AFFIRMED and Opinion Filed March 20, 2024 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-23-00125-CV 

PAUL RUDNICKI, Appellant 

V. 

THOMPSON PETROLEUM CORPORATION, J. CLEO THOMPSON AND 

JAMES CLEO THOMPSON, JR., L.P., AND J. CLEO THOMPSON 

PETROLEUM MANAGEMENT, LLC, Appellees 

On Appeal from the 298th Judicial District Court 

Dallas County, Texas 

Trial Court Cause No. DC-17-16848 

MEMORANDUM OPINION 

Before Justices Molberg, Reichek, and Smith 

Opinion by Justice Smith 

Appellant Paul Rudnicki appeals the trial court’s summary judgment in favor 

of appellees Thompson Petroleum Corporation (TPC), J. Cleo Thompson and James 

Cleo Thompson, Jr., L.P. (the Partnership), and J. Cleo Thompson Petroleum 

Management, LLC (Petroleum Management) on Rudnicki’s claim for 

indemnification. In one issue Rudnicki argues that the trial court erred in granting 

appellees’ motion for summary judgment and denying his motion because he 

established as a matter of law that he was entitled to indemnification under the 
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Partnership’s limited partnership agreement, TPC’s articles of incorporation, and 

section 8.052 of the business organizations code. Because we conclude that the trial 

court did not err in granting summary judgment in favor of appellees, we affirm. 

Factual and Procedural Background 

 Appellant Rudnicki is the former Chief Financial Officer and Vice President 

of TPC and Vice President – Finance of Petroleum Management. Appellees are 

family-owned entities formed by the J. Cleo Thompson, Jr. family. TPC oversaw 

and managed the other Thompson entities. Specifically, TPC provided employees 

to the Partnership. The Partnership owned, operated, and managed oil and natural 

gas interests in the Permian Basin. Petroleum Management was the General Partner 

of the Partnership and was responsible for managing its assets, including the 

employees provided by TPC. Thus, although they were separate entities, the dayto-day operations of the entities overlapped. 

William J. Clarke, who was previously General Counsel, Vice-President, and 

Secretary of TPC, brought suit against appellees TPC and the Partnership for failing 

to pay him a $10 million bonus he alleged he was promised by TPC, specifically 

Rudnicki, for work that he did for the Partnership. Both Clarke’s and Rudnicki’s 

employment with appellees ended prior to the lawsuit. TPC and the Partnership 

subpoenaed Rudnicki to take a deposition as a non-party, and Rudnicki notified the 

companies of his right to indemnification and advancement of costs in having to 

defend and respond to the deposition notice. The companies did not respond. Clarke 
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later added Rudnicki as a defendant in the lawsuit.1

 Rudnicki filed cross-claims 

against TPC and the Partnership and a third-party petition against Petroleum 

Management seeking indemnification and advancement of costs from appellees for 

his expenses, including attorney’s fees, in defending against the suit. TPC and the 

Partnership settled their suit with Clarke and Clarke filed a notice of nonsuit of his 

claims against TPC, the Partnership, and Rudnicki.2

 The trial court granted the 

nonsuit and ordered dismissal of all claims, thereby rendering Rudnicki’s 

indemnification claim as the only claim before the court. 

Prior to the dismissal order, Rudnicki moved for partial summary judgment 

on his indemnification and advancement claim. After the dismissal order, Rudnicki 

filed a second amended motion for partial summary judgment and appellees filed a 

cross-motion. The parties filed responses and replies to the opposing party’s motion, 

and the trial court held a hearing. The trial court granted appellees’ motion for 

summary judgment and denied Rudnicki’s motion for partial summary judgment. 

The trial court entered a final judgment ordering Rudnicki’s claims dismissed with 

prejudice and that Rudnicki take nothing on his indemnification claim. This appeal 

followed. 

1

 Clarke also added TLT Petroleum II, LLC, a Thompson entity created to house and distribute bonuses 

or “profit interests” to members. TLT is not a party to this appeal. 

2

 TLT also settled with Clarke and was nonsuited. 
 –4– 

Summary Judgment Standard of Review 

We review a summary judgment de novo. Trial v. Dragon, 593 S.W.3d 313, 

316 (Tex. 2019). A traditional motion for summary judgment requires the moving 

party to show that no genuine issue of material fact exists and that it is entitled to 

judgment as a matter of law. TEX. R. CIV. P. 166a(c); Lujan v. Navistar, Inc., 555 

S.W.3d 79, 84 (Tex. 2018). If the movant carries this burden, the burden shifts to 

the nonmovant to raise a genuine issue of material fact. Lujan, 555 S.W.3d at 84. 

We take evidence favorable to the nonmovant as true, and we indulge every 

reasonable inference and resolve any doubts in the nonmovant’s favor. Ortiz v. State 

Farm Lloyds, 589 S.W.3d 127, 131 (Tex. 2019). However, when both parties move 

for summary judgment on the same issue and the trial court grants one motion and 

denies the other, as the court did here, we consider both parties’ summary judgment 

evidence, determine the question presented, and render the judgment the trial court 

should have rendered if we determine it erred. Valence Operating Co. v. Dorsett, 

164 S.W.3d 656, 661 (Tex. 2005). 

Parties’ Competing Motions for Summary Judgment 

In his second amended motion for partial summary judgment, Rudnicki 

argued that he was entitled to judgment as a matter of law on his claim for 

indemnification against appellees. Specifically, Rudnicki contended that he was 

entitled to indemnification from the Partnership and from Petroleum Management 

under section 5.13 of the limited partnership agreement and from TPC under Article 
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Eleven of its Articles of Incorporation. Rudnicki included the limited partnership 

agreement and articles of incorporation as evidence in his motion for summary 

judgment. 

The Agreement of Limited Partnership provides, in relevant part, as follows: 

5.13 Indemnification of General Partner. To the fullest extent 

permitted by law, and subject to the procedures in Article 11 of the 

Partnership Act, on request by the Person indemnified the Partnership 

shall indemnify each General Partner and its Affiliates and their 

respective officers, directors, partners, employees, and agents and hold 

them harmless from and against all losses, costs, liabilities, damages, 

and expenses (including, without limitation, fees and disbursements of 

counsel) any of them may incur as a General Partner in the Partnership 

or in performing the obligations of the General Partner with respect to 

the Partnership, SPECIFICALLY INCLUDING THE 

INDEMNIFIED PERSON’S SOLE, PARTIAL, OR 

CONCURRENT NEGLIGENCE, but excluding any such items 

incurred as a result of something for which the General Partner is liable 

under Section 5.8, and on request by the Person indemnified the 

Partnership shall advance expenses associated with the defense of any 

related action. 

“General Partner” is defined as Petroleum Management or “any other Person 

admitted pursuant to this Agreement in the capacity of general partner in the 

Partnership.” 

Rudnicki asserted that he was one of the people to be indemnified under 

section 5.13, as he was Vice President – Finance of the General Partner, Petroleum 

Management, and Chief Financial Officer and Vice President of the General 

Partner’s Affiliate, TPC. Rudnicki also asserted that he was acting on behalf of the 

General Partner, Petroleum Management, which managed the Partnership, with 
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regard to the allegations made by Clarke concerning his bonus compensation for 

work he did on behalf of the Partnership. Rudnicki emphasized that TPC conducted 

no business of its own except to supply employees to the Partnership and that 

appellees had consistently disregarded formal corporate distinctions between the 

entities. 

 Appellees asserted in their motion for summary judgment that Rudnicki’s 

expenses did not fall within the parameters of the indemnification provision because 

“[h]is legal fees defending against [] Clarke’s claims were neither incurred as a 

General Partner nor in performing the obligations of the General Partner.” Instead, 

“they were incurred years after Rudnicki ceased working for” appellees and “could 

not have been incurred ‘as a General Partner,’ nor ‘in performing any obligations of 

the General Partner.’” Appellees emphasized that section 5.13 did not contain broad 

indemnification language such as “arise out of” or “are related to” as was at issue in 

the cases relied on by Rudnicki. 

 Rudnicki responded that indemnity would be a hollow promise if it did not 

extend to former employees for actions arising during their employment, especially 

if an employer could simply terminate an employee to avoid its contractual 

obligation to indemnify. Rudnicki further argued that appellees misinterpreted “as” 

to require a “present tense timing of actions,” when the proper interpretation is 

“actions taken as a General Partner, not the timing of a lawsuit brought pertaining to 
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such actions.” Rudnicki asserted the same was true for actions taken in performing 

the obligations of the General Partner. 

Rudnicki also argued he was entitled to indemnification from TPC under 

Article Eleven of the Articles of Incorporation, which provides, in relevant part, as 

follows: 

The corporation may indemnify any director, officer or 

employee, or former director, officer or employee of the corporation, 

or any person who may have served at its request as a director, officer 

or employee of another corporation in which it owns shares of stock, or 

of which it is a creditor, against expenses actually and necessarily 

incurred by him and any amount paid in satisfaction of judgments in 

connection with any action, suit or proceeding, whether civil or 

criminal in nature, and which he is made a party by reason of being or 

having been such a director, employee or officer (whether or not a 

director, employee, or officer at the time such costs or expenses are 

incurred by or imposed by him[)]. The corporation may also reimburse 

to any director, officer or employee the reasonable costs of settlement 

of any such action, suit or proceeding. Such rights of indemnification 

and reimbursement shall not be deemed exclusive of any other rights to 

which such director, officer or employee may be entitled by law or 

under any by-law, agreement, vote of shareholders, or otherwise. 

Although Rudnicki acknowledged that the language under Article Eleven was 

permissive, he asserted that public policy, specifically the perceived benefit 

corporations obtain through indemnifying their officers and directors, favored the 

broad application of indemnification and reimbursement provisions so that 

indemnified persons received the broadest possible protection. Rudnicki also argued 

that the last sentence of Article Eleven—“Such rights of indemnification and 

reimbursement shall not be deemed exclusive of any other rights to which such 
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director, officer or employee may be entitled by law or under any by-law, agreement, 

vote of shareholders, or otherwise”—authorized his rights of indemnification and 

reimbursement through other avenues such as section 8.052 of the business 

organizations code, which provides as follows: 

On application of a governing person, former governing person, or 

delegate and after notice is provided as required by the court, a court 

may order an enterprise to indemnify the person to the extent the court 

determines that the person is fairly and reasonably entitled to 

indemnification in view of all the relevant circumstances. 

TEX. BUS. ORGS. CODE ANN. § 8.052(a). 

 Appellees argued in their motion for summary judgment that these provisions 

are permissive, not mandatory, and thus Rudnicki had no contractual right to 

indemnification from TPC. 

Contract Construction 

We review the construction of a contract, including whether it is ambiguous, 

de novo. Kachina Pipeline Co. v. Lillis, 471 S.W.3d 445, 449 (Tex. 2015). We must 

ascertain the true intentions of the parties as expressed in the agreement itself. 

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

(Tex. 2011). Generally, “the instrument alone will be deemed to express the 

intention of the parties for it is objective, not subjective, intent that controls.” 

Matagorda Cnty. Hosp. Dist. v. Burwell, 189 S.W.3d 738, 740 (Tex. 2006) (per 

curiam) (citation omitted). “We therefore ‘presume parties intend what the words 

of their contract say’ and interpret contract language according to its ‘plain, ordinary, 
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and generally accepted meaning’ unless the instrument directs otherwise.” URI, Inc. 

v. Kleberg Cnty., 543 S.W.3d 755, 764 (Tex. 2018) (first quoting Gilbert Tex. 

Constr., L.P. v. Underwriters at Lloyd’s London, 327 S.W.3d 118, 126 (Tex. 2010); 

and then quoting Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex. 

1996)). Ambiguity does not exist simply because the parties disagree over a term’s 

meaning and present different interpretations of the agreement. Dynegy Midstream 

Servs., Ltd. P’ship v. Apache Corp., 294 S.W.3d 164, 168 (Tex. 2009); DeWitt Cnty. 

Elec. Coop., Inc. v. Parks, 1 S.W.3d 96, 100 (Tex. 1999). 

Construction of Indemnification Provisions 

 We first begin with Rudnicki’s argument that he is entitled to indemnification 

under section 5.13 of the Partnership agreement. Rudnicki relies on several cases 

for the proposition that indemnification provisions should be applied broadly and 

that he is not excluded from indemnification simply because he was sued 

individually or no longer an officer or employee of the Thompson companies when 

he was brought into the lawsuit. 

 Three of the cases on which he relies examine indemnification provisions that 

contain “by reason of” language. In United States v. Lowe, the court rejected the 

corporation’s argument that the former officer was per se precluded from being 

indemnified because he was sued individually when the bylaws provided that the 

corporation shall indemnify “[e]ach director and each officer or former director or 

officer of this corporation” for “liabilities imposed upon him and expenses 
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reasonably incurred by him in connection with any claim made against him . . . by 

reason of his being or having been such director or officer . . . .” 29 F.3d 1005, 1007 

n.3, 1009–1010 (5th Cir. 1994) (emphasis added). The court recognized “the breadth 

with which many courts have interpreted language such as ‘by reason of’” and noted 

that the “factual inquiry should be on the ‘connection between the complaint and 

[Lowe’s] corporate status.” Id. at 1010–1011 (alteration in original; citation 

omitted). In Homestore, Inc. v. Tafeen, the Supreme Court of Delaware3

 explained 

that the test for determining whether a corporate official was sued “by reason of the 

fact” of their corporate position is whether “there is a nexus or causal connection 

between any of the underlying proceedings . . . and one’s official corporate 

capacity.” 888 A.2d 204, 214 (Del. 2005). But the language in the corporation’s 

bylaws, which was also language contained in the Delaware General Corporation 

Law, provided: “Each person who was or is . . . involved in any action, suit or 

proceeding, . . . by reason of the fact that such person . . . is or was a director or 

officer of the Corporation . . . shall be indemnified . . . .” Id. at 211, 213 (emphasis 

in original). And, in In re DeMattia, an opinion out of this Court, the indemnification 

provision contained similar language: “the Company shall indemnify each Member 

who was, is, or is threatened to be made a party to any . . . suit . . . by reason of the 

fact that he or she is or was a Member.” 644 S.W.3d at 230 (emphasis in original). 

3

 “[C]ourts throughout the United States, including Texas, look to Delaware on matters of corporate 

law.” In re DeMattia, 644 S.W.3d 225, 230 (Tex. App.—Dallas 2022, orig. proceeding). 
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But the question at issue in DeMattia was whether the advancement provision linked 

back to the indemnification provision so that advancement was required for both 

current and former members; there was no question that indemnification was 

required for both current and former members because the language expressly stated 

“is or was a Member.” Id. at 228–29, 232–33 (emphasis added). 

Rudnicki also relies on RSR Corp. v. Siegmund, in which this Court noted that 

the phrase “any action or proceeding arising out of or relating to this Agreement” 

(in a consent to jurisdiction clause) was “broad and encompass[ed] all claims that 

have some possible relationship with the agreement, including those claims that may 

only ‘relate to’ the agreement.” 309 S.W.3d 686, 701 (Tex. App.—Dallas 2010, no 

pet.) (emphasis added). 

Relying on the broad language in these cases, Rudnicki asserts that Clarke’s 

dispute over his bonus, which was allegedly promised to him by Rudnicki, as an 

authorized agent and corporate officer of TPC and the Partnership, has more than 

“some possible relationship” and “nexus or causal connection” to Rudnicki 

“performing the obligations of the General Partner with respect to the Partnership.” 

But regardless of whether the evidence supports Rudnicki’s argument that he was 

performing the obligations of General Partner at the time he allegedly authorized 
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Clarke’s bonus,4

 the question we must answer is whether section 5.13 provides for 

broad indemnification like the cases on which Rudnicki relies. 

Our disposition turns on the following language in section 5.13: “all losses, 

costs, liabilities, damages, and expenses . . . any of them may incur as a General 

Partner in the Partnership or in performing the obligations of the General Partner

with respect to the Partnership” (emphasis added). Specifically, our focus is on the 

words “incur as” and “incur . . . in.” As set out above, the cases Rudnicki cites to 

for support do not address this language. Nor does section 5.13 contain broad 

language such as “by reason of,” “arising out of,” or “relating to,” like the cases 

above. 

 Appellees assert on appeal that the “[Partnership’s] Agreement could have 

provided for indemnification of expenses incurred ‘based on,’ ‘arising from,’ or 

similarly ‘related to’ a covered person’s performance of the obligations of the GP 

with respect to [the Partnership]. But that simply is not what it says.” We agree. 

We “are obliged to enforce the parties’ bargain according to its terms and may not 

rewrite a contract under the guise of interpretation.” In re DeMattia, 644 S.W.3d at 

234. Although indemnification provisions may generally be drafted broadly as in 

the examples above, this one was not. 

4

 The parties dispute whether Rudnicki was authorized to promise Clarke a bonus and whether, even if 

he was authorized, such would have been an obligation of the General Partner of the Partnership versus an 

obligation of TPC. 
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The parties have not directed us to any case, and we have not found one, in 

which a court has construed the phrase at issue here. In his reply brief, Rudnicki 

sets out several meanings of “incur” and urges us to adopt the second definition in 

the American Heritage Dictionary—“to become subject to as a result of one’s 

actions.” See Incur, THE AMERICAN HERITAGE DICTIONARY (5th ed. 2022) (defining 

“incur” as “[t]o acquire or come into (something usually undesirable); sustain” or 

“[t]o become liable or subject to as a result of one’s action; bring upon oneself”); see 

also Aviles v. Aguirre, 292 S.W.3d 648, 649 n.2 (Tex. 2009) (per curiam) (setting 

out definitions of “incur,” including as “[t]o become liable or subject to” and “[t]o 

suffer or bring on oneself (a liability or expense)” (first quoting BLACK’S LAW 

DICTIONARY 768 (6th ed. 1990); and then quoting BLACK’S LAW DICTIONARY 782 

(8th ed. 2004))); Vill. Place, Ltd. v. VP Shopping, LLC, 404 S.W.3d 115, 127 (Tex. 

App.—Houston [1st Dist.] 2013, no pet.) (setting out multiple meanings of incur: 

“brought on,” “occasioned,” “caused,” and “to become liable to pay”). He did not 

present this specific definition or argument to the trial court in his motion for 

summary judgment. However, he maintains that to construe “incur” as appellees 

suggest “would completely nullify the purpose of agreeing to indemnify Rudnicki 

‘to the fullest extent permitted by law’ as it is difficult to imagine a scenario when a 

General Partner or affiliate would ever incur attorneys’ fees while simultaneously . 

. . performing duties as a General Partner.” 
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 But the meaning of the word “incur” by itself is not what is at issue here; the 

meaning of “incur as” or “incur in performing” is. Rudnicki’s attempt to substitute 

the American Heritage Dictionary’s definition in the place of “incur,” which 

includes the additional words “as a result of one’s actions,” broadens the provision 

in the partnership agreement because it essentially adds in the words that are missing, 

like “relates to,” “arises out of,” or “by reason of.” We decline Rudnicki’s invitation 

to add words to the agreement under the guise of applying a dictionary definition to 

construe the phrase’s common meaning. 

Rudnicki’s affidavit testimony provided, “From the time I received the 

Discovery Subpoena commanding my deposition from TPC and the J. Cleo 

Partnership, I have incurred and continue to incur expenses in defense of this action, 

which include reasonable and necessary attorney’s fees and costs.” Rudnicki did not 

incur the litigation expenses “as” a General Partner or “in performing” its duties. By 

the time he began participating and defending himself in the suit, he was no longer 

employed by the Thompson entities and, thus, was no longer performing the 

obligations of Petroleum Management. Had the language in section 5.13 provided 

for broad indemnification such as for expenses incurred by reason of performing the 

obligations of the General Partner, or for expenses incurred arising out of the 

person’s role as director or officer of the General Partner, or for expenses based on 

the person’s performance of the obligations of the General Partner, our analysis 

might be different. But that is not the language before us, and we cannot write in 
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that language in construing the word “incur.” To do so, would expand the 

partnership agreement’s limited indemnification provision to one that is much 

broader. Therefore, we conclude that Rudnicki was not entitled to indemnification 

under section 5.13. 

We next turn to the articles of incorporation. Although Article Eleven 

contains broad indemnification language—“by reason of being or having been such 

a director, employee or officer (whether or not a director, employee, or officer at the 

time such costs or expenses are incurred by or imposed by him[)]”—Article Eleven 

also expressly provides, “The corporation may indemnify any director, officer or 

employee, or former director, officer or employee of the corporation . . . against 

expenses actually and necessarily incurred by him and any amount paid in 

satisfaction of judgments . . . .” The word “may” in this context is permissive, not 

mandatory. See Thiagarajan v. Tadepalli, 430 S.W.3d 589, 596–97 (Tex. App.—

Houston [14th Dist.] 2014, pet. denied) (noting similar phrase in articles of 

incorporation was permissive, not mandatory); see also TEX. BUS. ORGS. CODE § 

8.0003 (“A governing document of an enterprise may restrict the circumstances 

under which the enterprise must or may indemnify or may advance expenses to a 

person under this chapter.”). Thus, TPC was permitted under its articles of 

incorporation to indemnify Rudnicki, but it was not required to. 

For the same reason, we reject Rudnicki’s argument that section 8.052 of the 

business organizations code entitled him to indemnification, as it also contains 
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permissive language. See TEX. BUS. ORGS. CODE § 8.052(a) (“a court may order an 

enterprise to indemnify the person to the extent the court determines that the person 

is fairly and reasonably entitled to indemnification in view of all the relevant 

circumstances” (emphasis added)); see also TEX. GOV’T. CODE ANN. § 311.016 

(Code Construction Act provides that “‘[m]ay’ creates discretionary authority or 

grants permission or a power,” whereas “‘[s]hall’ imposes a duty”). Rudnicki did 

not plead or argue that he was entitled to indemnification under the code’s mandatory 

indemnification provision. See id. § 8.051(a). 

 In reaching this conclusion, we acknowledge the cases interpreting “may” as 

mandatory in certain contexts. For example, when the language provides that a party 

“may recover” attorney’s fees, “may” is not discretionary, just as when the language 

provides the party “shall be awarded” or “is entitled to” fees. Bocquet v. Herring, 

972 S.W.2d 19, 20 (Tex. 1998). However, the difference in the context of this and 

similar language is that the language relates back to the party seeking or requesting 

the benefit or right (“the party may recover”), not the party from whom the benefit 

or right is being sought, such as the corporation or trial court here (“the corporation 

may indemnify” or “the court may order”). Here, “may” is used as permissive, or 

discretionary language. See id. 

 We are also mindful of Rudnicki’s position that the broad policy goal of 

indemnification is to protect officers and directors from litigation expenses resulting 

from their duties as officer or directors. See In re DeMattia, 644 S.W.3d at 230 
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(“Indemnification encourages corporate service by protecting an official’s personal 

financial resources from depletion by the expenses incurred during litigation that 

results from the official’s service.”). However, we are required to construe and 

enforce the language before us, not interpret the provision by rewriting it to fit public 

policy. Id. at 234. 

 We conclude that Rudnicki is not entitled to indemnification under section 

5.13 of the partnership agreement, Article Eleven of the articles of incorporation, or 

section 8.052 of the business organizations code. Therefore, the trial court did not 

err in granting appellees’ motion for summary judgment and denying Rudnicki’s 

motion for partial summary judgment. 

Conclusion 

 We affirm the judgment of the trial court. 

230125F.P05 

 

/Craig Smith/

CRAIG SMITH 

JUSTICE 
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S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

PAUL RUDNICKI, Appellant 

No. 05-23-00125-CV V. 

THOMPSON PETROLEUM 

CORPORATION, J. CLEO 

THOMPSON AND JAMES CLEO 

THOMPSON, JR., L.P., AND J. 

CLEO THOMPSON PETROLEUM 

MANAGEMENT, LLC., Appellees 

 On Appeal from the 298th Judicial 

District Court, Dallas County, Texas 

Trial Court Cause No. DC-17-16848. 

Opinion delivered by Justice Smith. 

Justices Molberg and Reichek 

participating. 

 In accordance with this Court’s opinion of this date, the judgment of the trial 

court is AFFIRMED. 

 It is ORDERED that appellees THOMPSON PETROLEUM 

CORPORATION, J. CLEO THOMPSON AND JAMES CLEO THOMPSON, JR., 

L.P., and J. CLEO THOMPSON PETROLEUM MANAGEMENT, LLC recover 

their costs of this appeal from appellant PAUL RUDNICKI. 

Judgment entered this 20th day of March 2024.