Mullins v. Empower Clinic Services LLC

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
THOMAS MULLINS,
Plaintiffs,
v.
EMPOWER CLINIC SERVICES, LLC,
Defendants.
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CIVIL ACTION NO. H-26-1033
MEMORANDUM AND OPINION
This dispute arises out of a severance agreement. 	The facts alleged are straightforward,
and plaintiff asserts three claims: (1) breach of contract; (2) declaratory judgment; and (3) tortious
interference. (Docket Entry No. 1). The defendant has moved to dismiss, or in the alternative, for
summary judgment. 	(Docket Entry Nos. 9, 10). 	For the reasons set forth below, the motion is
denied.1
Thomas Mullin was “Empower’s Chief Sales Officer from December 26, 2024 until May
29, 2025.” 	(Docket Entry No. 1 ¶ 1). 	The Employment Agreement includes “Restrictive
Covenants,” such as a noncompetition clause that, to paraphrase, prevents Mullins from working
for a business relating to pharmaceutical compounding in Texas or any other jurisdiction in which
Empower is physically located or sells its products. 	(See Docket Entry No. 9-1 at 7). 	In May
2025, Mullin’s employment with Empower ended. 	(Docket Entry No. 1 ¶ 3). 	Mullins and
Empower executed a Separation Agreement and General Release that includes four key provisions:
1 Empower moved to seal aspects of the record, including the Employment Agreement and the Separation
Agreement. 	(Docket Entry No. 7). 	The court granted the motion. 	The court quotes portions of the
agreements—namely, the release and merger provisions—because they are necessary to the opinion and
for use in future cases as precedent. The language of these particular provisions is also generic and does
not contain confidential information that warrants sealing.
United States District Court
Southern District of Texas
ENTERED
June 11, 2026
Nathan Ochsner, Clerk
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(1) a severance payment; (2) a set of “Restrictive Covenants,” which do not contain a
noncompetition provision; (3) a release of claims; and (4) a merger clause. (See Docket Entry No.
9-2).
Mullins then gained employment with Randy Martins Health and Wellness d/b/a Hillstone
Pharmacy. (See Docket Entry No. 1 ¶ 8). Empower believed that Mullin’s employment violated
the noncompetition provision in the Employment Agreement and sent a “cease and desist” letter
to Hillstone. (Id.). The letter alleged that Mullin “was in breach of his Employment Agreement,
and insinuated that legal action against” Mullin and Hillstone would follow if Mullin continued
his employment. (Id. ¶ 9). Hillstone fired Mullin, and Empower sued Mullin for breaching the
Employment Agreement. (Id. ¶¶ 7, 9). Mullin alleges that he has lost “hundreds of thousands of
dollars in lost wages, bonuses, and equity to which he would have been entitled under his
employment with Hillstone.” (Id. ¶ 10). Mullin also alleges that Empower has not paid the full
severance amount guaranteed in the separation agreement. (See id. ¶¶ 44–50).
Empower moves to dismiss (or for summary judgment on) the contract claim because it
paid Mullin’s severance. (See Docket Entry No. 9 at 8–10). Empower moves to dismiss (or for
summary judgment on) the declaratory-judgment and tortious-interference claims because the
release 	bars 	them 	and 	because 	the 	Employment 	Agreement’s 	Restrictive 	Covenants 	are
incorporated into the Separation Agreement. (See id. at 10–17). The court denies these requests.
First, the contract claim survives Empower’s motion. 	Mullin alleges that Empower has
not paid “the full amount owed.” (Docket Entry No. 1 ¶ 48). Empower responds that (1) it has
paid Mullin the full amount owed; and (2) that Mullin has not been damaged. In support, Empower
offered a declaration of Cherly Allwin, the Manager of Payroll for Empower, and payroll
documents showing payments to Mullin. 	(See Docket Entry No. 9-3). 	But Mullin alleges
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otherwise, which this court must accept at the motion to dismiss stage. See Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 	And
Empower’s evidence includes some discrepancies. Namely, “[o]n or about October 17, 2025, one
installment payment to Mullin was pulled back and reversed.” (Docket Entry No. 9-3 at 1). The
“ADP payroll record reflecting the reversal of one installment payment to Mullin on or about
October 17, 2025,” but Allwin states that the “reversal is not reflected in the Pay Summaries.” (Id.
at 1–2). Discovery can resolve these factual disputes.
This issue is material because, if Empower failed to timely send Mullin an October
installment payment as the Separation Agreement required, Mullin is entitled to some interest as
damages. See Wilshire Villa Ass’n v. Strauss, 39 F.3d 320, at *6 (5th Cir. 1994) (“Interest on past-
due payments is the norm for damages because it offers the nonbreaching party adequate and
calculable compensation for any damages caused by delinquency.”); Batmanis v. Batmanis, 600
S.W.2d 887, 890 (Tex. Civ. App.—Houston [14th Dist] 1980, writ ref’d n.r.e) (“It is clearly the
law in Texas that interest is allowed as damages for the failure to pay a sum due.”). Empower’s
motion to dismiss Mullin’s contract claim is denied.
Second, the declaratory-judgment and tortious-interference claims survive Empower’s
motion. Empower argues that (1) the Separation Agreement’s release provision bars these claims;
and (2) that the Separation Agreement incorporates the Employment Agreement’s noncompetition
provision. 	The court rejects Empower’s first argument but accepts its second. 	Accepting
Empower’s second argument does not warrant dismissal at this stage of the case, however.
The Separation Agreement’s release provision does not bar the declaratory-judgment and
tortious-interference claims. Section 7 of the Separate Agreement includes a general release and
a limited carve out. 	See Hester Int’l Corp. v. Fed. Republic of Nigeria, 681 F. Supp. 371, 382
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(N.D. Miss. 1988) (explaining that the term “provided” implies a condition on a contractual
promise, which is “ordinarily used in introducing a proviso or signifying a condition”), aff’d, 879
F.2d 170 (5th Cir. 1989). It provides:
Employee covenants not to sue, and fully and forever releases and
discharges Employer and all other Releasees from any and all
legally waivable claims, liabilities, damages, demands, and causes
of action or liabilities of any nature or kind, whether now known or
unknown, arising out of, related to, or in any way connected with
Employee’s employment with Employer or any of its affiliates or
the termination of such employment, including, but not limited to,
under the Offer Letter; provided, however, that nothing in this
Agreement and General Release shall either waive any rights or
claims 	of 	Employee 	(i) 	that 	arise 	after 	Employee 	signs 	this
Agreement and General Release; (ii) to enforce the terms of this
Agreement and General Release; or (iii) for the provision of accrued
benefits conferred to Employee or Employee’s beneficiaries under
the terms of Employer’s medical, dental, life insurance or defined
contribution retirement benefit plans.
(Docket Entry No. 9-2 at 1). 	Under a straightforward application of the provision, Mullin can
assert any claim that arose after he signed the Separation Agreement.2
Both the declaratory-judgment claim and the tortious-interference claim arose after Mullin
signed the Separation Agreement. The declaratory-judgment claim arose when Empower sent a
cease-and-desist letter to Hillstone. 	See Bauer v. Texas, 341 F.3d 352, 358 (5th Cir. 2003)
(explaining that the Declaratory Judgment Act requires “a substantial and continuing controversy
between two adverse parties”). 	And the tortious-interference claim arose when Hillstone fired
him. See Roehrs v. Conesys, Inc., No. 3:05-CV-0829-M, 2005 WL 3454015, *4 (N.D. Tex. Dec.
2 Empower argues that a strict temporal reading of the proviso would render the “known or unknown”
language surplusage. (Docket Entry No. 9 at 13–14). It does not. Mullin can escape the general release in
one of two ways: (1) showing that the claim does not fall within the general release; or (2) showing that the
claim falls within the proviso’s exception. Interpreting the proviso as creating a temporal carveout to the
general release does not negate or undermine the breadth that the “known or unknown” language gives to
the general release. And even if the court were to accept Empower’s mistaken premise, the “known or
unknown” language has independent force, because it turns not just on time but on Mullin’s knowledge.
The court’s reading of the Separation Agreement does not create surplusage.
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14, 2005) (citing Hill v. Heritage Resources, 964 S.W.2d 89, 116 (Tex. App. —El Paso 1997, pet.
denied)) (explaining that tortious interference claims arise “when (1) the contract or business
relationship is interfered with, and (2) harm is caused to the plaintiff”). 	That those claims may
require the court to consider facts and legal issues from before the Separation Agreement, and
which would otherwise fall within the scope of the general release, is immaterial. 	The proviso
supersedes the general release, see VSP Labs, Inc. v. Hillair Cap. Invs. LP, 619 B.R. 883, 902
(N.D. Tex. 2020), aff’d sub nom. Matter of PFO Glob., Inc., 26 F.4th 245 (5th Cir. 2022), and
Mullin’s current claims fall within the proviso.3
Lastly, 	the 	parties 	dispute 	whether 	the 	Separation 	Agreement 	incorporated 	the
Employment Agreement’s noncompetition provision. The court holds that it does. This question
depends on the Separation Agreement’s merger provision, which provides:
This Agreement and General Release sets forth the entire agreement
between Employee and Employer, and fully supersedes any and all
prior agreements or understandings between them regarding its
subject matter; provided, however, that nothing in this Agreement
and General Release are intended to or shall be construed to limit,
impair or terminate any Restrictive Covenants. This Agreement and
General Release may only be modified by written agreement signed
by both Parties.
(Docket Entry No. 9-2 at 4).
3 The key is that the proviso uses the word “claims.” Its ordinary meaning, especially in the context of a
litigation release, is a cause of action, see Exec. Risk Indem., Inc. v. Integral Equity, L.P., No. CIV.A. 3:03-
CV-0269, 2004 WL 438936, at *7–8 (N.D. Tex. Mar. 10, 2004), such as a tortious-interference cause of
action. There is no part of the general release or proviso that suggests the court should hold that, even
though Mullin’s claims may proceed, he waived specific issues or arguments that might arise in asserting
those claims. 	The general release is written at the same generality of the proviso—listing “claims,
liabilities, damages, demands, and causes of action”—and does not preclude specific issues. See Ortho-
Clinical Diagnostics Bermuda Co. v. FCM, LLC, No. 15 CIV. 5607 (NRB), 2016 WL 4939370, at *4
(S.D.N.Y. Sept. 12, 2016) (explaining that the use of “claims, actions, [and] causes of action” in a litigation
release is intentional surplusage, which does not require courts to adopt an unreasonable contract
interpretation).
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Mullin argues that the noncompetition agreement does not apply because the Separation
Agreement has its own “Restrictive Covenants,” and the Employment Agreement merged into the
Separation Agreement. The court disagrees, again applying the proviso cannon. See VSP Labs,
619 B.R. at 902; Hester Int’l, 681 F. Supp. at 382. 	Under the merger clause, the Separation
Agreement merged with, and superseded the Employment Agreement, on the condition that “any
Restrictive Covenant[]” would not be “limit[ed], impair[ed] or terminate[d].” (Docket Entry No.
9-2 at 4 (emphasis added)). 	Because the Employment Agreement includes the defined term
“Restrictive Covenants” that matches the defined term “Restrictive Covenants” in the Separation
Agreement’s merger clause, (compare Docket Entry No. 9-2 at 4, with Docket Entry No. 9-1 at 7),
the Separation Agreement incorporates those restrictive covenants. 	Any other reading would
render the merger clause’s proviso surplusage. 	Contra Wal-Mart Stores, Inc. v. Xerox State &
Loc. Sols., Inc., 663 S.W.3d 569, 587 (Tex. 2023). 	If the parties intended to supersede the
Employment Agreement’s Restrictive Covenants, they would have left out the proviso.
Although 	the 	parties 	dispute 	whether 	the 	Separation 	Agreement 	incorporates 	the
Employment Agreement’s restrictive covenants, their briefs do not explain how this legal issue
affects the tortious-interference claim. 	The tortious-interference claim survives Empower’s
motion.
For these reasons, Empower’s motion to dismiss (or in the alternative, for summary
judgment), (Docket Entry Nos. 9, 10), is denied.
SIGNED on June 11, 2026, at Houston, Texas.
________________________________
Lee H. Rosenthal
Senior United States District Judge
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