                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-15-00058-CV


KENNETH RAY WALDROP                                                APPELLANT

                                       V.

TERESA WALDROP                                                      APPELLEE

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        FROM THE 393RD DISTRICT COURT OF DENTON COUNTY
                  TRIAL COURT NO. 2006-61054-393

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     DISSENTING OPINION ON EN BANC RECONSIDERATION

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      As to the contractual language permitting modification of this contract

between the parties upon “further orders of the court,” the trial court found

ambiguity but, based on evidence regarding the parties’ intent, found that it

referred only to the three instances of termination stated in the decree—the

death of either party, Teresa’s remarriage, or Teresa’s cohabitation—and one

instance of modification for Teresa’s receipt of her share of Kenneth’s Kimberly
Clark pension. Our majority reverses the trial court, holding that “further orders

of the court” is not ambiguous and not so limited. But in so holding, we stopped

short of explaining what the further-orders-of-the-court phrase—which, according

to the majority, has “a certain and definite legal meaning”—actually means.

      If the clause has a “certain and definite legal meaning,” then certainly we

should be able to articulate its meaning sufficient to direct the trial court as to the

standard that is to be applied on remand. Instead, the majority gives the trial

court broad marching orders, remanding the case back to determine “whether

Kenneth’s maintenance obligation should be modified or terminated” and to

determine “the amount, if any, of a modification.”

      A trial court will commit an abuse of discretion if it acts without reference to

guiding rules or principles. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007). And

by failing to articulate the rules and principles that should be applied in these

circumstances, we have now sent the trial court on a journey without providing

any directions on how to get there. Instead, we invite the trial court to decide for

itself what standard it will apply.

      But there is a deeper, more basic problem with a contractual provision that

purports to allow the contract to be modified simply upon “further orders” of a

court. It is illusory at its core. See In re 24R, Inc., 324 S.W.3d 564, 567 (Tex.

2010) (orig. proceeding) (explaining that a promise is illusory if it does not bind

the promisor, such as when the promisor retains the option to discontinue

performance).


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      That the provision in question allows a court to modify the contract

obscures the problem somewhat, because courts are often legitimately called

upon to construe contracts and to make determinations when disputes arise as to

their meaning. But here it matters not who is empowered to modify the contract.

The effect would be no different had the contract provided for modification by a

minister, one of the parties to the contract, or a random stranger on the street.

Absent agreement as to the circumstances under which any of these persons

could modify the contract, there is no agreement as to the essential terms of the

modification process. See Fischer v. CTMI, L.L.C., 479 S.W.3d 231, 237 (Tex.

2016) (“‘It is well settled law that when an agreement leaves material matters

open for future adjustment and agreement that never occur, it is not binding upon

the parties and merely constitutes an agreement to agree’ . . . [t]hus, to be

enforceable, an agreement to agree, like any other contract, ‘must specify all its

material and essential terms, and leave none to be agreed upon as the result of

future negotiations.’” (internal citations omitted)).

      A contractual provision that purports to allow for modification of the

contract without a meeting of the minds as to the circumstances that would

trigger such a possibility is just as illusory as the parties’ agreeing that they will

agree to modify the contract in the future without establishing the conditions and

framework for such future modification. See id. The latter has been held to be

“an agreement to agree,” which is no agreement at all. See id. (“If an agreement

to make a future agreement is not sufficiently definite as to all of the future


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agreement’s essential and material terms, the agreement to agree ‘is nugatory.’”

(quoting Radford v. McNeny, 104 S.W.2d 472, 474 (Tex. 1937)).

      Here, we have an agreement to modify based on who-knows-what—a

whim, a change in wind direction, or when a pig flies. The only significance of

allowing the contract to be modified by order of a court is that such

modification—because it will be embodied in a court order, rather than in some

other form of message from the minister, party, or stranger on the street—would

be subject to appellate review. And that raises one last, uncomfortable question:

on review, how are we to assess whether the trial court erred or abused its

discretion by granting or denying such modification? If we cannot articulate that

standard to the trial court on remand, how are we to determine it for ourselves

when this matter presents itself to us again for review?

      If it is the majority’s view that this question should be avoided at this

juncture, then we should have affirmed the trial court’s decision on the narrower

grounds identified in the original opinion.

      For these reasons, I respectfully dissent.

                                                   /s/ Bonnie Sudderth

                                                   BONNIE SUDDERTH
                                                   CHIEF JUSTICE

PITTMAN, J., and LEE ANN DAUPHINOT (Senior Justice, Retired, Sitting by
Assignment), join.

DELIVERED: June 7, 2018




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