### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00814- CV

Colin Wil liam s, Appellan t

v. Em ployers Insu rance C om pany of Nevada f/k/a Am COMP Assurance, Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 419 TH JUDICI AL DISTRICT NO. D-1 -GN-0 9-0 0246 3, H ONO RAB LE TIM SULAK , JUDGE P RESIDING

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

Colin Wil liams appea ls a final summary judgme nt that he ta k e n o t h i n g i n a sui t to

rec over the value of stock options that he alleg ed wer e owed to him by a former employ er. We will aff irm the district court’s judg ment.

BACK GR OUND

The material underly ing fac ts are larg ely undispu t ed

. On M ay 10, 1999, Wil liams executed a contra ct, titled “Employ ment Ag reement,” with AmCOMP I ncorpor ated, a Delaw are corpor ation eng ag ed in the insurance industry that had its principal place of business in Florida

. The parties ag ree d that Wil liams would be employ ed as “President, Texas Reg ion,” of AmCOMP Assuranc e Corporation (“A AC ”) , a Fl o rida corpor ation that was a subsidiary of AmCOMP, I nc., d u r in g a n “ E mp lo y

me n t T erm” beg inning on the date of execution, continuing throug h Dec ember 31 , 1999, and there afte r rene wing automatically for additional one-y ear period s co rre sponding to thecale ndar y ear unless one of the parties g ave notice of its intent not to rene w or otherwise terminated

the Employ

ment Ag ree ment. “As compensation for t h e compl ete and satisfac tory perf ormanc e by [W illiams] of the service s to be perf

ormed by him here under during the Employ men t T erm,” section 4 of the Employ

ment Agreement require d that AmCOMP, I nc. “shall pay ” Wil liams a “base salary” (par agr a p h ( a) of section 4), “ince ntive compensa tion and bonuses” that the AmCOMP, I nc. Boa rd of Direc tors might provide in its discretion (par ag raph (b)) , and annual “Unde rwriting Compensation” tied to the underw riting profits from the Texas Reg ion (par ag raph (c) ). Fur thermore , para g raph (d) of sec tion 4 stated:
[AmC OMP, I nc.] shall g rant to [W illiams] an option (the “Option”) to purcha se that number of share s of AAC common sto ck, $.01 par value (the “AAC Common Stock”), as equals 1% of the outstanding share s of AAC Common Stock at Dec ember

31, 1998, at a per share exercise price equal to the fair marke t va lue of a share of AAC Common Stock on the date here of (dete rmined with ref ere nce to appra isals by Valuation Counsellors [si c] or another independe nt valuation firm) at Dec ember

31, 1998 and June 30, 1999.

I n addition to the “compe nsation” promised in s e c ti o n 4, section 5 of the Employ ment Ag ree ment promised Wil liams “other benef its” during the “Empl oy

ment Term.” These “other benef its” included sick leave , sick pay , and disability pay ; paid vacation time; reimburse ment of outof-poc ket business expenses; and elig ibilit y to participa te in any medical plans and “employ ee fring e benef its and pension and/or profit sharing plans” that AmCOMP, I nc. provided its executives or those of AAC. Section 5’s “other benef its” also included elig ibilit y for consideration by AmCOMP, I nc.’s board of direc tors for awa rds of stock options in AmCOMP, I nc. under any “stock option plan” that might be established in the board’ s discretion. Thus, in contra st to th e s t ock “Option” 2contemplated under section 4, para g raph (d), which ref err ed to an option to purcha se stock in AAC, the AmCOMP, I nc. subsidiary fo r wh o m he was to serve as its Texas Reg ion president, the stock options contemplated by section 5 would be in AmCOMP, I nc. itself, the pare nt company with whom Wil liams was contra cting

.

Wil liams conti n u ed to work under the Employ ment Ag ree ment until he resig ned eff

ective on April 1, 2008. During Wil liams’s Term of Employ ment, the AmCOMP, I nc. board of d i re ct o rs i s s ued him AmCOMP, Inc. stock options as contemplated by section 5 of the Employ ment Ag ree ment, and he exercised them. I n contra st, neither par ty took any further action in reg ard to the AAC stock “Option” addre ssed in section 4, para g raph (d). AmCOMP, I nc. did not, for ex ample, take further action purporting to g rant, confirm a gra nt, or t o set the price or num ber of AAC share s Wil liams wou l d h av e t h e option to purcha se, and Wil liams did not demand such action or othe rwise attempt to ex erc ise any option in AAC stock. Wil liams’s initial attempt to invoke rig hts u nder section 4, para g raph (d), came in May 2009, shortly

afte r the one -y ear

anniver sary

of his resig nation. By

now, AmC OMP, I nc. had been acquir ed by and merg ed into appellee , Employ ers Group, I nc. (Employ ers)

. On May 19, 2009, 1 Wil liams wrote Employ ers, the succ essor to AmC OMP, I nc., advising t hat upon “fina l revie w of 2
my Employ

ment Ag ree ment,” he had “dete rmined that [he had] never rec eived” the “compe nsation” provided in se ction 4, para g raph (d), of the Employ ment Ag ree ment. “Now that the Company has

Although the caption of the district court’s judgme nt and the notice of appea l refer s 1 incorre ctly to one of Employ ers’ s subsidiaries, Employ ers was the sole defe ndant named in the live petition, and it has answer ed and a ppear ed as the rea l party

in interest. To be prec ise, Wil liams addre ssed the letter to the president of an Employ ers aff iliate, but 2 it was subsequently

routed to Employ ers’ s g ener al counse l. 3been sold,” Wil liams continued, he demande d “an appra isal of the value of the 1% [of AAC common

stock outstanding as of Dec ember 31, 1998] and pay ment of that value as part of the compensa tion Iam still due under the ter ms of the Ag ree ment.” By letter dated J uly 27, 2009, Employ ers denied Wil liams’s reque st. Wil li am s subsequently sued Employ ers seeking the “full amount of the value of the [AAC] options that wer e g rante d to him” in the Ag ree ment. The sole liability theory on which he ultimately relied was that Employ ers, as AmCOMP, Inc.’s succe ssor, had brea ched the Ag ree ment by failing either to pay him the value of the AAC options or allowing him to exercise them. Wil liams further soug ht attorney ’s 3 fee s as authorized under chapte r 38 of the civil pr actice and reme dies code. Employ ers a nswere d 4 with a g ener al denial a

nd asser ted af firmative de fense s of limitations and lac hes. 5 Employ ers filed a mot ion for sum mary judgme nt, attaching evidenc e that included

a copy of the Employ

ment Ag ree ment. I t relied on both “tra ditional” and no-evide nce grounds that wer e predic ated larg ely on a construction of the Employ ment Ag ree ment. I n the g uise of both

a “tra ditional” g round based on the Employ ment A g r e e me n t a

n d a “ n o - e v idence ” g round challeng ing

Wil liams ha s not a sserted that AmCOMP, I nc. brea ched section 4, sec tion (d), by failing 3 to g rant him the AAC sto ck o p t ions during the Employ ment Term (a theory that would seem to rende r his claims vulnera ble to Employ ers’ s limit ations and lache s defe nses). Instead, his theory is that AmCOMP, I n c. , wa s fr ee to comply with its obligations under section 4, para g raph (d), by g ranting the AAC stock options at any time during the Employ ment Term, i.e., prior to termination, and that this obligation was not brea ched u n til Employ ers ref used to fulfill that obligation afte r termination. See Tex. Ci v. Prac. & Rem. Code Ann. §§ 38.001-.006 (West 2008). 4 Employ ers also asser

ted that Wil liams’s claims wer e barr ed by novation b as ed o n a 5 2005 employ

ment ag ree ment that exti ng uished the prior ag ree ment. Wil l iams has denied signing the 2005 ag ree ment and Employ ers did not re ly on it as a basis for

its summ ary -judg ment motion. 4the brea ch element of Wil liams’s contra ct cause of action, Employ ers as s er ted that any

rig hts Wi l l i am s m ight have possessed in reg ard to the “AAC stock Option” provided by the Employ ment Ag ree ment’s section 4, para g raph (d), had been exti ng uished by other provisions of the
ag ree ment upon his resig nation in April 2008. Employ ers also asser ted traditional g rounds founded

on its limit ations and lache s defe nses. Wil liams filed a response joining issue with Employ ers’ s 6
g rounds and its underlying constructions of the Employ ment Ag ree ment. He argued in part that his rig hts reg arding the “AAC stock Option” under section 4, para g raph (d), had survived his resig nation and that these rig hts had rene wed with eac h annual rene wal of his Employ ment Term, such that his claim for brea ch had not acc rued until he g ave notice of his resig nati o n i n 2 0 0 8

. At a minimum , Wil liams urg ed, the Employ ment Ag ree ment was ambiguous in these r espec ts. The district court g rante d Employ e r s ’ s s u mm a r y - ju d g ment motion in full and without specify in g the g rounds on which it relied. Acc ording ly , it rende red judgme nt that Wil liams take

Wil liams has sug g ested that Employ ers prese nted lache s as a no-evide nce g round, which 6 would, of course , be inappropriate. See Tex. R. Civ. P. 166a(i) (no-e vidence motion may challeng e evidenc e to support “one or more essential elements of a claim or defe nse on which an adver se party would have the burden of proof at t ri al ”)

. We disag ree that Employ ers relied on the no-evide nce s ta n d a r d a s opposed to traditional summary -judg ment standard in reg ard to this g round. Emp lo y e r s ’ s motion is structure d in three sections. The first is a section titled “Tra ditional Motion for Summary J ud g ment,” in which Employ ers asser ts its limit ations g round and its argument that, based on the attache d Employ

ment Ag ree ment, Wil liams’s rig hts under section 4, para g raph (d), had been exti ng uished upon his resig nation. The second section of the motion is titled “No- Evidence Motion for Summary J udg ment,” and consists of the no-evide nce version of E m p l oy ers’ s argument that Wil liams’s resig nation exti ng uished his rig hts under section 4, para g raph (d). Employ er s’s lache s g round is prese nted in the third section of its summary -judg ment motion, titled “Plaintiff[’s] Claims are Ba

rre d by L ache s.” Wit hin this third section, Employ ers does not ref er expli citly to either summary -judg ment standard, but it is in the nature of a traditional motion, rely ing on Wil liams’s deposition testimony

as evide nce to e stablish its entitlement to judgment a s a matter of law. 5nothing on his claims. The district court subsequently overr uled a m o t i on for new trial and motion for rehe aring filed by Wil liams. This appeal followe d.

ANALYSIS Wil liams prese nts five issues on appea l challeng ing the propriety of summary judgme nt. I n his third and fourth issues, Wil liams bring s forwa rd his arguments that his April 2008 resig nation did not exti ng uish his entitlement to the “AAC stock Option” u n d er section 4,
para g raph (d), or that the Employ ment Ag ree ment was a t le ast ambig uous in that r eg ard, such that the evidenc e raised a fac t issue as t o brea ch and prec luded s ummary judgme nt. I n his second a nd fifth issues, Wil liams challeng es Employ ers’ s limit ations and lache s g rounds as a basis for summary judgme nt. Wil liams’s first issue is a Malooly catc h–all asser ting g ener ally th at t h e d istrict court 7

err ed in g ranting Employ ers’ s summary -judg ment motion.

Summary judgme nt is proper when there are no disputed issues of materia l fac t and the movant is entitled to judgment as a matter of law. Te x . R. Civ. P . 166a(c ); W estern Inv s., Inc.

v. Urena , 162 S.W .3d 547, 550 (Tex. 2005). We revie w the district court’s summary j u dg ment de novo. See Valence Operating Co. v. Dorsett , 164 S.W .3d 656, 661 (Tex. 2005). We take as true all evidenc e favor able to the non-movant, and we indulge ever y rea sonable infere nce and resolve any doubts in the non-movant’s favor. Id.

Under the “tra ditional” summary -j u d gm ent standard, the movant has the initial burden of demonstrating that t h er e is no g enuine issue of materia l fac t and that it is entitled to judgme nt as a matter of law. See M.D. Anderson Hosp. & Tumor Inst. v. W illri ch , 28 S.W .3d 22, 23

See M alooly Bros., Inc. v . Napier , 461 S.W .2d 119, 121 (Tex. 1970). 7 6(Tex. 2000) (per curiam). Assuming this burden is met, and only if it is, the burden shifts to the nonmovant t o p rese nt evidenc e raising a g enuine issue of materia l fac t as to the movant’s claims

or defe nses. See i d

. I f t h e n o n-movant’s evidenc e raises a fac t issue, summary judgme nt is not
appropr iate. See id.

A no-evide nce motion for summary judgme nt must be g rante d if, afte r an a dequate time for discovery , (1) the moving party asser ts th at t h er e i s n o evidenc e of one or more essential elements of a claim or defense on which an advers e party would have the burden of proof at trial, and (2) the non-movant fails to produce more than a scintilla of summary -judg ment evidenc e raising

a g enuine issue of materia l fac t on those elements. Tex. R. Civ. P. 166a(i). A no-evide nce summary judgme nt is essentially a direc ted verdic t g rante d befor e trial, to which we apply a leg al-suff iciency standard of

revie w. King Ranch, Inc. v . Chapman , 118 S.W .3d 742, 750-51 (Te x . 2003). 8 When, as here , the district court’s order g ranting summary judgme nt does not specify the g round or g rounds relied on for the ruling , summary judgme nt will be aff irmed on appea l if any of th e theories advanc ed are meritorious. Bec k v. Law Offices of Edwin J. ( Ted) Terry, Jr., P.C. , 284 S.W .3d 416, 425 (Tex. App.—Austin 2009, no pet.) (citing State Farm Fire & Cas. Co. v. S.S. , 858 S.W .2d 374, 380 (Tex. 1993)).

That is, we wi l l af

fi rm a no-evide nce summary judgme nt when (1) there is a complete 8 absenc e of evidenc e of a vital fac t; (2) we are barr ed by rules o f law or of evidenc e from g iving weig ht to the only evidenc e offe red to prove a vital fac t; (3) the evidenc e offe red to prove a vital fac t is no more than a scintilla; or (4) the e vidence conclusively establishes the opposite of a vital f act. See King Ranch, Inc. v. Chapman , 1 1 8 S

. W

. 3 d 742, 751 (Tex. 2003). More than a scintilla of supporting evidenc e exis ts if the evidenc e would allow rea s o n able and fair- minded people to differ in their conclusions. Id

. “L ess than a scintilla of evidenc e ex ists when the evidenc e is ‘so wea k as to do no more than cre ate a mere surmise or suspicion’ of a fac t.” Id

. (quoting Kindred v. Con/Chem, Inc

. , 650 S.W .2d 61, 63 (Tex. 1983)). 7The pivotal question s i n this appea l turn on construction of the Employ ment Ag ree ment. The parties have ag ree d that Florida l aw go v erns this case , including the principles

we apply to construe the Em p l o y ment Ag ree ment. Howeve r, both sides have relied in part on Texas contra ct-c onstruction case s and neither has sug g ested any materia l differ ence betwee n Florida and Texas law on that subject. Acc ording ly , we will cite to Texas contra ct-c onstruction principles for c onvenienc e.

When we construe a written co n t ra ct, our primary conce rn is to asce rtain and g ive eff ect to the intentions the parties have objectively manifested in that instrument. Frost Nat’l Bank

v. L & F Distribs., Ltd ., 165 S.W .3d 310, 311-12 (Tex. 2005) (per curiam); see Fiess v. State Farm Lloyds , 202 S.W .3d 744, 746 (Tex. 2006) (“A s with any other contra ct, the p ar t i es ’ intent is
g overne d by what they said, not by what they intended to say but did not.”). To that end, we construe the contra ct in its entirety , consideringeac h part in rela tion to ever y other pa rt so that the ef

fec t of

eac h part on other s may

be dete rmined and tha t no part wil l be rendere d meaning less. See Cit y of Keller v. W

ilson , 168 S.W .3d 802, 811 (Tex. 2005). Contract terms are g iven their plain, ordinary , and g ener ally

acc epted mea

nings unle ss the contra ct itself shows them to be used in a technica l or differ ent sense. Id

. I f we can g ive the contra ct a definite or cer tain leg al meaning , it is unambig uous and we construe it as a matter of law. W illis v. Donnelly , 199 S.W .3d 262, 275 (Tex. 2006). I f, on the other han d , t h e co ntrac t is subject to two or more rea sonable interpre tations, it is ambig uous, which cre ates a fac t issue as to the parties’ intent. Columbia Gas Transmissi on Corp. v. New U lm Gas, Ltd. , 940 S.W .2d 587, 589 (Tex. 1996). L ack of clar ity does not cre ate an ambig uity and “[n] ot

ever y differ ence in the interpre tation of a contra ct

. . . amounts to an ambig uity .” Universal Health

8Servs

. , I

n c
. v
. Renaissance W

omen’ s Group, P.A. , 121 S.W .3d 742, 746 (Tex. 2003) (quoting Forbau v. Ae tna Lif

e Ins. Co. , 876 S.W .2d 132, 134 (Tex. 1994)). We will beg in our anal y s i s wi t h Wil liams’s third and fourth issues, rela ting to whether his rig hts reg arding the “AAC stock Option” under section 4, parag raph (d), survived his resig nation. As a threshold matter, the parties have adva nced diverg ent and sometimes equivoca l or i nconsistent views re g arding the nature of t he right conferr ed to Wil liams under this provision. On appea l, Wil liams arg

ues that section 4, para gra p h (d), is a promise of a g rant of an option to purcha se AAC stock that was left unperf ormed by AmCOMP, I nc. and its succe ssor, Employ ers. Employ ers, in contra st, a

rg ues that section 4, para g raph (d), in itself eff ecte d a g rant of AAC stock options to Wil liams, and the problem is that Wil liams failed to exercise them timely

. In the posture of this appea l, we must assume that Will iams’s view is the cor rec t one. The rig ht convey ed by

section 4, parag raph (d), i s phrase d in terms of a promise to
g rant stock options in the future—“ shall g rant”— as o p posed to terminolog y ref lecting a prese nt

or self-e ffe ctuating g rant (e.g ., “is g rante d,” “her eby g rants,” etc.)

. Read toge ther with the other
para g raphs within s ection 4, para g raph (d) contemplates that AmCOMP, I nc. “shall g rant” the AAC options as presc ribed during the “Employ ment Term,” as part of Wil liams’s “compe nsation.” Moreove r, while Employ ers urg es that section 4, para gra ph (d), contains all nece ssary materia l terms—including the quantity of AAC share s provided (1% of AAC common stock outstanding as of Dec ember 31, 1998 ), the expiration date (the end of the Employ ment Term) , and the means of calc ulating the strike price —the provis i o n , as W i l l iams notes, does not specify when or how the

o p t i o n can be exercised, when and in what form pay ment for the AAC stock must be made, or to whom the pay

ment must be made—AA C, A mComp, I nc., or some other entity

. And, as Wil liams 9further points out, the Florida Business Corporation Act appea rs to requir e greater specific ity in an opti on g rant, as well as board ap p roval of stock options provided by Florida corpor ations such as AAC:

Unless t h e article s of incorporation provide otherwise, a corpor ation may issue rig hts, options, or war rants for the purcha se of share s of the corpor ation. The board of direc tors shall deter mine the term s u p o n which the rig hts, options, or war rants are issued, their form and content, an d the consideration for which the share s are to be issued.
§ 607.0624, Fla. Stat. Nothing in the Employ ment Ag ree ment or the rec ord befor e us indicates that the AAC board of direc tors took any action with reg ard to the AAC stock options contemplated by section 4, para g raph (d), much less the nature of any “ter ms upon which [t hey ] are issued, [or] their forms and c ontent.”

We conclude that this rec ord, at a minimum , raises a fac t issue as to whe t h er the AAC stock options c ontemplated by section 4, para g raph (d), wer e ever g rante d to Williams, such that summary judgme nt pred i ca t ed on this leg al conclusion would have been inappropria te. Consequently , the summary judgme nt must rest upon the alternative view of the rig ht advocated by Wil l i am s

— t h at section 4, para g raph (d), is a promised g rant of AAC stock options that was left unfulfilled by AmCOMP, I nc., and Employ ers. Howeve r, even acc epting Wil liams’s view as to the
nature of this rig ht, the rig ht was unambig uously exti ng uished upon his resig nation by other provisions of the Employ ment Ag ree ment. As previously observe d, AmCOMP, I nc.’s obligation s t o provide Wil liams “c o m pensation” under section 4 (including the “AAC stock Option”) and “other benef its” under section 5 applied “during the Employ ment Term.” Consequently , these obligations did not continue

10acc ruing bey ond the April 2008 termination of the Employ ment Ag ree ment. Howeve r, neither section 4 n o r section 5 addre ss whether AmCOMP, I nc. would rema in liable pos t-termination for
any “compe nsation” or “other benef its” that had alre ady acc rued or beca me owing to Wil liams prior
to te rmination and wer e not y et paid. I n the posture of this a ppeal, ag ain, we must a ssume that the rig ht convey ed to Wil liams under section 4, para g raph (d), was in the nature of an acc rued obligation of compensa

tion to Wil liams that AmCOMP, I nc., wou l d h av e s t ill owed, all other things being equal, upon the date of

termination. 9
Howeve r, in its s u mm a r y - ju d g me n t mo ti o n a

n d o n a p p e a l, E mp lo y ers has emphasized that section 7, para g raph (b), of the Employ ment Ag ree ment regulates its post-termination liability for acc rued compensa tion and “other benef its” owed to Wil liams and, it urge s , wo u l d serve to exti ng uish any liability

it had for the A AC stock options promised under section 4, para g raph (d). Section 7 specific ally g overns the parties’ res pective rig hts upon termination of the Employ ment Ag ree ment, and par ag raph ( b) provides, in re levant par t:
Notwithstanding any

thing to the contra

ry expressed or implied here in,

. . . [AmC OMP, I nc.] (and its aff iliates) shall not be obligated to make any pay ments to [W illiams] or on his be half of whateve r kind or nature by rea son of the termination of the Employ

ment Term by

. . . [W illiams] . . . other than: (x) such amounts, if any , of his Salary and Under writing Compensation as shall have a ccr ued and r emain unpaid a s of the date of said ter mination and (y ) such other amounts, if any , that may be then otherwise pay able to [ Wil liams] pursuant to the terms of [AmC OMP, I nc.’s] bene fi t s plans or pursuant to Section 5(f) above.

I .e., leaving aside other provisions of the Employ ment Ag ree ment and Employ ers’ s 9 limit ations and lac hes def enses. 11(F orm at t ing added for clar ity ). The eff ect of this provision is to shut off, “[n] otwithstanding
any thing to the contra

ry expressed or implied” elsewhe re in the Employ ment Ag ree ment, the posttermination liability of AmCOMP, I nc. (and, thus, Employ ers, its succe ssor), for “any pay ments
to [W illiams]

. . . of whateve r kind or nature .” The sole exceptions to this limit ation are the
two cate g ories of “pay able” or “unpaid” amounts enumer ated in subpara g raphs (x) and (y ), for which AmCOMP, I nc. (a

nd thus Employ ers) rema ined liable. The parties join issu e as to the brea dth of the phrase “any pay ments to [W i l l i ams ]

. . . of whateve r kind or nature ” and whether the AAC stock options contemplated by section 4, para g raph (d), would fall within that limit ation. Employ ers has urg ed that “pay ments

. . . of whateve r kind or nature ” unambig uously encompa sses all of the “compe nsation” AmCOMP, I nc. agr eed to provide under section 4, including the AAC stock options under para g raph (d), as well as t h e “o t h er b enef

its” promised under section 5. Consequently , it rea sons that section 7,
para g raph (b), restric ts any liability it migh t otherwise have had for the AAC stock options

co n t emplated by section 4, para g raph (d). By contra st, Wil liams rea sons that “pay ments

. . . of whateve r kind or nature ” actua lly excludes the AAC s tock options promised by section 4,
para g raph (d), or is at least ambig uous in that reg ard. He emphasizes that section 4, para g raph (d), ref ers to a “g rant” of the AAC stock Option—“[AmCOMP , I nc.] shall grant to [W illiams] an option

. . .”—as opposed to a “pay ment” or obligation to “pay .” This phrase ology , Wil liams adds, likewise d istinguished the convey ance of the AAC stock options from the other forms of “com p en s at i o n ” addre ssed within section 4, all of which ref er to obligations to “pay”: “[AmCOMP , I nc.] shall pay [W illiams] a base salary” (par ag raph (a) ), “[AmCOMP , I nc.] shall pay [W illiams]

. . . incentive
compensa tion and bonuses” (par ag raph ( b)), and “[AmCOMP , Inc.] shall pay to [W illiams] annually 12as additional compensa tion (the ‘Unde rwriting Compensation’)” (par ag raph (c)

. (Emphase s added)

.

Wil liams likewise sug g ests that the g rant of a stock option is not i n t h e n at u re of a “pay ment” owed to him beca

use exercising it would entail his making a “pay ment” to purcha se the stock. Thus, Wil liams c oncludes, section 7, para g raph (b), does not addre ss a nd has no application to his rig hts
to AAC stock options under section 4, para g raph (d), or at most cre ates an ambig uity as to its impact on those rig hts.

We are persua d ed b y Employ ers’ s view that “pay ments

. . . of whateve r kind or
nature ” in section 7, para g raph (b), unambig uously encompa sses the promised “g rant” of AAC stock options under sec tion 4, parag raph (d). As an ini tial observation, the drafters’ use of the modifier “pay ments

. . . of whatever kind or nature ” in section 7 , para g raph (b), belies intent that the limit ation of AmCOMP, Inc.’s post-termination liabiliti es apply only to a narr ow or overly technica l definition of “pay

ments” t hat m ight be owed. Relatedly , we obse rv e t h at a gra nt of st ock opti ons
can, at least in informal or colloquial usag e, b e consi dere d a ty pe of “pay

ment” of employ ee compensa tion, akin to the forms of “compe nsation” that AmCOMP, I nc. obliga ted itself to “pay” Wil liams in so many words. But more importantly , subpara g raph (y ) of section 7 manifests t h e 1 0 draf ters’ intent and understanding that “pay m en t s . . . of whateve r kind or nature ” encompa sses g rants of stock options.

See, e.g. , Miga v. Jense n , 96 S.W .3d 207, 218 (Tex. 2003) (O’N eill, J

. , d i s s en t i n g ) 1 0 (obser ving that “[o] ver the past dec ade, stoc k options have bec ome an incr easing ly common form o f ex ec u t ive compensa tion. They are often confe rre d in lieu of more traditional compensa tion, like salary or cash bonuses to rew ard outstanding perf orm ance and provide an incentive for hard work to incre ase the company ’s, and there fore the option’s worth.”) ; Elder v. Islam , 869 So.2d 600, 601 (F la. 5th DCA 2004) (stock options consti tuted “wa g es” within meaning of preva iling party attorney ’s fee s statute); see also Bla ck’s L aw Dictionary 1554 (9th ed. 2009) ( “[s] uch an option is [usually ] gra

nted as a form of c ompensation”). 13Subparag raph (y ), ag ain, is an exception to the g ener al limit ation o n E m ploy ers’ s p o s t -t ermination liabiliti es that makes it liable for “such other amounts, if any , that may be th en otherwi se pay able to [W illiams] pursuant to the terms of [AmC OMP, I nc.’s] benef its plans or pursuant to Section 5(f) above.” “[A]m ounts

. . then otherwise pay able

. . . pursuant to Section 5(f) ” ref ers to the parag raph within section 5 t h at entit les Wil liams to reimburse ment for out-of-pocke t business expenses, and the parties agr ee t h at it has no application here

. “[A]m ounts

. . . then otherwise pay able

. . . pursuant to the t er ms of [AmCOMP, Inc.’ s] benefits plans ” ref

ers to “bene fits” provided under “plans” contemplated within oth er para g raphs within section 5. These

“ o th e r b e n e f

it s ” in c lu d e “ e mp lo y ee fring e benef its and pension and/or profit sharing plans,” “medica l

or health plans,” and—importantly —“aw ards of stock options under any stock option plan that may be esta blished by

[AmC OMP, I nc.]” in its board’s discre tion. Read toge ther, section 5 and section 7 , p a rag raph (b), manifest the draf ters’ intent that AmCOMP, I nc. would rema in liable to Wil liams post-term i n at i o n for any AmCOMP, I nc. stock

o p t i o n s aw ards that he was due under any “stock option plan” the company had instit uted. More importantly , they ref

lect the draf

ters’ inten t and understanding that such “aw ards” or “g rants” of Am C OM P , I nc. stock that Wil liams was owed would be “then otherwise payable ” within t h e meaning of subpara g raph (y ). L ikewise, such stock options that are “other wise pay able” under (y

) would nece ssarily come within “pay ments to [W illiams] or o n h i s b ehalf of whateve r kind or
nature ”—par ag raph (b)’ s g ener al liability limit ation— b ec au s e t he former is an exception to the latter. Read toge ther, these provisions confirm the draf ters’ intent and understanding that g rants or

awa rds of stock options, such as contemplated by sectio n 4 , para g raph (d), or section 5, would be

14a ty

pe of “pay

ment[s] ” owed to Wil liams “of whatever k i n d o r n ature ,” and thus subject to the limit ation of post-termination liability in section 7, para g raph ( b). Nor do the AAC stock options under section 4, p ar agr ap h (d), come within either ex ception to section 7, parag raph ( b)’s liability limit ation. Wil liams acknow ledg es t hat t he AAC stock options are not among the acc r u e d and unpaid “Salar

y ” or “Unde rwriting Compensation” that would come within the exception of subpara g raph (x). “Salar y ” and “Und er wr i ting Compensation,” as previously explained, are forms of “compe nsation” distinct from the AAC stock options and are addre ssed in differ ent para g raphs within section 4. As for subpara g raph (y ), Wil l i ams sug g ests that if the AmCOMP, I nc. stock options contemplated under section 5 come within subpara g raph (y

)’s “such other amounts

. . . then otherwise pay able pursuant to the terms of [AmC OMP, I nc.’s] benef

its plans,” then the AAC stock option provided in section 4 would likewise be “pa y able pur suant to the terms of [AmCOMP, I nc.’s] benef it plans.” This ar g ument overlooks
text ual di ffe renc es between the provisions addre ssing t h e AA C stock options in section 4 and the AmCOMP, I nc. stock options in section 5. Namely , only section 5 ref ers to a g rant or awa

rd of stock options pursuant to a “plan,” and only the section 5 aw ar d i s termed a “bene fit” as opposed to “compe nsation.” Consequently , we ag ree with Employ ers t h at section 7, para g raph (b), unambig uously exti ng uished Wil liams’s rig hts to AAC stock options under section 4, para g raph (d), when the E mploy

ment Ag ree ment terminated upon the eff ective date of his re signation. Finally , in addition to relying on his contra ry construction of section 7, para g raph (b), Wil liams emphasizes section 17 of the Employ ment Ag ree ment, entitled “Survival of Provisions,” but this provisi on ultimately does not aid him. Section 17 states:

15Neither the termination of this Ag ree ment, nor of [W illiam’s] employ ment here under, sha ll terminate or aff ect in a ny manner

any provision of this Agr eeme nt that is intended by its terms to survive such termination, including without limit ation, the provisions of Sections 4 to 7 inclusive and Section 9 her eof.

Section 17 contemplates that the parties’ rig hts and duties under the Employ ment Ag ree ment are exti ng uished upon the Ag ree ment’s termination except to the extent that a particula r provision “ is intended by its terms to survive such termination.” I t cites as non-exclusive examples of provisions “intended b y [ t h ei r] t erms to survive such termination” those of “Sections 4 to 7 inclusive and Section 9.” As previously noted, section 4 of the Employ ment Ag ree ment is the section addre ssing Wil liams’s “compe nsation”—including paragra p h (d), the provision addre ssing the AAC stock options—while section 5 addre sses the “other b en ef i t s” provided to Wil liams during his Employ ment Term. As for the other provisions that section 17 mentions specific ally , sections 6 and 9 consist of, respe ctively , a confide ntiality and a non-compe te provision, while section 7, as noted, addre sses the means by which the Employ ment Ag ree ment ca n be terminated and the parties’
respe ctive rig hts in that event.

Although section 17 ref

ere nces “the provisions of Section 4 to 7 incl u s i v e” as examples of “any provision of this Ag ree ment that is intended by its terms to survive such termination,” this plainly does not mean that ever y provision within section 4, 5, 6, or 7 is ipso facto “intended by

its terms to survive such termination,” suc h that the entire ty of the oblig ations stated under the se sec tions would survive. For example, AmCOMP, Inc.’s promises of “c ompensation” under section 4 and “other benef its” under section 5 are expli citly intended not to extend bey ond termination—i.e., the company didn’t commit t o k eep paying Wil liams his “compe nsation” and “other benefits” even afte r he left employ ment—beca

use eac h set of promises is made applicable 16only “during the Employ ment Term,” which by definition ended upon the Employ ment Ag ree ment’s termination. I n contra st, section 6’s confide ntiality provisions, section 9’s non-compe tition clause , and section 7’s provision a ddressing the parties’ rig hts upon termination are eac h made applicable by their terms be y ond termination to some deg ree . And s ection 7, as we have e x plained, oper ates afte r termination and expli citly limit s AmCOMP, I nc.’s liability for compensa tion and benef its that had bee n owing prior to termination.

Consequently , section 17’s ref ere nce to “the provisions of Sections 4 to 7 inclusive and Section 9 here of” as examples of p ro visions “intended by [t heir] terms to survive such termination” means only that these sections contain one or more provisions that is “intended by its
terms to survive such termination,” not that ever y single provision within those sections nece ssarily will be. I n other words, section 17 does not in itself answer whether section 4, para g raph (d), is “intended by its terms to survive such termination,” but mere ly beg s the question whether it is. Th e answe r to that question, ag ain, is provided in section 7, para g raph (b), which exti ng uishes AmCOMP, I nc.’s (and Employ ers’ s) liability for the options “[n] otwithstanding any thing to the
contra ry expressed or implied here in.” But ev en ap art from the liability limit ation in section 7,
para g raph (b), nothing in section 4, para g raph (d), is “i n t en d ed b y i ts terms to survive such termination,” but it is sim ply silent on that issue. Consequently , section 17 does not aid Williams and, if any

thing, independe ntly evidenc es the parties’ intent that liability for the AAC stock options end upon ter

mination of the Employ

ment Ag ree ment. I n s u m , E m p loy ers established as a matter of law that any obligation it owed to Wil liams reg arding the AA C s tock options contemplated by section 4, para g raph (d), of the Emplo y ment Ag ree ment—the contra ctual rig ht made the basis of Wil liams’s claims—was 17exti ng uished in April 2008, and Wil liams has not alleg ed any breach of that obligation prior

to termination. We overr ule Wil l i ams ’s third and fourth issues. Be cause our holding establishes the v ali dity of a g round that could independe ntly support summary judgme nt, we need not addre ss Wil liams’s rema ining issues, which addre ss other g rounds. See Tex. R. App. P. 47.1; Bec k , 284 S.W .3d at 425.

CONCLUSION

We affir m the district court’s judg ment.

__________________________________________ Bob Pembe rton, J ustice Be fore J ustices Pury ear , Pemberton and H enson; J ustice He nson Not Participating Affir med Filed: Mar ch 15, 2013

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