                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-09-00205-CV


JACQUELINE RUTLEDGE                                                APPELLANT
HENDERSON

                                       V.

DANIEL HENDERSON                                                    APPELLEE


                                   ------------

          FROM COUNTY COURT AT LAW NO. 1 OF PARKER COUNTY

                                   ------------

                        MEMORANDUM OPINION1
                                    ----------

      In this appeal from the trial court’s clarification and enforcement of a

divorce decree, Appellant Jacqueline Rutledge Henderson contends in her sole

issue that the trial court abused its discretion by ordering her to sign voting

agreements which changed the substantive property division of the parties’

agreement incident to divorce (AID). Because we hold that the trial court abused


      1
      See Tex. R. App. P. 47.4.
its discretion by ordering that Jacqueline sign the voting agreements to the extent

that they modified the AID regarding Daniel’s right of first refusal but also hold

that the trial court did not otherwise abuse its discretion, we affirm the trial court’s

orders as modified.

I. Background Facts and Procedural History

      Daniel and Jacqueline entered into an AID in which they divided their

marital estate. Under the AID, Jacqueline received, among other assets, one-

half of the couple’s “ownership” in nine apparently closely held companies. The

AID provides in relevant part,

            To the extent permitted by law, the parties stipulate that this
      agreement is enforceable as a contract. In consideration of the
      mutual undertakings and obligations contained in this agreement,
      the parties agree as follows:

             ....

      1.2    Agreement Relating to Stock Restrictions Related to the Stock
             Awarded to Jacqueline . . . .

             It is agreed between the parties that although Jacqueline . . .
      is hereby awarded shares of stock or units in the entities . . . , [she]
      hereby agrees that she will not have the right to vote pursuant to her
      ownership of such stock or units. Jacqueline . . . hereby agrees that
      she will execute all documents necessary to permit Daniel . . . to
      exercise voting rights relating to the shares of stock or units awarded
      to her herein, including, but not limited to, limited powers of attorney
      or the placement of the shares of stock into a voting trust as
      determined by Daniel . . . .

             It is further agreed between the parties that although
      Jacqueline . . . is hereby awarded shares of stock or units in the
      entities . . . , [she] hereby agrees that Daniel . . . is hereby awarded
      a right of first refusal to purchase the stock or units awarded herein
      to [her]. Jacqueline . . . hereby agrees that she will execute all


                                           2
documents necessary to confirm the right of first refusal as provided
herein.

       It is further agreed between the parties that although
Jacqueline . . . is hereby awarded shares of stock or units in the
entities . . . , [she] hereby agrees that such shares of stock or units
can only be sold to other current shareholders of the companies
issuing the stock or units (the shares of stock or units sought to be
sold in a particular company may only be sold to a shareholder in
that particular company).

       Jacqueline . . . hereby acknowledges it is the intent of the
parties pursuant to the preceding provisions that she will have no
involvement or participation in the management of any of the
companies in which she is awarded stock or units, including
employment, consulting, or otherwise.

       ....

....

4.8    Successors and Assigns

       This agreement, except as it otherwise expressly provides, will
bind and inure to the benefit of the respective legatees, devisees,
heirs, executors, administrators, assigns, and successors in interest
of the parties.

....

4.14 Agreement Voluntary and Clearly Understood

       Each party to this agreement-

       (a)  is completely informed of the facts relating to the subject
matter of this agreement and of the rights and liabilities of both
parties;

      (b)    enters into this agreement voluntarily after receiving the
advice of independent counsel;

       (c)  has given careful and mature thought to the making of
this agreement;


                                  3
           (d)   has carefully read each and every provision of this
      agreement;

           (e)   completely understands the provisions of this
      agreement, concerning both the subject matter and legal effect;

            (f)    stipulates this agreement to be a just and right division
      of marital debts and assets; and

             (g)     states that this agreement was signed without any
      coercion, any duress, or any agreement other than those specifically
      set forth in this agreement.

The AID was incorporated into the parties’ March 30, 2005 divorce decree. No

appeal was taken from that decree.

      In July 2005, Daniel sent to Jacqueline proposed voting agreements for

her shares of stock and units. The voting agreements for the shares of stock

provide,

                              AGREEMENT:

           NOW, THEREFORE, in consideration of the foregoing and the
      mutual promises contained herein, the Parties agree as follows:

            1.    Voting Agreement. JRH [Jacqueline] agrees to vote any
      shares of common stock of the Corporation beneficially owned by
      her (the “Capital Stock”) in the manner and as directed by DAH
      [Daniel].

            2.     Irrevocable Proxy.   In connection with the voting
      agreement in Section 1 above, JRH revokes any previously
      executed proxies and appoints DAH as her proxy to attend
      shareholders’ meetings, vote, execute consents, and otherwise act
      for JRH in the same manner as if she were personally present. This
      proxy is irrevocable and is coupled with an interest.




                                        4
      3.    Term. This Agreement shall be effective as of the date
hereof and shall continue in effect for a period of fifteen (15) years
from the date hereof.

      ....

      5.     Restrictions on Transfer; Right of First Refusal.

              5.1 Restrictions on Transfer. JRH shall not assign
sell, offer to sell, pledge, mortgage, hypothecate, encumber,
liquidate, dispose of or otherwise transfer (a “Transfer”) any of the
Capital Stock of the Corporation other than in accordance with this
Agreement. Any purported Transfer of Capital Stock by JRH or her
successors or assigns (or any successor transferee or assignee)
shall be ineffective until the transferee has agreed to become bound
as an assignee of the rights and obligations of JRH (or such
successor transferee or assignee) under this Agreement, including
without limitation the voting agreement, irrevocable proxy and Right
of First Refusal set forth herein.

             5.2 Transfer only to Current Shareholders. Pursuant
to the Property Agreement, JRH agrees that the shares of the
Corporation received by JRH under the Property Agreement can
only be sold to other current shareholders of the Corporation.

             5.3 Definitions. As used herein, the following terms
shall be defined as follows:

           “Proposed Transfer” means any proposed Transfer of
      any Capital Stock (or any interest therein) proposed by JRH.

            “Proposed Transfer Notice” means written notice
      from JRH to DAH setting for the terms and conditions of a
      Proposed Transfer.

           “Prospective Transferee” means any person to whom
      JRH proposes to make a Proposed Transfer.

            “Right of First Refusal” means the right, but not an
      obligation, of DAH to purchase some or all of the Transfer
      Stock with respect to a Proposed Transfer, on the terms and
      conditions specified in the Proposed Transfer Notice.



                                   5
             “ROFR Notice” means written notice from DAH
      notifying JRH that he intends to exercise his Right of First
      Refusal as to some or all of the Transfer Stock with respect to
      any Proposed Transfer.

            “Transfer Stock” means shares of Capital Stock
      subject to a Proposed Transfer.

             5.4 Grant.        JRH hereby unconditionally and
irrevocably grants to DAH a Right of First Refusal to purchase all or
any portion of the Capital Stock that JRH may propose to Transfer,
at the same price and on the same terms and conditions as those
offered to the Prospective Transferee.

             5.5 Notice. JRH must deliver DAH a notice regarding
any proposed Transfer not later than 30 days prior to the
consummation of such proposed Transfer. Such Proposed Transfer
Notice shall contain the material terms and conditions (including
without limitation the purchase price therefore) of the Proposed
Transfer and the identity of the Prospective Transferee. DAH must
exercise his Right of First Refusal under this Section 5 by giving a
ROFR Notice to [J]RH within fifteen (15) days after delivery of the
Proposed Transfer Notice.

             5.6 Consideration; Closing.          If the consideration
proposed to be paid for the Transfer Stock is in property, services or
other non-cash consideration, the fair market value of the
consideration shall be determined in good faith by DAH. If DAH
cannot for any reason pay for the Transfer Stock in the same form of
non-cash consideration, DAH may pay the cash value equivalent
thereof. The closing of the purchase of Transfer Stock by DAH shall
take place, and all payments from DAH shall have been delivered to
[J]RH, by the later of (i) the date specified in the Proposed Transfer
Notice as the intended date of the Proposed Transfer and (ii) forty-
five (45) days after delivery of the Proposed Transfer Notice.

             5.7 Sale by JRH; Restart of Right of First Refusal. If
any shares of Transfer Stock are not elected to be purchased by
DAH pursuant to this Section 5, then JRH shall be free, for a period
of ninety (90) calendar days from the date of the Proposed Transfer
Notice, to sell the remaining shares of Transfer Stock to the
Proposed Transferee, at a price equal to or greater than the
purchase price specified in the Proposed Transfer Notice and upon


                                  6
terms no more favorable to the Proposed Transferee than those
specified in the Proposed Transfer Notice. Any transfer of the
remaining shares of Transfer Stock by JRH after the end of such
ninety (90) day period or any change in the terms of the sale as set
forth in the Proposed Transfer Notice, which are more favorable to
the Proposed Transferee, shall require a new Proposed Transfer
Notice to be delivered to DAH and shall give rise anew to the rights
provided in the preceding paragraphs.

      6.     Miscellaneous.

              6.1 Transfers, Successors[,] and Assigns. The terms
and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the Parties.
JRH shall not assign this Agreement in whole or in part without the
prior written consent of DAH, which may be withheld in DAH’s
discretion, and any attempted assignment without such consent
shall be void ab initio. DAH may assign this Agreement in whole or
in part, including without limitation the Right of First Refusal, without
the consent of JRH. Nothing in this Agreement, express or implied,
is intended to confer upon any party other than the parties hereto or
their respective successors and assigns any rights, remedies,
obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.

             6.2 No Fiduciary Duty.       JRH acknowledges and
agrees that this Agreement is not intended to, and shall not create,
any fiduciary obligations on the part of DAH to JRH, or any other
special relationship between DAH and JRH, with respect to voting
the Capital Stock or otherwise.

             ....

             6.6 Titles and Subtitles. The titles and subtitles used
in this Agreement are used for convenience only and are not to be
considered in construing or interpreting this Agreement.

             ....

             6.9 Severability. The invalidity o[r] unenforceability of
any provision hereof shall in no way affect the validity or
enforceability of any other provision.



                                   7
     The agreements regarding Jacqueline’s units in the limited liability

companies provide,

                             AGREEMENT:

          NOW, THEREFORE, in consideration of the foregoing and the
     mutual promises contained herein, the Parties agree as follows:

            1.    Voting Agreement. JRH [Jacqueline] agrees to vote any
     Company Units beneficially owned by her in the manner and as
     directed by DAH [Daniel].

          2.      Irrevocable Proxy.  In connection with the voting
     agreement in Section 1 above, JRH revokes any previously
     executed proxies and appoints DAH as her proxy to attend
     members’ meetings, vote, execute consents, and otherwise act for
     JRH in the same manner as if she were personally present. This
     proxy is irrevocable and is coupled with an interest.

           3.    Term. This Agreement shall be effective as of the date
     hereof and shall continue in effect for a period of fifteen (15) years
     from the date hereof.

           ....

           5.     Restrictions on Transfer; Right of First Refusal.

                   5.1 Restrictions on Transfer. JRH shall not assign
     sell, offer to sell, pledge, mortgage, hypothecate, encumber,
     liquidate, dispose of or otherwise transfer (a “Transfer”) any of
     Units of the Company other than in accordance with this Agreement.
     Any purported Transfer of Units by JRH or her successors or
     assigns (or any successor transferee or assignee) shall be
     ineffective until the transferee has agreed to become bound as an
     assignee of the rights and obligations of JRH (or such successor
     transferee or assignee) under this Agreement, including without
     limitation the voting agreement, irrevocable proxy and Right of First
     Refusal set forth herein.

                 5.2 Transfer only to Current Unitholders. Pursuant to
     the Property Agreement, JRH agrees that the Units received by JRH



                                        8
under the Property Agreement can only be sold to other current
unitholders of the Company.

             5.3 Definitions. As used herein, the following terms
shall be defined as follows:

           “Proposed Transfer” means any proposed Transfer of
      any Units (or any interest therein) proposed by JRH.

            “Proposed Transfer Notice” means written notice
      from JRH to DAH setting for the terms and conditions of a
      Proposed Transfer.

           “Prospective Transferee” means any person to whom
      JRH proposes to make a Proposed Transfer.

            “Right of First Refusal” means the right, but not an
      obligation, of DAH to purchase some or all of the Transfer
      Units with respect to a Proposed Transfer, on the terms and
      conditions specified in the Proposed Transfer Notice.

             “ROFR Notice” means written notice from DAH
      notifying JRH that he intends to exercise his Right of First
      Refusal as to some or all of the Transfer Units with respect to
      any Proposed Transfer.

            “Transfer Units” means Units subject to a Proposed
      Transfer.

             5.4 Grant.        JRH hereby unconditionally and
irrevocably grants to DAH a Right of First Refusal to purchase all or
any portion of the Units that JRH may propose to Transfer, at the
same price and on the same terms and conditions as those offered
to the Prospective Transferee.

             5.5 Notice. JRH must deliver DAH a notice regarding
any proposed Transfer not later than 30 days prior to the
consummation of such proposed Transfer. Such Proposed Transfer
Notice shall contain the material terms and conditions (including
without limitation the purchase price therefore) of the Proposed
Transfer and the identity of the Prospective Transferee. DAH must
exercise his Right of First Refusal under this Section 5 by giving a



                                 9
ROFR Notice to [J]RH within fifteen (15) days after delivery of the
Proposed Transfer Notice.

             5.6 Consideration; Closing.          If the consideration
proposed to be paid for the Transfer Units is in property, services or
other non-cash consideration, the fair market value of the
consideration shall be determined in good faith by DAH. If DAH
cannot for any reason pay for the Transfer Units in the same form of
non-cash consideration, DAH may pay the cash value equivalent
thereof. The closing of the purchase of Transfer Units by DAH shall
take place, and all payments from DAH shall have been delivered to
[J]RH, by the later of (i) the date specified in the Proposed Transfer
Notice as the intended date of the Proposed Transfer and (ii) forty-
five (45) days after delivery of the Proposed Transfer Notice.

              5.7 Sale by JRH; Restart of Right of First Refusal. If
any Transfer Units are not elected to be purchased by DAH pursuant
to this Section 5, then JRH shall be free, for a period of ninety (90)
calendar days from the date of the Proposed Transfer Notice, to sell
the remaining Transfer Units to the Proposed Transferee, at a price
equal to or greater than the purchase price specified in the Proposed
Transfer Notice and upon terms no more favorable to the Proposed
Transferee than those specified in the Proposed Transfer Notice.
Any transfer of the remaining Transfer Units by JRH after the end of
such ninety (90) day period or any change in the terms of the sale as
set forth in the Proposed Transfer Notice, which are more favorable
to the Proposed Transferee, shall require a new Proposed Transfer
Notice to be delivered to DAH and shall give rise anew to the rights
provided in the preceding paragraphs.

      6.     Miscellaneous.

              6.1 Transfers, Successors[,] and Assigns. The terms
and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the Parties.
JRH shall not assign this Agreement in whole or in part without the
prior written consent of DAH, which may be withheld in DAH’s
discretion, and any attempted assignment without such consent
shall be void ab initio. DAH may assign this Agreement in whole or
in part, including without limitation the Right of First Refusal, without
the consent of JRH. Nothing in this Agreement, express or implied,
is intended to confer upon any party other than the parties hereto or
their respective successors and assigns any rights, remedies,


                                   10
      obligations, or liabilities under or by reason of this Agreement,
      except as expressly provided in this Agreement.

                   6.2 No Fiduciary Duty.       JRH acknowledges and
      agrees that this Agreement is not intended to, and shall not create,
      any fiduciary obligations on the part of DAH to JRH, or any other
      special relationship between DAH and JRH, with respect to voting
      the Units or otherwise.

                  ....

                   6.6 Titles and Subtitles. The titles and subtitles used
      in this Agreement are used for convenience only and are not to be
      considered in construing or interpreting this Agreement.

                  ....

                   6.9 Severability. The invalidity o[r] unenforceability of
      any provision hereof shall in no way affect the validity or
      enforceability of any other provision.

      Jacqueline refused to sign the proposed voting agreements, so Daniel filed

a petition for enforcement in December 2005, requesting that the trial court

(1) compel Jacqueline to sign the agreements or hold her in contempt, (2) clarify

any part of the divorce decree incorporating the AID that was not specific enough

to be enforced by contempt, and (3) award attorney’s fees.

      Jacqueline filed an answer and counterpetition, arguing that Daniel failed

to comply with the AID by (1) reserving interests in the shares of stock and units

awarded Jacqueline when such interests were not agreed to in the AID or divorce

decree, (2) issuing or causing to be issued shares of stock and units bearing

restrictions, namely that the shares and units were subject to voting agreements

that would bind subsequent purchasers, and (3) eliminating in the voting



                                       11
agreements the fiduciary mandates imposed on trustees by law. Jacqueline also

contended that the trial court’s granting of Daniel’s requested relief would violate

section 9.007 of the family code by modifying the property division made in the

divorce decree.      Finally, Jacqueline contended that after receiving the

“unacceptable documents” from Daniel, she had sent limited powers of attorney

for each of the nine companies for his signature, which he refused. Jacqueline

asked that the trial court order Daniel (1) to stop representing himself as the

owner of the voting rights to her stock shares and units, (2) to stop representing

that such rights survive the transfer of the shares and units and bind subsequent

purchasers, and (3) to assign, convey, and deliver her shares and units to her in

her name “without any restrictions thereon or on record with any Company, other

than notice of [Daniel’s] right of first refusal and that said shares and units may

only be sold to other shareholders or members.”

      The trial court held hearings on February 6 and February 24, 2006. At the

February 24 hearing, Daniel’s counsel stated,

      I don’t agree with their interpretation on the right of first refusals, but
      [they] raise an issue about that. We don’t care. I took it out and
      made it an all—not that I’m conceding the position, but to remove
      that issue from the case I adopted their language and I attached a
      new—

On March 9, 2006, the trial court signed an order finding,

      1)    the following language contained in paragraph 1.2 on page 15
            of 28 of the Agreement Incident to Divorce:

            . . . Jacquel[ine] . . . hereby agrees that she will execute
            all documents necessary to permit Daniel . . . to


                                          12
             exercise voting rights relating to the shares of stock or
             units awarded to her herein, including, but not limited to,
             limited powers of attorney or the placement of the
             shares of stock into a voting trust as determined by
             Daniel . . .

      is not ambiguous and requires Jacqueline . . . to sign and execute all
      documents necessary and in a form as determined by and at the
      sole discretion of Daniel . . . ;

ordering Jacqueline to sign within ten days the nine original voting agreements

attached to Daniel’s petition for enforcement; and awarding attorney’s fees to

Daniel “through the hearing on this matter.”

      On March 13, 2006, Jacqueline filed a petition for mandamus in this court

requesting that we compel the trial court to vacate its March 9, 2006 order and

that we stay that order pending the resolution of the original proceeding. On

March 17, 2006, we stayed the trial court’s March 9, 2006 order; on April 24,

2006, we lifted the stay and denied mandamus relief.

      On May 2, 2006, the trial court signed a supplemental clarification order

requiring Jacqueline to sign and deliver the nine voting agreements by 5:00 p.m.

on May 3, 2006. On May 4, 2006, Daniel filed his first amended petition for

enforcement, complaining that Jacqueline had not delivered the nine voting

agreements, seeking that she be held in contempt and jailed until she complied

with the trial court’s orders, requesting attorney’s fees, and to the extent that the

orders sought to be enforced were not specific enough to be enforced by

contempt, seeking clarification.




                                         13
      By May 5, 2006, the parties had modified the voting agreements under a

rule 11 agreement, and Jacqueline had signed them.          The modified voting

agreements have different language concerning Daniel’s right of first refusal.

The modified voting agreements regarding the stock provide,

                   5.3. Definitions. As used herein, the following terms
      shall be defined as follows:

                  ....

                   “Right of First Refusal” means the right, but not an
            obligation, of DAH to purchase all of the Transfer Stock with
            respect to a Proposed Transfer, on the terms and conditions
            specified in the Proposed Transfer Notice.

                   “ROFR Notice” means written notice from DAH
            notifying JRH that he intends to exercise his Right of First
            Refusal as to some or all of the Transfer Stock with respect to
            any Proposed Transfer.

                  ....

                   5.4 Grant.        JRH hereby unconditionally and
      irrevocably grants to DAH a Right of First Refusal to purchase all or
      any portion of the Capital Stock that JRH may propose to Transfer,
      at the same price and on the same terms and conditions as those
      offered to the Prospective Transferee.

                  ....

                   5.7 Sale by JRH; Restart of Right of First Refusal. If
      any shares of Transfer Stock are not elected to be purchased by
      DAH pursuant to this Section 5, then JRH shall be free, for a period
      of ninety (90) calendar days from the date of the Proposed Transfer
      Notice, to sell the remaining shares of Transfer Stock to the
      Proposed Transferee, at a price equal to or greater than the
      purchase price specified in the Proposed Transfer Notice and upon
      terms no more favorable to the Proposed Transferee than those
      specified in the Proposed Transfer Notice. Any transfer of the
      remaining shares of Transfer Stock by JRH after the end of such


                                       14
     ninety (90) day period or any change in the terms of the sale as set
     forth in the Proposed Transfer Notice, which are more favorable to
     the Proposed Transferee, shall require a new Proposed Transfer
     Notice to be delivered to DAH and shall give rise anew to the rights
     provided in the preceding paragraphs. [Emphasis added.]

The modified voting agreements concerning the units in the limited liability

companies provide,

                  5.3. Definitions. As used herein, the following terms
     shall be defined as follows:

                 ....

                  “Right of First Refusal” means the right, but not an
           obligation, of DAH to purchase all of the Transfer Units with
           respect to a Proposed Transfer, on the terms and conditions
           specified in the Proposed Transfer Notice.

                  “ROFR Notice” means written notice from DAH
           notifying JRH that he intends to exercise his Right of First
           Refusal as to some or all of the Transfer Units with respect to
           any Proposed Transfer.

                 ....

                  5.4 Grant.        JRH hereby unconditionally and
     irrevocably grants to DAH a Right of First Refusal to purchase all or
     any portion of the Units that JRH may propose to Transfer, at the
     same price and on the same terms and conditions as those offered
     to the Prospective Transferee.

                 ....

                  5.7 Sale by JRH; Restart of Right of First Refusal. If
     any Transfer Units are not elected to be purchased by DAH pursuant
     to this Section 5, then JRH shall be free, for a period of ninety (90)
     calendar days from the date of the Proposed Transfer Notice, to sell
     the remaining Transfer Units to the Proposed Transferee, at a price
     equal to or greater than the purchase price specified in the Proposed
     Transfer Notice and upon terms no more favorable to the Proposed
     Transferee than those specified in the Proposed Transfer Notice.


                                      15
      Any transfer of the remaining Transfer Units by JRH after the end of
      such ninety (90) day period or any change in the terms of the sale as
      set forth in the Proposed Transfer Notice, which are more favorable
      to the Proposed Transferee, shall require a new Proposed Transfer
      Notice to be delivered to DAH and shall give rise anew to the rights
      provided in the preceding paragraphs. [Emphasis added.]

      Also on May 5, 2006, Jacqueline filed her supplemental response to

Daniel’s first amended petition for enforcement.       She discussed the rule 11

agreement, noting that she had signed the revised voting agreements

involuntarily solely to avoid being held in contempt and that she did not waive her

right to appeal, and she stated that this postdeadline agreement would bar a

contempt finding against her.

      On May 16, 2006, the trial court held a hearing. The trial court indicated

that Jacqueline would need to sign the original voting agreements to avoid being

found in contempt and that the parties could not agree around the trial court’s

order. The parties notified the trial court in the hearing that they were going to

attempt to globally settle the property issues, and the trial court ordered

Jacqueline’s attorney to file a status report two weeks later.

      Also on May 16, Jacqueline filed her second supplemental response to

Daniel’s first amended petition for enforcement, attaching her signed voting

agreements in their original form. Jacqueline’s response stated that she was

signing the voting agreements in their original form only to avoid being held in

contempt and placed in jail and that she fully intended to appeal the trial court’s




                                         16
order compelling her to sign the original voting rights agreements.       No final

settlement of the property issues appears in the record.

      In early June 2006, Jacqueline attempted to appeal the trial court’s orders

of March 9, 2006 and May 2, 2006.        We dismissed that appeal for want of

jurisdiction because neither order finally disposed of attorney’s fees. 2 Almost

three years later, on May 28, 2009, the trial court entered a final clarification

order awarding Daniel a judgment against Jacqueline for $35,000 “for attorney’s

fees through the trial of the petition for enforcement and responding to the

petition for mandamus” and conditional amounts in appellate fees. Jacqueline

timely appealed.

II. Law and Analysis

      Because Daniel and Jacqueline stipulated that their AID is enforceable as

a contract, the AID’s construction is governed by contract law. Neither party

raised ambiguity below or on appeal. In fact, both parties agreed below that the

contract is not ambiguous, and that issue is not raised on appeal.3 The trial court

found that the AID is not ambiguous, and we agree.

      Accordingly, we construe the AID as a matter of law, with our chief

objective being to determine the parties’ true intent as expressed in the


      2
       Henderson v. Henderson, No. 02-06-00195-CV, 2006 WL 2692568, at *1
(Tex. App.—Fort Worth Sept. 21, 2006, no pet.) (mem. op.).
      3
      See Praeger v. Wilson, 721 S.W.2d 597, 600 (Tex. App.—Fort Worth
1986, writ ref’d n.r.e.).


                                        17
document.4 To accomplish this task, we review the entire AID “to harmonize and

give effect to all [its] provisions . . . so that none will be rendered meaningless.”5

      Section 9.007 of the family code provides,

      (a) A court may not amend, modify, alter, or change the division of
      property made or approved in the decree of divorce or annulment.
      An order to enforce the division is limited to an order to assist in the
      implementation of or to clarify the prior order and may not alter or
      change the substantive division of property.

      (b) An order under this section that amends, modifies, alters, or
      changes the actual, substantive division of property made or
      approved in a final decree of divorce or annulment is beyond the
      power of the divorce court and is unenforceable.6

We must therefore determine whether the trial court’s order to sign the voting

agreements in their original form impermissibly modifies the AID, which we

construe as a matter of law.

      Jacqueline complains that the voting agreements modify the AID by (1)

giving Daniel the irrevocable, fully transferable right to vote her stock shares and

units even after she sells them, binding subsequent purchasers; (2) giving Daniel

a fully transferable right of first refusal that could be exercised piecemeal; and (3)




      4
       See Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983).
      5
       Id.
      6
       Tex. Fam. Code Ann. § 9.007(a), (b) (Vernon 2006).


                                          18
abrogating any fiduciary duty that Daniel would have to Jacqueline concerning

his voting of her stock and units.7

      A. Daniel’s Rights to Vote Shares Awarded to Jacqueline

      Jacqueline complains that the following terms in the voting agreements

regarding the stock modify the AID:

            2.     Irrevocable Proxy.   In connection with the voting
      agreement in Section 1 above, JRH revokes any previously
      executed proxies and appoints DAH as her proxy to attend
      shareholders’ meetings, vote, execute consents, and otherwise act
      for JRH in the same manner as if she were personally present. This
      proxy is irrevocable and is coupled with an interest.

            3.    Term. This Agreement shall be effective as of the date
      hereof and shall continue in effect for a period of fifteen (15) years
      from the date hereof.

Similarly, she complains about these corresponding provisions in the voting

agreements regarding the units:

           2.      Irrevocable Proxy.  In connection with the voting
      agreement in Section 1 above, JRH revokes any previously
      executed proxies and appoints DAH as her proxy to attend
      members’ meetings, vote, execute consents, and otherwise act for
      JRH in the same manner as if she were personally present. This
      proxy is irrevocable and is coupled with an interest.

            3.    Term. This Agreement shall be effective as of the date
      hereof and shall continue in effect for a period of fifteen (15) years
      from the date hereof.

Jacqueline contends that the AID gave her “[o]ne half of the parties’ ownership”

in the companies and that nowhere in the AID or divorce decree is Daniel given

      7
        Construing Jacqueline’s brief liberally, we treat her use of “stock” alone to
implicitly include “units.”


                                         19
an ownership interest in the right to vote the shares of stock or units. Jacqueline

contends that the clear intent of the stock and unit restrictions in the AID is to

exclude her from any involvement in the businesses. She also contends that

once she sells her stock or units in a company, any concern regarding her

involvement in the company would naturally end; therefore, she argues,

          Clearly, then, any right granted by the AID to Daniel to exercise the
          vote of Jacqueline’s shares would end when Jacqueline’s stock is
          sold. The express terms of the AID further bear this out in that the
          documents listed in the relevant paragraph in the AID are limited
          powers of attorney and voting trusts, both of which would terminate
          upon sale of the stock.

Yet, construing the unappealed AID to give effect to the parties’ expressed intent,

we note that the plain language of the AID does not expressly limit Daniel’s rights

to vote Jacqueline’s shares and units to her period of ownership of the shares

and units, nor does the AID provide that Daniel’s rights to vote the shares and

units terminate upon Jacqueline’s transfer of them. Rather, the AID expressly

gives Daniel the right “to exercise voting rights relating to the shares of stock or

units” awarded Jacqueline and provides that Jacqueline’s ownership of the

shares or units does not include the right to vote: “Jacqueline . . . hereby agrees

that she will not have the right to vote pursuant to her ownership of such stock or

units.”

          Further, the AID expressly provides that its terms and conditions “shall

inure to the benefit of and be binding upon the respective successors and

assigns of the Parties.” We therefore agree with Daniel that the AID does not



                                           20
provide that his rights to vote the shares and units awarded Jacqueline somehow

revest in Jacqueline so that she can transfer unencumbered shares or units to

her respective successors and assigns.

      Finally, Jacqueline argues that the provision in the AID requiring her to

      execute all documents necessary to permit Daniel . . . to exercise
      voting rights relating to the shares of stock or units awarded to her
      herein, including, but not limited to, limited powers of attorney or the
      placement of the shares of stock into a voting trust as determined by
      Daniel . . . .

means that Daniel must

      choose either (1) a limited power of attorney, or (2) . . . a voting trust,
      plus whatever other documents may be necessary to effectuate the
      stock restrictions. . . . The AID, thus, intended the execution, at a
      minimum, of either a limited power of attorney or a voting trust.

Jacqueline concludes that because a trust and limited power of attorney would

terminate upon the sale of the affected shares or units, this provision of the AID

is further evidence of the parties’ intent that she have the ability to transfer the

voting rights to her shares and units. Yet Jacqueline’s interpretation ignores the

broadening language of the AID provision: “including, but not limited to.” This

we cannot do.8

      Accordingly, because we hold that the AID expressly gives Daniel the right

to vote Jacqueline’s shares or units, expressly provides that Jacqueline has no

voting rights regarding her shares or units, expressly contemplates that their

successors and assigns have the same rights and duties as Daniel and

      8
       See Coker, 650 S.W.2d at 393.


                                          21
Jacqueline under the AID, expressly gives Daniel the discretion to determine

which documents are necessary to allow him to exercise his voting rights of

Jacqueline’s shares and units, and does not expressly limit Daniel’s rights to vote

such shares and units to Jacqueline’s period of ownership thereof, we hold that

the voting agreements and the trial court’s order compelling Jacqueline to sign

them do not impermissibly modify the AID regarding the voting rights.          We

overrule Jacqueline’s argument concerning the voting rights to the shares and

units awarded her.

      B. Daniel’s Fiduciary Duties to Jacqueline

      Jacqueline also complains that the voting agreements impermissibly

modify the AID by eliminating Daniel’s fiduciary duties to her regarding the voting

of her stock and units. The plain language of the voting agreements regarding

the stock provides: “JRH acknowledges and agrees that this Agreement is not

intended to, and shall not create, any fiduciary obligations on the part of DAH to

JRH, or any other special relationship between DAH and JRH, with respect to

voting the Capital Stock or otherwise.”      [Emphasis added.]      And the plain

language of the voting agreements regarding the units provides, “JRH

acknowledges and agrees that this Agreement is not intended to, and shall not

create, any fiduciary obligations on the part of DAH to JRH, or any other special

relationship between DAH and JRH, with respect to voting the Units or

otherwise.” [Emphasis added.]




                                        22
         Relying on the plain language, then, the voting agreements do not address

fiduciary duties that Daniel may or may not otherwise have to Jacqueline, 9 an

issue not before us; rather, the voting agreements expressly do not enlarge any

fiduciary duties Daniel may have. Because the voting agreements do not limit

any fiduciary duties that Daniel otherwise has to Jacqueline, we overrule

Jacqueline’s argument that the voting agreements impermissibly modify the AID

by eliminating Daniel’s fiduciary duties to her.

         C. Right of First Refusal

         Jacqueline’s contention that the voting agreements modify the AID by

allowing Daniel to exercise his right of first refusal piecemeal, however, has

merit.        A person with a right of first refusal, also called a preemptive or

preferential right, has the right to purchase property, shares of corporate stock

and units of a limited liability company in this case, on the same terms as a bona

fide purchaser.10       Exercise of the right “must be positive, unconditional, and

unequivocal. . . . [G]enerally, a purported acceptance containing a new demand,

proposal, condition, or modification of the terms of the offer is not an acceptance




         9
      See, e.g., Hogget v. Brown, 971 S.W.2d 472, 487–88 (Tex. App.—
Houston [14th Dist.] 1997, pet. denied).
         10
             Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 644 (Tex. 1996).


                                           23
but a rejection.”11 We must narrowly construe rights of first refusal because they

restrict the free transfer of stock.12

      The AID provides,

      Jacqueline . . . hereby agrees that Daniel . . . is hereby awarded a
      right of first refusal to purchase the stock or units awarded herein to
      [her]. Jacqueline . . . hereby agrees that she will execute all
      documents necessary to confirm the right of first refusal as provided
      herein.

      The original voting agreements regarding the stock that the trial court

required Jacqueline to sign, however, define the right of first refusal as “the right,

but not an obligation, of DAH [Daniel] to purchase some or all of the Transfer

Stock with respect to a Proposed Transfer, on the terms and conditions specified

in the Proposed Transfer Notice” and provide that “JRH [Jacqueline] hereby

unconditionally and irrevocably grants to DAH a Right of First Refusal to

purchase all or any portion of the Capital Stock that JRH may propose to

Transfer, at the same price and on the same terms and conditions as those

offered to the Prospective Transferee.” Similarly, the original voting agreements

regarding the units that the trial court required Jacqueline to sign define the right

of first refusal as “the right, but not an obligation, of DAH to purchase some or all

of the Transfer Units with respect to a Proposed Transfer, on the terms and

conditions specified in the Proposed Transfer Notice” and provide that “JRH

      11
       FWT, Inc. v. Haskin Wallace Mason Prop. Mgmt., L.L.P., 301 S.W.3d
787, 794 (Tex. App.—Fort Worth 2009, pet. denied) (op. on reh’g).
      12
        Tenneco, 925 S.W.2d at 646.


                                         24
hereby unconditionally and irrevocably grants to DAH a Right of First Refusal to

purchase all or any portion of the Units that JRH may propose to Transfer, at the

same price and on the same terms and conditions as those offered to the

Prospective Transferee.”

      As Jacqueline argues, in drafting the original voting agreements, Daniel

has “unilaterally translated his right of first refusal to allow him to accept or reject

that right piecemeal, . . . [i]n essence, . . . giv[ing] himself the ability to destroy

any deal Jacqueline may have to sell her shares [or units].” The AID gave him

no such authority. Accordingly, because the original voting agreements extend

the reach of the right of first refusal beyond the terms of the AID, we hold that the

provisions regarding the right of first refusal in the original voting agreements

(other than those in subsection “B” of the “Recitals” section) are void and that the

trial court abused its discretion by ordering Jacqueline to sign the original voting

agreements.

      We therefore modify the trial court’s orders accordingly.13 Specifically, we

modify the following provisions in the March 9, 2006 clarification order:

             3) the 9 documents provided by Petitioner to Respondent on
      July 13, 2005 and attached as Exhibits 1 through 9 of Petitioner’s
      Petition for Enforcement filed with this Court on December 13, 2005,

      13
        See, e.g., In re S.A.D.S., No. 02-09-00302-CV, 2010 WL 3193520, at *4
(Tex. App.—Fort Worth Aug. 12, 2010, no pet.) (modifying conservatorship order
that varied from mediated settlement agreement and affirming as modified);
Garcia-Udall v. Udall, 141 S.W.3d 323, 332 (Tex. App.—Dallas 2004, no pet.)
(modifying order modifying divorce decree to comport with mediated settlement
agreement and affirming as modified).


                                          25
      comply with the provision contained in paragraph 1.2 on page 15 of
      28 of the Agreement Incident to Divorce;

               ....

             IT IS THEREFORE ORDERED that . . . Jacqueline . . . shall
      sign the 9 documents attached as Exhibits 1 through 9 of Petitioner’s
      Petition for Enforcement . . . .

to now read,

             3) the 9 documents provided by Petitioner to Respondent on
      July 13, 2005 and attached as Exhibits 1 through 9 of Petitioner’s
      Petition for Enforcement filed with this Court on December 13, 2005,
      with all provisions regarding the right of refusal (other than those in
      subsection “B” of the “Recitals” section) redacted,14 comply with the
      provision contained in paragraph 1.2 on page 15 of 28 of the
      Agreement Incident to Divorce;

               ....

             IT IS THEREFORE ORDERED that . . . Jacqueline . . . shall
      sign the 9 documents attached as Exhibits 1 through 9 of Petitioner’s
      Petition for Enforcement, with all provisions regarding the right of
      refusal (other than those in subsection “B” of the “Recitals” section)
      redacted. [Emphasis added.]

Similarly, we modify the following provision in the May 2, 2006 clarification order:

             IT IS THEREFORE ORDERED that Jacqueline . . . is ordered
      to sign the 9 Voting Agreements attached as Exhibits 1 through 9 to
      Petitioner’s Petition for Enforcement filed with this Court on
      December 13, 2005 as referenced in the March 9, 200[6]
      Clarification Order Pursuant to Tex. Fam. Code § 9.008 . . . .

to now read,

             IT IS THEREFORE ORDERED that Jacqueline . . . is ordered
      to sign the 9 Voting Agreements attached as Exhibits 1 through 9 to

      14
         We note that the provisions in the AID regarding Daniel’s right of first
refusal remain intact.


                                         26
      Petitioner’s Petition for Enforcement filed with this Court on
      December 13, 2005, with all provisions regarding the right of refusal
      (other than those in subsection “B” of the “Recitals” section)
      redacted, as referenced in the March 9, 200[6] Clarification Order
      Pursuant to Tex. Fam. Code § 9.008 . . . . [Emphasis added.]

III. Conclusion

      Having held that the trial court abused its discretion by ordering Jacqueline

to sign the original voting agreements because the language regarding Daniel’s

right of first refusal did not comply with the AID but having held that the trial court

did not otherwise abuse its discretion, we affirm the trial court’s orders as

modified.




                                                     LEE ANN DAUPHINOT
                                                     JUSTICE

PANEL: LIVINGTON, C.J.; DAUPHINOT and MCCOY, JJ.

DELIVERED: December 2, 2010




                                          27
