d Construction Co. v. Coan, 30 N.C. App. 731, 737, 228 S.E.2d 497, 501, disc. review denied, 291 N.C. 323, 230 S.E.2d 676 (1976). The facts surrounding the delivery of the $5000 check in the present action are not contested, only their legal significance remains in dispute. Thus, we believe the issue of whether an accord and satisfaction existed was ripe for summary judgment. See Blades v. City of Raleigh, 280 N.C. 531, 545, 187 S.E.2d 35, 43 (1972).\nIt is well recognized\n\u201cAn \u2018accord\u2019 is an agreement whereby one of the parties undertakes to give or perform, and the other to accept, in satisfaction of a claim, liquidated or in dispute, and arising either from contract or tort, something other than or different from what he is, or considered himself entitled to; and a \u2018satisfaction\u2019 is the execution or performance, of such agreement.\u201d\nSharpe v. Nationwide Mut. Fire Ins. Co., 62 N.C. App. 564, 565, 302 S.E.2d 893, 894, cert. denied, 309 N.C. 823, 310 S.E.2d 353 (1983) (iquoting Allgood v. Trust Co., 242 N.C. 506, 515, 88 S.E.2d 825, 830-831 (1955)).\nThe word \u201cagreement\u201d implies the parties are of one mind-all have a common understanding of the rights and obligations of the others \u2014 there has been a meeting of the minds. . . . Agreements are reached by an offer by one party and an acceptance by the other. This is true even though the legal effect of the acceptance may not be understood.\nPrentzas v. Prentzas, 260 N.C. 101, 103-104, 131 S.E.2d 678, 680-681 (1963) (citations omitted). In other words, \u201c[establishing an accord and satisfaction ... as a matter of law requires evidence that permits no reasonable inference to the contrary and that shows the \u2018unequivocal\u2019 intent of one party to make and the other party to accept a lesser payment in satisfaction ... of a larger claim.\u201d Moore v. Frazier, 63 N.C. App. 476, 478-479, 305 S.E.2d 562, 564 (1983).\nIn the present case, RJR, by letter dated 22 July 1992, offered Zanone the $5000 check as \u201cfull and final payment of [Zanone\u2019s] severance relocation associated benefits.\u201d We believe this letter clearly established RJR\u2019s intent the $5000 check be treated as an accord. We also note RJR asserted at trial, and now on appeal, that it intended the $5000 check as an accord and satisfaction. Thus, Zanone\u2019s breach of contract claim will be barred if RJR can establish Zanone intended to accept the $5000 check in satisfaction of the debt. See Moore, 63 N.C. App. at 478-479, 305 S.E.2d at 564; Coan, 30 N.C. App. at 736, 228 S.E.2d at 501.\nZanone contends his response to RJR\u2019s offer, by letter dated 12 August 1992, establishes he did not accept the $5000 check as satisfaction of the disputed debt. Zanone\u2019s letter stated, \u201cI regret, as much as I would like this situation to be concluded, that I cannot accept your offer as final.\u201d Zanone\u2019s letter continued by explaining why he believed $5000 was insufficient and denoted $15,778 as an acceptable figure. Without further communication between the parties, RJR mailed the $5000 check on 20 August 1992 and Zanone cashed it on 31 August 1992.\nAlthough we agree Zanone\u2019s letter conveyed his displeasure with the amount RJR offered, the law clearly states, \u201c[t]he cashing of a check tendered in full payment of a disputed claim establishes an accord and satisfaction as a matter of law. . . . [T]he claim is extinguished, regardless of any disclaimers which may be communicated by the payee.\u201d Sharpe, 62 N.C. App. at 566, 302 S.E.2d at 894 (citations omitted). Accordingly, we believe cashing a check known to be offered as an accord and satisfaction establishes, as a matter of law, the payee intended to accept the offer even though he previously voiced reservations about the amount of the settlement. See Barber v. White, 46 N.C. App. 110, 112, 264 S.E.2d 385, 386 (1980); Moore v. Greene, 237 N.C. 614, 616-617, 75 S.E.2d 649, 650 (1953).\nIn Barber v. White, plaintiff, a house painter, presented the defendant with a final bill of $2359.19. Defendant contested the bill as too high and offered plaintiff a check for $1813.19 with the words \u201cpainting in full\u201d written on the check. Plaintiff accepted and cashed the check with the caveat he was doing so only because he was \u201cin a rather tight position\u201d and defendant still owed him $615.19. This Court concluded, notwithstanding the reservations plaintiff expressed to defendant, that cashing of the check established an accord and satisfaction as a matter of law. Barber, 46 N.C. App. at 112-113, 264 S.E.2d at 386.\nLikewise, in Moore v. Greene, defendant fired plaintiff and notified him by mail that his contractual share of the net profits was $1179.39. In the same letter, defendant enclosed a check with the words \u201cFor Settlement under terms of employment contract 7-1-47 to 7-1-48\u201d written on its face. Plaintiff wrote defendant objecting to certain deductions totalling $769.45. More specifically, plaintiff\u2019s letter stated, \u201cIf you will pay me [an additional $256.48] within a reasonable time, I will accept it in full payment and close the issue.\u201d Plaintiff had no further communications with defendant and, on 10 November 1948, cashed the initial $1179.39 check. Our Supreme Court held defendant was entitled to a judgment of nonsuit reasoning, \u201c[t]he plaintiff had a right to decline the proffered settlement and sue for the full amount he claimed was due. . . . We think he made his election when he cashed the check and may not now be allowed to change his position.\u201d Moore, 237 N.C. at 616-617, 75 S.E.2d at 650.\nZanone, like the payees in Barber and Moore, expressed his reservations about the amount of the settlement; claimed RJR still owed him $15,778; and cashed the check without further communication with RJR. Thus, under Barber and Moore, we conclude that Zanone, by cashing the $5000 check, demonstrated his intent to accept RJR\u2019s offer of accord and satisfaction.\nIn an effort to distinguish the present case from Barber and Moore, Zanone asserts RJR\u2019s $5000 check was neither marked as \u201cpayment in full\u201d nor accompanied by a letter explaining it was \u201cpayment in full.\u201d\nIt is well settled in North Carolina, however, that the offer and acceptance of an accord can be established by the facts and circumstances surrounding the receipt of the check. Phillips v. Construction Co., 261 N.C. 767, 771-772, 136 S.E.2d 48, 51-52 (1964). As stated by our Supreme Court:\n\u201cwhen, in case of a disputed account between parties, a check is given and received clearly purporting to be [payment] in full or when such check is given and from the facts and attendant circumstances it clearly appears that it is to be received in full [payment] of all indebtedness . . . the courts will allow to such a payment the effect contended for.\u201d\nId. (emphasis added) (quoting Hardware Company v. Farmers Federation, 195 N.C. 702, 143 S.E.2d 471 (1928)).\nIn the present case, we believe RJR\u2019s letter dated 22 July clearly establishes RJR intended the $5000 check, mailed 20 August, to be \u201cfull and final\u201d payment of the disputed debt. Although Zanone registered his objection to the $5000 amount by letter dated 12 August, he had no further communication with RJR concerning the disputed debt prior to cashing the $5000 check. Based on these facts and circumstances, we conclude Zanone received the $5000 check clearly understanding RJR was offering the $5000 check as \u201cfull and final\u201d payment of the disputed debt. Therefore, under Phillips v. Construction Co., acceptance of RJR\u2019s offer of accord and satisfaction was established, as a matter of law, when Zanone cashed the $5000 check.\nAccordingly, we conclude accord and satisfaction existed as a matter of law and bars any claims based on the underlying contract. We therefore affirm the trial court\u2019s grant of summary judgment for defendant on plaintiffs breach of contract claim.\nB.\nWe next turn to Zanone\u2019s contention the trial court erred in granting summary judgment on his fraud claim.\nTo establish a viable fraudulent misrepresentation claim, plaintiff must prove: \u201c(1) False representation or concealment of a material fact, (2) reasonably calculated to deceive, (3) made with intent to deceive, (4) which does in fact deceive, (5) resulting in damage to the injured party.\u201d Ragsdale v. Kennedy, 286 N.C. 130, 138, 209 S.E.2d 494, 500 (1974).\nAfter careful review of the present record, we find Zanone, in his own deposition, stated: (1) he was aware the policy limited its reimbursement to \u201capproved capital expenditures,\u201d yet never sought RJR\u2019s opinion on the recoverability of capital expenditures undertaken after he \u201copted-in\u201d to ABSMR; (2) he had between ten and twenty conversations with Yena concerning eligibility under ABSMR and still claims RJR failed to provide necessary information about eligibility; (3) he believed Yena made every effort to respond to his questions and any confusion was probably a result of his failure to ask the right questions; and (4) he did not mean to imply Yena gave misleading or incorrect information because any confusion was probably a case of his failing to ask the right questions. We also note this is not an exhaustive list of the statements contained within Zanone\u2019s own deposition which undercut his claim of fraudulent misrepresentation.\nThus, we believe the record, especially in light of Zanone\u2019s own admissions, does not support Zanone\u2019s fraud claim and, accordingly, affirm the trial court\u2019s grant of summary judgment in favor of RJR.\nAffirmed.\nJudges LEWIS and WALKER concur.",
        "type": "majority",
        "author": "MARTIN, MARK D., Judge."
      }
    ],
    "attorneys": [
      "Wood & Francis, PLLC, by Brent E. Wood, for plaintiff-appellant.",
      "Womble, Carlyle, Sandridge & Rice, PLLC, by W. Andrew Copenhaver and Timothy A. Thelen, for defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "RICHARD ZANONE, Plaintiff-Appellant v. RJR NABISCO, INC., Defendant-Appellee\nNo. COA95-65\n(Filed 21 November 1995)\n1. Accord and Satisfaction \u00a7 8 (NCI4th)\u2014 objection to amount of check \u2014 check cashed \u2014 sufficiency of evidence of accord and satisfaction\nCashing a check known to be offered as an accord and satisfaction establishes, as a matter of law, that the payee intended to accept the offer even though he previously voiced reservations about the amount of the settlement; in this case, defendant\u2019s letter clearly established that it intended the check to be full and final payment of the disputed debt, and, although plaintiff registered his objection to defendant\u2019s proffered amount, he had no further communication with defendant concerning the disputed debt prior to cashing defendant\u2019s check.\nAm Jur 2d, Accord and Satisfaction \u00a7\u00a7 18-23, 26, 27.\nModern status of rule that acceptance of check purporting to be final settlement of disputed amount constitutes accord and satisfaction. 42 ALR4th 12.\n2. Fraud, Deceit, and Misrepresentation \u00a7 38 (NCI4th)\u2014 representations by former employer \u2014 insufficiency of evidence of fraud\nThe evidence was insufficient to support plaintiffs fraud claim arising out of defendant employer\u2019s moving and relocation policy designed to ease financial burdens on employees affected by the move of corporate headquarters where plaintiff\u2019s own admissions indicated that he had numerous conversations with defendant about the policy, believed that defendant\u2019s employee made every effort to respond to his questions, and thought that any confusion was probably a result of his failure to ask the right questions.\nAm Jur 2d, Fraud and Deceit \u00a7\u00a7 437 et seq.\nAppeal by plaintiff from order entered 9 February 1994 by Judge E. Lynn Johnson in Wake County Superior Court. Heard in the Court of Appeals 20 October 1995.\nWood & Francis, PLLC, by Brent E. Wood, for plaintiff-appellant.\nWomble, Carlyle, Sandridge & Rice, PLLC, by W. Andrew Copenhaver and Timothy A. Thelen, for defendant-appellee."
  },
  "file_name": "0768-01",
  "first_page_order": 802,
  "last_page_order": 809
}