### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03

- 22

- 00632

- CV

Nathan Bryan , Appellant

v. Human Power of N Company , Appellee

FROM THE 53RD DISTRICT COURT OF TRAVIS COUNTY NO. D-1- GN -20-002772, THE HONORABLE MARIA CANTÚ HEXSEL, JUDGE PRESIDI NG

M E M O R A N D U M O P I N I O N

Dr. Nathan Br yan appeals from the t rial court ’ s final judgment, challenging the
trial court ’ s summary judgment rulings that were incorporated in to its final judg ment . For the
foll owing reasons, we affirm the f inal judgment.

BACKGROUND 1

Dr

. Bryan is one of the co -found er s, a sh areholder , and the former Chief Science
Officer of A ppellee Human Power of N Company (the Company). 2 The Company is a p riva tely held company th a t sells products that support or enhance th e body’ s pro duction of nitric oxide.

1 The facts are taken from the summa ry -judgment evidence.

2 When originally fou nded i n 20 09 , t he Co mp any ’ s nam e wa s Neo G enis Laboratories, Inc. , but it changed its name to Human Power of N Company in 2016.2 The Option Pla n
Ce n tral to the parties ’ dispute, Dr

. B r yan and other shareholder s approved the adopt i on of a “ 20 13 Non

- Quali fied Stock Option Plan” (the “Option Plan”) for the Company

. Th e O p tion Plan ’ s purp ose “ is to provide inc entive to directors, consultants, advi sors a nd key employees ” of the Company “ to continue their asso ciation with the C ompany b y provi ding opportunities for such pe rsons to participate in the own ership of the Company and its future growth, and t o offer an additional indu ceme nt in obtaining the servic es of such persons. ” The Option Plan provides that it is to b e admi nistered by a commi ttee (the “ Plan
Committee ” ) consisting of the Comp a ny ’ s board of di r ecto rs (the “ Boa rd ” ) or individual
dir ect or s designa te d by th e B oard ; that th e Pl an Commi ttee has the “ sole and a bsolute discretion ”
to make neces sar y determin ations fo r the adm inistration of the plan ; that any controversy or
claim rel atin g to the Option P la n or any optio n agreement thereunder “s hal l be det ermined

u nilaterally by the Comm ittee in its sole discretion ” ; that “[a]ll decisions, determin ations and interpretations of t he Committee shall be fin al, binding, and conclusive o n all Optionees ” ; and
that no member of the Plan Commi t tee “ sha ll be liab le f or any ac tion, failure to act or
de ter m inati on ma de in good f aith with respe ct to the Plan, any Option Agree ment or any Optio n hereunder. ”
Under t he Option Pla n , the Pla n Committe e in its “ sole discretion ” may grant

s t ock optio ns , but suc h s tock option s must be sub ject to w ritten o ption agreement s that are
consi sten t with the Option Plan :
Each Option granted hereunder shall be for such number of sha res of Common Stock, and otherwise subject to such ter ms and conditions, as the Committe e sh all dete rmine and specify in a written option agreement (an “ Option A greeme nt”), which may be in such form not inconsistent with the Plan a s t he Committ ee ma y3 deter mine. Each Option Agreement shal l be signed by the Optionee and by a duly auth orized office r o f the Compa ny.
Paragraph 9 of t he Option Plan, h owever, provides a pr oce du re that au thorizes the Plan
C o mmittee to rest rict an op tionee ’ s right to exe rci s e his or her opt ions :
The Committee may provide a written notice to an Optionee that the Committee be l ieves the O ptionee is or h as engaged in activity that is materially detr imental to the best intere sts of t he Company and it s shareholder s. Afte r the Com m ittee provid es s uch notice to the Optionee, the Optionee cannot exercise the Optionee’s O ption unti l a nd un less t he Committee notifies the Optionee in writing that the restri ction o n exercise has laps ed. In determining if th e materially detrimen tal activ i ty has actua lly occurred and if the restriction o n exercise should be removed, the Commit tee shall co n sider the f acts presented on behalf of the Compan y and the Optionee. Th e decis ion of the Committe e as to the materially de trimental nat ure of t he Option e e’s activiti es a nd the extent of any restriction o n exercise shall be final, binding and conclusive

.

P ursua nt to the Option Plan, Dr. Bryan was granted an option t o purchase 47,500 shares of

comm on stock ( the “ Option ” ) as of J uly 1 , 2 0 13 , a nd the Company ’ s inte rnal re cords , inc luding
its ca pitalization tabl e , reflected th at Option

.

The C ontroversy In 2017, Dr

. Bryan was removed as the Chi ef Scien ce O fficer and entered into a consulting agreement with the C o mpany
. In 2018, Dr. B ryan asked the Company ’ s Chief
Financial Offi cer (CFO) by email for a copy of his option agreement for the Option and o t her
informat io n , which request was forwarded to the Company ’ s c ounsel, but Dr. Bryan did not receive a response

. The C om pany th rough couns el also sent multiple letter s to Dr. Brya n and his4 counsel during 2018 , including ce ase - and

- desist letters a lleging t hat he had b re ac hed h i s

cons ulting a greement with the Company and deta iling complain ts about hi s conduct

. 3

In the ea rly part of 2019 , t he parties entered into an amen d ment to the consulting

agree m ent , which amendment expire d in e arly 2020

. The amendmen t s tates that D r . Bry an

“ desire s to be released from a p ortion of the terms of hi s non - compete within the A greement ” so he could p ursue offering services t o non - competitors ; that the Company desire s the amendment

“ to address the C ompany ’ s concerns ” about D r. Bryan ’ s “ p ub lica tion to third parties , whe ther

ver bal or in w riting, of negative , critical, and disparag ing commen ts by [him] ab out the Company, its products, and l e ad ership ” ; and that the Company des ire s “ to enter into an amended written agreement noti ng [Dr. Bry an ’ s ] co mmitment to be a vocal supporter a nd advocate f or positi ve suppor t of the Company, its products and leadersh i p. ”
In February 2 020, Dr. Bryan made a wri tte n request to examine the Company ’ s
books and records

. A fter r eceiving this reque st, the Compa ny remo ved the Op tion from its
internal record s , includi ng its capi t a lization table , and notified Dr. Bryan that it had don e so
becau se he had not executed an option agr eement as required u n der the Option Plan. Accordin g

3 F or example, the summary - judgment evidence includes a n ine

- page letter from couns el for the Company in Februa ry 2018 to Dr. Br yan ’ s counsel

. The Co mpany ’ s c ouns el sta te d th at the let ter was in response to a letter from Dr. Bryan ’ s counsel in Jan uary 2018 and the allegations
ra ised by Dr. B ryan in that letter

. T he C ompany’s counsel st ate d that th ose alleg ations were

“ comple tely without m erit ” and describ e d i n det ai l Dr. Brya n ’ s alleg ed conduct that was a

“ de triment ” to the C o mpany
. Another example is a seven - page lette r from t he Comp any ’ s counsel to Dr. Bryan ’ s c ounsel in July 2018 de tai li ng compla ints about Dr. Bryan ’ s conduct and de manding that he ceas e an d des is t from thi s conduct

. B oth parties were represented by counsel throughout their pre

- lawsuit communication s
. Unless indicated otherwise, communications between Dr. Brya n and the Company were made between counsel.5 to t he Company, in re spo nding to D r. Bryan ’ s request to examine the Com p any ’ s books an d
records , it dis c overed that it did not have a signe d op tion agreement wi th him

.
The Optio n Agreement and the Rest riction of the Option
On Mar c h 2, 2020, Dr

. Bryan noti fied th e C ompany that it h a d never asked h i m to sign a n option agreeme nt , that the C o mpany and its office rs had represent e d that the Option
continued to exist , and that he had relied on these r epresent at ions

. He requ ested that the Company provid e him with an opt ion agreemen t imm e d ia tely so he could sign it

. O n March 4, the B oard held a mee ting with no notice to Dr. Bryan and without his presence

. The mi nut e s from th e meetin g reflect that the Board was actin g in its ca pacity as
the Plan C ommi t tee and recite t hat : (i) the Board “ c onsidere d issues raised by ” Dr

. Brya n and
his counsel related to his “ asse rtion that he had rights under an O ption Agreement app rove d by
the C ompany b ut not signed by [him] ” ; (ii) the Board “ revi ewed and discussed vari ous activities
of Dr

. Bryan w hich h av e been th e subject of various communi cations between Dr . Bry an and his counsel and the Company and its counsel ” 4 ; (iii) the B oard det ermined that Dr. B ryan ha d take n
actions “ over at l ea st the past year ” that wer e “ mate rially d etrimenta l ” to the be st int er e st s of t h e
C ompany ; and (iv) the Board determin ed that to the extent the Option is determined to h ave been

4 In partic ular , the m inu tes ref lec t tha t the Board , acting as the Plan Committee , considered t he foll ow ing actions by Dr. B ryan : The Board, acting as the Committee , spe cifically considered var ious statements made b y D r. Bryan that we re criti cal of the Company ’ s products and activities;
con sider ed the communications tha t Dr . Brya n had apparently had with Thermo life (whi ch the Committee determined to be detrimental to the Company ’ s interest in co nnection with pending lit igation), Dr. Br yan ’ s cl aims to be able to
use formulas for the manufactu re of product using proprietar y in format ion belonging to the Company and which ar e competitive with the Company, as well as other wron gful acti ons taken by Dr . Bryan that the Commi tte e considered t o be adver se to the best inte rests of the Company

.6 validly granted, which it contested, Dr. B r yan was “ prohibited from exerci sing an y such options

un til and unles s the Plan Commit tee not ifi es him i n writing t hat it has elected to remove these
restrictions on his exercise

. ” The day a fter this meetin g , the Company pro vided written n otice to Dr. Bryan
about the Plan Committee ’ s determ ination to restrict the Option to t he extent it w as va l id based

on hi s “ materi ally detrimental ” actions an d advised him t hat he was prohibited from exe rcising

t he Option u n l ess and until the Plan C ommittee not ifie d him in wri ting that it had elec ted to

remove the restricti ons
. The C o mpany also stated th at be caus e Dr. Bry an was req u ired to

exec ute an option agreement “ for it to become valid and effective (which did not occur) , ”
D r. Bryan “ does not maintain any right, title or interest to such opti ons. ”
On Mar ch 9 , Dr. Bry an respon ded to the Company ’ s Ma r ch 5 letter

. Dr. B ryan ’ s

c o unsel stat ed that Dr. Bryan was “ ready and willi ng to sign ” the sa me option agreement “ as all
othe r Pl an partic ipants ” a nd requested co pie s of Company rec ords, in cluding “ do cuments that
evidence any ‘ activity [by Dr. Bryan] tha t i s ma terially de tr imental t o the best interests of [the
Com pany] and its sh areholders ’ as you allege in your March 5, 2020 le tter. ”
On March 18, the Company pro vid ed Dr. Bry an with an o ption a greemen t concerning the Option f or Dr

. Bry an ’s signa t ure (t h e “ Option Agreemen t ” )

. The O ption
A greemen t had alr e ady been execut ed by the Company and sta ted t hat the date of the grant of the Option was July 1, 2013 , a nd set th e exer cise price per share of common stock ; that except as
otherwise provided her ein , the Opt ion shall be ex er cised in accordance wit h the term s a nd

con ditio ns set fort h in the Option P l an in cluding Paragr a ph 9 ; that the terms of the Option Plan

w ere incor porated herein ; that the Option “may b e sub ject to rest ric tions on exer cise upon the7 occur ren ce of events sp ec ified in Section 9 of t he Plan ”; and t hat in case o f a conflict, the O pti on Agreemen t c ontrolle d

. It also con tained the following integr ation a nd exclusivity provision s :
(a) Amendment. T his Option Agreement, including the Plan, conta ins the full and c om plete und erstanding and agreement of the part ies hereto as to the subject matt er hereof a nd ma y not be mod ified or amended, nor may any p rovision hereof be waived, except by fu rther written agreement .

. . 

### . The waiver by either of the pa rties hereto of a ny provis ion hereof in any instance shall not operate as a waiver
o f any other p rovision hereo f or in any other ins tance.

* * * (d) Ex clusive A greement. The Optionee hereby acknowledges an d agrees that by signing thi s Option Ag reeme nt, the Optionee v ol untarily and irrevocabl y forfeits any and all rights, title, and interest s the Optionee h a s or may have ha d in, to a nd under (a) any opti on agreem ent, option letter, or other similar documen t pursuant to which the compan y may have previ ous ly granted, or of fered to grant, options in the Company to the Optionee and (b) any oral o r writ ten commit m ent o r promise
r e garding o ptions that the Compa ny may ha ve made to the Optionee, except as to any op ti ons that have been previousl y exercised and pai d for by the Op ti onee.

I n the co ver l etter with the Opt ion Agr eement , cou nsel stated th at the a g reement

was pr o vi ded wit hout waiver of the Company ’ s po sition th at Dr. Bryan was prohibited from

exe r c ising the Option a nd that t he agreement was provided ba sed on his requ es t and his representati on s that he is “ ready and willing ” to ex ecute it

. As to the request by Dr

. Bryan for
doc ume nts in the Ma rch 9 le tter , copies of documents were attached to the l e tter and the Company ’ s counsel stat ed:

As for your r equ est (fifth bull et point) f or documents evidencing activity by Dr. Bryan that is material ly detrimental to the Compa ny ’s and its shar eh olders ’ b est int e rests, we dir ect your attention to all prior communications with Dr. B ryan and his lawyers since April 21 , 2017 ( includi ng without li mitation the various
cease an d desist letters and r esponses there to ). More recent ly, w e als o direct your attention to Dr. Bryan ’s co mmuni cat ions with Thermolife and Dr. Bryan ’s September 18, 2018 letter to th e Company ’s boar d a nd shareho lders r egarding
ne gotiations with Thermolife. Copies [of] those type s of communication s are attached.8 The le tter also included the followin g se ntence : “ O f course, if Dr. Bryan executes the
agreement , he will be bou nd by all of its terms (and th ose of the Plan) , and we t ru st that you will
advise Dr

. Bryan of the same. ” O n March 31 , Dr. Brya n provided a cop y of t he full y execut ed Option Agreement t o the C ompany . T he Company restated the Option on its i nter nal records , i n cluding its cap it aliza tio n table

. At a m eeting on April 2 , the Board , in i ts capacit y as the Plan Comm ittee , reconside r ed i t s d ecision t o res trict D r. B ryan ’ s options but did not cha nge its decision to prohibit
hi m from exe rcising the Option

. The m inutes recite :

The Board , c o nstituting the Com m ittee un d er the C ompany ’s 2013 N on - Qualifie d Stock Pla n (the “ Option Plan ”) , was requested to recons ider it s pri or dec ision t o restrict the exer cise of stock options to Dr . Nat han B r y an following Dr. Brya n ’s execution of t he Option Ag ree ment follow in g the decision of the Committee on Mar ch 4, 2020. Ac ting as t he Committee under the Op tion Plan, [the Board ] review ed again and disc ussed the activities of Dr. Bryan which have been the subject of communications between Dr. Bryan and the Company, and
rec ons idered w hethe r D r. Bryan ’s actions over at least the past y ear, were materially detrimental to th e best interests of the C o m pany, w hether the re had been any change in circumstances from the Committee ’s co nsideration of the same iss ue during its meeti ng in March, a nd wh et h er the exercise [by] Dr. Bryan of options gra nted under the Option Agreement execut ed by hi m should be restri cted as provided i n the Plan. After a re view o f the information, and determinin g that there had been no change in circums tan ces that led t o the p r ior dec ision to rest rict the exer c ise of opti on s by Dr. Bryan, [the Board] re - confirmed its posi tion that Dr. Bry an has en gaged in activity that is mater ially detrimental to t he best inte rests of [the C ompany] and its shareholders. A cc o rdingly, p u rsuan t t o Parag raph 9 of the Plan, the Board approved a letter to be sent to Dr. Bryan (via counsel) whi ch provided him w ith notic e of the same. In addition, th e Board , acting as the Committee under the Option Plan, approved a motion prohibi tin g Dr. Bryan from e x er ci sin g any options until and unless the Plan Commi ttee n otifie s him in w riting that it has elected to remo ve th ese restr ictions on his exe r c ise.

On the same day as this meeting , the Company provided notice to Dr. B ryan th at
it had r e ce ived the fully e x ec uted Option Agreemen t , that the Plan Committee “ has (o nce again)9 determi ned that Dr. Bryan has eng a ged in activ ity that is mater ially det rimental to the bes t interests of [the Comp any] and its shareholders, ” an d that Dr. Bryan was p ro h ibited from

ex e r ci s ing the Option unti l an d unless the Plan Committee notified him in w riting th a t it had
elected to remove th e res t ricti ons from the exer cise of the Option

. On May 20 , Dr. B ryan attempted to exercise the Option by personally del iveri ng
the exe r c ise f orm a n d a cert ified c hec k i n the amount of the exer cise price for the shares of

common st oc k to the Company ’ s office , b ut the C ompan y ref used to accept the exer cise of
the Option

.
Litig ation Ensu ed
The day after Dr. Bryan attempted t o e xer cise the Option , t he C ompany sued
Dr. Bryan, seekin g declaratory judgm ent that the Plan Comm ittee ’ s d etermina tion concerning
Dr. Bryan ’ s “ a bility t o exer cise the Option is final, bi n ding, and c onclusive ” ; that Dr. B rya n was

“ p rohibited fro m exe rcisin g t he Opti on ” until the C o m pany notified hi m that the res triction was
removed ; and t hat his att empt in May 2020 to e xe rcise the Option was “ invalid and i neffective. ”
Dr. Bry an answe r e d , countercl a imed for breach of cont ract , and asserted
aff irmative de fen ses of promissory e stop pe l and unclean h and s
. 5 He a ll eg ed tha t the Company breached the Option Plan and the Op t ion Agreement by fa iling to timely provide him with a copy
of the Opti on Agree me nt , by faili n g to act in good faith in exercising its d iscret io n , a nd by denying his ex er c ise of the Opt ion b ased on a l leged ly “ materially detrimental ” co nd uct. He a ls o
all ege d that he suffered damages from the Company ’ s breach of the agreements

.

5 Dr. B ryan also asserted a cause of a ction conc erning his request t o in spe ct th e Company ’ s books and re cords , but he amended his counter claim to remov e that cause of action , and it is not at issue in this a ppeal

.10 The part ies filed motion s for summary judgment. In its motion, t he C ompany

s o u ght tra d it iona l s umm ary judgm e nt o n its cla i m s for de claratory judgment , arguing that the
und isputed summary - judgment ev idence established that the Plan Commi ttee ’ s d ec ision to

r estrict Dr. Bryan ’ s exe r c ise of the Option “ was made without bad fa ith ” and that there was n o
g enuine issu e of material fact as to the good fai th i n that dec ision. The C ompany a lso sough t
traditio nal and no - ev i dence summa ry jud gment on Dr. Bryan ’ s br each

- of

- con tract counterclaim
and affirmative defenses , cont ending th at there was no ev id ence to su p port his co unterclaim or
affirmative defenses and t hat to the extent hi s co unt e rcla im and affirmat ive defenses w ere based

on c omplaint s about the C ompany ’ s alleged pro mises prior to the execution of the Op tion Agreement, they we re barred as a matter of la w based on t he Option Agre ement ’ s in tegration and
exclusivi ty provisions . I n his mo tion , Dr. Bryan sou ght traditional summ ar y judgment o n his
breach

- of

- contract count e r claim. Th e par ties also filed responses to the others ’ m oti on and

summary - j udgment e vi d ence that i nclude d corres pondence b etween the p arties and thei r counsel
lea ding up to the l itigation , the executed Option Agreement , the Op tion Plan , declarations from
Dr. Bryan , deposition exce rpts , and discovery responses

. 6
Follow ing a hearing, the tr i a l court gr an ted the Co mpany ’ s motion for summary judgment in part , denie d Dr. Br yan ’ s motion , and d ismiss ed his breach

- of

- con tract c o unterc laim with pre judice . In its order, the trial court ordered that the C o mpany was en tit led to judicial
declara tion s t hat :
(1 ) T he Comp any ’s Op tion Plan Committee ’s determination to restrict Dr. Brya n ’s option exer cise i s vali d, fin a l, bin ding, and conc lusive, (2) unless and until the Company notifies Dr. Bryan in writing t hat the restrict ion s on his option exercise ha ve b een re sc inded or ter mi nated, Dr. Bry an is prohibited from

6 Som e of the summ ary - judgment evid ence remain s under s eal.11 exercising his options and the Company sh al l have no obligation to iss ue cer tificates representing Dr. Bryan ’ s exerc ised option shares or otherwise comply
w ith any obl igation under the executed op t ion agr ee ment or option plan concerning Dr. B ryan ’ s attempted exercise of his opt ions, and (3 ) Dr. B ry an ’ s attempted May 20, 2020, exe r cise o f his options is invalid and ineff ective.

After t he parties entered a “ S tipulati on Regarding Final Ju dgment ” a s t o

attorne y ’ s fees a nd c osts , t he t ri al cour t s igned its final judgme nt , w hich inc orporate d i ts

summa ry j udgment rulings and awar ded atto r ney ’ s fees and cos ts to the Company

. 7 Th i s appeal followed.

ANALYSIS
In three is sue s, Dr. Bry an arg ues that the t ri a l cour t erred in enter ing the
Co mpany ’ s re quest ed declarations and dis missing his breac h

- of

- conta ct count er claim because of

g e nuine issues of material f act as t o those claims and his affirmative defen ses of promissory

es top pel and u nc lean hands and beca us e th e C ompany fail ed to conclu sively establish its
affirmative defenses of fail ure to mitigate and waiver

.

Standard s of Review
We rev i ew the trial court ’ s summary judgmen t ruling s de n ovo. Zive v. Sandberg , 644 S.W. 3d 169 , 173 (Tex. 2022) ; J oe v. Two Th i rty Nine Joint Vent ur e , 145 S.W.3d 15 0, 156 (Te x. 2004 ) ; see Hawkin s v. El Paso First Health P lans, Inc. , 214 S.W.3d 709, 719 (Tex. App.

—

7 After the tri al court ’ s summary judgment rul ing, Dr. B ryan file d a motion for leave to file an amended pe tition to add a fra u d claim , filed a separate lawsuit aga ins t the C ompany an d three individuals asser ting a fra ud clai m based on alleg ed cond uct by the C ompany and its current and former offic ers , and sought to consolidate t he two cases. The trial court d enied Dr. Bryan ’ s mo tions for leav e to file an a mended pe tit ion and to con so lidate t he two cases , and Dr. Br yan has n ot appealed those r uling s
. B ecause Dr . Bryan ’ s pleadings in this case d o not incl ud e a fraud claim against the Company or his separate pending fraud suit , we expressly do
n o t conside r such a cl ai m h ere
.12 Austin 2007, pet. denied ) (ex p laining that because trial court determined declar ato ry - judgment issue on summary judg me n t, appellate court re views propriety of declarations under same

sta ndards a s ap ply to summary judg m ents)

. Under thi s standard , we view “ the evidence in the light most favorable to the non

- movant, crediting evidence f avo rable to the non

- movant if

reason ab l e j urors could, and disregarding cont rary evidence unless reasonabl e jurors could not. ”
Zive , 644 S.W.3d at 173 ( citing Erikson v. Renda , 590 S.W.3d 557, 563 (Tex. 2019) )

. To prevail on a traditi o nal motion for s umm ary judgment , the movant must
demon st r a te that there ar e no genuin e issue s of material fact and that it is enti tled to judg ment as
a matter of law. Se e Tex. R. Civ. P. 166a(c ) ; Provident Life & Accident Ins

. v. Kno t t , 128 S.W .3d 211, 2 1 5

– 16 (Tex. 2003 )

. A movant seeking a no

- evidence summ ar y judgment

must as sert that “ there i s no evidence of one or more e ssential elements of a clai m or defense on
wh i ch an adverse party would have the burden of proof at trial. ” Tex . R. Civ. P . 166a(i). “ The

court mu st gr ant the motion unless the responden t p r oduces summary

- j udgment evi dence r ai sing a genuine issue of mate rial fac t ” on the ch allenge d elements. Id. ; s ee JLB Builders, L.L.C.

v. Hernandez , 622 S.W .3d 860, 864 (Tex. 2021 ) ; M ack Trucks , Inc. v. Tame z , 206 S .W. 3d 572,
581

– 82 (Tex. 2006)

.

“ A ge nu i ne is sue of mat erial fact exist s if it ‘ r ises to a level tha t w ould ena ble
reasonable and fair

- m inded people to d i ffer in their conclusions. ’ ” First United Pen tecostal Church of Beaumont v. P arker , 514 S.W.3d 214 , 2 20 (Tex. 2017) ( quoting Mer rell Dow P ha r m.,
Inc . v. Hav ner , 953 S.W.2d 70 6, 711 (T e x. 1997) ). “ The evi dence do es not create an is sue of
material fact if it is ‘ so weak as to do no more than create a mere surmise or suspicion ’ that the
fact exists. ” Id

. ( quoting Kia Motors Co rp. v. Ruiz , 432 S

. W. 3d 865, 875 ( Tex. 2014) ).13 W hen the trial court does not specify the grounds for it s summary judgment, as is
the c a se here, the appellate court must affirm the summary judgment “ if any of the theories

p r ese nte d to the trial court and preserved for ap pe l late review are meritorio us. ” Knott , 128 S.W.3d at 216

. F urt her , w hen both parties m ove for summary judgment on the same issues

a nd the trial court gra n t s one motion and denies the other, we consider the sum mar y -

judgment evidence pre sent ed by bot h s id es , determine all questions pres ented and, if we determine tha t th e

t r ial court erred, re nder the judgment the trial court should have rendered. Vale nce Operat ing
Co. v. Dorsett , 1 6 4 S.W.3d 656, 661 ( Tex. 2005) (ci ting FM Props. Operating Co. v. City of
A us t in , 22 S.W. 3d 868, 872 (Tex. 20 00)).
Dr. Bryan ’ s issues a lso invo lve matters of cont ract constructio n. “ If a written contract is so worded that it can be given a definite or certa in legal m eaning when so co nsi dered and as applied to the matter in d is pu t e, then it is not ambiguous. ” URI, Inc. v. Kleberg County , 543 S.W

. 3d 755, 765 (Tex. 2018)

. Whether a contract is ambiguous is a legal que stion for the

co urt. Dyn egy Mi dstream Servs., L td . P ’ ship v. Apache Cor p. , 294 S.W.3d 164, 168 (Tex. 2009). “ A co n tr act is n ot ambig u ous s impl y because the parties disagree over its meaning. ” Id.
In this case, b ecause the relevant provisions in t he Option Agreement and Option Pla n can be given a definite or certain le ga l m eaning when considered and applied to the p a rties ’ dispute , we

con c lude th at they are not ambiguous

. See URI, Inc

. , 543 S.W

. 3d at 765

. Th e construction of an u nambiguo us contract is also a qu estion of law that we
review de novo. 8 Tawes v. Barnes , 34 0 S .W.3d 419, 425 (Tex. 2011). We generally i n terpret language w ithin a contract a ccording to its “ plain, ordinary, and g enerally ac cepted mean ing

. ”

8 In contrast, w hen an agreement as wr it t en is ambiguou s, the parties ’ inte nt becomes a fact issue

. See Ita lian Cow boy Partners, Ltd. v. Prudential Ins. Co. of Am. , 341 S.W.3d 32 3, 333 (Tex . 2011).14 Piranha Partners v. Neuhoff , 596 S.W.3d 740, 7 42

– 43 (Tex. 2020) ( quotin g URI , 543 S.W.3d at
764 )

. O ur pr ima ry conc ern is to ascertain and give effec t t o the intent of the parties as e xpressed
in the doc ument. Frost Nat ’ l Bank v. L&F Distribs., Ltd. , 165 S .W.3 d 3 1 0, 311

– 12 (Tex. 20 05) (per cur iam). “No single provision taken alone will be given controlling eff ect; rather, all the provisions must be c on s idered with ref erence to the whole instrument.” Coker v. C oker , 650 S.W.2d 391, 393 (Tex . 19 83) ; see MCI Telecomms. Corp. v. Texas Ut ils. Elec. Co. , 995 S.W.2d 647, 652 (Tex. 1999) ( “ When interpreting a c ont r act , we examine the entire

agr eement in an e ff o rt to harmonize and give effect to all pr ovision s of the co ntract so that n one
will be meanin gless

. ” )

. With these sta ndard s i n min d, we turn to Dr. B ry an ’ s issues.

Declaratory Judgment and Bre a ch

- of

- C ontrac t C o u nterc l aim
In hi s f irst issue , Dr. Bry a n ar gues that th e trial court erred in entering the
Co mpany ’ s re quest ed decl aration s and dismissing his breac h

- of

- contact co u nter cla im beca use
the evid ence conc lusively e stablish ed his cou n t erclaim or , at a min imu m, there are genuine
issues of material f ac t

. Generally , “ [t ] he essential elements of a breach

- of

- c ontract cl aim ar e: (1) the
existence of a valid contr act; ( 2) pe rformanc e or tendered perfo rmance by the plaintiff; (3) breach of contract by the de fe nda nt; and (4) damages sustained by the pla int iff as a result of
the breach.” V alero Mktg. & Supply Co. v . Kalama I nt’l, L.L.C. , 51 S.W.3d 345, 351 (Tex. App.

— Houst on [1 st Dist. ] 2001, no pet.)

. Here , however, the O ption Agreement provides “ sole
discreti on ” to the Plan C om mittee to “ determine unilat era lly ” any claim arisin g under the Opti on
Plan and that “ [a ] ll decisions, d ete rmi nations, and interpretations of the Commit tee shal l b e final, binding , and conclu sive on all O pti onees
. ” In this context, bad f ait h by the Com pany is also an15 essential eleme nt of Dr. Bryan ’ s breach

- of

- c o ntract cou nter claim. S ee Lon e Star Steel Co.

v. Scott , 759 S .W.2d 144, 153 (Tex. App.

— Texarka na 1988, writ denied) ( stat ing that “ [ b ] ad
faith becomes essential element of a br each of con tract claim only when the contract plac es
per formance solely and abs olutely in the dis cretion of on e part y ” and tha t i n t hat situation,

“ recovery can only be had i f the pa rty exercised its d iscretion in bad fait h ” ) ; see a lso Gibson

v. STP Nuclear Op era ting Co. , No. 13

- 11

- 00089

- CV, 2012 Tex. App . L EXI S 1899, at * 12 (Tex. App.

— Corpus Christi

– Edinburg Mar. 8, 2012 , no pet .) ( mem. op.) (stating that “ [w]h ere an employer retains t he righ t to inter pr et a n incentive compen sation plan, the employer ’ s interpr eta tion must stand , absent bad faith on the pa rt of the employer ” (citing Kern v. Sitel Corp. , 517 F

. 3d 30 6, 309 (5 th Cir. 20 08) ) ) ; Macy v. Waste M gmt. , Inc. , 294 S. W.3d 638 , 648 (Tex. App.

— Ho uston [ 1st Dist.] 2009, pet. den ied) ( c ollecting and disc ussing aut horities holding
that only way to attac k em plo yer ’ s determinations that are state d t o be fina l und er employer

fund ed plan is by showing bad faith or fraud in empl oyer ’ s a ctions )

. Dr. Br ya n c ontends that , at a minimum , h e presented at least a scintilla of
evidence that : (i) the Option Plan and the O pti on Agreement are valid existing contracts ; (ii) u n de r those contra ct s, the Company o wed Dr. Bry a n duties , includin g the du ty to deliver a
cop y of the Option Agreement to hi m ; (iii) he exer cise d the Option for shares as required unde r the Option Plan a nd O p tion Ag reement; (iv) the C ompany bre ached th e ter m s of the Option Plan and Op t ion Agreement ; a nd (v) he suffered d amag es a s a result of the C ompany ’ s br ea ches

. He alleges t hat , at a minimum, fact issues e xis t as to whether he exer c ised the Option as re qui red by
th e Option Agreement and Option Plan ; whet h er th e C ompany b rea che d th e agreement by failing16 to timely send hi m a co py of the Option Ag reement 9 ; whether the Company breached the agreement by failing to exer cise good faith or reasonableness in ex er cis ing its di s cret i on to
restrict the exercise of the Option and denying his exer cise of the Opti on based on alleg ed

“ materia lly detrimental ” co nd uct ; and whether he suffered damages because he was unable t o

exe rcise the “ va luable ” Option for shares

. T he pa rties agree that t he Option Agr e ement is a vali d a nd binding contract

. Dr. Bryan also appe ars to contend th at the Opti on P lan i s a stand

- alone contract and that the Compa ny had a n implied duty under its t erm s to del i ver a copy of a n option agreemen t to hi m to sign but t hat it failed to d o so and that thi s fa ilure “ can not be said to ha ve been ta ken in good
faith

. ” See HEC I Expl. Co. v. Neel , 982 S.W.2d 881 , 888

– 89 ( Tex. 1998) ( explaining that

“ covenant wil l n ot be im plied unless it appears from the ex pr ess terms of the contract that ‘ it was so clearly wit hin t he contemplation of the parties that they deemed it u nne cessary to express it, ’
and therefore they om itted to do so, or ‘ it must appear that it is nec ess ary to i nfer such a covenant
in order to ef fe ctu ate the full purpose of the contract as a whole as gath ered from the written
instrument ’ ” ( quoting Danciger Oil & Ref. Co. v. Powell , 154 S.W.2d 632, 635 (T ex. 1941 ) )

. The Option Plan , however, w as not a stand

- al one co ntract between the Company

an d Dr

. B r y an
. The ele ments of a “ valid and binding c ont ract ” inc lude a “ meeting of the minds, ”

“ each p arty ’ s co ns ent to term s, ” and “ execution and del ivery

. ” See Adcock v. Five Star
Re ntals /Sales , In c. , No . 04

- 17

- 00531

- CV, 2018 Tex. App. LE XIS 2690, *4 (Te x. A pp.

— San
A ntonio Apr. 18, 2018, no pet.) (mem. op .) (ci ting Specialty Select Care Ctr . of San Antonio,

9 The evidence was dispute d as to wh ether the C om pa ny had provided an option agreement to Dr. B ryan prio r to 2020 , but for pur pos es of t his ap peal, we ta ke as true Dr. Bryan ’ s evide nce th at the Company did not pr ovide him with a n option agree me nt until Ma rch 20 20

. See Zive v. Sand b erg , 644 S.W.3d 169 , 1 73 (Tex. 2022) (rev iewing evidence in light mo st favorable to nonmovant)

.17 L.L.C. v. Owen , 49 9 S.W.3d 37, 43 (Te x. App.

— San Antonio 2 016, no pet.) ) )

. The Option Plan
does not sat isf y thes e elements. F or example, it prov i des tha t t he Pl an Commit tee in its sole
discretion m ay grant options to such eligible directors, employees , or oth er p e rs ons as it shall
determine ; that it is au thorize d to determine the term s and conditions of an op tion agreement

co nsistent with the plan ; an d th at each o ption agreeme nt shall be signed by the op tionee and a n authorized officer of the Company. I t also p rov ides tha t options that are granted p ursuant to the plan shall be “ sub je ct to terms and c onditi ons as the Committee sh all determine and speci fy i n a written option agre ement , ” and it does not c on tain a form option agreement , a date or time when an optio n ag reemen t must be provided or execut ed , or identify the eligible direct ors, employe es or other p ers ons who may rec eive opti o ns under th e plan

. Th us, because the Option Plan is not a

st a nd

- alone c ontract , Dr. B ryan h as not raised a fact issue as to whethe r t he Compa ny breached the Opt ion Plan , such as by failing to deliver an option agreement to him bef ore t he Company provided the Option Agreeme nt

. Se e Valero Mk tg. , 51 S.W.3d at 351 ( incl uding e xistence of
valid contract among elements of breach

- of

- contract claim).
It follows that Dr. Bryan ’s breach

- of

- contract coun terc laim required him to

es tabl ish that the Company breached the Option Agree ment , the v ali d and existing agreement between the p arties

. See id. And al though the Option Plan was no t a sta nd

- a lone con tract , its

terms we re incorporated into t he Option Agreement

. See Zapata Corp. v. McI nty re , No. 14

- 99

- 00900

- CV, 2001 Tex . App. LEXI S 176 5 , a t * 12

– 13 (Tex. App.

— Houst on [14 th Dist.] Ma r. 15, 2001, p et. denied) ( mem. op.) (concluding t hat agreem ent was subj ect to terms
and co nditions of stock optio n plan). In this context, b y sign ing the O p tio n Agreement in Ma rch 2020, Bryan ex press ly agreed to be sub ject to the terms of the Option Pla n, including that the
Pl an Co mmittee could restrict the exer cise of the O ption a nd that th e Plan C ommi ttee ’ s18 det ermination to restri ct t he Option would be “ fin al, binding, and conclusive

. ” Par agraph 9 of the Op tio n Pl an, which ter m was inco rporated into the Optio n Agree ment, ex pr essly provides
that the Plan C ommitte e may pr ovide not ice to an optione e t ha t it “ believes the Optionee is or had engaged in acti vity t ha t is materi ally detrim ental to the best in t erests of the C omp any and its
shareholders , ” s ee Black ’ s Law Dictionary 175 ( 9th ed. 2009 ) (defining “ bel ieve ” to mean “ [t] o
feel certain about the tru th of; to accept as true ” ) , and t hat its decisi on “ as to th e m a teri al l y
detrimen tal na ture of th e Option e e ’ s ac ti v ities and the ex t en t of any restriction on exer cise shall be final, binding, and conc lu siv e. ”
Dr. B rya n a ls o ex press ly waiv ed certain rights, tit le, and interests that he had or

may have had when h e e xecuted the Option A greement by agreeing t h at he :

v olu ntarily and irrevocably forfeit ed any and all rights, title, an d interests the Optionee has or may ha ve had i n, to a nd under (a) any option agreement, option letter, or other similar document pursuan t t o which the C ompany may have previously gra nted, or of fered to gr ant, options in the Compan y to the Optionee and (b) a ny oral or written commitment or prom ise rega rding o pt ions that the Company may have made to the Optionee, exc ept as to any options tha t h ave been previously exercised and paid for by the O pti onee.
See Jernigan v. Langley , 111 S .W.3d 153, 157 (Tex. 2003) (defining “ waiver ” as “ intentional

re linquish ment of a known rig ht or intentional conduct inconsist ent with cl ai ming that right ” ( quoti ng Sun Expl

. & Prod. Co. v. Benton , 728 S.W.2d 3 5, 37 (Te x. 1987))). And he agreed that the Option Agreement was t he “ full an d complete understanding a nd agree ment of t he parties
hereto as to the subject matter hereof ” a nd t hat the Option became “ effectiv e a s of the date an

exec uted c opy [was] delive re d by t he Company to the Optionee. ” 10

10 The O ption Agreement also states di rectl y above the parties ’ s ignature line on the last page that “ t he parties have executed this Option Agreement as of __

_________ , 2016 , to be effectiv e on the date first writte n above. ” In his reply brief , Dr. Bryan ar g ues t hat the waiver19 We must enforce t h ese unambiguous pro vision s as written. See Biko v. Siem ens Corp. , 246 S.W. 3 d 148, 161

– 62 (Tex. App.

— Dallas 2007, pet. de nied ) ( “ By entering into an

una mbi guous agreement with a merger clause, the s igning a ppe llants have foreclosed their

re liance on prior agreements and their use of parol evidence to co nt radict the agre ement ’ s
ob jective language. ” (citing COC Servs., Ltd. v. CompUSA, Inc. , 150 S.W.3d 654, 66 6 (Tex. App

— Dallas 2004, pet. denied) )) ; se e also E das cio , L.L.C. v. NextiraOne L.L.C

. , 264 S.W.3d 786 , 795

– 800 ( Tex. App.

— Hou st on [ 1st Dist. ] 2008, pet. den ied) (dis cussing pr ovision in agreement

st at ing that contract represented par ties ’ en tire ag reem ent and supersed ed prior w ritten or oral

repre se ntatio ns and barring consider ation of ev idence of alleged oral a gr eement based on par ol
evidence rule ); COC Se r vs. , 150 S.W.3d at 6 66 ( explaining that courts en fo rc e unambiguous
instrument s as wri tten, includ ing provision s “ stating that all pre vious agre ements b etw een the parties are merged, or integrated, into t he subject w riting ” ).

“ When a contract con tai ns a merger or integrati on clause, the contract ’ s execution

pre sumes that all prior negotiations and agr eements relating t o the transaction have be en mer ged
int o the contract, and it will b e enforced as written and cannot be add ed to, varied, or
contrad icted by parol evidence

. ” P rince v. Weleba , No. 02

- 23

- 00085

- CV, 20 23 Tex. App.
provision only applies to bar complaints exist ing before the e ffect ive date of t he Option Agreement of July 1, 2013 , bec ause that date is th e fi rst date t hat is referred to in the Option Agree me nt : “ Date of Grant of Option ( ‘ date hereo f ’ ): July 1, 2013. ” Dr. Bryan, however, did not raise this argument with the trial court or in his o pening brief and, thus, we do not consider it on appeal

. See Te x. R. Civ. P. 166a ( c) ( “ Issu es not express ly pre se nted to t he trial court by written motion , ans wer or other response shall not be c onsidered o n a ppeal as gr ounds for
reversa l. ” ) ; Tex. R. App

. P. 38.1(f) (requiring appellant ’ s open ing br i ef to “ st ate co n c i se ly all i ssu es or poi nts presented for re v iew ” ) . Further, although it is not clear the da te th e parties were referring in the last page of the agr eement, the e vidence established that the Co mpany provided the Option Agreement to Dr. Brya n in Mar ch 2020 a nd that he ex ecuted and returned it to the C ompa ny shortly after rece iving it , and the Opti on Ag reeme nt expressly states : “ This Option shall be effective as of the date an executed copy is de l ivered by the Company to the Optionee

. ”20 L EXIS 7644, at * 15

– 16 (Tex. App

. — Fort Worth Oct. 5, 2023, no pet.) (mem. o p.) ( c i t i ng B arker

v. Roelke , 105 S.W.3d 7 5, 83 (Tex. App.

— Eastland 2003, pet. de nied) )

. Thus , applying t he pla in langua ge of the ab ove recited integrat ion and exclusiv ity provisions , we conclude tha t to the

e xte nt that Dr. Bryan alleges that the Company breache d the Option Agreement by failing t o timely send it to him pr ior to March 2020 , he has waived th is all ega tion

. See id. ; Biko , 246 S.W.3 d at 161

– 62

. The r emaining ground for D r. Bryan ’ s br each

- of

- con tra ct counter claim is his allegation that the Plan C o mm ittee did not ac t in goo d faith w hen it restrict ed his ability to

exer cise his options in 2020 , a nd it was Dr. Bryan ’ s b urde n to present evi dence to raise a fact
i ssue as to this allegation

. See Zapat a C orp. , 2001 Tex. App. LEXIS 1765, at *17 (co ncludin g
that c ommittee ’ s decision was fin a l and binding when employee did not a ll ege bad faith or fraud in refusing to award stock opti ons) ; Lon e Star Steel Co. , 759 S .W.2d at 153 ; see a lso Gibson , 2012 Tex. A pp. LEXIS 1899, at * 12 ; Macy , 294 S.W.3d at 64 8

. As a pre lim inary matter, we
obs e rve that t o the extent Dr. Bryan relies on alleged pro mise s or repr es entations by the Comp any ’ s of ficer s, such as the capitalization table, that occur red prior to the Option Agr eement ’ s execution to raise a fact issue as to the P la n Co mmittee ’ s good faith in restricting his options , he expressly waived these allegatio n s und er the inte grati on an d exclusiv ity provisions

. 11 Thus, we limit our review to Dr. Bryan ’ s allegations of the Company ’ s actions after the parties execut ed the Op tion A greement in March 2020

.

11 For example, t h e summ ary - judgme nt evidence also include s Dr. Bryan ’ s declar ati on that h e “ sought to e xer cise [ his ] opti ons by at least 2018 when [he] requeste d [his] opt ion documents fr om [the C o mpany ’ s CFO]. ” A s stated above, t he evidence of Dr. Bryan ’ s request in 2 018 cou ld n ot creat e a fact issue here beca use of the Opt ion Agreeme nt ’ s inte g ration and excl usiv i ty pr ovisio ns
. More over, he did not s ign an Option Agreement until 2020 , request ing a copy is n ot the same as exer c is i ng an option , and w i thout an executed o ption a greement,21 A perso n acts i n “ g ood f ai th ” when h e ha s a “ stat e of mind consisting i n ”

“ ho nesty in belief and p urpose ” or the “ absence of intent t o def raud or to seek unconscio nable

a d vantage. ” See Black ’ s at 762

. A person ac t s in bad faith wh en he has “ [d]ishonesty of beli ef

or pur pose
. ” See i d. at 1 59 ; Goudie v. HNG Oil Co. , 711 S.W. 2d 716 , 720 (T ex. App.

— El P aso 1986, writ r ef ’ d n.r.e.) (stati ng that “ bad faith implies actual o r c onstructive fraud, or a design to
mislead o r deceive anothe r and that bad faith does not res ult from an honest mistake as to one ’ s rights or duties, but by some i ntereste d or sinister motive ” ) ; s ee, e.g. , Ker n , 51 7 F. 3d at 311 (explaining that under Tex a s law, bad fa ith may be establ ished by direct evidence of

“ u n reasonable requirements, refusal t o consider favorable information or the use of stand ards

mor e str ict than those ap plied t o other s s imi larly situat ed ” or tha t bad faith “ may be inferred from

an ad verse decision which has n o basis in fact ” (citation omitte d)); Bobbora v. U nitrin Ins.
Servs. , 255 S.W

. 3d 331, 336 (Tex. App.

— Dallas 20 08, no pet .) ( discu ss ing def i ni tion of “ good
faith ” and “ b a d faith ” in sur ety and indemnifica tion co ntext and require men t in some contexts to
show improper motive or wil lful ignor ance of fa cts to establish “ bad faith ” ) ; Dyn acq He althcare,
Inc . v. Seth , No . 01

- 06

- 001 88

- CV, 2007 Tex. Ap p. LEXIS 5451 , at * 13 (Tex. A pp.

— Houston [1st Dist

. ] 2007, pet. denied) (mem. op.) ( decl in i ng to interpret incentive plan and st ock op tion

ag ree ment t h at gave company ’ s committee or b oard sole d iscretion to appro v e method of
payment to exer cise sto ck optio n to all ow company to ref use reque st t o exercise stock option in certain way “ just becau se ” )

.

Dr

. B r y an w as not ent itled to exer cise options befo re he received the Option Agre ement in March 2020

.22 Dr. Bryan argues that the Company di d not act in good faith beca use it failed to

cons ider evid en ce presented on his b ehalf pursuant to P aragraph 9 of th e Option Plan , which provides :

In de term i ning if the m ateriall y detrimental activity has actu all y occurred and if the rest r iction on exerci se s hould be re move d, the Committee shall consider the facts presented o n behalf of the C ompany and the O ptionee.

D r. Bryan compl ains that he was not provided no tice of the meeting s or given an op portunity to

p res ent facts a nd argues that there was “ no rec ord of any pe rson p resenting any information, or

an y information being present ed by anyone, on behalf of Dr. Br ya n. ” In his declaration , Dr. Bryan de clared that he “ was never at any time asked by the Co mpany, or given an opportunity by the C ompany, to pre sent facts to the O ption Committee that mad e the
de termination to prohibit [him] from exer cising [his] options. ” 12 Dr. B r yan also disputes the
Plan Commi ttee ’ s belief that his activities were materially detrime nta l to the C ompany , relying
on evidence that the Comp any w as thr iving financial ly duri ng th e relevant time and the lack of

ev i dence from a fina ncial perspec tive of h o w his complained

- of cond uct damaged the Company , and ar gues that the Company f ailed to pr ovi de any explanation for how h is conduct was materially de trimen tal or what s tandard or ev id ence was u s ed to make this determination

. P aragraph 9 , however , does not dictate the st andard or ev idence to be used in making a m aterially detrimental activity d et ermination and there is no require ment in P aragraph
9 th at the Plan C om mittee provide notic e to an optionee , that an optionee be pre sen t at a m eeting

12 In addition to his declaration, Dr. Bryan relies on the deposition testimony from a Company of ficer that Dr

. Br yan was n ot present at the meeting, that he did not rec all t he B o ard providing notice to D r. Bryan of the meetin g , and th at Dr . Bryan did n ot have an opportunity to respond prior to the M arch meetin g. The offi cer was asked , “ The [B] oard did not allow Nathan Bryan to present his side of the issue ; c orrect? ” The officer a nswered, “ He had an opp ortunity to respond ; but prior to [t he March ] meeting, no

. ”23 before a d etermi natio n is made to re strict his o ptions , that the optionee or someone design ated by
the opt ionee be g iven the opportunity to present f ac t s on the o ptione e ’ s behalf , or that the facts be pres ented oral ly or in a ny particular way
. See Ne uhoff Bro s . Packers M gmt. Corp. v. Wi lson , 453 S.W.2d 472 , 474

– 75 (Tex. 19 70 ) (observing th at profi t sharing pl an delegated to committee power to d eterm in e whether dis charge was base d on dishonesty and that commi ttee ’ s
consul tation with at torney and failur e to hold hearing for employee was no t evidence of lack of good faith , esp ecially because there was no evide nce that employee requested hearing ). We also
observe that when the above reci ted sentence is considered in the co ntext of Parag r a ph 9 as a
who le , it makes clear that the r equirement t o consider fact s presented o n behalf of an optionee is
after the Plan C omm ittee has notified the optionee th a t his or her option s have b een restrict ed
and when it is con sidering whether to remove restri ction s that are a lready i n place

. 13
The summary - jud gment evid ence show s that the Pl an C om mittee con sidered
Dr. Bryan ’ s pos iti on as to his complained

- of conduct and that the Company pr ovid e d Dr. Bryan
wi th an exp lanation of the reasons t ha t the Plan Committee believed that his conduc t was

m aterially det rimental

. See Macy , 294 S.W.3d at 649 ( c onclud ing that there was n o fa ct i ssu e of
bad faith because there was no evidenc e that the comp any d id not comply with agreement ’ s

terms ). The summ ary - judgment evidence establishe s that the Comp any pro vide d writ ten notice

13 The abo ve reci ted sentence is the third sentenc e in Paragra ph 9, and the first two sentence s of Paragrap h 9 st ate : The Committee may provide a wr itten notice to an Opt ionee that the Committee be lieves the Optionee i s or h as engag ed in activity that is materially detrimental to the best intere sts of t he Company and it s shareholders. Afte r the Com mi ttee prov id es s uch notice to the Optionee, the O pti onee cannot e xercise t he Optionee’s O ption unt il and unless the Commit tee notif ies t he Optionee in writing that the restriction o n exercise has laps ed.24 to Dr. Bryan aft er it made its deter min ation to restrict his op tion s
. The minutes from the March meeting recite the Committee ’ s st at e d rea son s for its initial determinat ion th at in cluded “ various statements made by Dr. Bryan th at were critical of th e Company ’ s products a nd activities , ”

“ commun ications that Dr . Bryan had app arently had with Thermolife (which the Comm ittee
de t e rmine d to be detrimental to the Company ’ s interest in conn ection with pending litigation), ”
and his “ clai ms to b e able to use f ormulas for the manufa cture of product using proprietary
in formation belo ngi ng to the Company and which are competitive with th e Compa ny
. ” In the
March 18 co ver letter accompanying the Option Ag reement , the C ompany’s cou nsel referenced
Dr. B ryan ’ s request fo r docu ments as to the Plan Com mittee ’ s determinati on ; directed their

a tte ntion “ to all prior communications with Dr. B ryan and his lawye rs since April 21, 2017 ( including without limitation th e various cease an d desist letters and response s there to ) ” a nd

“ Dr. Bryan ’s communi cations with Thermolife and Dr. Bryan ’s September 1 8, 2018 letter to th e Company ’s board and shar eho lders regard ing n egotiations with Thermol ife ” ; and attached “ those
ty pes of communications. ”
The s ummary - judgment e v idence also inclu de s copies of the cease

- and

- desist
letter s outlining the C ompany ’ s con cer ns with Dr. Brya n ’ s activi ties in 2018 a nd 2019 and the Apri l 202 0 minutes , which reflect the C om mittee ’ s stated reason s for leaving the restr icti ons on Dr. Bryan ’ s o ptions in place a fter Dr. Bryan executed and returned the Op tion Agreement and
after re ce i ving communications from his counsel

. The April minutes re f lect that the Committee
was asked to reconsider its d etermi nation that Dr. Bryan ’s actions had been materi ally
de trimental to the best interests of th e C om pany and that when it again review ed a nd cons idered the activities of Dr. Bryan in A pril , it consider ed co mmunications between Dr. Brya n and the Company

. There a lso is no evidence that Dr. Bryan requested a hearin g or attem pted t o present25 cont ra ry ev idence f or the Plan Committee ’ s re con s id era tio n
. See Wilson , 453 S.W.2d at 47 5.
W hether the Plan Committ ee ’ s belief s about Dr. Bryan ’ s activities w e re actu ally cor rect does not
raise a fact issue abou t its good faith

. See Goud ie , 711 S.W.2d at 720 ( obse r ving t hat “ bad faith ” implies “ a design to mi slead or dec eive another and that bad faith does not result f ro m an honest
mistake as to one ’ s rights or du ties ” ) ; see also Black ’ s at 175 (defining “ believe ” )

. Dr. Brya n a rg ues tha t the Pla n Committee ’ s stat ed reasons wer e pretextual , that the Compan y “ purposefully and intentionally wit hheld ” th e Option Agreemen t fro m him , an d
that the Com pany treated h im different ly fr om others . He re lies on deposition t estimony of the
C F O that he was unaware of any optione e not re ceiving their o pti on a gree men t duri ng h is tenu re
and de position testimony of an o ptionee , who exe r cised a single o ption in 201 8 fro m the options
he received under the Option Plan

. The optionee testified that h e did no t h ave the exercise form

t hat was attached to his option agreement with h im “ at the time , ” t h at he requested a copy of the
form from the CFO at the time , and that the C FO provid ed the form to him

. 14 Dr. Bryan, however, does not cite, and we have not fou nd, ev iden ce that w ould support t hat the Pl an
Com mittee had a reason to beli e ve that t h is optionee was or had acted in a m aterially detr ime n tal

w ay to the Company ’ s interests

. Fu rther, w hen request ed in 2020, the Company provid ed the Opt ion Agreement t o Dr . Bry an.
We also obse rve that Dr. Bryan ’ s conclusor y statement s about hi s s ubjective
beliefs do not create a fact issu e a s to whether th e Pl a n C ommit tee did not act in good fa it h in

14 Specifically, t he optionee who exercised the sing le option in 2018 testified : As part o f the Opti on Agreement , on the last page is a form that you si gn to exer cise. It ’s an exampl e for m. I didn ’t have that with me at the time. I requested a copy of that form, I believe , [from the CFO] at t he time to get that f orm so that I could exer cis e that optio n.26 restricting his sha res. See Texas Div

. - Tranter , Inc

. v. Carrozza , 8 76 S.W. 2 d 312, 314 (Tex. 1994) ( obser ving that “ subjective beliefs are no more th an co nclusi ons and are not co mpetent

summar y jud gment e videnc e ” ) ; Gibson , 20 12 Tex. App. LEXIS 1899 , a t *13 ( h olding that empl oyer est ablished that employee was n ot entitled t o benefit s and that emp loyee ’ s c onclu sory

statement of subjective belief was n ot sufficient to raise fact issue)

. Thus , we conclude that t he
evide n ce did not raise a fact issue as to whether the Plan C o mmittee failed to act in good faith
when it restrict ed Dr. Bryan ’ s stock o ptions in 2020

. For these reasons , we overr ule Dr. Br yan ’ s first issue

. 15

Promissory Esto ppel and U nclean Hand s
In his thir d issue, Dr. Bry an argue s that t here is a fact i s s ue as to his asserted

a ffirmative d efenses of p ro miss o ry e stoppe l and u nclean h a nds

. He ar gue s that th ere is a fact
issue as to whet her the C o mpany can rely on its own disc retion to deny Dr. Bryan ’ s r ight to
exercise t he Option for shares wh en it mi sled him about t he existence of the Option to keep him working for t h e Company , su ch as by r epeatedl y show ing him the capitalization table tha t
reflected the Option

. He argues that the re are fact issue s , at a m i nimum, as to whether the
C o mpany promis ed that he could e xer cise the Option and wh ether Dr. Bryan reli ed on
th ose promis es. The s ummar y -

j udgmen t e vidence included Dr. Bryan ’ s declara tio n s that he

was speci f ic ally told by offi cer s of t he C ompany that he co uld exercise the Option of the 47,500 shares that were shown on the capit alization table ; that he relied on these represen tat ions ;

15 Becau se we c onclude that the summary - judgmen t evi dence does not ra i se a fact issue
a s to whether the Company breached the Opt ion Agreement on the gr ound that the Pl an Committe e ’ s determinati on to restrict his sha res was not made in g ood faith , we ne ed no t address the Comp any ’ s additional ground for su mmary judgment based on t he lac k of evid ence of damages. See Provident Life & Accident Ins. v. Knott , 128 S.W.3d 211, 216 ( Tex . 2003).27 a nd that if he h ad been t old h e could not exer c ise t he Option , he would never hav e a g ree d to the

c onsulting agreement or its amendm ent. When responding to a motion for su mmary judgment by wa y of an affirmative defense, the mere raising of an affir mativ e defense will not preve nt the granting of a s ummary ju dgme nt unless there is competent summary

- ju dgmen t ev idence to raise a fa ct issue on each
element of that defense

. Brow nlee v. Brownlee , 665 S.W.2d 111 , 112 (Te x. 1984). The elem ents of prom issory est oppel are: “ (1 ) a promis e, (2) foreseeability of rel ian ce thereon by t he promisor, and (3) substan tial relian ce by the pr omise e to his detriment. ” English v. Fisch er , 660
S. W.2d 521 , 524 (Tex . 1983); see Richt er v. Wagn er Oil Co. , 90 S.W.3d 890, 899 (Tex. App.

— San A nton io 2002, no pet.) ( listing elem ents o f p romissory estoppel and e xplaining th at it “ is not applicable to a promi se covered by a valid contr act between the parti es ” ). “ The doctri ne of
unclean ha nds app lies to a litigant whose own co nduct in c onnection with the same mat ter or
transaction has be en unconsci entious, unju st, marked by a want o f good faith or violate s the principles of equity and right eous dealing. ” C ity of Fredericksb urg v. Bopp , 126 S.W.3d 2 18,
221 (Tex. App.

— San Antoni o 2003 , no pet.)

. 16

16 For purposes of our a nalysi s, we assume th at the affirmat ive defen se of unclean ha n ds can p reclude a declaratory ju dg m ent claim. But s ee Tex. Civ. Prac. & Rem. Code § 37.002(b) (providing for reme dy of declaratory judgm ent to “ settle and to afford relief from uncertainty and insecu rity with respect to [certain] rig hts, st a tus, and othe r legal r elations ” ) ; Madhavan A. Pis harodi , M.D., P.A. v. U nited B iolo g i cs, L.L .C. , No. 04

- 18

- 003 24

- CV , 2020 Tex. App. LEXIS 2460, at * 16 (Tex. App.

— San Antonio M ar. 25, 2020, pe t. denied) (mem

. op.) ( “ ‘ Unclean hands ’ i s an a ffirmative defe nse av ailable w hen the pla intiff is seek i ng an eq uitable remedy. ” ( quoting In re N olle , 265 S.W .3d 487, 494 (Tex. App.

— Houston [1st Dist.] 2008, no pet.) )) ; acc ord Cantu v. Guerra & Moore, LL P , 448 S.W.3d 485, 496 (Te x. App.

— San Antonio 2014 , pet. denied) ( “ U ncl ea n hands is an a ffirma tive defens e that ma y bar a party with unclean h and s from obtainin g equitable relief. ” ); Furr v. Hall , 553 S.W.2d 666, 672 (Tex. Ap p.

— Amarillo 1977, writ ref ’ d n. r.e.) ( “ [T]he ‘ clean hands ’ maxim is strictly an e quitable doctri ne not a

pplicab le outsi de equ itable proc eedings. ” ).28 In o ur analys is above , we have concluded tha t Dr. Bryan ’ s eviden ce did not raise
a fact is sue as to whether th e Pla n Committee failed to ac t in good faith in res tric ti ng the Option

. Further, by signing the Option Agreement in March 202 0, Dr. B ry an expres sly waived “ a ny an d
al l rights, title, and in terests ” he h ad under “ a ny oral or written commitment or promise

r egard ing options that the Compa ny may have ma de to [hi m], ” except for op tions that had bee n previou sly exercised and paid for by him

. T hus, he may not r ely on pre - exec ution alleged promi ses by officers of the Company about the Optio n t o create a fact issu e
. S ee Jernigan , 111 S.W.3d at 157; Biko , 246 S.W.3d at 161

– 62. Appl yi ng the applicable st andards, we
conclude th at there is no compet ent summary

- j udgment eviden ce to raise a fact issue on at least

one of the eleme nts of Dr. B ryan ’ s af firmativ e defenses

. See Brownlee , 665 S.W.2d at 112

. We
overrule Dr

. Bry an ’ s third issue.

Th e C ompa ny ’ s Aff irma tive Defenses
In his second issue, Dr

. B ry an argues that the Co m pany failed to conclus ive ly
establish its aff irmative defenses to hi s brea ch

- of

- co ntract counte r clai m
. H e argu es that t her e is
no evid ence that he f ailed to mitigat e his damages a nd that he did not surrende r or waive h is right

t o e xe rcise th e Option by e xecuting the Option Agr ee m ent. The Comp an y did not address th e mi t ig at ion of damages in its mo tion for summary judgment , but b ased on ou r anal ys is above concerni ng t he provisions in the Option Agreement a nd o ur co nc lusio n t ha t th e trial court did not e rr in granting summary jud gment in
favor of t he Company because D r. B rya n did not ra ise a fact iss ue as to whether the Plan
C o mmi ttee did not act in good fa ith in it s determ ination to restrict the Option , we n eed not29 fu rther addr ess th e Compan y ’ s affirmati ve defen ses to Dr. Brya n ’ s cou nterclaim

. See Knott , 128 S.W.3d at 21 6

. On this basis, w e o verrul e Dr. Bryan ’ s third issue.

CONC LUSIO N Having overru led Dr. Br yan ’ s issues , we affirm t he trial court ’ s f inal j udgme nt.

____ ___________________________ ______ _____ Rosa Lo pez Theofanis , Ju stice
Before Chief Just ice Byrne, Justices Smith and Th e ofani s
Affirmed
Filed: February 23, 2024