Little v. Air Force Village Foundation, Inc.

• Decision Date: 27 February 1998
• Docket Number: No. 04-96-00393-CV,04-96-00393-CV
• Citation: 974 S.W.2d 88
• Parties: Ann Acheson LITTLE, Independent Executrix of the Estate of Virginia Harmon Acheson, Deceased, Appellant, v. AIR FORCE VILLAGE FOUNDATION, INC., Appellee.
• Court: Texas Court of Appeals

Page 88

974 S.W.2d 88

Ann Acheson LITTLE, Independent Executrix of the Estate of Virginia Harmon Acheson, Deceased, Appellant, v. AIR FORCE VILLAGE FOUNDATION, INC., Appellee.

No. 04-96-00393-CV.

Court of Appeals of Texas,

San Antonio.

Feb. 27, 1998.

Rehearing Overruled April 21, 1998.

Marsha Lynn Montgomery, James E. Davis, Novakov, Davidson & Flynn, P.C., Dallas, for appellant.

Samuel H. Bayless, A.W. Worthy, Gresham, Davis, Gregory, Worthy & Moore, P.C., San Antonio, for appellee.

Before RICKHOFF, GREEN and JOHN G. HILL, ¹ JJ.

OPINION

JOHN G. HILL, Justice (Assigned).

Ann Acheson Little, Independent Executrix for the estate of Virginia Harmon Acheson, deceased, appeals from a summary judgment in favor of Air Force Village Foundation, Inc., in the amount of $5099.00 plus interest and attorney's fees. She asserts in two points of error that the trial court erred in granting summary judgment in favor of Air Force Village, allowing it to recover its charges for the nursing home care of Mrs. Acheson based on a contract between Air Force Village and General and Mrs. Acheson because there is a genuine issue of material fact as to the meaning of the contract and because there is a genuine issue of material fact with respect to the estate's defense of fraudulent inducement. Air Force Village urges in two cross points of error that the trial court erred in granting the estate's motion for summary judgment, denying Air Force Village recovery for nursing charges incurred by General Acheson, and the reasonable attorney's fees necessary to recover them.

We reverse the judgment and remand for further proceedings because: (1) the trial court erred in granting summary judgment for Air Force Village for nursing home charges charged when Mrs. Acheson received nursing home care at the facility, because the contract between Air Force Village and the Achesons is ambiguous as to whether such charges are due and therefore Air Force Village failed to establish as a matter of law that the charges were owed; and (2) the trial court erred in granting summary judgment that Air Force Village take nothing with respect to nursing home charges charged when General Acheson received nursing home care at the facility, because its claim was not barred by prior litigation, since the claim had not accrued at the time of the prior litigation and was therefore not a compulsory counterclaim.

The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law; in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true; and every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor. Nixon v. Mr. Property Management, 690 S.W.2d 546, 548-49 (Tex.1985).

The Achesons became residents of Air Force Village on June 16, 1981. Their relationship with the village is governed by a contract entered into on July 3, 1981. As part of that contract the Achesons contracted to pay, for the privileges of the use and occupancy of a type "L" unit, a "Founder's Gift" of $43,548.00. The contract provided that upon payment by the Achesons of the "Founder's Gift" that Air Force Village, subject to the provisions of the contract, agrees to furnish them, among other things, nursing care in the Air Force Village's nursing home when required for minor injuries and illnesses of short duration for as long as they occupy a unit and general care, including nursing care, in the nursing home when they become permanently physically incapacitated and cannot sustain himself or herself in their residential unit, assuming that the care required is within the professional capabilities of the Air Force Village's nursing home and its staff.

The only financial obligation mentioned in the contract, other than payment of the "Founder's Gift," is a monthly service charge that, according to the contract, is set for the type of unit that the resident actually occupies. The contract also provides that the charge is to be in an amount fixed by Air Force Village and is to be the same as that fixed for similar type units in Air Force Village, based upon the cost of operation of Air Force Village. The contract allowed for adjustments in the monthly fees when warranted. In the case of the Achesons, the contract provided that their unit was a type "L." The contract also noted that Air Force Village bore no responsibility for furnishing or paying for any medical care outside of its facility.

When General Acheson began receiving care in the nursing home, Air Force Village charged an additional amount above what had been the monthly service charge for his care in the nursing home and charged it to the Achesons. While they at first paid the additional amount, the Achesons later contested payment of the additional amount. They consistently paid the regular monthly service charge for their unit, but did not pay the additional charge for the nursing home care. Later, after General Acheson's death, Mrs. Acheson required nursing home care. Again, she paid her regular monthly service charge but did not pay additional amounts added by Air Force Village for her nursing home care.

In a case involving Air Force Village and other parties, but the same contract, this court, in an unpublished opinion, reversed a trial court ruling that the contract did not provide for the charges sought by Air Force Village, holding that the contract in question is ambiguous with respect to such charges. In subsequent litigation between those other parties, Mrs. Acheson and others intervened, requesting reformation of the contract based upon fraud and, alternatively, seeking declaratory relief that Air Force Village is not entitled to the additional fee based upon the contract as it exists. Following a jury trial, the trial court awarded judgment in favor of Mrs. Acheson and others involved in the lawsuit. On appeal, this court reversed and rendered that Mrs. Acheson and others take nothing because their claims for reformation and declaratory judgment were barred by the statute of limitations.

This is a suit for debt based upon a contract. One would consider it quite basic that in order to recover one would have to make a showing to the court that the defendant owed the plaintiff money under the terms of the contract. Assuming that is so, in order to be entitled to summary judgment on such a claim, one must establish, as a matter of law, that the defendant owes the plaintiff money under the contract. Air Force Village, in its motion for summary judgment, only alleges that it charged for the nursing home services and that the Achesons did not pay for most of them, not alleging that as a matter of law it was entitled to make such charges under the terms of the contract. Rather, it sets out the facts concerning the other litigation to which we have referred, including reference to the fact that every court that has considered the issue has either held that the contract is unambiguous and that under the contract the residents are not required to pay such additional nursing home charges or, as in the case of this court, that the contract is ambiguous as to whether Air Force Village might require such payments. Air Force Village is not entitled to summary judgment upon a debt governed by a contract where that contract is ambiguous because there is a genuine issue of material fact as to whether the Achesons, under this contract, ever owed Air Force Village any of the charges it now seeks to collect. See Chapa v. Benavides Mill & Gin Co., 420 S.W.2d 464, 467 (Tex.Civ.App.--San Antonio 1967, writ ref'd n.r.e.) (holding that where, as here, there is a question relating to the true meaning of an ambiguous instrument, summary judgment is improper).

Air Force Village asserts in its motion for summary judgment and in this appeal that it is entitled to summary judgment because the Acheson estate may not, based upon the doctrines of res judicata and collateral estoppel, make any assertion to the contrary. Air Force Village bases this assertion upon the results of the litigation in the other cases to which we have referred. The other litigation established that this contract is ambiguous concerning the issue as to whether the estate owes anything to Air Force Village for additional nursing home charges. It also established that the statute of limitations had run with respect to any effort to either reform this contract due to fraud or to seek declaratory judgment as to whether Air Force Village was authorized under the contract to make such charges. In the prior cases to which we have referred, the trial court each time resolved this issue on its merits in favor of the residents involved...