(Cite as: 2000 WL 300509 (Tex.App.-Beaumont))

NOTICE: NOT DESIGNATED FOR PUBLICATION. UNDER TEX.R.APP.P. 47.7 UNPUBLISHED OPINIONS MAY NOT BE CITED AS AUTHORITY.

Court of Appeals of Texas, Beaumont.

CONROE MEDICAL BUILDING ASSOCIATES and Anthony D. Weyland, Appellants,

v.

MONTGOMERY COUNTY HOSPITAL DISTRICT, Appellee.

No. 09-98-466-CV.

Submitted Dec. 16, 1999.

Delivered March 23, 2000.

On Appeal from the 284th District Court, Montgomery County, Texas, Trial Cause No. 96-04-01196-CV.

Before BURGESS, STOVER, and FARRIS, JJ.

OPINION

FARRIS. [FN1]

FN1. The Honorable David Farris, sitting by assignment pursuant to Tex.Gov't Code Ann. § 74.003(b) (Vernon 1998).

*1 This case requires us to interpret a lease agreement to which the appellants were the lessees and appellee the lessor. Appellants, Conroe Medical Building Associates and Anthony D. Weyland, appeal an adverse judgment raising five issues related to the trial court's disregard of jury findings in appellants' favor and the award of prejudgment interest and attorneys' fees to the appellee, Montgomery County Hospital District ("the District"). We hold the trial court properly disregarded jury findings supporting appellants' recovery because the relevant lease provisions were not ambiguous. We also hold that the trial court properly awarded the District attorneys' fees and damages as provided in the judgment. We modify the judgment to correct a patent conflict.

Appellants first complain that the trial court erred in disregarding the verdict and not entering judgment, in their favor, for breach of the lease agreement. Central to their argument is the assertion that two provisions of the agreement were ambiguous. We hold that neither provision was ambiguous.

A contract is not ambiguous if it is so worded that it can be given a certain or definite meaning. See Universal C.I.T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154, 157 (1951). If, after applying established rules of interpretation to a contract, it remains reasonably susceptible to more than one meaning, it is ambiguous. Id. But if only one reasonable meaning clearly emerges, it is not ambiguous. Id. In that event the contract will be enforced as written, and parol evidence will not be employed to create an ambiguity or to give the contract a meaning different from that its language imports. Id. If a contract can be construed to be either valid or invalid we must adopt the validating construction. See Harris v. Rowe, 593 S.W.2d 303, 306 (Tex.1979).

Appellants argue that section 2.01 of the lease agreement is ambiguous because it contained an undefined term "transactions contemplated herein," and both the lease itself and the circumstances under which it was entered show the term should be construed to include matters not expressed within the agreement. We conclude that the phrase is not ambiguous when considered in the context of the entire agreement. Rather, it expresses, in broad language, that the District was authorized to agree to all of the provisions contained within the lengthy agreement. Thus, we cannot go outside the agreement and consider those circumstances under which it was entered.

Appellants contend that section 7.01(a) is ambiguous because it provides the District agreed "not to change or agree to any change in such guidelines, design covenants[,] and master plans in any manner that would prohibit the use of the Leased Premises for office building purposes[,]" thereby creating both a patent and latent ambiguity. Appellants argue there is a patent ambiguity because it does not make sense for "office building" not to mean "medical office building." This argument fails because appellants ground it upon parol matters, outside the agreement. On its face, section 7.01 is susceptible of only one meaning. It does not create a latent ambiguity because the record does not show that, as a consequence of applying its express language to the subject matter, an ambiguity appeared. See National Union Fire Ins. Co. v. CBI Indus., 907 S.W.2d 517, 520 (Tex.1995); Murphy v. Dilworth, 137 Tex. 32, 151 S.W.2d 1004, 1005 (1941). Significantly, that the parties may have intended to make a different contract than that expressed in the agreement does not make the agreement ambiguous as applied to the subject matter and is immaterial to an action for breach of contract. See Murphy, 151 S.W.2d at 1006. For the same reasons we reject appellants' argument that the words "any change" in "any manner," in the "guidelines, design covenants, and master plans" that "would prohibit" use of the Leased Premises for office building purposes is ambiguous.

*2 As there was no ambiguity as asserted by appellants, there was no evidence that the District breached the agreement because the appellants have been continuously permitted to use the leased premises as an office building. Issue one is overruled.

Appellants next complain that the trial court erred in disregarding that part of the verdict pertinent to their claim that the District breached its duty of good faith and fair dealing. We overrule issue two because there is no such duty in commercial transactions. See Formosa Plastics Corp. USA v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 52 (Tex.1998). Further, the District was immune from liability. As a governmental unit, the District generally is immune from liability for tort claims. See Brown v. Montgomery County Hosp. Dist., 905 S.W.2d 481, 483 (Tex.App.--Beaumont 1995, no writ). The District is immune from liability unless its immunity is waived, by statute, in clear and unambiguous language. See, e.g., Texas Prison Board v. Cabeen, 159 S.W.2d 523 (Tex.Civ.App.--Beaumont 1942, writ ref'd). In this case we conclude that the enabling legislation granting the board of directors of the District the right to sue or be sued on behalf of the District did not waive its liability for tort. At the same time, we reject collateral arguments included in issue two that the District did not meet its burden of proof and that the defense of immunity was waived because these arguments are not supported by the record.

Our determination of issues one and two also disposes of appellants' third complaint that the trial court erred in denying appellants' recovery of attorneys' fees.

Appellants next complain the trial court erred in awarding the District prejudgment interest from April 1994. Appellants contend that interest should only have been assessed after December 1997. But Weyland, by his testimony, admitted that rent became payable beginning March 20, 1994. And, it is undisputed that the amount of rent to be charged was determinable. Accordingly, the trial court's award of interest was proper. See Imperial Sugar Co. v. Torrans, 604 S.W.2d 73, 74 (Tex.1980).

In their final issue, appellants complain of the award of attorneys' fees to the District. Their complaint is based upon a conflict in the judgment--on one hand the judgment indicates that the trial court disregarded the jury's answer to question eleven, but on the other hand, the judgment awards the attorneys' fees consistent with the verdict. It is apparent that the trial court erred by mistakenly identifying question eleven as making a finding in support of appellants' breach of contract theory, when in fact it found the reasonable fee for the necessary services of the District's attorneys. Appellants' argument that the judgment should be modified to delete the award because the District did not file a notice of appeal is a non sequitur. We modify the judgment to delete its provision that the jury answer to question eleven is disregarded.

*3 In all other respects the judgment is affirmed.

AFFIRMED.