279
Holiday‘s court-appointed attorneys had, for all intents and purposes, abandoned him. For this Court to punish and condemn such conduct sends a strong message to attorneys not to undertake late-stage death-penalty cases no matter how desperately the client may need representation and no matter that the client has a likely claim meriting habeas relief.
IV. Conclusion
In the end, the procedures employed by this Court‘s majоrity in deciding the State‘s petition for mandamus relief and this Court‘s majority‘s substantive assessment of the petition were so ingrained with flaws as to make one wonder whether human beings, however educated or well intentioned, arе capable of determining that an execution is warranted. Here, Holiday was executed after the trial court decided that he had valid arguments for recalling the warrant of execution, after two judges from this Cоurt agreed that there was no valid basis for overturning the trial-court judge‘s ruling, and after a Supreme Court justice, Justice Sotomayor, expressed grave concerns for the legal representation of Holiday in the shоrt period of time before his execution. Though one might argue that Blazek and Carter could have acted sooner than the morning of the execution, it may be equally reasonable to argue that they deserve a medal of honor for stepping in after Holiday had been abandoned by his attorneys and for pursuing a claim that would likely result in habeas relief. I acknowledge that almost everyone involved in this case, including the judgеs of this Court, was placed in a difficult position after the federal courts denied Sween‘s motion for new appointed counsel. But issuing a show cause order against these attorneys or sanctioning them is not the proper response for the difficulties encountered that night. Under the totality of the circumstances, I conclude that this Court should use its discretion to decline to issue this show-cause order and, further, to refuse to sanctiоn Blazek and Carter. With these comments, I respectfully dissent from this Court‘s majority order.
CTMI, LLC, Mark Boozer and Jerrod Raymond, Appellants v. Ray FISCHER and Corporate Tax Management, Inc., Appellees.
No. 05-11-00970-CV.
Court of Appeals of Texas, Dallas.
Aug. 20, 2013.
Rehearing and Amended Mоtion for Rehearing En Banc Overruled Oct. 31, 2013.
C. Gregory Shamoun, Shamoun & Norman, LLP, Kevin Moran, Jonathan J. Cunningham, Dallas, TX, for appellees.
Before Justices BRIDGES, FITZGERALD, and MYERS.
MEMORANDUM OPINION
Opinion by Justice BRIDGES.
Appellants CTMI, LLC, Mark Boozer, and Jerrod Raymоnd appeal from the trial court‘s final judgment, finding the “2010 Adjustment” enforceable. In a single issue, appellants contend the trial court erred by declaring enforceable an unambiguous provision of the Asset Purchase Agreement that explicitly required the parties to engage in future negotiations and mutually agree on additional terms. We reverse and render judgment in favor of appellants.
Background
On November 21, 2007, Ray Fischer entered into an Asset Purchase Agreement (“APA“) with CTMI, whereby CTMI acquired the assets of Fischer‘s business consulting firm. The APA defined the term “Buyer” to include CTMI, LLC and the term “Seller” to include both Ray Fischer and Corporate Tax Management, Inc.
The appeal focuses on the 2010 Earn Out Payment provision found in section 2(c)(iv)(D) of the APA. Specifically, the portion of the 2010 Earn Out Payment that is the subject of this appeal is known as the “2010 Adjustment.”
The 2010 Adjustment related to projects that were “in-progress” as of December 31, 2010. The APA stated any payments relating to those “in-progress projects” would be determined as follows:
By January 31, 2011, a list of projects that were in-progress as of December
31, 2010, will be genеrated with a percentage of completion assigned to each project as of December 31, 2010. The percentage of completion will have to be mutually agreed upon by Buyer and Seller. Thе 2010 Adjustment will include revenue based upon the percentages assigned to these in-progress projects, but the portion of the 2010 Adjustment reflecting the in-progress projects will not be payable to Seller until the resрective revenue is actually collected, and then it will be payable within twenty (20) days of collection by Buyer.
(emphasis added).
The APA was a fully-integrated agreement as follows:
The parties acknowledge that this Agreement (and the documents to which it refers) contains the entire agreement between the parties hereto with regard to the subject matter hereof, and that all the terms of the Agreement are contractual and not mere recitals. No representations or warranties have been made or relied upon that are not set forth in this Agreement. This Agreement (and the documents to which it refers) represents the complete and integrated understanding between the parties pertaining to the terms and conditions described therein. All prior agreements, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, employee or representative of any party, are of no force or effect.
On December 16, 2008, CTMI filed suit against Fischer and Corporate Tax Management, Inc., seeking a declaration of its rights under the APA. Fischer and Corporate Tаx Management counter-sued CTMI,1 alleging breach of contract and common law fraud. During trial, but prior to the reading of the jury charge, the parties reached a settlement on all issues in their live pleadings with two exceptions: (1) the enforceability of the 2010 Adjustment and (2) attorney‘s fees. On June 6, 2011, the trial court signed an agreed order of severance, severing from the original cause CTMI‘s request for declaratory relief as to the 2010 Adjustmеnt. On June 7, 2011, the trial court entered a final judgment, declaring the 2010 Adjustment enforceable.
Analysis
In a single issue, appellants contend the trial court erred by declaring enforceable an unambiguous provision of the Asset Purchаse Agreement that explicitly required the parties to engage in future negotiations and mutually agree on additional terms. Whether a contract is legally enforceable is a question of law for the court. Mickens v. Longhorn DFW Moving, Inc., 264 S.W.3d 875, 880 (Tex.App.-Dallas 2008, pet. denied). Questions of law are subject to de novo review. See Tawes v. Barnes, 340 S.W.3d 419, 425 (Tex.2011).
In genеral, a contract is legally binding only if its terms are sufficiently definite to enable a court to understand the parties’ obligations. See T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex.1992). If an alleged agreement is so indefinite as to make it impossible for a court to fix thе legal obligations and liabilities of the parties, it cannot constitute an enforceable contract. Playoff Corp. v. Blackwell, 300 S.W.3d 451, 455 (Tex.App.-Fort Worth 2009, pet. denied). An agreement to make a future contract is
In the case before us, appellees contend the APA “is not conditioned upon, nor does it contemplate that another contractual agreement containing the percentages of completion of the ‘in-progress’ projects at the end of 2010 will be entered into.” We disagree.
The 2010 Adjustment states, “The percentage of completion will have to be mutually agreed upon by the Buyer and Sellеr.” (emphasis added). The APA goes on to note the 2010 Adjustment will “include revenue based upon the percentages assigned to these in-progress projects....” Appellees contend the 2010 Adjustment is “nothing more than a reitеration of the ‘Cooperation’ provision requiring the parties to ‘promptly do all such acts and take all such reasonable measures as may be appropriate to enable it to perform аs early as practicable the obligations herein provided to be performed.‘” They also argue the APA, taken as a whole, contains all the material terms. However, without the agreed percentage, there is no formula for calculating the payments. Furthermore, the APA includes no methodology for deciding the percentages and does not specify the manner in which disputes concerning the percentages of completion would be resolved or what would occur if the parties failed to reach mutual agreements on the percentages.
Still, appellees argue that the percentage of completion can “easily, and specifically, be determined” and that the parties “intended to enter such agreement as a binding and enforceable agreement.” Like in the Playoff case; however, it is inescapаble that the percentage of completion would be determined by a formula yet to be determined by additional negotiation and agreement between the parties. See Playoff, 300 S.W.3d at 456-57. Therefore, the alleged agreement left a material matter open for future adjustment and agreement that never occurred. See id. at 457 (citing Fort Worth ISD, 22 S.W.3d at 846).
The Playoff court cited a Tennessee court of appeals case in making its decision, and we also find that decision instructive. See Playoff, 300 S.W.3d at 457 (citing Four Eights, LLC v. Salem, 194 S.W.3d 484 (Tenn.Ct.App.2005)). In Four Eights, the parties entered into a lease agreement with an option to purchase the leased premises for “its then fair market value.” Id. at 486. The lease stated, “The Fair Market Valuе must be determined by the Lessor and Lessee, negotiating in good faith....” Id. The Tennessee court of appeals held that, while “fair market value” has a common meaning, the lease provision that fair market value must bе determined through good-faith negotiation was an unenforceable agreement to agree. Id. (stating that by adding the provision that “Fair Market Value ‘must be determined by the Lessor and Lessee, negotiating in good faith, ... the parties basically made an ‘agreement to agree’ to something in the future, and such agreements have general- ly
We conclude the 2010 Adjustment was also an unеnforceable agreement to agree. See Playoff, 300 S.W.3d at 457; Four Eights, 194 S.W.3d at 486. Because the APA reflects the parties never reached an agreement on an additional material term (the percentage of completion), the 2010 Adjustment fails for “indefiniteness” as a matter of law. See Playoff, 300 S.W.3d at 457 (citing T.O. Stanley Boot Co., 847 S.W.2d at 222). We sustain appellants’ sole issue on appeal.
Having sustained appellants’ issue, we reverse the judgment of the trial court and render judgment that the 2010 Adjustment is unenforceable as a matter of law.
BANK OF AMERICA, N.A., Appellant, v. Dwight EISENHAUER, Individually and as Independent Executor of the Estate of Lorene Belcher Walter, Deceased, Appellee.
No. 13-13-00004-CV.
Court of Appeals of Texas, Corpus Christi-Edinburg.
May 15, 2014.