                                                                                        11/20/2019
                   IN THE COURT OF APPEALS OF TENNESSEE
                              AT KNOXVILLE
                                      August 21, 2019 Session

              ANTHONY ARRINGTON v. BARBARA BRYANT ET AL.

                      Appeal from the Circuit Court for Greene County
                     No. 2017-CV-426 Douglas T. Jenkins, Chancellor1


                                    No. E2018-02165-COA-R3-CV


This case involves a dispute between siblings, named as co-executors of their mother’s
estate. Anthony Arrington (plaintiff) brought this action against his sister Barbara
Bryant, alleging she engaged in “self-dealing, fraud, theft, and conversion” of the assets
of their late mother, Nuffie Arrington (decedent). Ms. Bryant responded by alleging that
the parties had mediated their dispute and entered into a settlement agreement disposing
of all issues between them. She presented the settlement agreement and two checks she
wrote to plaintiff in accordance with the agreement. The plaintiff had cashed the checks.
Ms. Bryant asserted the defense of accord and satisfaction. Plaintiff admitted entering
into the agreement, but argued that it should be rescinded because of fraudulent
inducement and concealment. Ms. Bryant died while the action was pending in the trial
court. Her children, Rachel Bryant Ramsey and Nathan Bryant (defendants) were
substituted for her. The trial court granted summary judgment for defendants, finding the
settlement agreement valid and enforceable. We affirm the trial court’s judgment.

          Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                               Affirmed; Case Remanded

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and JOHN W. MCCLARTY, J., joined.

William S. Nunnally, Greeneville, Tennessee, for the appellant, Anthony Arrington.

Douglas L. Payne, Greeneville, Tennessee, for the appellee, Rachel Bryant Ramsey.

Thomas C. Jessee, Johnson City, Tennessee, and Corey Shipley, Greeneville, Tennessee,
for the appellee, Nathan Bryant.
      1
          Sitting by interchange.
                                                -1-
                                       OPINION

                                            I.

        Plaintiff’s complaint alleges, in pertinent part, as follows. Decedent died testate
on May 1, 2015. Her will was admitted to probate; plaintiff and Ms. Bryant were named
co-executors. The will devised the estate in equal portions to plaintiff and Ms. Bryant.
On March 24, 2016, Ms. Bryant opened an estate account in her name only. She did not
tell plaintiff that the estate account was opened only in her name. According to the
complaint, Ms. Bryant “withdrew from the account various sums of money to effect
repairs on the vacant residence of the decedent and/or for her personal benefit.” There
was a savings account containing the decedent’s funds at First Tennessee Bank. The
account jointly bore the names of decedent, plaintiff, and Ms. Bryant. Ms. Bryant alleged
that there had been improper expenditures from the savings account, On the day before
decedent’s death, Ms. Bryant withdrew the entire balance.

        Decedent also had a checking account at First Tennessee. Unbeknownst to
plaintiff, on October 25, 2011, Ms. Bryant had her name placed on the checking account.
Thereafter, Ms. Bryant “used the account for her personal benefit on many occasions”
and “engaged in over 400 known acts of self-dealing, fraud, theft and conversion to the
detriment of her mother and the plaintiff.”

       The complaint further states that “on May 2, 2017, prior to . . . any lawsuit being
filed, Plaintiff and [Ms. Bryant] attempted mediation and executed a Settlement and
Mediation Agreement.” Plaintiff alleges that he “was denied information about the
savings checking and estate accounts of the decedent at the time of the mediation.”
Plaintiff, asserting that the settlement agreement should be rescinded, alleges that Ms.
Bryant “intentionally concealed from him material facts” and “induced him to enter into
an agreement without knowledge of those facts, which he would not have entered into
had he had full knowledge of the concealed facts.”

       Ms. Bryant responded by filing a “motion to dismiss, or, in the alternative, motion
for summary judgment,” stating, in pertinent part, as follows:

             Through the mediation process the parties reached and
             executed a Settlement and Mediation Agreement to settle all
             issues between them including, but not limited to, the division
             of the . . . Estate assets, the division of remaining estate
             expenses, and all issues related to [Ms. Bryant’s] actions,

                                            -2-
             both as Co-Executor of the estate and as custodian of any
             funds belonging to [decedent] prior to her death. . . .

             In addition to monetary consideration which was promptly
             paid by [Ms. Bryant] and accepted by Plaintiff pursuant to the
             Agreement, each party fully released the other from any and
             all claims in relation to [decedent] and her estate.


                                         *         *    *


             The Settlement and Mediation Agreement between the parties
             constitutes a binding contract for which good and valuable
             consideration passed, and it further constitutes an accord and
             satisfaction of all claims of Plaintiff against [Ms. Bryant]
             including those alleged in the Complaint filed herein.

(Emphasis in original; paragraph numbering in original omitted).

      In support of her motion, Ms. Bryant filed her affidavit, wherein she stated that
she was required to pay plaintiff $5,000 plus the remaining balance of the estate account,
$3,913.53, under the terms of the settlement agreement. She provided copies of two
checks in those amounts that she had tendered to plaintiff and that he cashed.

      Plaintiff responded with his own affidavit, stating:

             [Ms. Bryant] has actively concealed from me necessary and
             vital factual information, and committed fraud upon my
             mother in her lifetime and upon me following her death. I
             want the agreement to be set aside.

             With respect to the $5,000.00 she paid to me, I am willing to
             return it or pay it into the Court, but it can also be used as an
             offset for future defined damages.

      The trial court entered an order dismissing the action, finding and holding as
follows:

             The parties reached a settlement agreement at the mediation
             and their agreement was immediately reduced to a writing
                                             -3-
             entitled Settlement and Mediation Agreement which was then
             and there executed by the parties.

             The Settlement and Mediation Agreement provided, in
             pertinent part, that the parties ... “are in dispute over certain
             accounts of the Estate and of [decedent] prior to her death ...”
             The Agreement further contained a full and mutual release
             between the parties.        The Plaintiff, Anthony “Tony”
             Arrington, specifically released the Defendant, Barbara A.
             Bryant, “of any and all issues arising from the Estate, her
             actions as an executor for the Estate, her actions as a
             custodian of funds of the Estate and belonging to [decedent]
             prior to [decedent’s] death, any and all claims he now has, or
             may have, against Barbara in relation to [decedent], the
             Estate...”

             In executing the Settlement and Mediation Agreement, the
             parties each acknowledged adequate consideration, and the
             monetary consideration required under the Agreement was
             timely paid by [Ms. Bryant] and received by Plaintiff.

             The issues raised by Plaintiff in this action, all of which relate
             to expenditures by [Ms. Bryant] from the accounts of
             [decedent] before she died as well as from the Estate account,
             were in dispute and were addressed and negotiated by the
             parties at mediation as evidenced by the Settlement and
             Mediation Agreement.

(Ellipses in original; numbering in original omitted.) The trial court held the settlement
agreement to be valid and binding on the parties.

        Plaintiff filed a motion to alter or amend, arguing that the motion to dismiss
should not have been granted. He pointed out that defendants had neither filed a concise
statement of material facts as required by Tenn. R. Civ. P. 56.03, nor responded to his
discovery requests filed with the complaint. Following a hearing, the trial court entered
its final judgment, stating:

             the motion to alter and amend is GRANTED to the limited
             extent that the order of dismissal should be amended to reflect
             that the court treated the Defendants’ motion as one for
             summary judgment and not as a Rule 12 dismissal for failure
                                            -4-
              to state a claim; however, the court finds no other error and
              the motion is, respectfully DENIED in all other respects[.]

(Capitalization in original.) Plaintiff timely filed a notice of appeal.

                                                II.

        The issue presented by plaintiff, as quoted from his brief, is: “Did the trial court
err in granting a Rule 56 motion for summary judgment and not allowing the plaintiff to
engage in discovery and without there being a concise statement of material facts
submitted by the movant?”

                                                III.

      Our standard of review of a grant of summary judgment is as stated by the
Supreme Court:

              Summary judgment is appropriate when “the pleadings,
              depositions, answers to interrogatories, and admissions on
              file, together with the affidavits, if any, show that there is no
              genuine issue as to any material fact and that the moving
              party is entitled to a judgment as a matter of law.” Tenn. R.
              Civ. P. 56.04. We review a trial court’s ruling on a motion
              for summary judgment de novo, without a presumption of
              correctness.


                                     *      *          *


              [I]n Tennessee, as in the federal system, when the moving
              party does not bear the burden of proof at trial, the moving
              party may satisfy its burden of production either (1) by
              affirmatively negating an essential element of the nonmoving
              party’s claim or (2) by demonstrating that the nonmoving
              party’s evidence at the summary judgment stage is
              insufficient to establish the nonmoving party’s claim or
              defense. . . . The nonmoving party must demonstrate the
              existence of specific facts in the record which could lead a
              rational trier of fact to find in favor of the nonmoving party.

                                                -5-
Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250, 264-65 (Tenn.
2015) (italics in original).

      In making the determination of whether summary judgment was correctly granted,

             [w]e must view all of the evidence in the light most favorable
             to the nonmoving party and resolve all factual inferences in
             the nonmoving party’s favor. Martin v. Norfolk S. Ry. Co.,
             271 S.W.3d 76, 84 (Tenn. 2008); Luther v. Compton, 5
             S.W.3d 635, 639 (Tenn. 1999); Muhlheim v. Knox Cnty. Bd.
             of Educ., 2 S.W.3d 927, 929 (Tenn. 1999). If the undisputed
             facts support only one conclusion, then the court’s summary
             judgment will be upheld because the moving party was
             entitled to judgment as a matter of law. See White v.
             Lawrence, 975 S.W.2d 525, 529 (Tenn. 1998); McCall v.
             Wilder, 913 S.W.2d 150, 153 (Tenn. 1995).

Weinert v. City of Sevierville, Tenn., No. E2018-00479-COA-R3-CV, 2019 WL 319892,
at *4 (Tenn. Ct. App., filed Jan. 23, 2019) (quoting Wells Fargo Bank, N.A. v. Lockett,
No. E2013-02186-COA-R3-CV, 2014 WL 1673745 at *2 (Tenn. Ct. App., filed Apr. 24,
2014)).

                                           IV.

                                           A.

      Tenn. R. Civ. P. 56.03 provides as follows:

             In order to assist the Court in ascertaining whether there are
             any material facts in dispute, any motion for summary
             judgment made pursuant to Rule 56 of the Tennessee Rules of
             Civil Procedure shall be accompanied by a separate concise
             statement of the material facts as to which the moving party
             contends there is no genuine issue for trial. Each fact shall be
             set forth in a separate, numbered paragraph. Each fact shall
             be supported by a specific citation to the record.

The general rule regarding compliance with Rule 56.03 has long been that “a trial court,
acting within its discretion, may waive the requirements of the rule in an appropriate
situation.” Owens v. Bristol Motor Speedway, Inc., 77 S.W.3d 771, 774 (Tenn. Ct. App.
2001); Deutsche Bank Nat’l Trust Co. v. Lee, No. M2018-01479-COA-R3-CV, 2019
                                           -6-
WL 2482423, at *3 (Tenn. Ct. App., filed June 13, 2019); Cox v. Tenn. Farmers Mut.
Ins. Co., 297 S.W.3d 237, 244 (Tenn. Ct. App. 2009).

       This Court has stated the following about how a trial court should exercise this
discretion:

             Although a trial court may waive the requirements of Rule
             56.03 in an appropriate case, we caution trial courts that the
             nonmoving party in a summary judgment proceeding should
             be sufficiently apprised of the moving party’s asserted basis
             for summary judgment. If the moving party contends that a
             particular fact is material to the entry of summary judgment
             in his or her favor, the nonmoving party should not be
             deprived of the opportunity to show that there is a genuine
             issue as to the existence of that fact.

Bobo v. City of Jackson, 511 S.W.3d 14, 22 (Tenn. Ct. App. 2015) (internal citation
omitted).

       Cases involving the movant’s failure to file a statement of undisputed material
facts are relatively rare; more often, the issue presented is the failure of the non-moving
party to adequately respond to such a statement. See, e.g., Owens, 77 S.W.3d at 774-75;
Mise v. Methodist Med. Ctr. of Oak Ridge, No. E2011-01325-COA-R3-CV, 2012 WL
1392358, at *8, *15 (Tenn. Ct. App., filed Apr. 23, 2012); Bobo, 511 S.W.3d at 22.
Nevertheless, this Court has addressed a situation similar to the present case on several
occasions. In Newell v. Maitland, No. W2007-01704-COA-R3-CV, 2008 WL 2122331,
at *8 (Tenn. Ct. App., filed May 21, 2008), we found “no abuse of discretion in the trial
court’s decision to grant summary judgment without the benefit of a statement of
undisputed facts,” stating:

             Plaintiff’s sole argument as to why summary judgment was
             improper is that Deputy Maitland’s motion for summary
             judgment was not accompanied by a statement of undisputed
             material facts. Our Supreme Court recently emphasized “the
             importance of attorneys using Rule 56.03 statements of
             material facts to their fullest,” explaining that trial courts and
             appellate courts should not be required to sift through the
             record to find any information that is essential to a summary
             judgment decision. Bennett v. Trevecca Nazarene Univ.,
             216 S.W.3d 293, 299, n. 4 (Tenn. 2007). However, a trial

                                            -7-
              court, acting within its discretion, may waive              the
              requirements of the rule in an appropriate situation.

Id. (footnote omitted).

       In Chambers v. First Volunteer Bank of Tenn., No. E2011-00020-COA-R3-CV,
2011 WL 3241836, at *5 (Tenn. Ct. App., filed July 29, 2011), we were again presented
with a case in a similar procedural posture, and affirmed the trial court’s dismissal,
stating simply as follows:

              This case represents a procedural anomaly of sorts in that we
              must treat the Bank’s motion to dismiss as a motion for
              summary judgment, yet no statement of undisputed material
              facts ever was filed. We, therefore, have reviewed the record
              and determined the material facts that are uncontested by
              either party.

The Newell and Chambers decisions establish that although it is, and should be, rarely
done, a trial court’s decision to grant summary judgment without the benefit of a
statement of undisputed material facts filed by the movant is within the court’s discretion.

       The same is true regarding the trial court’s decision to limit discovery. As a
general matter, “[i]t is well settled that decisions with regard to pre-trial discovery
matters rest within the sound discretion of the trial court.” Benton v. Snyder, 825 S.W.2d
409, 416 (Tenn. 1992). “Because decisions regarding pretrial discovery are inherently
discretionary, they are reviewed using the ‘abuse of discretion’ standard of review.” Lee
Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010). A similar argument was
recently raised by a non-moving party on review of a grant of summary judgment in
Ismoilov v. Sears Holdings Corp., No. M2017-00897-COA-R3-CV, 2018 WL 1956491,
at *13 (Tenn. Ct. App., filed Apr. 25, 2018), wherein this Court stated:

              Because the limited warranty formed the basis for the trial
              court’s grant of summary judgment in favor of SRC, any
              additional discovery regarding consequential damages and the
              like was unnecessary. See, e.g., Rentea v. Rose, No. M2006–
              02076–COA–R3–CV, 2008 WL 1850911, at *7 (Tenn. Ct.
              App. Apr. 25, 2008) (noting that trial courts have wide
              discretion in discovery matters and finding no error in the
              trial court’s decision to stay additional discovery pending
              determination of summary judgment when the “relevant facts
              were known to the parties.”); Burton v. Hardwood Pallets,
                                            -8-
                 Inc., No. E2001–00547–COA–R3–CV, 2001 WL 1589162, at
                 *6 (Tenn. Ct. App. Dec. 13, 2001) (“[N]o amount of
                 discovery would have changed the subordination agreement
                 and the other relevant facts implicated by the [plaintiffs’]
                 claims, none of which facts are really in dispute.”). In the
                 case at bar, Mr. Ismoilov has failed to show that additional
                 discovery would have had any bearing on the summary
                 judgment determination in this case.

As in Ismoilov and Burton, the trial court in this case had before it the determinative and
undisputed facts in this case. They are contained primarily in plaintiff’s affidavit, which
we will examine at length in the following discussion. As the non-movant’s own sworn
attestations, no amount of discovery would have changed them.

                                                        B.

      The settlement agreement was drafted by plaintiff’s attorney at the time of the
mediation.2 It provides in pertinent part as follows:

                 WHEREAS, [Plaintiff and Ms. Bryant] are in dispute over
                 certain expenditures from accounts of the Estate of Nuffie
                 Arrington prior to her death as well as the ownership and
                 management of the property located at 6565 Houston Valley
                 Rd., Greeneville, TN 37743;

                 WHEREAS, the parties have participated in mediation with
                 the Honorable Thomas Seeley (the “Mediator”) on May 2,
                 2017 and have between them made this Agreement.


                                           *        *        *


                 The parties recognize that the Last Will and Testament of
                 Nuffie Arrington is currently under probate administration in
                 Greene County, Tennessee with [plaintiff and Ms. Bryant]
                 appointed as co-executors. . . . They recognize that under said
                 Last Will and Testament, they are to divide all assets of the
        2
           As plaintiff informed the trial court and states in his appellate brief, subsequently “[a] legal
malpractice action [was] filed on behalf of the [p]laintiff against his previous attorney . . . for his failure to
effectively and properly represent him,” and plaintiff retained new counsel.
                                                     -9-
Estate between them equally. The parties recognize that the
remaining assets of the estate include a bank account at First
Tennessee . . . , some personal property of Nuffie Arrington,
and the real estate located at 6565 Houston Valley Rd.,
Greeneville, TN.


                     *      *          *


The parties agree that the remainder of the Estate account will
be distributed to [plaintiff] and in addition, [Ms. Bryant] will
pay $5000 to [plaintiff]. Payment to be made no later than
May 12, 2017 to counsel for [plaintiff].


                     *      *          *


All parties agree that the consideration received by each is
adequate and in full satisfaction of any and all other rights
they may otherwise have had in the assets distributed under
the Agreement and against each other for all claims related
to Nuffie Arrington whether resulting from the Estate or
otherwise. More specifically:

[Plaintiff] releases [Ms. Bryant] of any and all issues arising
from the Estate, her actions as an executor for the Estate, her
actions as a custodian of funds of the Estate and belonging to
Nuffie Arrington prior to Nuffie Arrington’s death, any and
all claims he now has, or may have, against [Ms. Bryant] in
relation to Nuffie Arrington, the Estate, and the property
located at 6565 Houston Valley Rd., Greeneville, TN and this
shall be binding upon [plaintiff’s] successors, heirs, and
assigns.


                     *      *          *




                                -10-
             The parties expressly acknowledge that each of them has read
             this Agreement; the terms of the Agreement, and that the
             significance and effect of this Agreement have been
             explained to each of them by their respective attorneys.

(Emphasis added; paragraph numbering in original omitted.)

       Defendants rely on this settlement agreement, arguing that plaintiff and Ms.
Bryant fully settled all of the disputes between them. Plaintiff argued that Ms. Bryant
defrauded him and that the agreement should be rescinded. He relied primarily on his
affidavit, in which he attested to the following:

             On July 22, 2011, [decedent] executed a [d]urable [p]ower of
             [a]ttorney with healthcare provisions naming Barbara A.
             Bryant and [plaintiff], as the holders of a [p]ower of
             [a]ttorney with a provision that we were to act solely by joint
             action or both of us was required for any act performed
             pursuant to the [p]ower of [a]ttorney.

             Without telling me, [Ms. Bryant] had her name added to our
             mother’s checking account on October 25, 2011, without my
             participation. I was not aware of this action. She did not add
             my name to the checking account.

             [Ms. Bryant] never shared with me the banking records
             concerning this account.


                                 *      *          *


             Up through and including the time of my mother’s death,
             [Ms. Bryant] provided no information to me about the
             checking account or deposits, expenditures, or any other
             information.

             After my mother’s death, I asked [Ms. Bryant] for
             information about the checking account and she told me on
             several occasions she would provide records and information
             for me, but she never did.

                                            -11-
Before the mediation ... I had obtained none of the checking
records. I knew nothing of its contents. Prior to the
mediation, [Ms. Bryant] told me that I was not going to be
allowed to know anything about it. It was not discussed at the
mediation.

Before the mediation, I requested First Tennessee Bank to
provide copies of checking records, but I was told they could
not do so because my name was not on the checking account.

At the time of the mediation, I knew of no wrongdoing
relating to the checking account.

At the time of the mediation, I did know that [Ms. Bryant]
purchased a prepaid funeral at the Kiser-Rose Funeral Home
for $20.000.00.

She had me go to the funeral home to do this but it did not
seem right. It sounded like fraud. I refused to participate
because I knew mother already had prepaid for her funeral.
After my mother’s death, the funeral home refunded [Ms.
Bryant] the money and later she emptied the savings account
of over $14.000.00. That was half my money.

The savings account was only briefly discussed at the
mediation. My attorney and/or his assistant had advised
before the mediation that there was nothing left in the account
[and] there was nothing I could do about it. The sole focus at
mediation was on the Estate account, not the savings account
or checking account.


                     *      *          *


When [Ms. Bryant] and I were appointed Co-Executors, she
opened an estate account, but placed only her name on the
account. She was the only one who had signatory power to
write checks. During the administration of the Estate, she did
not disclose to me her activities on the account, and I had no
access to the account. At the time of the mediation, I did not
                                -12-
                know the details of what she had done and her actions on the
                account.

                I retained William S. Nunnally to represent me in the Order
                of Protection matters.3 When I told him what had gone on, he
                was quickly able to convince the First Tennessee Bank that I
                was entitled to all of the checking records because I was the
                Co-Executor of the Estate.

                After the mediation was concluded and I retained Mr.
                Nunnally, I obtained copies of the checking account records
                from the First Tennessee Bank.

                Those records disclose that on approximately 450 occasions,
                [Ms. Bryant] engaged in transactions that were either self-
                dealing, self-enrichment, or gifts to her son, daughter-in-law,
                or grandchild.

                From my review of those checking records, it appears that she
                enriched herself from my mother’s proceeds in the amount of
                $71,314.47 before my mother died.         Of that amount,
                $2,578.14 was the net balance in the checking account at the
                time of her death.


                                         *       *       *


                Vital information was withheld from me by [Ms. Bryant] and
                concealed from me at all relevant times until I gathered the
                information in the summer of 2017 after retaining new
                counsel.

                I would never have entered into a mediation agreement on the
                terms contained therein if I had known of her wrongful
                behavior in violation of fiduciary duties to me and to our
                mother. I did not know then what I know now. She tried to
                conceal the fraud from me. I was induced by the fraud to
                enter into a very unfair agreement.
        3
          Plaintiff alleged in his complaint that Ms. Bryant had improperly taken out several orders of
protection against him.
                                                     -13-
(Footnote added; paragraph numbering in original omitted.)

       In support of his fraudulent inducement claim, plaintiff cites Lamb v. MegaFlight,
Inc., 26 S.W.3d 627, 630 (Tenn. Ct. App. 2000), wherein we observed that

             The five elements of an action for fraudulent inducement to
             contract are: (1) a false statement concerning a fact material
             to the transaction; (2) knowledge of the statement’s falsity or
             utter disregard for its truth; (3) intent to induce reliance on the
             statement; (4) reliance under circumstances manifesting a
             reasonable right to rely on the statement; (5) an injury
             resulting from the reliance.

In this case, accepting all of plaintiff’s allegations as true and allowing all reasonable
inferences in his favor, his fraudulent inducement claim fails because he has not alleged
or established the first element: “a false statement concerning a fact material to the
transaction.” Id. Regarding this element, we have recently stated,

             “Tennessee’s courts have declined to confine the concept of
             fraud to a ‘hidebound definition’ because fraudulent conduct
             assumes a variety of forms.” Keith v. Murfreesboro
             Livestock Market, Inc., 780 S.W.2d 751, 754 (Tenn. Ct. App.
             1989) (citing New York Life Ins. Co. v. Nashville Trust Co.,
             292 S.W.2d 749, 754 (Tenn. 1956)) (footnote omitted). At a
             minimum, the false statement element of a fraudulent
             inducement claim “must embody a promise of future action
             without the present intention to carry out the promise.”
             Keith, 292 S.W.2d at 754 (citing Brungard v. Caprice
             Records, Inc., 608 S.W.2d 585, 590 (Tenn. Ct. App. 1980)).
             The broad range and flexible scope of fraud thus requires
             “that each case be considered on its particular facts.” Keith,
             292 S.W.2d at 754. As a result of this attention to the
             contours and nuances of each individual claim, “it is rare for
             summary judgment to be appropriate when considering an
             issue of fraud.” Efird v. Clinic of Plastic and Reconstructive
             Surgery, P.A., 147 S.W.3d 208, 222 (Tenn. Ct. App. 2003).

Tullahoma Indus., LLC v. Navajo Air, LLC, No. M2017-00109-COA-R3-CV, 2018 WL
3752305, at *7 (Tenn. Ct. App., filed Aug. 7, 2018). Plaintiff did not allege that Ms.
Bryant induced him to enter into the settlement agreement by either making a false
                                            -14-
statement, or a promise of future action without the present intention to carry out the
promise.

       Plaintiff also asserted a fraudulent concealment claim. In Tennessee, “a party may
be held liable for damages caused by his failure to disclose material facts to the same
extent that a party may be liable for damages caused by fraudulent or negligent
misrepresentations.” Patel v. Bayliff, 121 S.W.3d 347, 352-53 (Tenn. Ct. App. 2003);
see also Robert J. Denley Co. v. Neal Smith Constr. Co., No. M2006-00629-COA-R3-
CV, 2007 WL 1153121, at *6 (Tenn. Ct. App., filed Apr. 19, 2007) (“Concealment or
non-disclosure of facts may also constitute fraud, if the party charged with fraud had
knowledge of an existing fact or condition and a duty to disclose the fact or condition.”).
As reiterated in Fulmer v. Follis, No. W2017-02469-COA-R3-CV, 2018 WL 6721248,
at *5 (Tenn. Ct. App., filed Dec. 20, 2018):

              “A party commits fraudulent concealment for failing to
              disclose a known fact or condition where he had a duty to
              disclose and another party reasonably relies upon the
              resulting misrepresentation, thereby suffering injury.” Dixon
              v. Chrisco, No. M2018-00132-COA-R3-CV, 2018 WL
              4275535, at *4 (Tenn. Ct. App. Sept. 7, 2018) (quoting Odom
              v. Oliver, 310 S.W.3d 344, 349 (Tenn. Ct. App. 2009)
              (internal quotation marks omitted). In order to establish a
              fraudulent concealment claim, a party must show “(1) the
              defendant had knowledge of a material existing fact or
              condition, and that (2) the defendant had a duty to disclose
              the fact or condition.” Id. (quoting Pitz, 2004 WL 2951979, at
              *8). A fact is material where it is ‘ “of controlling importance
              in determining the desirability and value of the residence’ that
              would not be apparent to the buyer through the exercise of
              ordinary diligence.” Patel, 121 S.W.3d at 353 (quoting
              Simmons v. Evans, 206 S.W.2d 295, 296 (Tenn. 1947)).
              “[T]here is no duty to disclose a material fact or condition if it
              was apparent through ‘common observation’ or if it would
              have been discoverable through the exercise of ordinary
              diligence.” Pitz, 2004 WL 2951979, at *8 (citing Simmons,
              206 S.W.2d at 297).

      Many of the fraudulent concealment cases in Tennessee arise from allegations of
concealed defects in real property passing from seller to buyer. See Fulmer, 2018 WL
6721248, at *5 (reversing judgment against sellers where “while we agree that there was
concealment, there was also an opportunity to discover the fraud through the exercise of
                                             -15-
ordinary diligence and through available relevant information”); Dixon, 2018 WL
4275535, at *6 (affirming judgment against buyers because they “could have easily
discovered the extent of the right-of-way by either reading the deeds or obtaining a
survey”); Patel, 121 S.W.3d at 353 (reversing summary judgment for sellers because
“common observation and ordinary diligence did not furnish evidence of prior termite
infestation or treatment”); Pitz, 2004 WL 2951979, at *1 (affirming judgment for sellers
where “the purchasers’ reliance on [sellers’] representations was not reasonable because
of the “as is” provision in the contract and because the defects were either apparent or
readily discoverable”). In Golden v. Hood, the plaintiff sought rescission of a mediated
settlement agreement because of alleged fraud and duress; we stated as follows:

              Fundamental principles of contract law are applicable here.
              Recission of a contract “is not looked upon lightly” and “is
              available only under the most demanding circumstances.”
              Robinson v. Brooks, 577 S.W.2d 207 (Tenn. Ct. App. 1978).
              Further, the party seeking rescission bears the burden of
              proof. Williamson v. Upchurch, 768 S.W.2d 265 (Tenn. Ct.
              App. 1988).


                                   *      *          *


              Plaintiff’s allegations of “false assertions” fall within the
              nature of a claim of fraud or misrepresentation. “In order to
              constitute fraud or be ground of rescission, there must not
              only be a representation as to an existing fact but the
              representation must have been relied upon, and must have
              been so material that it determined the conduct of the party
              seeking relief.” Shores v. Spann, 557 S.W.2d 67, 72 (Tenn.
              Ct. App. 1977). . . . The record does not establish that such
              opinions, if made, were fraudulent, or that there was a
              material misrepresentation as to his likely recovery. Plaintiff
              freely signed the agreement with the advice of counsel.

No. E1999-02443-COA-R3-CV, 2000 WL 122195, at *2 (Tenn. Ct. App., filed Jan. 26,
2000).

       Turning to the undisputed facts in the present case, we are of the opinion that they
establish no duty to disclose on Ms. Bryant’s part because all of the material facts
allegedly concealed were either known or easily discoverable by plaintiff through the
                                              -16-
exercise of ordinary diligence. Before decedent’s death, plaintiff was the holder of a
durable power of attorney to conduct her affairs, the extent and precise contours of which
are not revealed by the record. Regarding the savings account at issue, plaintiff’s name
was on the account, as he had jointly opened it with decedent and Ms. Bryant. As co-
executor of the estate, plaintiff could easily have obtained access to the records of the
checking account at issue and the estate account opened by Ms. Bryant. His affidavit
establishes that after mediation, his second attorney “was quickly able to convince the
First Tennessee Bank that I was entitled to all of the checking records because I was the
Co-Executor of the Estate.” (Emphasis added). Furthermore, before signing the
settlement agreement, plaintiff knew that Ms. Bryant “purchased a prepaid funeral,”
which to him “did not seem right” and “sounded like fraud.” He attested that he “refused
to participate because I knew [decedent] already had prepaid for her funeral.”

        Despite this, plaintiff voluntarily signed the settlement agreement, drafted and
presented by his own attorney, which was stated to be “in full satisfaction of any and all
other rights they may otherwise have had in the assets distributed under the Agreement
and against each other for all claims related to [decedent] whether resulting from the
Estate or otherwise,” and which released Ms. Bryant “of any and all issues arising from
the Estate, her actions as an executor for the Estate, her actions as a custodian of funds of
the Estate and belonging to [decedent] prior to [her] death, any and all claims he now has,
or may have, against [Ms. Bryant] in relation to [decedent or] the Estate.” We affirm the
judgment of the trial court declining to rescind the settlement agreement on the ground of
plaintiff’s fraudulent concealment claim.

                                             C.

       There is another reason why the trial court’s judgment must be affirmed: the
doctrine of accord and satisfaction. As this Court has recently stated,

              An accord and satisfaction is a type of contract and is
              governed by the law of contracts. Cole v. Henderson, 61
              Tenn.App. 390, 413, 454 S.W.2d 374, 384 (1969). In Lytle v.
              Clopton, 149 Tenn. 655, 663–664, 261 S.W. 664, 666–667
              (1924), the Tennessee Supreme Court stated:

                     An accord 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 from tort, something other than or
                     different from what he is or considers himself
                                            -17-
      entitled to; and a satisfaction is the execution of
      such agreement.


                           *          *   *


      To constitute a valid accord and satisfaction it is
      also essential that what is given or agreed to be
      performed shall be offered as a satisfaction and
      extinction of the original demand; that the
      debtor shall intend it as a satisfaction of such
      obligation, and that such intention shall be
      made known to the creditor in some
      unmistakable manner. It is equally essential
      that the creditor shall have accepted it with the
      intention that it should operate as a satisfaction.
      Both the giving and the acceptance in
      satisfaction are essential elements, and if they
      be lacking there can be no accord and
      satisfaction. The intention of the parties, which
      is of course controlling, must be determined
      from all the circumstances attending the
      transaction.

(quoting 1 C.J. Accord and Satisfaction §§ 1 and 16 (1914)).
When a debtor clearly indicates that a check is offered upon a
condition of satisfaction of a debt, the creditor’s endorsement
and collection on the check generally operate as an accord
and satisfaction. E.g., Cole v. Henderson, 61 Tenn.App. 390,
454 S.W.2d 374 (1969), and Continental Insurance Co. v.
Weinstein, 37 Tenn.App. 596, 267 S.W.2d 521 (1953).

The party asserting the affirmative defense of accord and
satisfaction has the burden of proving the defense by a
preponderance of the evidence. Rhea v. Marko Construction
Co., 652 S.W.2d 332, 335 (Tenn.1983) and Inland
Equipment Co. v. Tennessee Foundry & Machine Co., 192
Tenn. 548, 552, 241 S.W.2d 564, 565 (1951).



                               -18-
In re Estate of Trent, No. E2015-00198-COA-R3-CV, 2016 WL 286415, at *8-9 (Tenn.
Ct. App., filed Jan. 25, 2016) (quoting R.J. Betterton Mgmt. Servs., Inc. v. Whittemore,
733 S.W.2d 880, 882 (Tenn. Ct. App. 1987)).

       The General Assembly has defined an accord and satisfaction by the use of an
instrument at Tenn. Code Ann. § 47-3-311 (2001), which provides, in pertinent part, as
follows:

             (a) If a person against whom a claim is asserted proves that (i)
             that person in good faith tendered an instrument to the
             claimant as full satisfaction of the claim, (ii) the amount of
             the claim was unliquidated or subject to a bona fide dispute,
             and (iii) the claimant obtained payment of the instrument, the
             following subsections apply.

             (b) Unless subsection (c) applies, the claim is discharged if
             the person against whom the claim is asserted proves that the
             instrument or an accompanying written communication
             contained a conspicuous statement to the effect that the
             instrument was tendered as full satisfaction of the claim.

             (c) Subject to subsection (d), a claim is not discharged under
             subsection (b) if either of the following applies:


                                  *      *          *


             (2) The claimant, whether or not an organization, proves that
             within ninety (90) days after payment of the instrument, the
             claimant tendered repayment of the amount of the instrument
             to the person against whom the claim is asserted. . . .

             (d) A claim is discharged if the person against whom the
             claim is asserted proves that within a reasonable time before
             collection of the instrument was initiated, the claimant . . .
             knew that the instrument was tendered in full satisfaction of
             the claim.

      In this case, Ms. Bryant produced copies of two checks written in the amounts of
$5,000 and $3,913.53. The settlement agreement required her to pay plaintiff $5,000 and
                                             -19-
“the remainder of the Estate account,” which she asserts was $3,913.53 and which
plaintiff does not dispute. The $5,000 check bears a notation saying “Settlement of
Arrington Estate.” Although it does not contain the word “full,” plaintiff has never
argued that he did not understand it to be Ms. Bryant’s intention that the two checks
tendered would be a full settlement. Plaintiff voluntarily cashed the two checks. In light
of the language agreed upon by the parties in their settlement agreement, which we have
already held to be valid, the requirement of subsection 47-3-311(d) quoted above, that
plaintiff “knew that the instrument was tendered in full satisfaction of the claim,” has
been met. Plaintiff did not tender repayment within 90 days, so subsection (c)(2) is not
applicable to potentially avoid discharge of the claim. Defendants successfully
established the defense of accord and satisfaction to plaintiff’s claims against Ms. Bryant.

                                            V.

        The judgment of the trial court is affirmed. Costs on appeal are assessed to the
appellant, Anthony Arrington. The case is remanded to the trial court for enforcement of
the trial court’s judgment and for collection of costs below.



                                          _______________________________
                                          CHARLES D. SUSANO, JR., JUDGE




                                            -20-
