New Mexico cases have applied this principle, holding that where the purported promise to perform actually leaves it to the discretion of the promisor, the alleged promise is illusory and not consideration as a matter of law. See Board of Education v. Hamilton Construction Co., 891 P.2d 556, 561 (N.M.Ct.App. 1994), cert. denied, 890 P.2d 1807 (N.M. 1995); Acme Cigarette Services, Inc. v. Gallegos, 577 P.2d 885, 889 (N.M.Ct.App. 1978). As the court explained in Hamilton Construction: "A valid contract must possess mutuality of obligation. Mutuality means both sides must provide consideration.

Smith v. Vill. of Ruidoso, 1999-NMCA-151, ¶ 33, 128 N.M. 470, 994 P.2d 50. A promise may be consideration for a promise if it is "lawful, definite and possible." Bd. of Educ. v. James Hamilton Constr. Co., 119 N.M. 415, 419, 891 P.2d 556, 560 (internal quotation marks and citation omitted). However, a promise that "puts no constraints on what a party may do in the future — in other words, when a promise, in reality, promises nothing — it is illusory, and it is not consideration."

Mutuality means both sides must provide consideration." Bd. of Educ. v. James Hamilton Constr. Co., 119 N.M. 415, 420, 891 P.2d 556, 561 (Ct.App. 1994). Consideration consists of a promise to do something that a party is under no legal obligation to do or to forbear from doing something he has a legal right to do.

New Mexico law has embraced the well-settled principle that an illusory contract is unenforceable.Salazar v. Citadel Commc'ns Corp., 135 N.M. 447, 90 P.3d 466, 469 (2004) (citing Bd. of Educ. v. James Hamilton Constr. Co., 119 N.M. 415, 891 P.2d 556, 561 (N.M. Ct. App. 1994)). Although a TFC clause generally empowers a party to terminate a contract without cause, New Mexico law recognizes that TFC clauses render the host contract illusory if read literally.

UMF ¶ 25c; Doc. 29-2 at 56; Bd. of Educ., Gadsden Indep. Sch. Dist. No. 16 v. James Hamilton Const. Co., 1994-NMCA-168, ¶ 19, 891 P.2d 556, 561 (a promise that leaves it entirely in the discretion of one party whether to perform the promise or not is illusory and not a legally binding contract). Because there was no binding promise or contract the Court need not address whether an email from Gustav Sant, sent before CarbonBuilt came into existence, could bind CarbonBuilt under a theory that it is the successor to Sant's individual legal obligations.

Defendants assert that, to find that the arbitration agreement fails for lack of consideration, the Court must conclude that their performance was entirely optional. See James Hamilton Constr. Co., 891 P.2d 556, 561 ("A purported promise that actually promises nothing because it leaves the choice of performance entirely up to the offeror is illusory, and an illusory promise is not sufficient consideration for a contract."). Defendants distinguish the instant case from Heye v. Am. Golf Corp., 80, where the purported consideration was a mutual promise to arbitrate.

New Mexico follows this rule. Heuser v. Kephart, 215 F.3d 1186, 1192 (10th Cir. 2000) (citing and quoting Bd. of Educ. v. James Hamilton Constr. Co., 119 N.M. 415, 420 (Ct. App. 1994)). However, a New Mexico court would not, as Plaintiffs propose, rewrite the parties' agreement by striking the words "sole discretion," see Smith v. Price's Creameries, 1982-NMSC-102, ¶ 17(observing that "it is not province of the courts to alter or amend a contract made by the parties for themselves"); rather, a New Mexico Court would refuse to enforce the agreement due to the lack of mutuality of consideration.

It also precludes the possibility that any reliance by Chavez on the alleged representations was reasonable.Id. at 373-74; see also Bd. of Educ., Gadsden Indep. Sch. Dist. No. 16 v. James Hamilton Const. Co., 891 P.2d 556, 562-63 (N.M. App. 1994) ("Where the contract requires that any modification be in writing, oral modifications are ineffectual."). Plaintiff's employment contract plainly provides that the provisions therein "cannot be changed or altered unless in writing, and signed by the County and Billy."

Id. An illusory promise occurs where "[a] purported promise that actually promises nothing because it leaves the choice of performance entirely to the offeror. . . ." Bd. of Educ. v. James Hamilton Constr. Co., 891 P.2d 556, 561 (N.M.Ct.App. 1994). Section 14 of the employment agreement at issue is entitled "Arbitration" and begins, "Employee AND THE COMPANY AGREE TO ARBITRATE ANY CLAIMS AND DISPUTES DESCRIBED IN SUBPARAGRAPH "A" BELOW."

The promise of one party may be consideration for that of the other party; but each promise is in need of consideration to be binding and enforceable. Board of Educ., Gadsden Indep. Sch. Dist. No. 16 v. James Hamilton Constr. Co., 891 P.2d 556 (N.M.App. 1994), cert. denied, 890 P.2d 807 (N.M. 1995); Acme Cigarette Servs., Inc. v. Gallegos, 577 P.2d 885 (N.M.App. 1978). Like every other element, consideration must be bargained for by the parties and result in a meeting of the minds; the mere gratuitous presence of a circumstance that could be consideration is not enough. Romero v. Earl, supra; Knoebel v. Chief Pontiac, 294 P.2d 625 (N.M. 1956).