source: Caselaw Access Project

author: Justice MARTIN RICHTER.

license: Public Domain

text:
    Leonard JONES, Appellant, v. CITY OF DALLAS, Appellee.
    No. 05-08-01296-CV.
    Court of Appeals of Texas, Dallas.
    March 10, 2010.
    Rehearing Overruled May 18, 2010.

      Ned Webster, Frank M. Gilstrap, Hill & Gilstrap, P.C., Arlington, TX, for Appellant.
    Charles Estee, Assistant City Attorney, Dallas, TX, for Appellee.
    Before Chief Justice WRIGHT, Justices MARTIN RICHTER and FILLMORE.
   OPINION

Opinion By

Justice MARTIN RICHTER.

Leonard Jones (“Jones”) operated two golf courses for the City of Dallas (“City”) pursuant to a written contract. Jones sued the City to recover “equitable compensation” allegedly due under the contract. The City filed a plea to jurisdiction, which was granted by the trial court. Jones raises five issues on appeal. He contends the trial court erred in granting the plea to jurisdiction because: 1) sovereign immunity was waived under Chapter 271 of the Local Government Code, 2) he was not required to give notice to the City pursuant to local ordinance as a prerequisite to filing suit, 3) he has standing to prosecute his claims for breach of contract, 4) he has a valid claim for declaratory judgment, and 5) the operation of golf course involves a proprietary function. Because the legislature has waived the City’s immunity from suit under Chapter 271 of the Local Government Code, we reverse the trial court’s order on that ground and remand for further proceedings. We conclude that Jones has standing to sue and, therefore, we reverse the trial court’s order to the extent it granted the City’s plea on the basis of lack of standing. We overrule the remaining issues raised on appeal and affirm the trial court’s order in all other respects.

BACKGROUND

Jones contracted with the City to provide services at two City owned golf courses pursuant to a written contract dated February 14, 2001 (“Contract”). The Contract provided that Jones would provide golf pro services at the Cedar Crest Golf Course and L.B. Houston Golf Course for a period of ten years. The Contract required Jones to provide a number of services, including hiring a professional manager to manage the pro shop, hiring a professional event planner to manage the reservation facility, paying utilities for the facilities, maintaining a fleet of golf carts, providing security and course marshals and providing credit card services and a point of sale cash register system. Jones was required to pay the City a concession fee based upon a percentage of revenues he earned and then kept the remainder as compensation. The Cedar Crest Golf Course also had a banquet facility that Jones managed and he paid the City a percentage of revenue derived from its operation.

In the spring of 2004, the City began planning to renovate the Cedar Crest Golf Course. The golf course was closed in November 2003, but Jones attempted to keep the clubhouse and banquet facility open. During the course of the renovations Jones ultimately closed the clubhouse but kept the banquet facility open due to advance reservations. The golf course and a new driving range opened in October 2004. Jones alleged that he was harmed by the golf course closure and also that he lost money trying to keep the clubhouse and banquet facility open.

In February 2005, Jones made a claim against the City for “equitable compensation” due to the closure. The City alleged that it agreed Jones could retain $199,120 in commissions and that it did not require Jones to pay utility costs of $64,240.66 as compensation for his losses. Jones contends that settlement discussions continued into the fall of 2006, but he rejected the City’s offer because it would not adequately compensate him for the losses he incurred during the closure, which he claims were approximately $900,000.

During this time, Jones was sued by some of his creditors for over $400,000. One of his creditors, TaylorMade Golf Company, Inc., received a default judgment, and in November 2006, the court issued a turnover order and appointed a receiver to take possession of all of Jones’s property. While Jones was undergoing financial difficulties, he submitted over twenty checks to the City for concession payments that were returned for insufficient funds.

In February 2007, the City sent Jones a letter terminating the Contract pursuant to Paragraph 11, effective March 6, 2007. Paragraph 11 permitted the City to terminate the Contract “for cause” or “for the convenience of the City” and provided:

CITY shall equitably compensate CONTRACTOR in accordance with the terms of this Contract for the Services properly performed prior to the date specified in such notice, following inspection and acceptance of same by CITY’S Director. CONTRACTOR shall not, however, be entitled to lost or anticipated profits should CITY choose to exercise its option to terminate.

In the termination letter, the City demanded payment of the amounts represented by the NSF cheeks in the amount of $259,106.17, but it acknowledged the equitable compensation clause, stating:

The City is aware of the provisions of Paragraph 11 calling for equitable compensation in accordance with the term of the Contract for services properly performed prior to the date specified in the notice of termination. The City has every intention to abide by the terms of the Contract.

On March 6, 2007, Jones paid the City the amounts due for the NSF checks and filed suit seeking a temporary restraining order. This proceeding was later non-suited.

In January 2006, the City passed Ordinance No. 26225 which requires written notice to the City as a prerequisite to filing suit. The ordinance applies to any alleged breach occurring on or after January 30, 2006, and its requirements were “incorporated by reference into all existing and future city contracts.” Jones did not give written notice prior to filing suit.

Jones filed this suit in November 2007, claiming damages pursuant to the equitable compensation clause of the Contract and seeking a declaratory judgment that the Contract was not properly terminated. The City filed a plea to jurisdiction which the trial court granted and this appeal followed.

STANDARD OF REVIEW

A plea to jurisdiction contests the trial court’s subject matter jurisdiction and is the proper method for asserting a claim of governmental immunity. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004). Whether a court has subject matter jurisdiction is a question of law, which is reviewed de novo. Id.

DISCUSSION

Waiver of Sovereign Immunity under Chapter 271

Jones primary argument for defeating the City’s claim of sovereign immunity and first issue on appeal is that the City’s immunity from suit has been waived under Chapter 271 of the Local Government Code. A local governmental entity waives immunity from suit for breach of a contract when it enters into a contract that is subject to subchapter I of Chapter 271. Tex. Looal Gov’t Code Ann. § 271.152 (Vernon 2005). Section 271.152 states:

A local governmental entity that is authorized by statute or the constitution to enter into a contract and that enters into a contract subject to this subchapter waives sovereign immunity to suit for the purpose of adjudicating a claim for breach of the contract, subject to the terms and conditions of this subchapter.

Id. The parties do not dispute that the City is a “local governmental entity” or that the Contract is a written contract that is subject to this chapter. Instead, the parties dispute whether the damages Jones seeks are permitted by the statute or the Contract. Section 271.153(a)(1) limits the damages that may be recovered under this chapter to “the balance due and owed by the local governmental entity under the contract as it may have been amended.” Tex. Looal Gov’t Code Ann. § 271.153(a)(1) (Vernon 2005). In addition, subsection (b)(1) prohibits the recovery of consequential damages, exemplary damages, or unabsorbed home office overhead. Id.

The City contends that it was not required to pay Jones anything under the Contract, therefore, there is no “balance due and owed.” Alternately, the City argues that any damages Jones seeks are consequential damages, barred by § 251.153(b). Jones, on the other hand, argues that once we decide there is a written contract subject to Chapter 271, sovereign immunity is waived, the plea to jurisdiction should be denied, and the court should not consider whether the damages are barred by § 271.153. We have addressed this issue in two recent cases and concluded that on a plea to jurisdiction we should not delve into the nature and extent of damages. Dallas Area Rapid Transit v. Monroe Shop Partners, Ltd., 293 S.W.3d 839, 842 (Tex.App.Dallas 2009, pet. filed); City of Mesquite v. PKG Contracting, Inc., 263 S.W.3d 444, 448 (Tex.App.-Dallas 2008, pet. filed).

In City of Mesquite, a contractor sued the city to recover damages from overruns, delay and increased costs to perform. The city argued that the damages were not allowed by the statute. We held that “the nature and extent of damages that may be proved have yet to be determined and must await further development.” City of Mesquite, 263 S.W.3d at 448, n. 3. Based upon the limited record we concluded: “We cannot say on this record that PKG’s claim for damages is solely for damages excluded by the statute.... The trial court is in the best position following further proceedings to determine whether PKG is able to recover some, all, or none of the damages and remedies it claims.” Id. Similarly, in DART we concluded “statutory limitations on a plaintiffs recoverable damages do not deprive the trial court of subject matter jurisdiction to adjudicate the plaintiffs breach of contract claims.” DART, 293 S.W.3d at 842 (emphasis in original).

These two decisions are also consistent with a recent opinion of the Texas Supreme Court concerning waiver of sovereign immunity under the Whistleblower Act, decided while this case was pending. See State v. Lueck, 290 S.W.3d 876 (Tex.2009). The court discussed the level of inquiry that would be required to satisfy the jurisdictional requirement, stating:

Our holding does not mean that Lueck must prove his claim in order to satisfy the jurisdictional hurdle. Although the section 554.002(a) elements must be included within the pleadings so that the court can determine whether they sufficiently allege a violation under the Act to fall within the section 554.035 waiver, we have urged that the burden of proof with respect to these jurisdictional facts ‘does not involve a significant inquiry into the substance of the claims.’

Id. at 884.

The City attempts to distinguish City of Mesquite and DART by arguing that it was not required to pay Jones anything. Instead Jones was required to pay commissions to the City. The City relies on City of San Antonio v. Polanco & Co., L.L.C., No. 04-07-00258, 2007 WL 3171360 (Tex.App.-San Antonio October 31, 2007, pet. denied) to support its argument. In Polanco, the plaintiff sought payment for equipment and inventory that were left behind upon termination of the contract. After reviewing the contract, the court found that there was no provision for the city to pay Polanco anything. Here, on the other hand, the Contract contained one provision for payment by the City to Jones. In the event of termination the Contract provided:

CITY shall equitably compensate CONTRACTOR in accordance with the terms of this contract for the Services properly performed prior to the date specified in such notice, following inspection and acceptance of same by CITY'S Director. CONTRACTOR shall not, however, be entitled to lost or anticipated profits should CITY choose to exercise its option to terminate.

The Contract did not define the term “equitable compensation” and the City argues that when the clause is considered in its entirety, the City could not be obligated to pay Jones anything except flood stipends or capital improvements. However, the City’s argument fails to consider the balance of the sentence containing the equitable compensation clause. The provision required the City to compensate Jones for “Services properly performed prior to the date specified in such notice, following inspection and acceptance of same by CITY’S Director.” The term “Services,” although capitalized in the Contract, was not defined by the parties. However, Jones was required to provide a number of services, including hiring a professional manager to manage the pro shop, hiring a professional event planner to manage the reservation facility, paying utilities for the facilities, maintaining a fleet of golf carts, providing security and course marshals and providing credit card services and a point of sale cash register system. Jones alleged that he was required to provide services while the golf courses were closed and he was not compensated for those services. Therefore, we conclude that this case is similar to City of Mesquite and DART, but differs factually from Po-lanco. Jones has alleged damages that may be due under the equitable compensation clause of the Contract. Based upon the current record and stage of the proceeding, we cannot say that the City did not owe Jones anything under the Contract.

The City also argues that any damages Jones seeks are consequential damages and they are barred by § 271.153(b)(1). Consequential damages are damages “that result naturally, but not necessarily, from the acts complained of.” Boyer, Inc. v. Trinity River Auth. of Tex., 279 S.W.3d 354, 358-359 (Tex.App.-Fort Worth 2008, pet. denied). Chapter 271 prohibits recovery of consequential damages. However, several courts have held that the if parties agree in the contract to expand the damages recoverable then they are no longer consequential and are not barred by § 271.153(b). Id. at 359 (lost profits may be recovered where the contract provided for their payment); City of Houston v. Allco, Inc., 238 S.W.3d 849, 854 (Tex.App.-Houston [1st Dist.] 2007, pet. denied) (cost to test, move, and dispose of contaminated soil constituted “extra work” and was therefore a “balance due and owed under the contract” and authorized by § 271.153).

Like the City’s first argument, we cannot say at this stage in the proceeding that the damages Jones seeks are barred by § 271.153. Jones has alleged that there is a balance due under the equitable compensation clause of the Contract for services he performed while the golf courses were closed. There are factual and legal issues concerning interpretation of the contract and the meaning of the term “equitably compensate.” Those are not issues that can be decided at this stage of the proceedings, but instead will require further development. Therefore, we conclude Jones has sufficiently alleged damages due and owed under the Contract to establish a waiver of sovereign immunity under Chapter 271. Jones’s first issue is sustained.

Notice Under Local Ordinance

Jones argues in his second issue that a local ordinance requiring notice before filing suit does not bar his claim for breach of contract. Ordinance No. 26225 requires parties suing the City for breach of contract to give prior written notice to the City of a claim. The Ordinance provides that it applies only to an “alleged breach of contract by the city occurring on or after January 30, 2006.” The parties do not dispute that the notice required by the Ordinance could not affect a breach that occurred prior to its effective date. In its brief, the City argues that the notice applies to Jones’s “claim regarding the termination of the contract in 2007.” While there may have been some confusion in the trial court about whether Jones was seeking damages for “wrongful termination” or for damages due to the closure of the golf course, Jones has made it clear on appeal that “we are not suing the City for terminating Jones. We are seeking equitable compensation for the services rendered prior to the purported termination.” The alleged breach and therefore any claim for “equitable damages” relating to the course closure occurred well before the Ordinance’s effective date. The City acknowledges in its brief that it “did not contend that the notice requirement applied to his claim regarding the 2003 closure of Cedar Crest Golf Course.” Accordingly, there is no dispute that the Ordinance does not apply and we do not reach the parties’ remaining arguments relating to the Ordinance.

Standing to Sue

In his third issue, Jones argues that he has standing to bring these claims against the City. The City argues that Jones did not have standing to assert these claims because one of Jones’s creditors had obtained a turnover order and a receiver had been appointed. The City attached a copy of the November 2006 turnover order to its Supplemental Plea to Jurisdiction. After the City raised this argument in the trial court, Jones filed a First Amended Original Petition and pled that he settled for approximately $150,000 with the creditors who had sued him. The City also contends that Jones did not respond to the City’s argument in the trial court and has therefore waived this issue.

Standing is “implicit” in the concept of subject matter jurisdiction and is a “constitutional prerequisite” to bringing a lawsuit. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443-44 (Tex.1993). When a plea to the jurisdiction challenges the trial court’s subject-matter jurisdiction we first consider the pleadings. See Miranda, 133 S.W.3d at 226. Unless the City has challenged and conclusively negated a jurisdictional fact pled by Jones, we must assume the fact to be true for purposes of our jurisdictional analysis. Id. at 226. The trial court may also consider relevant evidence submitted by the parties. Id. (citing Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex.2000)).

Initially, we address the City’s argument that Jones waived the standing issue in the trial court. Subject matter jurisdiction can be raised at any time, including for the first time on appeal. Dequire v. City of Dallas, 192 S.W.3d 663, 665 n. 2 (Tex.App.-Dallas 2006), rev’d on other grounds, 249 S.W.3d 428 (Tex.2008) (per curiam). In addition, Jones did respond to the City’s argument that he lacked standing due to appointment of a receiver. He filed an amended petition and stated he had settled with the creditors who had sued him. Therefore, we conclude that Jones has not waived the standing issue.

Next we consider whether the evidence established that Jones lost all interest in his breach of contract claim. The City did not challenge Jones’s assertion that the claims with his creditors had been settled. Other than a copy of the order appointing a receiver, the City did not present any evidence that a bond was posted, the oath of office was taken or that the receiver ever took possession of any of Jones’s assets. Tex. Civ. Prac. & Rem.Code Ann. §§ 64.022, 64.023 (Vernon 2008) (requiring a receiver to be sworn and post a bond before assuming duties). Nor does the City explain how the appointment of a receiver divests the owner of all interest in the property, absent a sale of that property. Based upon Jones’s statement that he settled with his creditors and the incomplete evidence of appointment of a receiver, we conclude that there is no basis for finding Jones lacked standing to assert claims for breach of a contract he was a party to. Accordingly, to the extent the trial court granted the City’s plea to jurisdiction for lack of standing, we reverse the order.

Declaratory Judgment Claim

In his fourth issue, Jones argues that the trial court erred in dismissing his declaratory judgment claim against the City. Jones alleged in his original and amended petitions that the City improperly delegated its authority to terminate the Contract to the Director of the Department of Parks and Recreation. He argued that such delegation was “illegal and invalid.” The City’s plea to jurisdiction challenged the claim for declaratory judgment on the grounds that it was: 1) barred by sovereign immunity, 2) moot, and 3) encompassed within a mature claim. Jones only responded to the City’s first argument, even though the City pointed out Jones’s failure to respond to the remaining arguments in its reply brief and at the hearing. At the hearing on the plea to jurisdiction the trial court gave Jones an opportunity to file another brief, but he did not do so. On appeal, Jones argues that sovereign immunity has been waived for the declaratory judgment claim and he raises an entirely new argument that he is entitled to be reinstated for the balance of the term of the Contract. Jones did not, however, respond to the remaining grounds for dismissal asserted by the City in the trial court. Because Jones did not challenge the dismissal of the declaratory judgment claim on all grounds in either the trial court or in this court, the judgment of the trial court must be affirmed. Britton v. Tex. Dep’t of Crim. Justice, 95 S.W.3d 676, 681 (Tex.App.-Houston [1st Dist.] 2002, no pet.) (judgment must be affirmed when appellant fails to attack all independent grounds to support a judgment). Therefore, we overrule Jones’s fourth issue and affirm the trial court’s order dismissing the claim for declaratory judgment against the City.

Proprietary Function or a Governmental Function

In his final issue, Jones argues that the Contract with the City for the operation of a golf course and banquet facility involved a proprietary function, and not a governmental function, and therefore the City has no immunity. The City responded in the trial court and before this Court that the operation of a golf course is a governmental function, the proprietary/governmental distinction is not applicable to breach of contract claims and the distinction is not applicable to home-rule cities. Jones only addressed the proprietary versus government distinction, but did not respond in either the trial court or in his original brief filed with this Court, to the other two arguments raised by the City. By failing to respond to all possible grounds for the trial court’s ruling, Jones has waived those issues and the trial court order must be affirmed. Id. Accordingly, we overrule Jones’s fifth issue and affirm the trial court order to the extent it rejected Jones’s argument that sovereign immunity was waived because the operation of a golf course is a proprietary function.

CONCLUSION

We conclude the City waived sovereign immunity under Chapter 271 of the Local Government Code and that Jones has standing to sue. We reverse the trial court order to the extent it granted the City’s plea to jurisdiction under Chapter 271 and to the extent it concluded that Jones did not have standing to sue. We affirm the trial court’s order in all other respects.

      . Jones raised additional arguments in his Reply Brief and filed a motion to supplement his brief. We denied that motion. See Dallas County v. Gonzales, 183 S.W.3d 94, 104 (Tex.App.-Dallas 2006, pet. denied) (Appellant not permitted to raise new arguments in reply brief).

      . While this case was pending we addressed the issue of whether the operation of a golf course and club house is a proprietary or governmental function in City of Plano v. Homoky, 294 S.W.3d 809 (Tex.App.-Dallas 2009, no pet.) and concluded it is a governmental function and the governmental entity is immune from suit.


author: SUE WALKER, Justice.

text:
    Susan Cohen MANDELL, Appellant, v. Harold Lance MANDELL, Appellee.
    No. 2-08-290-CV.
    Court of Appeals of Texas, Fort Worth.
    March 18, 2010.
    Rehearing En Banc Overruled April 15, 2010.

      Mike Windsor, Loe, Warren, Rosenfield, Kaitcer, Hibbs, Windsor & Lawrence, P.C., Fort Worth, TX, for Appellant.
    Thomas M. Michel, Griffith, Jay & Michel, LLP, Fort Worth, TX, for Appellee.
    PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
   OPINION

SUE WALKER, Justice.

I. Introduction

Appellant Susan Cohen Mandell challenges the property division made by the trial court in her divorce from Appellee Harold Lance Mandell. The primary issue that we address is whether the trial court erred by excluding all of Susan’s evidence valuing Lance’s interest in Oncology-Hematology Consultants, P.A. (“the Association”). For the reasons set forth below, we will affirm the trial court’s judgment.

II. Background

Susan and Lance, both of whom are physicians, married in 1989. During the marriage, Lance entered into an Employment Agreement with the Association. Lance also entered into a Stock Purchase Agreement with the Association. The Stock Purchase Agreement states that the Association would sell Lance 22,000 shares of common stock for $0.50 per share for a total purchase price of $11,000. Lance tendered a check to the Association for $11,000.

Pursuant to certain terms of the Stock Purchase Agreement, the Association also required Lance and Susan to sign a Shareholders Agreement. The Shareholders Agreement specifically addressed stock transfers, including voluntary transfers such as in the event of retirement or withdrawal from the Association and involuntary transfers such as in the event of divorce. In each of these situations, the Association and/or the other shareholders possesses the right to purchase the shares at $0.50 per share. In the event the “marital relationship of a Shareholder is terminated by divorce and such divorced Shareholder does not succeed to his former spouse’s community interest, if any, in his Shares,” the Shareholders Agreement specifically provides that within 180 days, the former shareholder shall purchase “all but not less than all of’ his stock back from his former spouse and sets the purchase price of the stock at $0.50 per share. In the event the former shareholder fails to exercise this right, the right of repurchase for the same price per share is shifted to the Association. According to Lance, the restrictions imposed by the Shareholder Agreement on the transfer of stock and the contractual repurchase rights vested in a former shareholder or in the Association are required by Texas laws providing that only a professional individual may be an owner of the professional association. Neither Lance nor Susan signed the Shareholders Agreement.

Approximately three years after Lance had executed the Stock Purchase Agreement, Susan filed for divorce. During discovery, Susan served a subpoena duces tecum on Dr. Jordan, a shareholder of the Association, seeking payroll records, a list of assets, an inventory, corporate books, and additional documents.

Approximately three months later, the Association refunded the $11,000 that Lance had paid for the 22,000 shares of stock and thereafter wrote him a letter, stating that it had requested on numerous occasions during the three and a half years since he had signed the Stock Purchase Agreement that he provide it with a signed copy of the Shareholders Agreement. The Association’s letter stated that because it had never received a signed copy of the Shareholders Agreement from Lance and Susan, it had never issued Lance a stock certificate and was therefore electing to refund the $11,000 that Lance had previously paid. As a result of these transactions, Lance held no shares in the Association.

Susan thereafter joined the Association, among others, in the divorce suit as a third-party defendant, claiming that it and others had conspired with Lance to defraud her. The third-party defendants answered and filed a motion for summary judgment, which the trial court initially denied because it found that there were genuine issues of material fact.

The third-party defendants filed a motion for reconsideration of their summary judgment motion, urging the trial court to find the following as a matter of law: (1) Lance’s Stock Purchase Agreement with the Association was subject to its accompanying Shareholders Agreement, and (2) the Shareholders Agreement was valid and enforceable against Susan. The trial court reconsidered the third-party defendants’ motion for summary judgment and granted it, ruling that the Stock Purchase Agreement between Lance and the Association was subject to the terms of the Shareholders Agreement and that as a matter of law, the Shareholders Agreement between Lance and the Association was valid and enforceable as to Susan. Prior to trial, Susan settled her claims with the third-party defendants and entered into an agreement on the record that the Association would issue the 22,000 shares of stock to Lance in exchange for an $11,000 check from the community estate. Lance complied by writing the check, and the Association issued the stock to him.

During the trial, Lance objected when Susan’s expert attempted to testify regarding the value of Lance’s stock in the Association. The trial court sustained Lance’s objection, stating that it had previously ruled by granting the third-parties’ motion for summary judgment that pursuant to the terms of the Stock Purchase Agreement and the Shareholders Agreement, the value of the 22,000 shares of stock in the Association was $11,000 and that the parties were bound by the agreements. Outside the jury’s presence, Susan made an offer of proof of her experts’ testimony concerning the valuation of Lance’s interest in the Association.

After a multi-day jury trial, the jury made the following determinations that are pertinent to the issues on appeal: (1) that the marriage between Susan and Lance had become insupportable because of discord or conflict; (2) that the value of the real property at 5017 River Bluff Drive was $244,440; (3) that the amount of attorney’s fees reasonably and necessarily incurred by Susan was $275,000; and (4) that the amount of attorney’s fees reasonably and necessarily incurred by Lance was $0. Lance thereafter filed a motion for judgment notwithstanding the verdict, arguing that the uncontroverted testimony and exhibits that were admitted into evidence established that the reasonable and necessary attorney’s fees he had incurred totaled $200,000.

After reviewing the value of the community property assets, the trial court’s final decree of divorce divided the community property as follows:

_Susan_Lance
Residence located at 5017 River Bluff_$244,440,00_
50% Citizen’s Nat’l Bank Money Mkt Acct # \-1 $ 18,738.11 $ 18,738.11
50% Wells Fargo Bank Acct # [-1_$ 10,365.32 $ 10,365.32
50% Bank of America Savings Acct # ¡-1_$ 10,165.51 $ 10,165.51
50% Wachovia Investment Acct # T-1_$316,622.56 $316,622,56
50% Fidelity IRA # 1 — —■]_$146,467.23 $146,467,23
50% Fidelity Investments Acct # \-1_$ 60,522,09 $60,522,09
100% Franklin Templeton Mut. Fund Acct # \-1_$126,723.20_
2000 Lexus RX 300$ 14,625.00
100% Bank of America Money Mkt Acct # T-1_$ 28,719.83
100% Fidelity Investments IRA # [-1_$120,564.47
100% Fidelity Investments Acct # \-1_$ 46,616.62
100% Franklin Templeton Acct # f-1_$156,433.20
2004 Acura MDX_$ 23,900.00
22,000 shares of the Association_$ 11,000
Total$948,669.02 $950,114.94

The trial court acknowledged that the jury had rendered a unanimous verdict on the issue of reasonable and necessary attorney’s fees incurred by Susan and that the amount for trial was $275,000. The trial court, however, ordered that “to effect an equitable division of the estate of the parties’ [sic] and as a part of the just and right division of property, ... each party shall be responsible and liable for the payment of the balance of his or her own attorney’s fees.... ”

Following the entry of the judgment, Susan filed a request for findings of fact and conclusions of law, as well as a motion for new trial. In her motion for new trial, Susan argued that the trial court erred by refusing to allow her to present expert testimony to the jury concerning the value of the 22,000 shares of stock in the Association.

The trial court made findings of fact and conclusions of law setting forth the same property divisions as it had made in the decree and stated that it had made “a determination of a just and right division of the assets and debts of the marital estate” by considering, among other things, monetary sanctions awarded to Susan against Lance; fault in the breakup of the marriage; and the finding by the court as a result of the summary judgment proceedings that the value of the 22,000 shares of stock in the Association was $11,000. The trial court also stated that in making the property division, it had taken into consideration that it had made no order for the award or payment of attorney’s fees to be paid by Lance to Susan and that the division of the marital estate was disproportionate in Susan’s favor.

Susan filed objections to the trial court’s findings of fact and conclusions of law and requested additional findings. Susan argued that the trial court erred when it purportedly used the method for a physician’s withdrawal set forth in the Stock Purchase Agreement and unsigned Shareholders Agreement in determining the value of Lance’s 22,000 shares of the Association because Lance was not being terminated or withdrawing at the time of the parties’ divorce. Susan argued, as she had in her motion for new trial, that the jury should have been allowed to determine the fair market value of Lance’s interest in the Association as an ongoing business.

The trial court did not make additional findings. This appeal followed.

III. The Association’s Stock

As set forth above, the Shareholders Agreement restricts who may own and purchase the Association’s stock as well as the price at which the stock may be sold, $0.50 per share. In her first, second, and third issues, Susan argues that the trial court erred when it used the Shareholders Agreement to value Lance’s 22,000 shares in the Association at $11,000 and then excluded all evidence that she attempted to put before the jury. Specifically, Susan argues that the Shareholders Agreement does not establish the fair market value of Lance’s interest in the ongoing business of the Association.

A. Types of Valuation

As a general rule, the value to be accorded community property that is to be divided in a divorce proceeding is “market value.” See R.V.K. v. L.L.K., 103 S.W.3d 612, 618 (Tex.App.-San Antonio 2003, no pet.) (citing Walston v. Walston, 971 S.W.2d 687, 690 (Tex.App.-Waco 1998, pet. denied)). “Fair market value has been consistently defined as the amount that a willing buyer, who desires to buy, but is under no obligation to buy would pay to a willing seller, who desires to sell, but is under no obligation to sell.” Id. (quoting Wendlandt v. Wendlandt, 596 S.W.2d 323, 325 (Tex.Civ.App.-Houston [1st Dist.] 1980, no writ)).

A straight fair market value is not an appropriate valuation method, however, when a community estate owns shares in a closely held corporation and, by agreement, any sale of the shares of stock is restricted to the corporation or other stockholders. See Beavers v. Beavers, 675 S.W.2d 296, 299 (Tex.App.-Dallas 1984, no writ). When the sale of stock is restricted by a requirement that the shares be offered first to the corporation or to other shareholders, then essentially the fair market value of the stock is zero. See id. In this situation, the parties may show the actual value of the property interest to the owner. See R.V.K., 103 S.W.3d at 618. Such evidence might include the value of being able, by virtue of ownership of the closely held stock, to drive a new automobile, to have health insurance paid for by the company, to have a company-financed life insurance policy, to belong to a country club at company expense, and other similar financial benefits. See James M. Loveless & Kimberly M. Naylor, Handling a Divorce Involving a Closely-Held Corporation, State Bar of Texas Prof. Dev. Program, Marriage Dissolution Institute, M, M-3 (1996).

Generally Accepted Accounting Principles, or GAAP, “encompasses the conventions, rules, and procedures that define accepted accounting practice at a particular point in time.” Rowan Cos. v. Wilmington Trust Co., 305 S.W.3d 698, 715 (Tex.App.-Houston [14th Dist.] 2009, no pet.) (op. on reh’g) (quoting Shalala v. Guernsey Mem’l Hosp., 514 U.S. 87, 101, 115 S.Ct. 1232, 1239, 131 L.Ed.2d 106 (1995)). Book value is the value shown by the books of a business, which are kept in compliance with GAAP, in the absence of an agreement otherwise. Chaffe v. Murray, 492 S.W.2d 680, 684 (Tex.Civ.App.-Corpus Christi 1973, writ refd n.r.e.). Specifically, the term “book value” means the value of a corporation that is arrived at by taking the total value of the assets as shown on the books and deducting therefrom the total liabilities. Id. Book value has limited application, if any, in determining the value of stock in a small, closely held corporation. See Bendalin v. Delgado, 406 S.W.2d 897, 900-01 (Tex.1966).

Another valuation method is the comparable sales method. This method compares the property being valued with similar, recently-sold property, and values the to-be-valued property in relation to the recent sales prices for similar property. See, e.g., Religious of Sacred Heart of Tex. v. City of Houston, 836 S.W.2d 606, 616 (Tex.1992); see also Gary L. Nickelson, Special Problems for Divorcing Professionals and Valuation of Professional Practices, Vol. 2 State Bar, Advanced Family Law Course, KK, 10 (1998) (recognizing that if comparable sales exist “they certainly should be considered as a measure of value”).

B. Evidence of Valuation

In this case, Susan’s valuation evidence was presented through an offer of proof. Karl Weaver, a certified public accountant and chief financial officer for the Association, testified that he did not know what the contractual $11,000 purchase price was based on. Weaver said that the book value of the Association in 2006 was $5 million.

Bryan Charles Rice, a certified public accountant specializing in business appraisals and forensic accounting, testified that he had looked at the books for the Association, as well as Matrix Holdings and Operation Pathway Systems, L.P., which provides management sendees to the Association. Rice explained that 88,-000 shares of common stock in the Association were outstanding and that three other doctor-shareholders in the Association each owned 22,000 shares of stock so that Lance owned a one-fourth interest in the Association.

Rice calculated the book value of the Association’s equity under GAAP and concluded that under this valuation theory, Lance’s one-fourth interest in the Association was worth $794,300. Rice determined that the fair market value of Lance’s one-fourth interest in the Association, considering the Association’s equity as a standalone business, was $1,100,100. Rice also determined the fair market value of Lance’s one-fourth interest in the Association, considering the Association’s equity as a Matrix Holdings component, was $943,400. Thus, Susan offered expert testimony via her offer of proof proposing three different methods to value the Association as an ongoing business resulting in three different figures as the value of Lance’s one-fourth interest in the Association: $794,300 (book value under GAAP); $1,100,100 (fair market value considering Association equity as a stand alone business); and $943,400 (fair market value considering Association equity as a component of Matrix).

Lance’s valuation evidence in the record, which was confirmed through his cross-examination of Weaver during Susan’s offer of proof, conclusively established that when three of the Association’s seven physician-shareholders retired or left the practice, they were each paid $0.50 a share for their shares of stock pursuant to the Shareholders Agreement. Each of the physician-shareholders had purchased their stock for $0.50 a share years before they retired or left the practice.

C. Division of Community Property

In a divorce proceeding, the trial court is charged with dividing the community estate in a “just and right” manner, considering the rights of both parties. Tex. Fam.Code Ann. § 7.001 (Vernon 2006); Boyd v. Boyd, 131 S.W.3d 605, 610 (Tex.App.-Fort Worth 2004, no pet.). Trial courts are afforded wide discretion in dividing marital property upon divorce; therefore, a trial court’s property division may not be disturbed on appeal unless the complaining party demonstrates from evidence in the record that the division was so unjust and unfair as to constitute an abuse of discretion. Jacobs v. Jacobs, 687 S.W.2d 731, 733 (Tex.1985); Boyd, 131 S.W.3d at 610.

To determine whether a trial court abused its discretion, we must decide whether the trial court acted without reference to any guiding rules or principles; in other words, we must decide whether the act was arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). We must indulge every reasonable presumption in favor of the trial court’s proper exercise of discretion in dividing marital property. Boyd, 131 S.W.3d at 610. Accordingly, we will reverse only if the record demonstrates that the trial court clearly abused its discretion, and the error materially affected the just and right division of the community estate. Id.

A spouse is not entitled to a percentage of his or her spouses’s future earnings. Von Hohn v. Von Hohn, 260 S.W.3d 631, 640-41 (Tex.App.-Tyler 2008, no pet.). A spouse is only entitled to a division of property that the community owns at the time of divorce. Id. A corporation is a separate legal entity, and property owned by a corporation is neither separate nor community property of the shareholders of the corporation. See Barbara Anne Kazen, Vol. 1 Kazen’s Practical Family Law Manual, Pamph. 6, ¶ 5.21 [c] (1996). Likewise, by statute, a professional association has the same powers, privileges, duties, restrictions, and liabilities as a for-profit corporation. See Tex. Bus. Orgs.Code § 2.108 (Vernon Pamph. Supp. 2009). Although dividends from stock are treated like income, a corporation’s earnings or surplus funds normally do not constitute a dividend while they are retained by the corporation. See, e.g., Legrand-Brock v. Brock, 246 S.W.3d 318, 322 (Tex.App.-Beaumont 2008, pet. denied).

Here, the Association is by law the equivalent of a for-profit corporation. See Tex. Bus. Orgs.Code Ann. § 2.108. The Association’s property, accounts receivable, retained earnings, and surplus funds are not assets of Susan and Lance’s community estate. See Legrand-Brock, 246 S.W.3d at 322. Thus, they were not subject to division by the trial court. See Tex. Fam.Code Ann. § 7.001. The community asset in existence at the time of Lance and Susan’s divorce was 22,000 shares of the Association’s closely-held stock — not the Association as an ongoing business. Susan nonetheless argues that the trial court abused its discretion by prohibiting her from offering expert testimony concerning the Association’s value as an ongoing business and calculating Lance’s interest in the Association as one-fourth of that valuation.

For the proposition that she was entitled to prove the value of Lance’s one-fourth interest in the Association as an ongoing business, Susan relies upon Von Hohn, 260 S.W.3d at 640-41, Keith v. Keith, 763 S.W.2d 950, 952 (Tex.App.-Fort Worth 1989, no writ), and Finn v. Finn, 658 S.W.2d 735, 740 (Tex.App.-Dallas 1983, writ refd n.r.e.). These cases are not applicable to the present facts for two primary reasons. First, the property being valued for purposes of divorce in those cases was not stock in a closely held corporation but a spouse’s interest in an ongoing partnership. Partnership profits, by law, belong to the individual partners; the assets and profits of a professional association belong to the entity. Compare Tex. Bus. Orgs.Code Ann. § 152.202(c) (providing that each partner in a partnership is credited with an equal share of the partnership’s profits) with id. § 302.011 (providing that profits of a professional association are distributed in accordance with governing documents of association). Thus, increases in the value of a partnership that accrue during a partner’s marriage may be an asset of the community estate, while increases in a corporation’s net worth are generally not an asset of the community estate of each of the corporation’s shareholders. Compare Von Hohn, 260 S.W.3d at 634, 636-37 (recognizing that each partner was assigned “an undivided profits account and a capital account”; this was clearly an asset of the community) with Legrand-Brock, 246 S.W.3d at 322 (explaining that corporations’ earning surplus funds are not a community asset). Second, the partnership agreements in Von Hohn, Keith, and Finn, unlike the Stockholders Agreement here, did not mandate application of a particular value to the spouse’s partnership interest in the event of a divorce. Compare Von Hohn, 260 S.W.3d at 640 (explaining that partnership agreement set value of partner’s interest in event of partner’s death, withdrawal, retirement, or expulsion but did not control value of individual partnership interest in event of divorce), and Keith, 763 S.W.2d at 953 (same), and Finn, 658 S.W.2d at 749 (same) (Stewart, J., concurring) with Tex. Bus. Orgs.Code Ann. § 21.104 (Vernon Pamph. Supp. 2009) (providing that shareholders agreement is effective between shareholders and the corporation). Because the Shareholders Agreement here does contain a specific contractual provision addressing stock ownership and value in the event of a shareholder’s divorce and does restrict who may own and purchase the Association’s stock as well as the price at which the stock may be sold, Von Hohn, Keith, and Finn are not controlling. See Tex. Bus. Orgs.Code § 21.104. We hold that the trial court did not abuse its discretion by excluding Susan’s $794,300 one-fourth book value of the Association and her $1,100,100 and $943,400 one-fourth fair market values of the Association as an ongoing business.

Susan also contends that she is not bound by the “buy-sell” provision in the Shareholders Agreement setting the stock’s value at $0.50 per share because she never signed the Shareholders Agreement and that, accordingly, the trial court abused its discretion by determining that as a matter of law Lance’s 22,000 shares of the Association were valued at $11,000. It is undisputed that every shareholder of the Association paid $11,000 for their 22,000 shares of stock when the stock was issued to them and that every shareholder that left the Association was paid $11,000 for the Association to repurchase their 22,000 shares of stock. It is undisputed that Lance and Susan’s community estate paid $11,000 to the Association for the issuance of Lance’s 22,000 shares of stock. And finally, it is undisputed that Lance can never sell his 22,000 shares of stock for more than $11,000; the stock’s value in the closely held Association is contractually set at $11,000. See Lemaster v. Top Level Printing Ink, Inc., 136 S.W.3d 746, 747-48 (Tex.App.-Dallas 2004, no pet.). Nonetheless, Susan claims the stock should be valued at either $794,300 (book value under GAAP); $1,100,100 (fair market value considering Association equity as a stand alone business); or $943,400 (fair market value considering Association equity as a component of Matrix). But Susan cites no authority for the proposition that a community asset (22,000 shares of the Association’s stock) which is to be divided in a divorce, may have one monetary value as to one spouse ($11,000 as to Lance) and a wholly different value to the other spouse ($794,300, $1,100,100, or $943,400 as to Susan). Nor have we located any such authority. Because the evidence establishes the “comparable sales value” for Lance’s 22,000 shares of the Association’s stock was $11,000 based on prior sales by former physician-shareholders and because $11,000 is the only price that Lance’s stock may be sold at, the trial court did not abuse its discretion by valuing the stock at $11,000 under a comparable sales valuation and as mandated by the Shareholders Agreement even though Susan did not sign it.

Susan’s offer of proof likewise did not include evidence that the actual value of the stock to Lance was greater than the $11,000 “buy/sell” price by showing that by virtue of ownership of the closely held stock, he obtained benefits such as driving a new automobile, having health insurance paid for by the company, having a company-financed life insurance policy, belonging to a country club at company expense, or gaining any other similar financial benefit. See R.V.K., 103 S.W.3d at 618. Because Susan’s offer of proof did not include testimony or evidence that might have been relevant to establish that the value of Lance’s shares of stock to him was greater than the $11,000 value set by the Shareholders Agreement, the trial court did not abuse its discretion by refusing to admit the valuation evidence propounded by Susan. Accord Fletcher v. Minn. Mining & Mfg. Co., 57 S.W.3d 602, 607 (Tex.App.-Houston [1st Dist.] 2001, pet. denied) (recognizing that to preserve error concerning the exclusion of evidence, the complaining party must actually offer the evidence and secure an adverse ruling from the court); see also Tex.R. Evid. 103(a), (b).

We overrule Susan’s first, second, and third issues.

IV. ATTORNEY’S FEES

In her fifth and sixth issues, Susan complains that the trial court erroneously granted Lance’s motion for judgment notwithstanding the jury’s verdict that he incurred $0 in reasonable and necessary attorney’s fees, erroneously valued the parties’ attorney’s fees, and thereby abused its discretion in the overall division of the community estate.

Although there is no statute specifically authorizing an award of attorney’s fees in a divorce proceeding, the trial court may within its sound discretion award attorney’s fees. See In re Marriage of Jackson, 506 S.W.2d 261, 268 (Tex.Civ.App.-Amarillo 1974, writ dism’d). The fee of an attorney is but another element for the court to consider in dividing the marital estate. Hopkins v. Hopkins, 540 S.W.2d 783, 788 (Tex.Civ.App.-Corpus Christi 1976, no writ). That is, in a divorce suit, the trial court has the equitable power to award either spouse attorney’s fees as a part of the just and right division of the marital estate. See, e.g., Murff v. Murff, 615 S.W.2d 696, 699 (Tex.1981); Carle v. Carle, 149 Tex. 469, 474, 234 S.W.2d 1002, 1005 (1950).

Here, the trial court’s judgment expressly provides that

to effect an equitable division of the estate of the parties’ and as a part of the just and right division of property, and for services rendered in connection with conservatorship and support of the children, each party shall be responsible and liable for the payment of the balance of his or her own attorney’s fees, expert witness fees, expenses, and costs incurred as a result of legal representation in this case.

Thus, although the trial court granted Lance’s motion for judgment notwithstanding the verdict, set aside the jury’s finding that Lance had incurred $0 in reasonable and necessary attorney’s fees, and found that Lance had conclusively established reasonable and necessary attorney’s fees in the amount of $200,000, Susan is not responsible for payment of any of Lance’s attorney’s fees. The judgment requires each party to pay any balance owed on their own attorney’s fees. Although Susan is not required to pay Lance’s attorney’s fees out of her property award, she nonetheless complains that the trial court erred by granting Lance’s motion for judgment notwithstanding the verdict on the jury’s finding that Lance had incurred $0 in reasonable and necessary attorney’s fees.

Assuming that the trial court did err by granting Lance’s motion for judgment notwithstanding the verdict concerning his attorney’s fees, Susan has not shown that any such error “probably caused the rendition of an improper judgment.” See Tex. R.App. P. 44.1(a)(1) (providing that no judgment in a civil case may be reversed for an error of law unless the error probably caused rendition of an improper judgment). The trial court possesses broad discretion to award either spouse attorney’s fees as a part of the just and right division of the marital estate; here it chose to require the parties to pay their own fees. Nothing in the record before us supports the proposition that the trial court would have ordered Lance to pay Susan’s attorney’s fees but for the granting of the judgment notwithstanding the verdict. In fact, a review of the list of factors set forth in the trial court’s findings of fact as factors the trial court considered in making its division of the community estate — including an award of sanctions against Lance and in favor of Susan — equally supports the notion that the trial court would not have ordered Lance to pay for Susan’s attorney’s fees even if the trial court had not granted Lance’s motion for judgment notwithstanding the verdict. Because Susan has not shown that any error by the trial court in granting Lance’s motion for judgment notwithstanding the verdict, setting aside the jury’s finding that Lance had incurred $0 in reasonable and necessary attorney’s fees, and finding that Lance had conclusively established that he had incurred reasonable and necessary attorney’s fees in the amount of $200,000 probably resulted in the rendition of an improper judgment, we overrule Susan’s fifth and sixth issues.

V. Conclusion

We have overruled Susan’s first, second, third, fifth, and sixth issues. We need not address Susan’s fourth issue because it complains of the summary judgment granted to the third-party defendants; Susan settled any and all of her claims with the third-party defendants prior to trial and those defendants are not parties to this appeal. Accordingly, we affirm the trial court’s judgment.

      . The record from this divorce spans twenty-six volumes of the reporter's record and over seventeen hundred pages in the clerk's record. The following is an overview of the facts; it is limited to the facts relevant to the issues on appeal.

      . See Tex. Bus. Orgs.Code §§ 301.003, .004, .007 (Vernon Pamph. Supp. 2009) (providing that the owners of a professional association must be licensed to perform the type of service for which die association is formed).

      . The account numbers set forth in the decree are omitted for privacy reasons.

      . The division of the community assets, as set forth above, indicates a relatively equal division between the parties.

      . See also Edwin Terry et al., Handling the Divorce Involving a Medical Practice, State Bar of Texas Prof. Dev. Program, Marriage Dissolution Institute, B, B-5 (1996) (explaining that "the concept of market value assumes an existing, established market” and that "as a practical matter there is often little or no actual market for a closely-held medical practice.... Therefore other methods of value must be used”).

      . See Handling the Divorce Involving a Medical Practice, State Bar of Texas Prof. Dev. Program, Marriage Dissolution Institute, at B-5.

      . Dr. Clibon and Dr. Friess sold their shares after practicing ten to twelve years with the Association.

      . Exceptions exist when a trial court properly disregards the corporate entity, but none of those exceptions were pleaded or proved here. See, e.g., Zisblatt v. Zisblatt, 693 S.W.2d 944, 950 (Tex.App.-Fort Worth 1985, writ dism’d).

      . The statutory provisions governing for-profit corporations (Texas Business Organizations Code Annotated chapters 21 and 22) apply to a professional association. See Tex. Bus. Orgs.Code Ann. § 302.001 (Vernon Pamph. Supp. 2009). And under chapter 21, a close corporation existing before the effective date of the Texas Business Organizations Code is a close corporation governed by the code. See id. § 21.707(b).

      .Rice excluded goodwill from his valuation of Lance's interest in the Association; goodwill is not an issue in this appeal. See Nickelson, Special Problems for Divorcing Professionals and Valuation of Professional Practices, KK, at 4-9.

      . On the issue of valuation of the husband's partnership as an ongoing business when valuation was not controlled by the partnership agreement, the majority opinion in Finn simply held that the trial court erred by denying the wife full discovery of certain financial information concerning the husband’s partnership. 658 S.W.2d at 746. The majority opinion in Finn held that this denial of discovery was reasonably calculated to and probably did result in the rendition of an improper judgment. Id. Here, however, Rice specifically testified that he had "all the financial information” that he needed to perform the valuations that he did. Thus, Finn is not applicable to the facts here.

      . Susan expressly settled "all claims set out in the various pleadings” filed by her against the third-party defendants as well as "all claims that were asserted, that could have been asserted" by her against the third-party defendants. Susan did not file any type of motion in the trial court revoking her consent to the settlement or seeking to set it aside; she cannot now claim on appeal that the third-party defendants (against whom she now possesses no unsettled claims) should not have been granted a summary judgment. Accord Henderson Edwards Wilson, L.L.P. v. Toledo, 244 S.W.3d 851, 855 (Tex.App.-Dallas 2008, no pet.) (recognizing principle that party with no justiciable interest in suit has no standing to appeal ruling in suit).