Painter v. Peavy, No. 22206

CourtSupreme Court of West Virginia
Writing for the CourtCLECKLEY; BROTHERTON; MILLER
Citation451 S.E.2d 755,192 W.Va. 189
Decision Date18 November 1994
Docket NumberNo. 22206
Parties, 25 UCC Rep.Serv.2d 1093 Annette J. PAINTER, Plaintiff Below, Appellant, v. Patrick Devolta PEAVY, Defendant Below, Appellee.

Page 755

451 S.E.2d 755
192 W.Va. 189, 25 UCC Rep.Serv.2d 1093
Annette J. PAINTER, Plaintiff Below, Appellant,
v.
Patrick Devolta PEAVY, Defendant Below, Appellee.
No. 22206.
Supreme Court of Appeals of
West Virginia.
Submitted Sept. 21, 1994.
Decided Nov. 18, 1994.

Page 756

[192 W.Va. 190] Syllabus by the Court

1. A circuit court's entry of summary judgment is reviewed de novo.

2. " 'A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.' Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963)." Syllabus Point 1, Andrick v. Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992).

3. The circuit court's function at the summary judgment stage is not to weigh the evidence and determine the truth of the matter, but is to determine whether there is a genuine issue for trial.

4. Summary judgment is appropriate where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove.

5. "To show an accord and satisfaction, the person asserting the defense must prove three elements: (1) Consideration to support an accord and satisfaction; (2) an offer of partial payment in full satisfaction of a disputed claim; and (3) acceptance of the partial payment by the creditor with knowledge that the debtor offered it only upon the condition that the creditor accept the payment in full satisfaction of the disputed claim or not at all." Syllabus Point 1, Charleston Urban

Page 757

[192 W.Va. 191] Renewal Authority v. Stanley, 176 W.Va. 591, 346 S.E.2d 740 (1985).

6. If a check is tendered bearing the words 'payment in full' or some other words of similar purport, the payee may either accept the check and acknowledge the accord and satisfaction, or return the check to the payor. If the payee chooses the latter course of action he may continue to dispute the underlying claim.

7. Whether the parties altered their original contract or entered a transaction or compromise depends on whether there was mutual consent. It is necessary to examine the evidence and determine whether the parties arrived at a new agreement or acted under the existing one.

Jerome McFadden, Gibson & McFadden, Princeton, for appellant.

Robert H. Miller, II, Whites' Law Office, Princeton, for appellee.

CLECKLEY, Justice:

This civil action was brought for damages arising out of an automobile collision. Annette J. Painter, the appellant and plaintiff below, appeals an order of the Circuit Court of Mercer County, entered September 7, 1993, which granted summary judgment in favor of Patrick Devolta Peavy, the appellee and defendant below. The circuit court found that an accord and satisfaction was reached between the parties when the plaintiff deposited a check from the defendant's insurance company tendered "[f]or full settlement of all claims," irrespective of the notation "[d]eposited under protest" by the endorsement. The plaintiff contends that summary judgment was inappropriate because genuine issues of material fact exist. We disagree with the plaintiff's argument and affirm the order of the circuit court.

I.

The record shows that on September 17, 1989, the plaintiff was injured when the car she was driving was struck by the defendant's car. Garland Spangler, an attorney in Virginia, originally represented the plaintiff. 1 Receipts of medical bills totalling $708.60 were submitted to the defendant's insurer, Colonial Insurance Company of California (Colonial). A check for $750, dated January 31, 1990, was mailed to the plaintiff. The check stated "for full settlement of all claims." The claims examiner stated that the check was intended to settle the injury claim. 2

In February, 1990, Mr. Spangler notified a claims adjuster for Colonial that the plaintiff rejected the settlement offer of $750. Affidavits of two Colonial claims examiners reveal that after Mr. Spangler rejected the settlement offer, he was instructed to return the check to Colonial. Colonial did not, however, stop payment of the check. The check was endorsed and it was deposited in Mr. Spangler's account in March, 1990. "Deposited under protested" was written on the back of the check.

The plaintiff stated in her affidavit that she had no contact whatsoever with Colonial nor with the defendant. The plaintiff's mother forwarded all documents to Mr. Spangler's office. The plaintiff had limited contact with her attorney. She signed a medical release and contract with Mr. Spangler, but could not remember whether she endorsed the $750 settlement check. She does not, however, assert that the signature is a forgery.

A lawsuit was filed on September 16, 1991. Negotiations between Mr. Spangler and Colonial continued. 3 The claims examiner assumed

Page 758

[192 W.Va. 192] that the check for $750 was not cashed and was returned to Colonial, because the offer was rejected. During a routine review of the file, however, he discovered that the check had not been returned as requested.

In March of 1993, Colonial discovered that the settlement check had been deposited and that it had cleared their bank account. 4 The defendant then moved to amend its answer to assert the defense of accord and satisfaction. This motion was granted.

The defendant moved for summary judgment based upon its defense of accord and satisfaction. By order entered September 7, 1993, the circuit court granted summary judgment, finding "no genuine issue of material fact." The circuit court held that an accord and satisfaction was reached when the plaintiff retained and used the settlement check, and that her "attempt to alter the insurance company's offer was ineffectual."

II.

The sole issue in this appeal is whether summary judgment was appropriate. 5 A circuit court's entry of summary judgment is reviewed de novo. See Drewitt v. Pratt, 999 F.2d 774 (4th Cir.1993). 6 Under Rule 56(c) of the West Virginia Rules of Civil Procedure, summary judgment is proper only where the moving party shows that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law. In Syllabus Point 1 of Andrick v. Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992), we reiterated the standard for granting summary judgment:

" 'A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.' Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963)."

See also Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). The circuit court's function at the summary judgment stage is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202, 213 (1986). We, therefore, must draw any permissible inference from the underlying facts in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Masinter v. WEBCO Co., 164 W.Va. 241, 262 S.E.2d 433 (1980). Andrick, 187 W.Va. at 708, 421 S.E.2d at 249.

Nevertheless, the party opposing summary judgment must satisfy the burden of proof by offering more than a mere "scintilla of evidence," and must produce evidence

Page 759

[192 W.Va. 193] sufficient for a reasonable jury to find in a nonmoving party's favor. Anderson, 477 U.S. at 252, 106 S.Ct. at 2512, 91 L.Ed.2d at 214. Summary judgment is appropriate where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, such as...

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1043 practice notes
  • Coleman v. Sopher, No. 23943.
    • United States
    • Supreme Court of West Virginia
    • November 20, 1997
    ...of law or involving an interpretation of a statute, we apply a de novo standard of review."). See also Syl. pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994) ("A circuit court's entry of summary judgment is reviewed de novo.").3 Moreover, we note "`A motion for summary judgment ......
  • Gazette v. Smithers, No. 12–0811.
    • United States
    • Supreme Court of West Virginia
    • November 26, 2013
    ...[752 S.E.2d 607]Syllabus by the Court 1. “A circuit court's entry of summary judgment is reviewed de novo.” Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). 2. “Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation......
  • Cunningham v. Herbert J. Thomas Mem'l Hosp. Ass'n, No. 11–0398.
    • United States
    • Supreme Court of West Virginia
    • November 20, 2012
    ...272]Syllabus by the Court 1. “A circuit court's entry of summary judgment is reviewed de novo.” Syllabus point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). 2. “ ‘ “A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to b......
  • Shaffer v. Acme Limestone Co., Inc., No. 26114.
    • United States
    • Supreme Court of West Virginia
    • December 3, 1999
    ...now appeals. II. STANDARD OF REVIEW "A circuit court's entry of summary judgment is reviewed de novo ." Syl. pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). This Court has made clear that "[a] motion for summary judgment should be granted only when it is clear that there is n......
  • Request a trial to view additional results
1026 cases
  • Coleman v. Sopher, No. 23943.
    • United States
    • Supreme Court of West Virginia
    • November 20, 1997
    ...of law or involving an interpretation of a statute, we apply a de novo standard of review."). See also Syl. pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994) ("A circuit court's entry of summary judgment is reviewed de novo.").3 Moreover, we note "`A motion for summary judgment ......
  • Gazette v. Smithers, No. 12–0811.
    • United States
    • Supreme Court of West Virginia
    • November 26, 2013
    ...[752 S.E.2d 607]Syllabus by the Court 1. “A circuit court's entry of summary judgment is reviewed de novo.” Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). 2. “Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation......
  • Cunningham v. Herbert J. Thomas Mem'l Hosp. Ass'n, No. 11–0398.
    • United States
    • Supreme Court of West Virginia
    • November 20, 2012
    ...272]Syllabus by the Court 1. “A circuit court's entry of summary judgment is reviewed de novo.” Syllabus point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). 2. “ ‘ “A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to b......
  • Shaffer v. Acme Limestone Co., Inc., No. 26114.
    • United States
    • Supreme Court of West Virginia
    • December 3, 1999
    ...now appeals. II. STANDARD OF REVIEW "A circuit court's entry of summary judgment is reviewed de novo ." Syl. pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). This Court has made clear that "[a] motion for summary judgment should be granted only when it is clear that there is n......
  • Request a trial to view additional results

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