Fischer v. CTMI, L.L.C., 479 S.W.3d 231

In 2007 Fischer sold his tax-consulting business to CTMI (owned by Boozer and Raymond) under an asset-purchase agreement; Fischer stayed on as an employee through 2010.
Purchase price was structured: $800,000 at closing plus four annual ‘‘earn-out’’ payments; each earn-out had a minimum payment and a 30% adjustment tied to annual “business revenue.”
The 2010 adjustment uniquely included revenue from projects that were pending (in-progress) as of December 31, 2010, allocated by each project’s percentage complete as of that date; the contract stated those percentages “will have to be mutually agreed upon by [CTMI] and [Fischer].”
After disputes over various payments, the parties settled most claims but severed CTMI’s declaratory-judgment challenge to the enforceability of the 2010 pending-projects clause.
The trial court held the pending-projects clause enforceable; the court of appeals reversed, calling it an unenforceable “agreement to agree.” The Texas Supreme Court granted review.

Issue	Plaintiff's Argument (Fischer)	Defendant's Argument (CTMI)	Held
Whether the 2010 pending-projects clause is an unenforceable "agreement to agree" for indefiniteness	Clause is enforceable: parties intended to be bound; clause supplies a definite standard (percentage complete) and prior practice + performance supply the missing facts	Clause is unenforceable because it requires mutual agreement on completion percentages; courts cannot compel parties to reach agreement or rewrite the contract	The clause is enforceable: it supplies an objective standard and a court can imply reasonable terms; not an unenforceable agreement to agree

Pace Corp. v. Jackson, 284 S.W.2d 340 (Tex. 1955) (contract must be reasonably certain to furnish basis for remedy)
Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831 (Tex. 2000) (an agreement leaving material matters for future adjustment may be an unenforceable agreement to agree)
Radford v. McNeny, 104 S.W.2d 472 (Tex. 1937) (agreement to agree is nugatory if material terms are not specified)
T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218 (Tex. 1992) (material terms must be agreed before enforcement)
McCalla v. Baker's Campground, Inc., 416 S.W.3d 416 (Tex. 2013) (an agreement to agree can be enforceable if it contains all material terms)
Bendalin v. Delgado, 406 S.W.2d 897 (Tex. 1966) (when parties have done everything else, courts may presume a reasonable price)
ATOFINA Petrochemicals, Inc. v. Continental Casualty Co., 185 S.W.3d 440 (Tex. 2005) (usage, course of dealing or industry practice can supply missing contract terms)
Scott v. Ingle Bros. Pac., 489 S.W.2d 554 (Tex. 1972) (part performance can show parties intended a binding agreement)
Playoff Corp. v. Blackwell, 300 S.W.3d 451 (Tex. 2009) (agreement to agree is unenforceable when parties leave a valuation method to future negotiation)