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 PRESIDING 

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

 Dr. Nathan Bryan appeals from the trial court’s final judgment, challenging the 

trial court’s summary judgment rulings that were incorporated into its final judgment. For the 

following reasons, we affirm the final judgment. 

BACKGROUND1

 Dr. Bryan is one of the co-founders, a shareholder, and the former Chief Science

Officer of Appellee Human Power of N Company (the Company).2 The Company is a privately 

held company that sells products that support or enhance the body’s production of nitric oxide. 

1 The facts are taken from the summary-judgment evidence. 

2 When originally founded in 2009, the Company’s name was NeoGenis Laboratories, 

Inc., but it changed its name to Human Power of N Company in 2016. 
2

The Option Plan

Central to the parties’ dispute, Dr. Bryan and other shareholders approved the 

adoption of a “2013 Non-Qualified Stock Option Plan” (the “Option Plan”) for the Company. 

The Option Plan’s purpose “is to provide incentive to directors, consultants, advisors and key 

employees” of the Company “to continue their association with the Company by providing 

opportunities for such persons to participate in the ownership of the Company and its future 

growth, and to offer an additional inducement in obtaining the services of such persons.”

The Option Plan provides that it is to be administered by a committee (the “Plan 

Committee”) consisting of the Company’s board of directors (the “Board”) or individual

directors designated by the Board; that the Plan Committee has the “sole and absolute discretion”

to make necessary determinations for the administration of the plan; that any controversy or 

claim relating to the Option Plan or any option agreement thereunder “shall be determined 

unilaterally by the Committee in its sole discretion”; that “[a]ll decisions, determinations and 

interpretations of the Committee shall be final, binding, and conclusive on all Optionees”; and 

that no member of the Plan Committee “shall be liable for any action, failure to act or 

determination made in good faith with respect to the Plan, any Option Agreement or any 

Option hereunder.”

Under the Option Plan, the Plan Committee in its “sole discretion” may grant 

stock options, but such stock options must be subject to written option agreements that are 

consistent with the Option Plan:

Each Option granted hereunder shall be for such number of shares of Common

Stock, and otherwise subject to such terms and conditions, as the Committee shall

determine and specify in a written option agreement (an “Option Agreement”), 

which may be in such form not inconsistent with the Plan as the Committee may 
3

determine. Each Option Agreement shall be signed by the Optionee and by a duly 

authorized officer of the Company.

Paragraph 9 of the Option Plan, however, provides a procedure that authorizes the Plan 

Committee to restrict an optionee’s right to exercise his or her options:

The Committee may provide a written notice to an Optionee that the Committee 

believes the Optionee is or has engaged in activity that is materially detrimental to 

the best interests of the Company and its shareholders. After the Committee 

provides such notice to the Optionee, the Optionee cannot exercise the Optionee’s 

Option until and unless the Committee notifies the Optionee in writing that the 

restriction on exercise has lapsed. In determining if the materially detrimental 

activity has actually occurred and if the restriction on exercise should be removed, 

the Committee shall consider the facts presented on behalf of the Company and 

the Optionee. The decision of the Committee as to the materially detrimental 

nature of the Optionee’s activities and the extent of any restriction on exercise 

shall be final, binding and conclusive.

Pursuant to the Option Plan, Dr. Bryan was granted an option to purchase 47,500 shares of 

common stock (the “Option”) as of July 1, 2013, and the Company’s internal records, including

its capitalization table, reflected that Option.

The Controversy

In 2017, Dr. Bryan was removed as the Chief Science Officer and entered into a 

consulting agreement with the Company. In 2018, Dr. Bryan asked the Company’s Chief 

Financial Officer (CFO) by email for a copy of his option agreement for the Option and other

information, which request was forwarded to the Company’s counsel, but Dr. Bryan did not 

receive a response. The Company through counsel also sent multiple letters to Dr. Bryan and his 
4

counsel during 2018, including cease-and-desist letters alleging that he had breached his

consulting agreement with the Company and detailing complaints about his conduct.

3

In the early part of 2019, the parties entered into an amendment to the consulting 

agreement, which amendment expired in early 2020. The amendment states that Dr. Bryan 

“desires to be released from a portion of the terms of his non-compete within the Agreement” so 

he could pursue offering services to non-competitors; that the Company desires the amendment

“to address the Company’s concerns” about Dr. Bryan’s “publication to third parties, whether 

verbal or in writing, of negative, critical, and disparaging comments by [him] about the 

Company, its products, and leadership”; and that the Company desires “to enter into an amended 

written agreement noting [Dr. Bryan’s] commitment to be a vocal supporter and advocate for 

positive support of the Company, its products and leadership.”

In February 2020, Dr. Bryan made a written request to examine the Company’s 

books and records. After receiving this request, the Company removed the Option from its 

internal records, including its capitalization table, and notified Dr. Bryan that it had done so 

because he had not executed an option agreement as required under the Option Plan. According 

3 For example, the summary-judgment evidence includes a nine-page letter from counsel 

for the Company in February 2018 to Dr. Bryan’s counsel. The Company’s counsel stated that 

the letter was in response to a letter from Dr. Bryan’s counsel in January 2018 and the allegations 

raised by Dr. Bryan in that letter. The Company’s counsel stated that those allegations were 

“completely without merit” and described in detail Dr. Bryan’s alleged conduct that was a 

“detriment” to the Company. Another example is a seven-page letter from the Company’s

counsel to Dr. Bryan’s counsel in July 2018 detailing complaints about Dr. Bryan’s conduct and 

demanding that he cease and desist from this conduct.

Both parties were represented by counsel throughout their pre-lawsuit communications. 

Unless indicated otherwise, communications between Dr. Bryan and the Company were made 

between counsel.
5

to the Company, in responding to Dr. Bryan’s request to examine the Company’s books and

records, it discovered that it did not have a signed option agreement with him.

The Option Agreement and the Restriction of the Option

On March 2, 2020, Dr. Bryan notified the Company that it had never asked him to 

sign an option agreement, that the Company and its officers had represented that the Option

continued to exist, and that he had relied on these representations. He requested that the 

Company provide him with an option agreement immediately so he could sign it.

On March 4, the Board held a meeting with no notice to Dr. Bryan and without 

his presence. The minutes from the meeting reflect that the Board was acting in its capacity as

the Plan Committee and recite that: (i) the Board “considered issues raised by” Dr. Bryan and 

his counsel related to his “assertion that he had rights under an Option Agreement approved by 

the Company but not signed by [him]”; (ii) the Board “reviewed and discussed various activities

of Dr. Bryan which have been the subject of various communications between Dr. Bryan and his 

counsel and the Company and its counsel”4; (iii) the Board determined that Dr. Bryan had taken 

actions “over at least the past year” that were “materially detrimental” to the best interests of the 

Company; and (iv) the Board determined that to the extent the Option is determined to have been 

4 In particular, the minutes reflect that the Board, acting as the Plan Committee,

considered the following actions by Dr. Bryan:

The Board, acting as the Committee, specifically considered various statements 

made by Dr. Bryan that were critical of the Company’s products and activities; 

considered the communications that Dr. Bryan had apparently had with 

Thermolife (which the Committee determined to be detrimental to the Company’s

interest in connection with pending litigation), Dr. Bryan’s claims to be able to 

use formulas for the manufacture of product using proprietary information 

belonging to the Company and which are competitive with the Company, as well 

as other wrongful actions taken by Dr. Bryan that the Committee considered to be 

adverse to the best interests of the Company.
6

validly granted, which it contested, Dr. Bryan was “prohibited from exercising any such options 

until and unless the Plan Committee notifies him in writing that it has elected to remove these 

restrictions on his exercise.”

The day after this meeting, the Company provided written notice to Dr. Bryan 

about the Plan Committee’s determination to restrict the Option to the extent it was valid based 

on his “materially detrimental” actions and advised him that he was prohibited from exercising 

the Option unless and until the Plan Committee notified him in writing that it had elected to 

remove the restrictions. The Company also stated that because Dr. Bryan was required to 

execute an option agreement “for it to become valid and effective (which did not occur),”

Dr. Bryan “does not maintain any right, title or interest to such options.”

On March 9, Dr. Bryan responded to the Company’s March 5 letter. Dr. Bryan’s 

counsel stated that Dr. Bryan was “ready and willing to sign” the same option agreement “as all 

other Plan participants” and requested copies of Company records, including “documents that 

evidence any ‘activity [by Dr. Bryan] that is materially detrimental to the best interests of [the 

Company] and its shareholders’ as you allege in your March 5, 2020 letter.”

On March 18, the Company provided Dr. Bryan with an option agreement

concerning the Option for Dr. Bryan’s signature (the “Option Agreement”). The Option 

Agreement had already been executed by the Company and stated that the date of the grant of the 

Option was July 1, 2013, and set the exercise price per share of common stock; that except as

otherwise provided herein, the Option shall be exercised in accordance with the terms and 

conditions set forth in the Option Plan including Paragraph 9; that the terms of the Option Plan 

were incorporated herein; that the Option “may be subject to restrictions on exercise upon the 
7

occurrence of events specified in Section 9 of the Plan”; and that in case of a conflict, the Option 

Agreement controlled. It also contained the following integration and exclusivity provisions:

(a) Amendment. This Option Agreement, including the Plan, contains the full 

and complete understanding and agreement of the parties hereto as to the subject

matter hereof and may not be modified or amended, nor may any provision hereof 

be waived, except by further written agreement . . . . The waiver by either of the

parties hereto of any provision hereof in any instance shall not operate as a waiver 

of any other provision hereof or in any other instance.

* * *

(d) Exclusive Agreement. The Optionee hereby acknowledges and agrees that by 

signing this Option Agreement, the Optionee voluntarily and irrevocably forfeits

any and all rights, title, and interests the Optionee has or may have had in, to and 

under (a) any option agreement, option letter, or other similar document pursuant 

to which the company may have previously granted, or offered to grant, options in 

the Company to the Optionee and (b) any oral or written commitment or promise 

regarding options that the Company may have made to the Optionee, except as to 

any options that have been previously exercised and paid for by the Optionee.

In the cover letter with the Option Agreement, counsel stated that the agreement 

was provided without waiver of the Company’s position that Dr. Bryan was prohibited from 

exercising the Option and that the agreement was provided based on his request and his

representations that he is “ready and willing” to execute it. As to the request by Dr. Bryan for 

documents in the March 9 letter, copies of documents were attached to the letter and the 

Company’s counsel stated:

As for your request (fifth bullet point) for documents evidencing activity by 

Dr. Bryan that is materially detrimental to the Company’s and its shareholders’ 

best interests, we direct your attention to all prior communications with Dr. Bryan 

and his lawyers since April 21, 2017 (including without limitation the various 

cease and desist letters and responses thereto). More recently, we also direct your 

attention to Dr. Bryan’s communications with Thermolife and Dr. Bryan’s 

September 18, 2018 letter to the Company’s board and shareholders regarding 

negotiations with Thermolife. Copies [of] those types of communications 

are attached.
8

The letter also included the following sentence: “Of course, if Dr. Bryan executes the 

agreement, he will be bound by all of its terms (and those of the Plan), and we trust that you will 

advise Dr. Bryan of the same.” On March 31, Dr. Bryan provided a copy of the fully executed 

Option Agreement to the Company. The Company restated the Option on its internal records,

including its capitalization table.

At a meeting on April 2, the Board, in its capacity as the Plan Committee,

reconsidered its decision to restrict Dr. Bryan’s options but did not change its decision to prohibit 

him from exercising the Option. The minutes recite:

The Board, constituting the Committee under the Company’s 2013 Non-Qualified 

Stock Plan (the “Option Plan”), was requested to reconsider its prior decision to 

restrict the exercise of stock options to Dr. Nathan Bryan following Dr. Bryan’s 

execution of the Option Agreement following the decision of the Committee on 

March 4, 2020. Acting as the Committee under the Option Plan, [the Board] 

reviewed again and discussed the activities of Dr. Bryan which have been the 

subject of communications between Dr. Bryan and the Company, and 

reconsidered whether Dr. Bryan’s actions over at least the past year, were 

materially detrimental to the best interests of the Company, whether there had 

been any change in circumstances from the Committee’s consideration of the 

same issue during its meeting in March, and whether the exercise [by] Dr. Bryan 

of options granted under the Option Agreement executed by him should be 

restricted as provided in the Plan. After a review of the information, and 

determining that there had been no change in circumstances that led to the prior 

decision to restrict the exercise of options by Dr. Bryan, [the Board] re-confirmed 

its position that Dr. Bryan has engaged in activity that is materially detrimental to 

the best interests of [the Company] and its shareholders. Accordingly, pursuant to 

Paragraph 9 of the Plan, the Board approved a letter to be sent to Dr. Bryan (via 

counsel) which provided him with notice of the same. In addition, the Board, 

acting as the Committee under the Option Plan, approved a motion prohibiting 

Dr. Bryan from exercising any options until and unless the Plan Committee 

notifies him in writing that it has elected to remove these restrictions on 

his exercise.

On the same day as this meeting, the Company provided notice to Dr. Bryan that 

it had received the fully executed Option Agreement, that the Plan Committee “has (once again) 
9

determined that Dr. Bryan has engaged in activity that is materially detrimental to the best 

interests of [the Company] and its shareholders,” and that Dr. Bryan was prohibited from 

exercising the Option until and unless the Plan Committee notified him in writing that it had 

elected to remove the restrictions from the exercise of the Option.

On May 20, Dr. Bryan attempted to exercise the Option by personally delivering 

the exercise form and a certified check in the amount of the exercise price for the shares of 

common stock to the Company’s office, but the Company refused to accept the exercise of 

the Option.

Litigation Ensued

The day after Dr. Bryan attempted to exercise the Option, the Company sued 

Dr. Bryan, seeking declaratory judgment that the Plan Committee’s determination concerning

Dr. Bryan’s “ability to exercise the Option is final, binding, and conclusive”; that Dr. Bryan was 

“prohibited from exercising the Option” until the Company notified him that the restriction was 

removed; and that his attempt in May 2020 to exercise the Option was “invalid and ineffective.”

Dr. Bryan answered, counterclaimed for breach of contract, and asserted 

affirmative defenses of promissory estoppel and unclean hands.

5 He alleged that the Company

breached the Option Plan and the Option Agreement by failing to timely provide him with a copy 

of the Option Agreement, by failing to act in good faith in exercising its discretion, and by 

denying his exercise of the Option based on allegedly “materially detrimental” conduct. He also 

alleged that he suffered damages from the Company’s breach of the agreements.

5 Dr. Bryan also asserted a cause of action concerning his request to inspect the 

Company’s books and records, but he amended his counterclaim to remove that cause of action, 

and it is not at issue in this appeal.
10

The parties filed motions for summary judgment. In its motion, the Company 

sought traditional summary judgment on its claims for declaratory judgment, arguing that the 

undisputed summary-judgment evidence established that the Plan Committee’s decision to 

restrict Dr. Bryan’s exercise of the Option “was made without bad faith” and that there was no

genuine issue of material fact as to the good faith in that decision. The Company also sought 

traditional and no-evidence summary judgment on Dr. Bryan’s breach-of-contract counterclaim 

and affirmative defenses, contending that there was no evidence to support his counterclaim or 

affirmative defenses and that to the extent his counterclaim and affirmative defenses were based 

on complaints about the Company’s alleged promises prior to the execution of the Option 

Agreement, they were barred as a matter of law based on the Option Agreement’s integration and 

exclusivity provisions. In his motion, Dr. Bryan sought traditional summary judgment on his 

breach-of-contract counterclaim. The parties also filed responses to the others’ motion and

summary-judgment evidence that included correspondence between the parties and their counsel 

leading up to the litigation, the executed Option Agreement, the Option Plan, declarations from 

Dr. Bryan, deposition excerpts, and discovery responses.

6

Following a hearing, the trial court granted the Company’s motion for summary 

judgment in part, denied Dr. Bryan’s motion, and dismissed his breach-of-contract counterclaim 

with prejudice. In its order, the trial court ordered that the Company was entitled to judicial 

declarations that:

(1) The Company’s Option Plan Committee’s determination to restrict 

Dr. Bryan’s option exercise is valid, final, binding, and conclusive, (2) unless and 

until the Company notifies Dr. Bryan in writing that the restrictions on his option 

exercise have been rescinded or terminated, Dr. Bryan is prohibited from

6 Some of the summary-judgment evidence remains under seal.
11

exercising his options and the Company shall have no obligation to issue 

certificates representing Dr. Bryan’s exercised option shares or otherwise comply 

with any obligation under the executed option agreement or option plan 

concerning Dr. Bryan’s attempted exercise of his options, and (3) Dr. Bryan’s 

attempted May 20, 2020, exercise of his options is invalid and ineffective.

After the parties entered a “Stipulation Regarding Final Judgment” as to 

attorney’s fees and costs, the trial court signed its final judgment, which incorporated its 

summary judgment rulings and awarded attorney’s fees and costs to the Company.

7 This 

appeal followed.

ANALYSIS

In three issues, Dr. Bryan argues that the trial court erred in entering the 

Company’s requested declarations and dismissing his breach-of-contact counterclaim because of

genuine issues of material fact as to those claims and his affirmative defenses of promissory 

estoppel and unclean hands and because the Company failed to conclusively establish its 

affirmative defenses of failure to mitigate and waiver.

Standards of Review

We review the trial court’s summary judgment rulings de novo. Zive v. Sandberg, 

644 S.W.3d 169, 173 (Tex. 2022); Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156 

(Tex. 2004); see Hawkins v. El Paso First Health Plans, Inc., 214 S.W.3d 709, 719 (Tex. App.—

7 After the trial court’s summary judgment ruling, Dr. Bryan filed a motion for leave to 

file an amended petition to add a fraud claim, filed a separate lawsuit against the Company and 

three individuals asserting a fraud claim based on alleged conduct by the Company and its 

current and former officers, and sought to consolidate the two cases. The trial court denied 

Dr. Bryan’s motions for leave to file an amended petition and to consolidate the two cases, and 

Dr. Bryan has not appealed those rulings. Because Dr. Bryan’s pleadings in this case do not 

include a fraud claim against the Company or his separate pending fraud suit, we expressly do 

not consider such a claim here.
12

Austin 2007, pet. denied) (explaining that because trial court determined declaratory-judgment 

issue on summary judgment, appellate court reviews propriety of declarations under same 

standards as apply to summary judgments). Under this standard, we view “the evidence in the 

light most favorable to the non-movant, crediting evidence favorable to the non-movant if 

reasonable jurors could, and disregarding contrary evidence unless reasonable 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 traditional motion for summary judgment, the movant must 

demonstrate that there are no genuine issues of material fact and that it is entitled to judgment as

a matter of law. See Tex. R. Civ. P. 166a(c); Provident Life & Accident Ins. v. Knott, 

128 S.W.3d 211, 215–16 (Tex. 2003). A movant seeking a no-evidence summary judgment 

must assert that “there is no evidence of one or more essential elements of a claim or defense on 

which an adverse party would have the burden of proof at trial.” Tex. R. Civ. P. 166a(i). “The 

court must grant the motion unless the respondent produces summary-judgment evidence raising 

a genuine issue of material fact” on the challenged elements. Id.; see JLB Builders, L.L.C. 

v. Hernandez, 622 S.W.3d 860, 864 (Tex. 2021); Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572,

581–82 (Tex. 2006).

“A genuine issue of material fact exists if it ‘rises to a level that would enable 

reasonable and fair-minded people to differ in their conclusions.’” First United Pentecostal 

Church of Beaumont v. Parker, 514 S.W.3d 214, 220 (Tex. 2017) (quoting Merrell Dow Pharm., 

Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). “The evidence does not create an issue 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 Corp. v. Ruiz, 432 S.W.3d 865, 875 (Tex. 2014)).
13

When the trial court does not specify the grounds for its summary judgment, as is 

the case here, the appellate court must affirm the summary judgment “if any of the theories 

presented to the trial court and preserved for appellate review are meritorious.” Knott, 

128 S.W.3d at 216. Further, when both parties move for summary judgment on the same issues 

and the trial court grants one motion and denies the other, we consider the summary-judgment 

evidence presented by both sides, determine all questions presented and, if we determine that the 

trial court erred, render the judgment the trial court should have rendered. Valence Operating 

Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005) (citing FM Props. Operating Co. v. City of

Austin, 22 S.W.3d 868, 872 (Tex. 2000)).

Dr. Bryan’s issues also involve matters of contract construction. “If a written 

contract is so worded that it can be given a definite or certain legal meaning when so considered 

and as applied to the matter in dispute, 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 question for the 

court. Dynegy Midstream Servs., Ltd. P’ship v. Apache Corp., 294 S.W.3d 164, 168 (Tex.

2009). “A contract is not ambiguous simply because the parties disagree over its meaning.” Id.

In this case, because the relevant provisions in the Option Agreement and Option Plan can be 

given a definite or certain legal meaning when considered and applied to the parties’ dispute, we 

conclude that they are not ambiguous. See URI, Inc., 543 S.W.3d at 765.

The construction of an unambiguous contract is also a question of law that we 

review de novo.8 Tawes v. Barnes, 340 S.W.3d 419, 425 (Tex. 2011). We generally interpret 

language within a contract according to its “plain, ordinary, and generally accepted meaning.”

8 In contrast, when an agreement as written is ambiguous, the parties’ intent becomes a 

fact issue. See Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 333 

(Tex. 2011).
14

Piranha Partners v. Neuhoff, 596 S.W.3d 740, 742–43 (Tex. 2020) (quoting URI, 543 S.W.3d at 

764). Our primary concern is to ascertain and give effect to the intent of the parties as expressed

in the document. Frost Nat’l Bank v. L&F Distribs., Ltd., 165 S.W.3d 310, 311–12 (Tex. 2005) 

(per curiam). “No single provision taken alone will be given controlling effect; rather, all the 

provisions must be considered with reference to the whole instrument.” Coker v. Coker, 

650 S.W.2d 391, 393 (Tex. 1983); see MCI Telecomms. Corp. v. Texas Utils. Elec. Co., 

995 S.W.2d 647, 652 (Tex. 1999) (“When interpreting a contract, we examine the entire 

agreement in an effort to harmonize and give effect to all provisions of the contract so that none 

will be meaningless.”). With these standards in mind, we turn to Dr. Bryan’s issues.

Declaratory Judgment and Breach-of-Contract Counterclaim

In his first issue, Dr. Bryan argues that the trial court erred in entering the 

Company’s requested declarations and dismissing his breach-of-contact counterclaim because

the evidence conclusively established his counterclaim or, at a minimum, there are genuine

issues of material fact.

Generally, “[t]he essential elements of a breach-of-contract claim are: (1) the 

existence of a valid contract; (2) performance or tendered performance by the plaintiff; 

(3) breach of contract by the defendant; and (4) damages sustained by the plaintiff as a result of 

the breach.” Valero Mktg. & Supply Co. v. Kalama Int’l, L.L.C., 51 S.W.3d 345, 351 (Tex. 

App.—Houston [1st Dist.] 2001, no pet.). Here, however, the Option Agreement provides “sole 

discretion” to the Plan Committee to “determine unilaterally” any claim arising under the Option 

Plan and that “[a]ll decisions, determinations, and interpretations of the Committee shall be final, 

binding, and conclusive on all Optionees.” In this context, bad faith by the Company is also an 
15

essential element of Dr. Bryan’s breach-of-contract counterclaim. See Lone Star Steel Co. 

v. Scott, 759 S.W.2d 144, 153 (Tex. App.—Texarkana 1988, writ denied) (stating that “[b]ad 

faith becomes essential element of a breach of contract claim only when the contract places 

performance solely and absolutely in the discretion of one party” and that in that situation, 

“recovery can only be had if the party exercised its discretion in bad faith”); see also Gibson 

v. STP Nuclear Operating Co., No. 13-11-00089-CV, 2012 Tex. App. LEXIS 1899, at *12 (Tex. 

App.—Corpus Christi–Edinburg Mar. 8, 2012, no pet.) (mem. op.) (stating that “[w]here an 

employer retains the right to interpret an incentive compensation plan, the employer’s 

interpretation must stand, absent bad faith on the part of the employer” (citing Kern v. Sitel 

Corp., 517 F.3d 306, 309 (5th Cir. 2008))); Macy v. Waste Mgmt., Inc., 294 S.W.3d 638, 648

(Tex. App.—Houston [1st Dist.] 2009, pet. denied) (collecting and discussing authorities holding 

that only way to attack employer’s determinations that are stated to be final under employerfunded plan is by showing bad faith or fraud in employer’s actions).

Dr. Bryan contends that, at a minimum, he presented at least a scintilla of

evidence that: (i) the Option Plan and the Option Agreement are valid existing contracts;

(ii) under those contracts, the Company owed Dr. Bryan duties, including the duty to deliver a 

copy of the Option Agreement to him; (iii) he exercised the Option for shares as required under 

the Option Plan and Option Agreement; (iv) the Company breached the terms of the Option Plan

and Option Agreement; and (v) he suffered damages as a result of the Company’s breaches. He 

alleges that, at a minimum, fact issues exist as to whether he exercised the Option as required by 

the Option Agreement and Option Plan; whether the Company breached the agreement by failing 
16

to timely send him a copy of the Option Agreement9; whether the Company breached the 

agreement by failing to exercise good faith or reasonableness in exercising its discretion to

restrict the exercise of the Option and denying his exercise of the Option based on alleged 

“materially detrimental” conduct; and whether he suffered damages because he was unable to 

exercise the “valuable” Option for shares.

The parties agree that the Option Agreement is a valid and binding contract. 

Dr. Bryan also appears to contend that the Option Plan is a stand-alone contract and that the 

Company had an implied duty under its terms to deliver a copy of an option agreement to him to 

sign but that it failed to do so and that this failure “cannot be said to have been taken in good 

faith.” See HECI Expl. Co. v. Neel, 982 S.W.2d 881, 888–89 (Tex. 1998) (explaining that

“covenant will not be implied unless it appears from the express terms of the contract that ‘it was 

so clearly within the contemplation of the parties that they deemed it unnecessary to express it,’

and therefore they omitted to do so, or ‘it must appear that it is necessary to infer such a covenant 

in order to effectuate the full purpose of the contract as a whole as gathered from the written 

instrument’” (quoting Danciger Oil & Ref. Co. v. Powell, 154 S.W.2d 632, 635 (Tex. 1941)).

The Option Plan, however, was not a stand-alone contract between the Company 

and Dr. Bryan. The elements of a “valid and binding contract” include a “meeting of the minds,”

“each party’s consent to terms,” and “execution and delivery.” See Adcock v. Five Star 

Rentals/Sales, Inc., No. 04-17-00531-CV, 2018 Tex. App. LEXIS 2690, *4 (Tex. App.—San 

Antonio Apr. 18, 2018, no pet.) (mem. op.) (citing Specialty Select Care Ctr. of San Antonio, 

9 The evidence was disputed as to whether the Company had provided an option 

agreement to Dr. Bryan prior to 2020, but for purposes of this appeal, we take as true Dr. Bryan’s 

evidence that the Company did not provide him with an option agreement until March 2020. See

Zive v. Sandberg, 644 S.W.3d 169, 173 (Tex. 2022) (reviewing evidence in light most favorable 

to nonmovant).
17

L.L.C. v. Owen, 499 S.W.3d 37, 43 (Tex. App.—San Antonio 2016, no pet.))). The Option Plan 

does not satisfy these elements. For example, it provides that the Plan Committee in its sole 

discretion may grant options to such eligible directors, employees, or other persons as it shall

determine; that it is authorized to determine the terms and conditions of an option agreement 

consistent with the plan; and that each option agreement shall be signed by the optionee and an 

authorized officer of the Company. It also provides that options that are granted pursuant to the 

plan shall be “subject to terms and conditions as the Committee shall determine and specify in a

written option agreement,” and it does not contain a form option agreement, a date or time when 

an option agreement must be provided or executed, or identify the eligible directors, employees 

or other persons who may receive options under the plan. Thus, because the Option Plan is not a 

stand-alone contract, Dr. Bryan has not raised a fact issue as to whether the Company breached 

the Option Plan, such as by failing to deliver an option agreement to him before the Company 

provided the Option Agreement. See Valero Mktg., 51 S.W.3d at 351 (including existence of 

valid contract among elements of breach-of-contract claim).

It follows that Dr. Bryan’s breach-of-contract counterclaim required him to 

establish that the Company breached the Option Agreement, the valid and existing agreement 

between the parties. See id. And although the Option Plan was not a stand-alone contract, its

terms were incorporated into the Option Agreement. See Zapata Corp. v. McIntyre, 

No. 14-99-00900-CV, 2001 Tex. App. LEXIS 1765, at *12–13 (Tex. App.—Houston [14th

Dist.] Mar. 15, 2001, pet. denied) (mem. op.) (concluding that agreement was subject to terms 

and conditions of stock option plan). In this context, by signing the Option Agreement in March

2020, Bryan expressly agreed to be subject to the terms of the Option Plan, including that the

Plan Committee could restrict the exercise of the Option and that the Plan Committee’s 
18

determination to restrict the Option would be “final, binding, and conclusive.” Paragraph 9 of 

the Option Plan, which term was incorporated into the Option Agreement, expressly provides 

that the Plan Committee may provide notice to an optionee that it “believes the Optionee is or 

had engaged in activity that is materially detrimental to the best interests of the Company and its 

shareholders,” see Black’s Law Dictionary 175 (9th ed. 2009) (defining “believe” to mean “[t]o

feel certain about the truth of; to accept as true”), and that its decision “as to the materially 

detrimental nature of the Optionee’s activities and the extent of any restriction on exercise shall 

be final, binding, and conclusive.”

Dr. Bryan also expressly waived certain rights, title, and interests that he had or 

may have had when he executed the Option Agreement by agreeing that he:

voluntarily and irrevocably forfeited any and all rights, title, and interests the 

Optionee has or may have had in, to and under (a) any option agreement, option

letter, or other similar document pursuant to which the Company may have 

previously granted, or offered to grant, options in the Company to the Optionee 

and (b) any oral or written commitment or promise regarding options that the 

Company may have made to the Optionee, except as to any options that have been 

previously exercised and paid for by the Optionee. 

See Jernigan v. Langley, 111 S.W.3d 153, 157 (Tex. 2003) (defining “waiver” as “intentional 

relinquishment of a known right or intentional conduct inconsistent with claiming that right”

(quoting Sun Expl. & Prod. Co. v. Benton, 728 S.W.2d 35, 37 (Tex. 1987))). And he agreed that

the Option Agreement was the “full and complete understanding and agreement of the parties

hereto as to the subject matter hereof” and that the Option became “effective as of the date an 

executed copy [was] delivered by the Company to the Optionee.”10

10 The Option Agreement also states directly above the parties’ signature line on the last 

page that “the parties have executed this Option Agreement as of ___________, 2016, to be

effective on the date first written above.” In his reply brief, Dr. Bryan argues that the waiver 
19

We must enforce these unambiguous provisions as written. See Biko v. Siemens 

Corp., 246 S.W.3d 148, 161–62 (Tex. App.—Dallas 2007, pet. denied) (“By entering into an 

unambiguous agreement with a merger clause, the signing appellants have foreclosed their 

reliance on prior agreements and their use of parol evidence to contradict the agreement’s 

objective language.” (citing COC Servs., Ltd. v. CompUSA, Inc., 150 S.W.3d 654, 666 (Tex. 

App—Dallas 2004, pet. denied))); see also Edascio, L.L.C. v. NextiraOne L.L.C., 264 S.W.3d 786, 

795–800 (Tex. App.—Houston [1st Dist.] 2008, pet. denied) (discussing provision in agreement 

stating that contract represented parties’ entire agreement and superseded prior written or oral 

representations and barring consideration of evidence of alleged oral agreement based on parol 

evidence rule); COC Servs., 150 S.W.3d at 666 (explaining that courts enforce unambiguous 

instruments as written, including provisions “stating that all previous agreements between the 

parties are merged, or integrated, into the subject writing”).

“When a contract contains a merger or integration clause, the contract’s execution 

presumes that all prior negotiations and agreements relating to the transaction have been merged 

into the contract, and it will be enforced as written and cannot be added to, varied, or 

contradicted by parol evidence.” Prince v. Weleba, No. 02-23-00085-CV, 2023 Tex. App. 

provision only applies to bar complaints existing before the effective date of the Option 

Agreement of July 1, 2013, because that date is the first date that is referred to in the Option 

Agreement: “Date of Grant of Option (‘date hereof’): July 1, 2013.” Dr. Bryan, however, did 

not raise this argument with the trial court or in his opening brief and, thus, we do not consider it 

on appeal. See Tex. R. Civ. P. 166a(c) (“Issues not expressly presented to the trial court by 

written motion, answer or other response shall not be considered on appeal as grounds for 

reversal.”); Tex. R. App. P. 38.1(f) (requiring appellant’s opening brief to “state concisely all 

issues or points presented for review”). Further, although it is not clear the date the parties were 

referring in the last page of the agreement, the evidence established that the Company provided

the Option Agreement to Dr. Bryan in March 2020 and that he executed and returned it to the 

Company shortly after receiving it, and the Option Agreement expressly states: “This Option 

shall be effective as of the date an executed copy is delivered by the Company to the Optionee.”
20

LEXIS 7644, at *15–16 (Tex. App.—Fort Worth Oct. 5, 2023, no pet.) (mem. op.) (citing Barker 

v. Roelke, 105 S.W.3d 75, 83 (Tex. App.—Eastland 2003, pet. denied)). Thus, applying the plain 

language of the above recited integration and exclusivity provisions, we conclude that to the 

extent that Dr. Bryan alleges that the Company breached the Option Agreement by failing to 

timely send it to him prior to March 2020, he has waived this allegation. See id.; Biko,

246 S.W.3d at 161–62.

The remaining ground for Dr. Bryan’s breach-of-contract counterclaim is his 

allegation that the Plan Committee did not act in good faith when it restricted his ability to 

exercise his options in 2020, and it was Dr. Bryan’s burden to present evidence to raise a fact 

issue as to this allegation. See Zapata Corp., 2001 Tex. App. LEXIS 1765, at *17 (concluding 

that committee’s decision was final and binding when employee did not allege bad faith or fraud

in refusing to award stock options); Lone Star Steel Co., 759 S.W.2d at 153; see also Gibson, 

2012 Tex. App. LEXIS 1899, at *12; Macy, 294 S.W.3d at 648. As a preliminary matter, we 

observe that to the extent Dr. Bryan relies on alleged promises or representations by the 

Company’s officers, such as the capitalization table, that occurred prior to the Option 

Agreement’s execution to raise a fact issue as to the Plan Committee’s good faith in restricting 

his options, he expressly waived these allegations under the integration and exclusivity 

provisions.

11 Thus, we limit our review to Dr. Bryan’s allegations of the Company’s actions 

after the parties executed the Option Agreement in March 2020.

11 For example, the summary-judgment evidence also includes Dr. Bryan’s declaration

that he “sought to exercise [his] options by at least 2018 when [he] requested [his] option 

documents from [the Company’s CFO].” As stated above, the evidence of Dr. Bryan’s request in 

2018 could not create a fact issue here because of the Option Agreement’s integration and 

exclusivity provisions. Moreover, he did not sign an Option Agreement until 2020, requesting a

copy is not the same as exercising an option, and without an executed option agreement,
21

A person acts in “good faith” when he has a “state of mind consisting in”

“honesty in belief and purpose” or the “absence of intent to defraud or to seek unconscionable

advantage.” See Black’s at 762. A person acts in bad faith when he has “[d]ishonesty of belief 

or purpose.” See id. at 159; Goudie v. HNG Oil Co., 711 S.W.2d 716, 720 (Tex. App.—El Paso 

1986, writ ref’d n.r.e.) (stating that “bad faith implies actual or constructive fraud, or a design to 

mislead or deceive another and that bad faith does not result from an honest mistake as to one’s 

rights or duties, but by some interested or sinister motive”); see, e.g., Kern, 517 F.3d at 311

(explaining that under Texas law, bad faith may be established by direct evidence of 

“unreasonable requirements, refusal to consider favorable information or the use of standards 

more strict than those applied to others similarly situated” or that bad faith “may be inferred from 

an adverse decision which has no basis in fact” (citation omitted)); Bobbora v. Unitrin Ins. 

Servs., 255 S.W.3d 331, 336 (Tex. App.—Dallas 2008, no pet.) (discussing definition of “good 

faith” and “bad faith” in surety and indemnification context and requirement in some contexts to 

show improper motive or willful ignorance of facts to establish “bad faith”); Dynacq Healthcare, 

Inc. v. Seth, No. 01-06-00188-CV, 2007 Tex. App. LEXIS 5451, at *13 (Tex. App.—Houston

[1st Dist.] 2007, pet. denied) (mem. op.) (declining to interpret incentive plan and stock option 

agreement that gave company’s committee or board sole discretion to approve method of 

payment to exercise stock option to allow company to refuse request to exercise stock option in 

certain way “just because”).

Dr. Bryan was not entitled to exercise options before he received the Option Agreement in 

March 2020.
22

Dr. Bryan argues that the Company did not act in good faith because it failed to 

consider evidence presented on his behalf pursuant to Paragraph 9 of the Option Plan, 

which provides:

In determining if the materially detrimental activity has actually occurred and if 

the restriction on exercise should be removed, the Committee shall consider the 

facts presented on behalf of the Company and the Optionee.

Dr. Bryan complains that he was not provided notice of the meetings or given an opportunity to 

present facts and argues that there was “no record of any person presenting any information, or 

any information being presented by anyone, on behalf of Dr. Bryan.” In his declaration, 

Dr. Bryan declared that he “was never at any time asked by the Company, or given an 

opportunity by the Company, to present facts to the Option Committee that made the 

determination to prohibit [him] from exercising [his] options.”12 Dr. Bryan also disputes the 

Plan Committee’s belief that his activities were materially detrimental to the Company, relying 

on evidence that the Company was thriving financially during the relevant time and the lack of 

evidence from a financial perspective of how his complained-of conduct damaged the Company,

and argues that the Company failed to provide any explanation for how his conduct was 

materially detrimental or what standard or evidence was used to make this determination.

Paragraph 9, however, does not dictate the standard or evidence to be used in 

making a materially detrimental activity determination and there is no requirement in Paragraph

9 that the Plan Committee provide notice to an optionee, that an optionee be present at a meeting 

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

Company officer that Dr. Bryan was not present at the meeting, that he did not recall the Board

providing notice to Dr. Bryan of the meeting, and that Dr. Bryan did not have an opportunity to 

respond prior to the March meeting. The officer was asked, “The [B]oard did not allow 

Nathan Bryan to present his side of the issue; correct?” The officer answered, “He had an 

opportunity to respond; but prior to [the March] meeting, no.”
23

before a determination is made to restrict his options, that the optionee or someone designated by 

the optionee be given the opportunity to present facts on the optionee’s behalf, or that the facts 

be presented orally or in any particular way. See Neuhoff Bros. Packers Mgmt. Corp. v. Wilson, 

453 S.W.2d 472, 474–75 (Tex. 1970) (observing that profit sharing plan delegated to committee 

power to determine whether discharge was based on dishonesty and that committee’s 

consultation with attorney and failure to hold hearing for employee was not evidence of lack of 

good faith, especially because there was no evidence that employee requested hearing). We also

observe that when the above recited sentence is considered in the context of Paragraph 9 as a 

whole, it makes clear that the requirement to consider facts presented on behalf of an optionee is 

after the Plan Committee has notified the optionee that his or her options have been restricted

and when it is considering whether to remove restrictions that are already in place.

13

The summary-judgment evidence shows that the Plan Committee considered 

Dr. Bryan’s position as to his complained-of conduct and that the Company provided Dr. Bryan

with an explanation of the reasons that the Plan Committee believed that his conduct was 

materially detrimental. See Macy, 294 S.W.3d at 649 (concluding that there was no fact issue of 

bad faith because there was no evidence that the company did not comply with agreement’s 

terms). The summary-judgment evidence establishes that the Company provided written notice 

13 The above recited sentence is the third sentence in Paragraph 9, and the first two 

sentences of Paragraph 9 state:

The Committee may provide a written notice to an Optionee that the Committee

believes the Optionee is or has engaged in activity that is materially detrimental to 

the best interests of the Company and its shareholders. After the Committee 

provides such notice to the Optionee, the Optionee cannot exercise the Optionee’s 

Option until and unless the Committee notifies the Optionee in writing that the 

restriction on exercise has lapsed.
24

to Dr. Bryan after it made its determination to restrict his options. The minutes from the March 

meeting recite the Committee’s stated reasons for its initial determination that included “various 

statements made by Dr. Bryan that were critical of the Company’s products and activities,”

“communications that Dr. Bryan had apparently had with Thermolife (which the Committee 

determined to be detrimental to the Company’s interest in connection with pending litigation),”

and his “claims to be able to use formulas for the manufacture of product using proprietary 

information belonging to the Company and which are competitive with the Company.” In the 

March 18 cover letter accompanying the Option Agreement, the Company’s counsel referenced 

Dr. Bryan’s request for documents as to the Plan Committee’s determination; directed their

attention “to all prior communications with Dr. Bryan and his lawyers since April 21, 2017 

(including without limitation the various cease and desist letters and responses thereto)” and

“Dr. Bryan’s communications with Thermolife and Dr. Bryan’s September 18, 2018 letter to the 

Company’s board and shareholders regarding negotiations with Thermolife”; and attached “those 

types of communications.”

The summary-judgment evidence also includes copies of the cease-and-desist 

letters outlining the Company’s concerns with Dr. Bryan’s activities in 2018 and 2019 and the

April 2020 minutes, which reflect the Committee’s stated reasons for leaving the restrictions on

Dr. Bryan’s options in place after Dr. Bryan executed and returned the Option Agreement and 

after receiving communications from his counsel. The April minutes reflect that the Committee 

was asked to reconsider its determination that Dr. Bryan’s actions had been materially 

detrimental to the best interests of the Company and that when it again reviewed and considered

the activities of Dr. Bryan in April, it considered communications between Dr. Bryan and the 

Company. There also is no evidence that Dr. Bryan requested a hearing or attempted to present 
25

contrary evidence for the Plan Committee’s reconsideration. See Wilson, 453 S.W.2d at 475. 

Whether the Plan Committee’s beliefs about Dr. Bryan’s activities were actually correct does not 

raise a fact issue about its good faith. See Goudie, 711 S.W.2d at 720 (observing that “bad faith”

implies “a design to mislead or deceive another and that bad faith does not result from an honest 

mistake as to one’s rights or duties”); see also Black’s at 175 (defining “believe”).

Dr. Bryan argues that the Plan Committee’s stated reasons were pretextual, that 

the Company “purposefully and intentionally withheld” the Option Agreement from him, and 

that the Company treated him differently from others. He relies on deposition testimony of the 

CFO that he was unaware of any optionee not receiving their option agreement during his tenure

and deposition testimony of an optionee, who exercised a single option in 2018 from the options 

he received under the Option Plan. The optionee testified that he did not have the exercise form 

that was attached to his option agreement with him “at the time,” that he requested a copy of the 

form from the CFO at the time, and that the CFO provided the form to him.

14 Dr. Bryan, 

however, does not cite, and we have not found, evidence that would support that the Plan 

Committee had a reason to believe that this optionee was or had acted in a materially detrimental

way to the Company’s interests. Further, when requested in 2020, the Company provided the 

Option Agreement to Dr. Bryan.

We also observe that Dr. Bryan’s conclusory statements about his subjective 

beliefs do not create a fact issue as to whether the Plan Committee did not act in good faith in

14 Specifically, the optionee who exercised the single option in 2018 testified:

As part of the Option Agreement, on the last page is a form that you sign to 

exercise. It’s an example form. I didn’t have that with me at the time. I 

requested a copy of that form, I believe, [from the CFO] at the time to get that 

form so that I could exercise that option.
26

restricting his shares. See Texas Div.-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 314 (Tex. 

1994) (observing that “subjective beliefs are no more than conclusions and are not competent 

summary judgment evidence”); Gibson, 2012 Tex. App. LEXIS 1899, at *13 (holding that

employer established that employee was not entitled to benefits and that employee’s conclusory

statement of subjective belief was not sufficient to raise fact issue). Thus, we conclude that the 

evidence did not raise a fact issue as to whether the Plan Committee failed to act in good faith 

when it restricted Dr. Bryan’s stock options in 2020.

For these reasons, we overrule Dr. Bryan’s first issue.

15

Promissory Estoppel and Unclean Hands

In his third issue, Dr. Bryan argues that there is a fact issue as to his asserted 

affirmative defenses of promissory estoppel and unclean hands. He argues that there is a fact

issue as to whether the Company can rely on its own discretion to deny Dr. Bryan’s right to 

exercise the Option for shares when it misled him about the existence of the Option to keep him 

working for the Company, such as by repeatedly showing him the capitalization table that 

reflected the Option. He argues that there are fact issues, at a minimum, as to whether the 

Company promised that he could exercise the Option and whether Dr. Bryan relied on 

those promises. The summary-judgment evidence included Dr. Bryan’s declarations that he 

was specifically told by officers of the Company that he could exercise the Option of the 

47,500 shares that were shown on the capitalization table; that he relied on these representations;

15 Because we conclude that the summary-judgment evidence does not raise a fact issue

as to whether the Company breached the Option Agreement on the ground that the Plan 

Committee’s determination to restrict his shares was not made in good faith, we need not address 

the Company’s additional ground for summary judgment based on the lack of evidence of 

damages. See Provident Life & Accident Ins. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003).
27

and that if he had been told he could not exercise the Option, he would never have agreed to the 

consulting agreement or its amendment.

When responding to a motion for summary judgment by way of an affirmative 

defense, the mere raising of an affirmative defense will not prevent the granting of a summary

judgment unless there is competent summary-judgment evidence to raise a fact issue on each 

element of that defense. Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984). The elements

of promissory estoppel are: “(1) a promise, (2) foreseeability of reliance thereon by the 

promisor, and (3) substantial reliance by the promisee to his detriment.” English v. Fischer, 660 

S.W.2d 521, 524 (Tex. 1983); see Richter v. Wagner Oil Co., 90 S.W.3d 890, 899 (Tex. App.—

San Antonio 2002, no pet.) (listing elements of promissory estoppel and explaining that it “is not 

applicable to a promise covered by a valid contract between the parties”). “The doctrine of 

unclean hands applies to a litigant whose own conduct in connection with the same matter or 

transaction has been unconscientious, unjust, marked by a want of good faith or violates the

principles of equity and righteous dealing.” City of Fredericksburg v. Bopp, 126 S.W.3d 218, 

221 (Tex. App.—San Antonio 2003, no pet.).

16

16 For purposes of our analysis, we assume that the affirmative defense of unclean hands

can preclude a declaratory judgment claim. But see Tex. Civ. Prac. & Rem. Code § 37.002(b) 

(providing for remedy of declaratory judgment to “settle and to afford relief from uncertainty and 

insecurity with respect to [certain] rights, status, and other legal relations”); Madhavan A.

Pisharodi, M.D., P.A. v. United Biologics, L.L.C., No. 04-18-00324-CV, 2020 Tex. App. LEXIS 

2460, at *16 (Tex. App.—San Antonio Mar. 25, 2020, pet. denied) (mem. op.) (“‘Unclean 

hands’ is an affirmative defense available when the plaintiff is seeking an equitable remedy.”

(quoting In re Nolle, 265 S.W.3d 487, 494 (Tex. App.—Houston [1st Dist.] 2008, no pet.))); 

accord Cantu v. Guerra & Moore, LLP, 448 S.W.3d 485, 496 (Tex. App.—San Antonio 2014, 

pet. denied) (“Unclean hands is an affirmative defense that may bar a party with unclean hands 

from obtaining equitable relief.”); Furr v. Hall, 553 S.W.2d 666, 672 (Tex. App.—Amarillo 

1977, writ ref’d n.r.e.) (“[T]he ‘clean hands’ maxim is strictly an equitable doctrine not

applicable outside equitable proceedings.”).
28

In our analysis above, we have concluded that Dr. Bryan’s evidence did not raise 

a fact issue as to whether the Plan Committee failed to act in good faith in restricting the Option. 

Further, by signing the Option Agreement in March 2020, Dr. Bryan expressly waived “any and 

all rights, title, and interests” he had under “any oral or written commitment or promise 

regarding options that the Company may have made to [him],” except for options that had been 

previously exercised and paid for by him. Thus, he may not rely on pre-execution alleged 

promises by officers of the Company about the Option to create a fact issue. See Jernigan, 

111 S.W.3d at 157; Biko, 246 S.W.3d at 161–62. Applying the applicable standards, we 

conclude that there is no competent summary-judgment evidence to raise a fact issue on at least 

one of the elements of Dr. Bryan’s affirmative defenses. See Brownlee, 665 S.W.2d at 112. We

overrule Dr. Bryan’s third issue.

The Company’s Affirmative Defenses

In his second issue, Dr. Bryan argues that the Company failed to conclusively 

establish its affirmative defenses to his breach-of-contract counterclaim. He argues that there is 

no evidence that he failed to mitigate his damages and that he did not surrender or waive his right 

to exercise the Option by executing the Option Agreement.

The Company did not address the mitigation of damages in its motion for 

summary judgment, but based on our analysis above concerning the provisions in the Option 

Agreement and our conclusion that the trial court did not err in granting summary judgment in 

favor of the Company because Dr. Bryan did not raise a fact issue as to whether the Plan 

Committee did not act in good faith in its determination to restrict the Option, we need not 
29

further address the Company’s affirmative defenses to Dr. Bryan’s counterclaim. See Knott, 

128 S.W.3d at 216. On this basis, we overrule Dr. Bryan’s third issue. 

CONCLUSION

Having overruled Dr. Bryan’s issues, we affirm the trial court’s final judgment.

__________________________________________

Rosa Lopez Theofanis, Justice

Before Chief Justice Byrne, Justices Smith and Theofanis

Affirmed

Filed: February 23, 2024