AFFIRMED and Opinion Filed March 20, 2024 

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In The 

### Court of Appeals Fifth District of Texas at Dallas No. 05-23-00125-CV PAUL RUDNICKI, Appellant V. THOMPSON PETROLEUM CORPORAT ION, J. CLEO THOMPSON AND JAMES CLEO THOMPSON, JR., L. P., AND J. CLEO THOMPSON PETROLEUM MANAGEMEN T, 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 tr ial court’s summary judgment in favor of appellees Thompson Petroleum Corpora tion (TPC), J. Cleo Thompson and James Cleo Thompson, Jr., L.P. (the Partnership), and J. Cleo Thompson Petroleum Management, LLC (Petroleum Mana gement) on Rudnicki’s claim for indemnification. In one issue Rudnicki argue s 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–2– Partnership’s limited partnership agreement, TPC’s articles of incorporation, and section 8.052 of the business organizations c ode. Because we conclude that the trial court did not err in granting summary judg ment in favor of appellees, we affirm. Factual and Procedural Background Appellant Rudnicki is the former Chie f Financial Officer and Vice President of TPC and Vice President – Finance of Petroleum Management. Appellees are family-owned entities formed by the J. Cl eo Thompson, Jr. family. TPC oversaw and managed the other Thompson entities. Specifically, TPC provided employees to the Partnership. The Partnership owne d, operated, and mana ged oil and natural gas interests in the Permian Basin. Petr oleum 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 su it against appellees TPC and the Partnership for failing to pay him a $10 million bonus he alleged he was promis ed by TPC, specifically Rudnicki, for work that he did for the Pa rtnership. Both Cl arke’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 indemnificati on and advancement of costs in having to defend and respond to the deposition notice. The companies did not respond. Clarke–3– 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 w ith Clarke and Clarke file d a notice of nonsuit of his claims against TPC, the Partnership, and Rudnicki. 2 The trial court granted the nonsuit and ordered dismi ssal of all claims, ther eby rendering Rudnicki’s indemnification claim as the on ly claim before the court. Prior to the dismissal order, Rudnick i moved for partial summary judgment on his indemnification and advancement clai m. 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. Th e trial court granted appellees’ motion for summary judgment and denied Rudnicki’s motion for partial summary judgment. The trial court entered a final judgment or dering Rudnicki’s claims dismissed with prejudice and that Rudnicki take nothing on hi s 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 materi al fact exists and th at it is entitled to judgment as a matter of law. T EX

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. P. 166a(c); Lujan v. Navistar, Inc. , 555 S.W.3d 79, 84 (Tex. 2018). If the movant ca rries 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 nonm ovant 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). Ho wever, when both parties move for summary judgment on the same issue a nd the trial court grants one motion and denies the other, as the c ourt did here, we consider bot h 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 pa rtial summary judgment, Rudnicki argued that he was entitled to judgment as a matter of law on his claim for indemnification against appellees. Speci fically, Rudnicki contended that he was entitled to indemnification from the Part nership and from Petroleum Management under section 5.13 of the lim ited partnership agreement and from TPC under Article–5– 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 pr ovides, 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 Part ner and its Affiliates and their respective officers, directors, part ners, employees, and agents and hold them harmless from and against all lo sses, costs, liabilities, damages, and expenses (including, without lim itation, 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 a ssociated with the defense of any related action. “General Partner” is defined as Petr oleum Management or “any other Person admitted pursuant to this Agreement in th e 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 Fina ncial Officer and Vice Pre sident of the General Partner’s Affiliate, TPC. R udnicki also asserted that he was acting on behalf of the General Partner, Petroleu m Management, whic h managed the Part nership, with–6– regard to the allegations made by Clar ke concerning his bonus compensation for work he did on behalf of the Partnershi p. Rudnicki emphasized that TPC conducted no business of its own except to supply employees to the Partnership and that appellees had consistently disregarded formal corporat e distinctions between the entities. Appellees asserted in their motion for summary judgment that Rudnicki’s expenses did not fall within the parameters of the inde mnification provision because “[h]is legal fees defending against [] Cl arke’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.’” Appe llees emphasized that secti on 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 woul d be a hollow promise if it did not extend to former employees for actions aris ing 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 ac tions,” when the proper interpretation is “actions taken as a General Partner, not the timing of a lawsuit brought pertaining to–7– 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 provi des, in relevant part, as follows: The corporation may indemnif y 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 r eason of being or having been such a director, employ ee or officer (whether or not a director, employee, or officer at th e time such costs or expenses are incurred by or imposed by him[)]. Th e corporation may also reimburse to any director, officer or employ ee 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 th e language under Article Eleven was permissive, he asserted that public po licy, 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 Elev en—“Such rights of indemnification and reimbursement shall not be deemed exclus ive of any other rights to which such–8– director, officer or employee may be ent itled by law or under any by-law, agreement, vote of shareholders, or otherwise”—author ized his rights of indemnification and reimbursement through other avenues su ch as section 8.052 of the business organizations code, which provides as follows: On application of a governing pers on, former governing person, or delegate and after notice is provided as required by the court, a court may order an enterprise to indemnif y the person to the extent the court determines that the person is fairly and reas onably entitled to indemnification in view of a ll the relevant circumstances.
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. C ODE A NN . § 8.052(a). Appellees argued in their motion for su mmary 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 cont ract, including whether it is ambiguous, de novo. Kachina Pipeline Co. v. Lillis , 471 S.W.3d 445, 449 (T ex. 2015). We must ascertain the true intentions of the partie s 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,–9– 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. Underw riters 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 inte rpretations 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 agre ement. Rudnicki re lies 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 individu ally 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–10– reasonably incurred by him in connection w ith any claim made against him . . . by reason of his being or having b een 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 Delaware 3 explained that the test for determining whether a cor porate official was sued “by reason of the fact” of their corporate position is whethe r “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). Bu t the language in the corporation’s bylaws, which was also langua ge contained in the Dela ware 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 inde mnify 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 Te xas, look to Delaware on matters of corporate law.” In re DeMattia , 644 S.W.3d 225, 230 (Tex. App.—Dallas 2022, orig. proceeding).–11– 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 “b road and encompass[ed] all claims that have some possible relationship with the ag reement, 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 cas es, 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 Pa rtner with respect to the Partnership.” But regardless of whether the evidence s upports Rudnicki’s argument that he was performing the obligations of General Partner at the tim e he allegedly authorized–12– 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 la nguage in section 5.13: “all losses, costs, liabilities, dama ges, 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 Partners hip” (emphasis added). Speci fically, our focus is on the words “incur as” and “incur . . . in.” As set out above, the ca ses 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 cove red 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 th e parties’ bargain accordi ng 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 ma y 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.–13– The parties have not directed us to any case, and we ha ve not found one, in which a court has construed the phrase at i ssue 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 b ecome subject to as a result of one’s actions.” See Incur , T HE A MERICAN H ERITAGE D ICTIONARY (5th ed. 2022) (defining “incur” as “[t]o acquire or come into (s omething 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 liab ility or expense)” (first quoting B LACK ’ S L AW D ICTIONARY 768 (6th ed. 1990); and then quoting B LACK ’ S L AW D ICTIONARY 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.) (s etting out multiple meanings of incur: “brought on,” “occasioned,” “c aused,” and “to become liabl e 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 “i ncur” as appellees suggest “would completely nullify the purpo se of agreeing to indemnify Rudnicki ‘to the fullest extent permitte d 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.”–14– But the meaning of the word “incur” by its elf is not what is at issue here; the meaning of “incur as” or “incur in perform ing” is. Rudnicki’s attempt to substitute the American Heritage Dictionary’s de finition 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 essen tially adds in the words that are missing, like “relates to,” “aris es out of,” or “by reason of.” We decline Rudnicki’s invitation to add words to the agreement under the guise of applying a dicti onary 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 in curred and continue to incur expens es in defense of this action, which include reasonable and necessary attorn ey’s fees and costs.” Rudnicki did not incur the litigation expenses “a s” a General Partner or “in performing” its duties. By the time he began participa ting 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. Ha d the language in section 5.13 provided for broad indemnification such as for expe nses 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 th e 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, a nd we cannot write in–15– that language in construing the word “incur.” To do so, would expand the partnership agreement’s limited indemnifi cation provision to one that is much broader. Therefore, we c onclude that Rudnicki was not entitled to indemnification under section 5.13. We next turn to the articles of inco rporation. Althou gh 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 corpor ation . . . against expenses actually and necessarily in curred 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 T EX

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. C ODE § 8.0003 (“A governing document of an enterp rise may restrict the circumstances under which the enterprise mu st or may indemnify or ma y advance expenses to a person under this chapter.”). Thus, TPC was permitted under its articles of incorporation to indemnify Rudni cki, but it was not required to. For the same reason, we reject Rudnick i’s argument that section 8.052 of the business organizations code entitled him to indemnification, as it also contains–16– permissive language. See T EX

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. C ODE A NN . § 311.016 (Code Construction Act provide s that “‘[m]ay’ creates di scretionary 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 th e code’s mandatory indemnification provision. See id. § 8.051(a). In reaching this conclusion, we acknow ledge the cases interpreting “may” as mandatory in certain contexts. For exampl e, when the language provides that a party “may recover” attorney’s f ees, “may” is not discretionary , just as when the language provides the party “shall be awarde d” 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 th e party seeking or requesting the benefit or right (“the party may recove r”), not the party fr om whom the benefit or right is being sought, such as the corpor ation or trial court he re (“the corporation may indemnify” or “the cour t 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 a nd directors from litigation expenses resulting from their duties as offi cer or directors. See In re DeMattia , 644 S.W.3d at 230–17– (“Indemnification encourages corporate se rvice 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 requi red to construe and enforce the language before us, not interpre t 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 El even of the articles of incorporation, or section 8.052 of the business organizations c ode. Therefore, the trial court did not err in granting appellees’ motion for su mmary judgment and denying Rudnicki’s motion for partial summary judgment.
Conclusion We affirm the judgment of the trial court.

230125F.P05 /Crai g Smith / CRAIG SMITH JUSTICE–18– 

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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 A ND JAMES CLEO THOMPSON, JR., L.P., and J. CLEO THOMPSON PETR OLEUM MANAGEMENT, LLC recover their costs of this appeal from appellant PAUL RUDNICKI.
Judgment entered this 20th day of March 2024.