THOMAS W. HUNTER,                        )
                                         )
      Plaintiff/Appellant,               )
                                         )   Appeal No.
                                         )   01-A-01-9701-CV-00024
VS.                                      )
                                         )   Sumner Circuit
                                         )   No. 14826-C
JAMES R. ANDERSON,                       )

      Defendant/Appellee.
                                         )
                                         )                     FILED
                                                                 June 18, 1997

                     COURT OF APPEALS OF TENNESSEE             Cecil W. Crowson
                       MIDDLE SECTION AT NASHVILLE            Appellate Court Clerk



APPEALED FROM THE CIRCUIT COURT OF SUMNER COUNTY
AT GALLATIN, TENNESSEE

THE HONORABLE THOMAS GOODALL, JUDGE




WILLIAM C. BARNES, JR.
13-14 Public Square
Post Office Box 552
Columbia, Tennessee 38402
      Attorney for Plaintiff/Appellant

C. L. ROGERS
ROGERS & MOORE
119 Court Square
Gallatin, Tennessee 37066
       Attorney for Defendant/Appellee




                             REVERSED AND REMANDED




                                             BEN H. CANTRELL, JUDGE


CONCUR:
TODD, P.J., M.S.
KOCH, J.
                                 OPINION


              The trial court granted the defendant a summary judgment on the basis

of accord and satisfaction. On appeal, the plaintiff claimed that there had been no

accord and satisfaction because he did not agree to finalize the settlement his

attorney worked out for him. We reverse the trial court, because there appear to be

questions of material fact as to whether the attorney had the authority to settle on

behalf of his client, and if he did not, as to whether the plaintiff himself accepted the

settlement before changing his mind.



                                           I.



              Thomas W. Hunter was injured when his car was struck from behind by

a car driven by James R. Anderson. Mr. Anderson’s insurance company paid Mr.

Hunter’s medical bills and initiated negotiations to settle the claim. Mr. Hunter’s

attorney agreed to a $2,500 settlement on behalf of his client, and the insurance

company executed a check for that amount. The check and release form were

presented to Mr. Hunter, but he refused to sign the release, and he subsequently filed

suit against Mr. Anderson.



              The defendant answered, claiming that the plaintiff had accepted the

settlement offer, thus creating an enforceable contract despite his subsequent refusal

to put his signature on the agreement. The defendant then filed a Motion for

Summary Judgment, asking the court to dismiss the plaintiff’s action on the basis of

the affirmative defense of accord and satisfaction, or in the alternative to compel the

plaintiff to return the money. No supporting affidavit was attached to the motion.




                                          -2-
               The plaintiff’s attorney filed a response to the motion on March 13, 1996,

to which he attached his own affidavit, which reads as follows:

                                      AFFIDAVIT

                      After being duly sworn William C. Barnes, Jr. disposes
               (sic) and states as follows:

                       1.     I am a licensed attorney in the State of
               Tennessee.
                       2.     I am representing the plaintiff in the above
               reference (sic) matter.
                       3.     Settlement negotiations were carried on
               between myself and the Defendants.
                       4.     The Defendants paid seven hundred and twenty
               six dollars and ten cents ($726.10) towards the medical’s (sic)
               prior to any negotiations.
                       5.     The Defendants forwarded an offer of two
               thousand five hundred dollars ($2,500) in settlement of claim.
               Said offer was rejected and funds were returned.

                      Further affiant saith not.




               After a hearing, the trial court granted the defendant’s motion, holding

that he “is entitled to a judgment of dismissal as a matter of law based upon accord

and satisfaction or contract of settlement.” No transcript was made of the hearing, but

the record includes a Statement of the Evidence, which was authenticated by the

judge. It reads in its entirety:

                                   STATEMENT OF EVIDENCE

                      Pursuant to T.R.A.P. 24(d), the following Statement of
               the Evidence is hereby submitted by Appellee:

                       1.    At the hearing on March 22, 1996 for Summary
               Judgment, Counsel for Plaintiff orally stated to the Court that
               Plaintiff had accepted the settlement agreement but then
               refused to endorse the check and release when presented,
               stating he had changed his mind.
                       2.    The settlement monies had not been returned
               to the Defendant as of March 22, 1996.

                      The foregoing is certified as an accurate account of
               the proceedings before the trial court on March 22, 1996, in
               addition to the record.




                                          -3-
                                           II.



              A party moving for summary judgment carries the burden of proving that

no genuine issue of material fact exists. In ruling on the motion, the trial court must

view the evidence in the light most favorable to the opponent of the motion, and must

deny the motion if, when viewed in that light, the record reveals any genuine issue of

material fact. Taylor v. Nashville Banner Publishing Co., 573 S.W.2d 476 (Tenn. App.

1978). No presumption of correctness attaches on appeal to a trial court’s action in

granting summary judgment, because it involves only questions of law. Gonzales v.

Alman Constuction Co., 857 S.W.2d 42 (Tenn. App. 1993); Roberts v. Roberts, 845

S.W.2d 225 (Tenn. App. 1992).



              In the present case, the moving party failed to submit any affidavits to

indicate that Mr. Barnes was authorized to accept an offer on behalf of his client. The

affidavit of Mr. Barnes implies that his agency extended only to communicating the

offer to his client, not to settling on his behalf. This appears to raise an issue of fact

that would be material unless it could be conclusively shown that Mr. Hunter himself

accepted the defendant’s offer.



              The Statement of the Evidence indicates that Mr. Barnes admitted that

his client accepted the offer when it was first presented to him, but we note that Mr.

Barnes did not sign the statement. His purported admission also raises the question

as to whom an acceptance must be communicated in order to bind the offeree. The

editors of Am. Jur. 2d state that “[m]utual assent which is essential to the formation

of a binding contract must be manifested by one party to the other.” 17A Am. Jur. 2d

Contracts § 28 (1991).



              There also appears to be a possible dispute as to whether the plaintiff

had returned the check that was given to him. Mr. Barnes’s affidavit states that “the

                                          -4-
funds were returned,” while the Statement of the Evidence reported that “the

settlement moneys had not been returned to the Defendant as of March 22, 1996.”

There is no indication in the Statement of the Evidence as to what evidence the court

relied upon to reach that conclusion.



             It is possible that the defendant could have proven that he was entitled

to a summary judgment if the facts had been more fully presented at this early stage

of the proceedings. But we are unable to affirm the trial court where so many

dispositive questions appear to be either disputed or unaddressed.



                                         III.



             We believe that the defendant failed to carry the burden that was

required in order for him to prevail on his Motion for Summary Judgment. The

judgment of the trial court is reversed. Remand this cause to the Circuit Court of

Sumner County for further proceedings consistent with this opinion. Tax the costs on

appeal to the appellee.



                                         _____________________________
                                         BEN H. CANTRELL, JUDGE

CONCUR:



_______________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION



_______________________________
WILLIAM C. KOCH, JR., JUDGE
