Thompson v. Anchor Capital GP

FILED IN
BUSINESS COURT OF TEXAS
BEVERLY CRUMLEY, CLERK
ENTERED
5/4/2026

2026 Tex. Bus. 21

The Business Court of Texas,
1st Division

JEAN CHRISTINE THOMPSON §
and THOMPSON PETROLEUM §
CORPORATION, Plaintiffs § Cause No. 25-BC01B-0038
§
v. §
§
ANCHOR CAPITAL GP LLC and §
MICHAEL MANN, Defendants §
═══════════════════════════════════════
MEMORANDUM OPINION AND ORDER ON
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
═══════════════════════════════════════

[¶ 1] This case is about whether defendants breached various contract

duties owed to plaintiffs under a promissory note, security agreement, and

employment agreement. Before the court is Plaintiffs’ Motion for Partial

Summary Judgment. The court considered the parties’ submissions and oral

arguments.

[¶ 2] The pivotal issues are (i) the meaning of the phrase “books and

records” in the Note and Security Agreement; (ii) whether Mann’s alleged
unauthorized investments caused a remediable injury; and (iii) whether

Thompson waived the Employment Agreement’s nonwaiver clause and

written prior approval requirement.

[¶ 3] First, the phrase “books and records” is an undefined term. After

applying the applicable law and contract construction principles to the

undisputed facts, the court concludes that the phrase “books and records

relating to the Collateral” broadly encompasses documents related to the

Collateral’s carried interests’ values.

[¶ 4] Second, contract breach claims require some remediable injury.

After reviewing the presented evidence, the court concludes that plaintiffs

failed to conclusively prove that Mann’s alleged unauthorized conduct caused

a remediable injury.

[¶ 5] Third, the court concludes that Mann did not raise a genuine issue

of material fact showing that Thompson waived the Employment Agreement’s

nonwaiver clause. Thus, Thompson Petroleum Corporation conclusively

proved that it had a for-cause basis to fire Mann.

[¶ 6] Accordingly, the court denies-in-part and grants-in-part

plaintiffs’ motion.

MEMORANDUM OPINION AND ORDER, Page 2
I. BACKGROUND

A. Factual Background1

1. The Parties

[¶ 7] Jean Thompson is an owner and President of Thompson

Petroleum Corporation (TPC).2

[¶ 8] TPC is a family business that manages the Thompson family’s

assets and employs the J. Cleo Thompson Family Office’s personnel. 3

[¶ 9] Michael Mann is the founder and CEO of defendant Anchor

Capital GP LLC, a private equity investment brokerage comprised of Anchor

and various subsidiaries.4

[¶ 10] Christy 2017, LP is a holding company for the Thompson

family’s investments. Christy 2017 is not a named party in this case, but it is

a participant in the relevant events.

1
These facts came from evidence contained in the Appendix to Plaintiffs’ Traditional
Motion for Partial Summary Judgment (Motion Appx.), which is included in the same
document file as Plaintiffs’ Motion, unless otherwise stated.
2
Motion Appx. at 544.
3
Motion Appx. at 544.
4
Motion Appx. at 545.

MEMORANDUM OPINION AND ORDER, Page 3
2. Thompson and Mann form a business relationship.

[¶ 11] Thompson and Mann met in 2022, after which Mann began

offering her investment advice on alternative investments. 5 Using Christy

2017, Thompson then began investing millions into Anchor-managed funds.6

[¶ 12] In September 2024, Mann asked Thompson to loan Anchor

money so he could buy out one of Anchor’s partners.7 She agreed contingent

upon Mann providing a personal financial statement and loan guarantee.8

Mann signed a Secured Promissory Note, Security Agreement, and Mann’s

Personal Guaranty to memorialize this agreement (Loan).9

[¶ 13] The parties amended this agreement three months later after

Mann requested additional funds to buy out another Anchor partner.10

[¶ 14] Based on their existing business relationship, Thompson later

offered Mann employment as the Family Office’s Co-President and Chief

5
Motion Appx. at 545.
6
Motion Appx. at 545.
7
Motion Appx. at 67.
8
Motion Appx. at 546.
9
Motion Appx. at 69–89.
10
Motion Appx. at 547.

MEMORANDUM OPINION AND ORDER, Page 4
Investment Officer.11 Through these roles, Mann was to lead the Family

Office’s alternative investments sector, report solely to Thompson, and join

the “dual authority” group.12 As part of the “dual authority” group, Mann

could initiate and approve wire transfers with another group member’s

approval.13 Mann accepted the employment offer and the parties executed the

Employment Agreement, effective January 1, 2025.14

[¶ 15] Under the Employment Agreement, Mann’s primary duties were

to recruit and build an “alternative investments” team, develop investing

strategy, and originate, close on, and responsibly oversee the company’s

alternative investments. 15 He was also to (i) regularly communicate with

Thompson and Michael Lin (the Family Office’s Chief Legal Officer) and

(ii) ensure Thompson vetted Mann’s investment decisions. 16 Mann was not

11
See Motion Appx. at 109.
12
Motion Appx. at 549–50.
13
Motion Appx. at 549–50.
14
Motion Appx. at 109, 22.
15
Motion Appx. at 123–24.
16
Motion Appx. at 123–24.

MEMORANDUM OPINION AND ORDER, Page 5
allowed to commit any Thompson entity to any new alternative investment

without getting Thompson’s written pre-approval.17

[¶ 16] Mann began work on January 1, 2025. Within a few weeks, he

allegedly committed Christy 2017 to five separate investments. It is

undisputed that Thompson did not give prior written approval for any of these

investments (the Subject Investments).18

[¶ 17] In early February 2025, weeks after Mann signed the first

subscription agreement, Thompson was told about Mann’s investments.19 In

response, she called for weekly in-person meetings between Mann and the

Family Office’s management so the group could track Mann’s activities and

investigate his past actions.20 Mann responded by expressing extreme

frustration and, according to Lin, said he was resigning. 21

17
Motion Appx. at 123.
18
Motion Appx. at 550–52. During oral arguments, defendants asserted that they believed
these investments also received written pre-approval from Ms. Thompson, however, they
did not request a continuance on this motion nor were they able to point to any evidence
suggesting the investments received written pre-approval.
19
Motion Appx. at 552.
20
Motion Appx. at 552–53.
21
See Motion Appx. 369–70, 72, 76.

MEMORANDUM OPINION AND ORDER, Page 6
[¶ 18] On February 28, 2025, Lin and Ted Spence (the Family Office’s

Chief Operating Officer) told Mann that the Family Office was accepting his

resignation offer.22 After Mann denied having offered to resign, Lin responded

by stating Mann was then being terminated for cause due to his Subject

Investments commitments.23 Lin reported Mann’s alleged firing the next

day.24

[¶ 19] On May 5, 2025, Thompson exercised her rights to inspect the

Collateral and verify that her Loan to Anchor was adequately protected.25 To

adequately inspect the Collateral, Thompson asked Anchor to provide access

to its “books and records.”26

[¶ 20] Throughout that month, the parties frequently communicated

about the books and records request.27 But by early June, Thompson claimed

that Anchor failed to produce the requested information. 28 So, on June 16th

22
Motion Appx. at 61–62.
23
Motion Appx. at 61–62.
24
See Motion Appx. 532.
25
Motion Appx. at 378–79.
26
Motion Appx. at 79.
27
See Motion Appx. at 381–86.
28
Motion Appx. at 62–63.

MEMORANDUM OPINION AND ORDER, Page 7
her outside counsel sent a letter requesting additional documents and answers

to specific questions. 29

[¶ 21] Mann sent multiple replies but refused to provide an audited

personal financial statement that Thompson requested.30 So, on June 26th

Thompson’s counsel sent another letter regarding these issues.31 When Mann

did not respond to the June 26 letter, Thompson’s counsel sent a further letter

on July 2nd detailing the precise list of necessary, outstanding documents

requested, which was later updated with two more letters. 32

[¶ 22] Thompson claims that, to date, Anchor has not cured any

outstanding deficiencies highlighted in her last July letter, which she says are

an Event of Default under both the Note and Security Agreement.33 So, on

July 22, 2025, Thompson served Anchor with a default notice and accelerated

the Loan. 34

29
Motion Appx. at 395.
30
See Motion Appx. at 398, 400–01.
31
Motion Appx. at 404–05.
32
Motion Appx. at 411–49
33
Motion Appx. at 554–55.
34
Motion Appx. at 450–52.

MEMORANDUM OPINION AND ORDER, Page 8
B. Procedural Background

[¶ 23] Plaintiffs sued in August 2025.35 Defendants answered. 36

Plaintiffs filed this motion on January 20, 2026. 37 Plaintiffs’ filed their First

Amended Petition the next month.38

[¶ 24] Defendants opposed Plaintiffs’ motion.39

II. APPLICABLE LAW

A. Summary Judgment Standards

[¶ 25] At any time, a party may move with or without supporting

evidence for a summary judgment as to all or any part of any causes of action

asserted against it. TEX. R. CIV. P. 166a(b). The motion must state its specific

grounds. Id. at 166a(c).

[¶ 26] Thereafter, the court shall render judgment if the pleadings,

summary judgment filings, and properly filed evidence show that, except as to

35
See generally Plaintiffs’ Original Petition (POP).
36
See generally Defendants’ Original Answer, Affirmative and Other Defenses, and
Request for Attorneys’ Fees (Orig. Answer). Defendants later filed counterclaims but none
are at issue for purposes of this motion. See generally Defendants’ First Counterclaims
Against Plaintiffs.
37
See generally Motion.
38
See generally First Amended Petition (FAP).
39
See generally Defendants’ Opposition to MSJ (Opp.).

MEMORANDUM OPINION AND ORDER, Page 9
the amount of damages, there is no genuine issue as to any material fact and

the movant is entitled to judgment as a matter of law on the issues stated in

the motion or in an answer or any other response. Id.; JLB Builders, L.L.C. v.

Hernandez, 622 S.W.3d 860, 864 (Tex. 2021).

[¶ 27] A court can grant a defendant movant’s traditional summary

judgment only if the movant’s evidence as a matter of law either proves all

elements of its defense or disproves at least one element of the nonmovant’s

claim. See e.g., Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 511 (Tex.

1995) (causation disproved as a matter of law).

[¶ 28] So a summary judgment motion

…is essentially a motion for a pretrial directed verdict. * * * Once
such a motion is filed, the burden shifts to the nonmoving party
to present evidence raising an issue of material fact as to the
elements specified in the motion. * * * [Courts] review the
evidence presented by the motion and response in the light most
favorable to the party against whom the summary judgment was
rendered, crediting evidence favorable to that party if reasonable
jurors could, and disregarding contrary evidence unless
reasonable jurors could not. * * *

Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581–82 (Tex. 2006) (citations

omitted).

[¶ 29] A genuine fact issue exists if more than a scintilla of evidence

supports the alleged fact. See Amazon.com Servs. LLC v. Grant, No. 05-23-

MEMORANDUM OPINION AND ORDER, Page 10
01306, 2024 WL 5053063, at *2 (Tex. App.—5th Dist. Dec. 10, 2024, no

pet.). Evidence is more than a scintilla when it “rises to a level that would

enable reasonable and fair-minded people to differ in their conclusions.” King

Ranch v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (quoting Merrell Dow

Pharms., Inc. v. Havner, 953 S.W.3d 706, 711 (Tex. 1997)). However, less

than a scintilla exists when the evidence is “so weak as to do no more than

create a mere surmise or suspicion” of a fact. Id. (quoting Kindred v.

Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).

[¶ 30] When a contract’s terms are unambiguous and the material facts

are undisputed, compliance with those terms is a question of law. Hrdy v.

Second St. Props., 649 S.W.3d 522, 554 (Tex. App.—1st Dist. 2022, pet.

denied).

B. Contract Construction

[¶ 31] A court’s primary objective when construing contracts “is to

ascertain and give effect to the parties’ intent as expressed in the instrument.”

U.S. Polyco, Inc. v. Tex. Cent. Bus. Lines Corp., 681 S.W.3d 383, 387 (Tex.

2023) (quoting URI, Inc. v. Kleberg Cnty., 543 S.W.3d 755, 763 (Tex. 2018)).

[¶ 32] Usually, courts deem the contract alone to express the parties’

intent because it is objective, not subjective, intent that controls. Id.

MEMORANDUM OPINION AND ORDER, Page 11
[¶ 33] With unambiguous contracts, courts “can determine the parties’

rights and obligations under the agreement as a matter of law.” Inwood Nat’l

Bank v. Fagin, No. 24-0055, 2025 WL 349890, at *4 (Tex. 2025) (per curiam)

(quoting ACS Invs., Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex. 1997)).

III. ANALYSIS

A. Introduction

[¶ 34] Plaintiffs sought the following summary judgment rulings:

(i) Anchor breached the Note and Security Agreement; (ii) Mann is jointly and

severally liable with Anchor on the Note based on the Guaranty; (iii) Mann

breached the Employment Agreement; and (iv) Mann is not entitled to any

Incentive Compensation.40

[¶ 35] Defendants responded that the court should deny the motion

because (i) Anchor complied with the books and records demands, meaning

there is no basis for acceleration nor Note and Security Agreement breach;

(ii) Mann complied with the Guaranty’s terms; (iii) the requested Employment

Agreement relief is impermissible since plaintiffs did not allege any resulting

40
See generally Motion ¶s 4.1–4.4.

MEMORANDUM OPINION AND ORDER, Page 12
damages and is otherwise barred by Mann’s affirmative defenses;41 and

(iv) TPC’s inability to decide whether Mann was terminated for cause or

resigned shows there is a fact issue preventing declaratory relief. 42

B. Note and Security Agreement Breach

1. Applicable Law

[¶ 36] To prevail on a breach-of-contract claim, 43 the plaintiff must

prove that: (i) there is a valid contract; (ii) the plaintiff performed its

obligations under the contract; (iii) the defendant breached the contract; and

(iv) the plaintiff sustained damages as a result of the breach. Pathfinder Oil &

Gas, Inc. v. Great W. Drilling, Ltd., 574 S.W.3d 882, 890 (Tex. 2019).

[¶ 37] Neither party contests that the Note and Security Agreement is

a valid contract nor that Thompson performed her duties under the Note and

Security Agreement. Thus, the only remaining elements are whether Anchor

41
Because the court concluded that plaintiffs did not allege any remediable damages the
court did not address Mann’s raised affirmative defenses of substantial compliance, waiver,
and quasi-estoppel.
42
See generally Opp.
43
POP (the then-live pleading) outlined the elements for a breach of contract rather than a
breach of a promissory note for this cause of action. Compare POP ¶s 6.6–6.12 with Motion
¶ 5.3. Because the actual underlying breach at issue is Anchor’s alleged failure to provide
Thompson with the requested books and records—predicating the acceleration—the court
analyzes this cause of action as a standard breach-of-contract claim. Regardless, analyzing
the cause of action as a breach of promissory note would not lead to a different result.

MEMORANDUM OPINION AND ORDER, Page 13
breached the Note and Security Agreement (NSA) and whether Thompson was

injured as a result.

2. Breach

a. Introduction

[¶ 38] Texas affirms parties’ contractual autonomy and ability to define

their contractual terms. Endeavor Energy Res., L.P. v. Discovery Operating,

Inc., 554 S.W.3d 586, 595 (Tex. 2018). Here, the parties’ NSA gave

Thompson the right to inspect Anchor’s “books and records” to ensure the

Collateral was adequately protected.44 However, the NSA does not define

“books and records,” and the parties disagree on its meaning and thus whether

Anchor complied with that obligation.

b. Applicable Law

[¶ 39] Determining whether the contract is ambiguous is a threshold

question because only after a contract is found to be ambiguous may parol

evidence be admitted to ascertain the parties’ intent. A.W. Wright & Assocs.,

P.C. v. Glover, Anderson, Chandler & Uzick, L.L.P, 993 S.W.2d 466, 470 (Tex.

44
Motion Appx. at 79.

MEMORANDUM OPINION AND ORDER, Page 14
App.—14th Dist. 1999, pet. denied) (citing Friendswood Dev. Co v. McDade &

Co., 926 S.W.2d 280, 283 (Tex. 1996)).

[¶ 40] “Whether a contract is ambiguous is a question of law that must

be decided by examining the contract as a whole in light of the circumstances

present when the contract was entered.” Nat. Union Fire. Ins. Co. of Pitt., PA

v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995). Contract ambiguity may

be either “patent” or “latent.” Id. Patent ambiguity is evident on the

contract’s face, whereas latent ambiguity arises when a contract is facially

unambiguous but ambiguity appears by reason of some collateral matter. Id.

[¶ 41] However, “ambiguity does not arise simply because the parties

advance conflicting interpretations of the contract.” Columbia Gas

Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex. 1996).

“For an ambiguity to exist, both interpretations must be reasonable.” Id.

(emphasis in original).

c. Thompson’s arguments

[¶ 42] Thompson claims that Anchor first breached the NSA when it

failed to give her access to inspect and copy its “books and records” “related

MEMORANDUM OPINION AND ORDER, Page 15
to the Collateral.” 45 According to Thompson, this was an “Event of Default”

under the NSA enabling her to accelerate payment on the Note. 46 She further

alleges that Anchor again breached the Note by failing to pay the accelerated

Note balance.47

d. Anchor’s arguments

[¶ 43] Anchor responded that it complied by producing over 2,300

pages of documents to Thompson. 48 Anchor alternatively argues that even if

it failed to fully comply with the books and records requests, equitable

principles preclude acceleration.49

e. Decision

[¶ 44] The court agrees with Anchor. To begin, the NSA does not

define the phrase “books and records.” While the parties disagree on its

meaning neither party expressly posits how the phrase “books and records”

should be defined.50

45
Motion ¶s 5.5–5.6.
46
Motion ¶s 5.10–5.11.
47
Motion ¶s 5.11, 5.13.
48
Opp. at 22–24.
49
Opp. at 29–30.
50
See generally e.g., Motion.

MEMORANDUM OPINION AND ORDER, Page 16
[¶ 45] Thompson simply says that she is still missing documents

necessary to determine the “carried interest” or “carry” that Anchor’s

subsidiaries earn.51 She alleges that Anchor had to produce this information

because it is “related to the Collateral.”52

[¶ 46] There is no indication the parties intended “books and records”

to have a specialized meaning. So, the court strives to give the phrase its plain

and ordinary meaning. Dynegy Midstream Servs., Ltd. P’ship v. Apache Corp.,

294 S.W.3d 164, 168 (Tex. 2009). However, the court did not find “books and

records” defined in dictionaries or books discussing common usages.53 Nor do

statutory terms necessarily fit because legislatures define the terms for specific

purposes not common purposes. See e.g., Crow-Williams, I v. Fed. Pac. Elec.

Co., 683 S.W.2d 523, 524 (Tex. App.—5th Dist. 1984, no writ) (statutory

definitions of “subcontractor” developed for specific purposes). So, the court

concludes that the phrase’s natural meaning here is: those documents that

would allow a reasonable person to assess the Collateral’s current value.

51
Plaintiffs’ Reply in Support of Motion (Reply) ¶s 5, 7.
52
Motion ¶ 5.5.
53
See generally BLACK’S LAW DICTIONARY (12th ed.); BRYAN A. GARNER, GARNER’S
DICTIONARY OF LEGAL USAGE (3d ed. 2011); BRYAN A GARNER, GARNER’S MODERN ENGLISH
USAGE (4th ed. 2016).

MEMORANDUM OPINION AND ORDER, Page 17
[¶ 47] The Security Agreement defines “Collateral” as:

1.2 Collateral. The Collateral shall consist of Grantor’s tangible
and intangible property and other tangible and intangible assets
of Grantor wherever located, whether now owned or hereafter
acquired, and any additions, replacements, accessions, or
substitutions thereof and all Cash and non-Cash Proceeds and
any products thereof, as set forth on Exhibit A attached hereto
and incorporated herein. In no event shall anything herein be
construed to limit the collateral secured by any other Loan
Document.54

That is, Collateral is anything that Anchor owns, or might own in the future,

that could be used to satisfy its obligations to Thompson.

[¶ 48] Because the Collateral’s value here depends on the carried

interests, the only reasonable interpretation of “books and records related to

the Collateral” includes documents necessary to determine the “carried

interests’ values.” Accordingly, the NSA is not ambiguous.

[¶ 49] The uncontroverted evidence shows that Anchor provided

thousands of documents it believed were fully responsive to Thompson’s

books and records requests. 55 Further evidence shows that Anchor and its

54
Motion Appx. at 78.
55
Opp. at 23; see generally Opp. 2 Appx.

MEMORANDUM OPINION AND ORDER, Page 18
employees followed up numerous times seeking clarification on what

documents were still missing.56

[¶ 50] Thompson asserts that she provided clarifications yet is still

missing documents necessary to determine Anchor’s carried interest.57 She

claims she needs records that can help her identify (i) the amount invested, (ii)

an ROI multiplier, and (iii) the carry percent.

[¶ 51] The court concludes that Anchor provided at least a scintilla of

evidence that it met its contract duty.58

3. Conclusion

[¶ 52] Accordingly, the court denies plaintiffs’ summary judgment

motion on the NSA breach because there is a genuine issue of material fact

whether Anchor met its contract duty. 59

56
See e.g., Opp. 1 Appx. at 57–59, 61, 64–66.
57
Reply ¶s 5, 7.
58
See Opp. 2 Appx. at 439–40 (ROI multiplier), 1399 (amount invested), 1771 (carry
percent).
59
Having determined that a genuine issue of material fact exists on the breach element, the
court need not further analyze the damages and acceleration issues.

MEMORANDUM OPINION AND ORDER, Page 19
C. Guaranty Breach

[¶ 53] Thompson argues that Mann breached the Guaranty by failing to

(i) ensure Anchor complied with the NSA’s books and records disclosure

obligations; (ii) ensure Anchor paid the accelerated balance; and (iii) provide

an audited personal financial statement.60

[¶ 54] For the reasons stated in part III(B) above, there are genuine

material fact disputes on the first two grounds. Thus, the court analyzes the

only remaining issue—whether Mann was required to submit an audited

financial statement.

[¶ 55] Although Mann provided Thompson a personal financial

statement, she claims he breached the Guaranty by not providing an audited

personal financial statement, as she requested.61 That is, because the financial

statement Mann provided was not audited, Thompson argues it was not in the

required “form.”62

[¶ 56] Under the Guaranty’s terms, Mann agreed to provide Thompson,

at her request, his “personal financial statement, in form and substance

60
See Motion ¶s 5.15–5.18.
61
Motion ¶ 5.17.
62
See Motion ¶ 5.17.

MEMORANDUM OPINION AND ORDER, Page 20
reasonably satisfactory to the Lender.” 63 However, the Guaranty does not say

that the financial statement had to be audited.

[¶ 57] “Reasonableness has always entailed an objective inquiry.”

Freeport-McMoRan Oil & Gas LLC v. 1776 Energy Partners, LLC, 672 S.W.3d

391, 399 (Tex. 2023) (emphasis in original); see also RESTATEMENT (SECOND)

OF TORTS § 283 cmt. c (AM. LAW INST. 1965) (the “reasonable man” standard

is “an objective and external one”). Further, reasonableness is generally

considered a fact question. See Freeport, 672 S.W.3d at 399. (citing Collora v.

Navarro, 574 S.W.65, 68 (Tex. 1978)).

[¶ 58] Here, Thompson did not offer any evidence purporting to prove

that submitting an audited statement was the only reasonable way to perform.

Stated differently, Thompson did not conclusively prove that Mann’s

unaudited statement was unreasonable. Thus, at a minimum, a fact issue

exists as to whether Mann’s financial statement was “in form and substance

reasonably satisfactory to” Thompson. See Teel v. Hosp. Partners of Am. Inc.,

No. H–06–3991, 2008 WL 346377, at *8 (S.D. Tex. Feb. 6, 2008) (fact issue

existed whether release agreement was reasonably effective).

63
Motion Appx. at 91. (emphasis added).

MEMORANDUM OPINION AND ORDER, Page 21
[¶ 59] Accordingly, the court denies plaintiffs’ summary judgment

motion as to the alleged Guaranty breach.

D. Employment Agreement Breach

[¶ 60] TPC seeks summary judgment as to liability on its claim that

Mann breached his Employment Agreement when he committed Christy 2017

to the Subject Investments. 64 Specifically, TPC alleges that Mann breached

Employment Agreement Exhibit A § 8, which states that one of his “duties

and responsibilities” is to not commit any Thompson entity to new alternative

investments without Thompson’s written pre-approval.65

[¶ 61] Mann contests TPC’s claim on the ground that TPC failed to

prove that the alleged breaches caused damages. 66 The court agrees.

1. Lack of Damages

[¶ 62] Damages is a required element for a contract breach claim.

Intercontinental Grp. P’ship v. KB Home Lone Star L.P., 295 S.W.3d 650, 655

n. 26 (Tex. 2009) (collecting cases) (“Every single court of appeals has

likewise held that one of the required elements in a breach-of-contract suit

64
Motion ¶ 5.19.
65
Motion ¶ 5.20; Motion Appx. at 123 (emphasis added).
66
Opp. at 33–34.

MEMORANDUM OPINION AND ORDER, Page 22
seeking money damages is the plaintiff was in fact damaged by the breach.”). 67

It is plaintiffs’ burden to prove it suffered damages to be entitled to partial

summary judgment as to liability. Pagosa Oil and Gas, L.L.C. v. Marrs and

Smith P’ship, 323 S.W.3d 203, 215 (Tex. App—8th Dist., pet. denied).

[¶ 63] Although Rule 166a permits a partial summary judgment if the

movant shows that, except as to the amount of damages, it is entitled to

summary judgment, the rule does not permit summary judgment as to liability

without proving the existence of damages. TEX. R. CIV. P. 166a(h)(2).68

[¶ 64] The only harm TPC claims to have suffered is its lost right to

decide whether it wanted to fund the Subject Investments. 69 This is legally

insufficient. See Horizon Health Corp. v. Acadia Healthcare Co., Inc., 520

S.W.3d 848, 861 (Tex. 2017).

[¶ 65] In Horizon, the jury awarded Horizon lost profit damages based

on a finding that Horizon would have won a contract absent the defendants’

67
Damages has two components: (i) the breach caused an injury for which the court can
provide a remedy and (ii) the amount of damages resulting from that injury. See Prudential
Secs., Inc. v. Haugland, 973 S.W.2d 394, 396–97 (Tex. App.—8th Dist., pet. denied). The
first component is the only component at issue in this motion.
68
The Supreme Court recently added the words “the amount of” to the rule but that
addition was not a change to the existing law. TEX. R. CIV. P. 166a cmt. (2026).
69
See Reply ¶ 21.

MEMORANDUM OPINION AND ORDER, Page 23
misconduct. But the supreme court held that there was no evidence Horizon

would have won the contract as opposed to some other company. Id. Instead,

“it [was] equally plausible that [the contracting company] would have rejected

all of the bids had it not accepted [defendants’] proposal.” Id. In other words,

the court held it was “pure speculation to conclude that Horizon would have

won the bid.” Id. Thus, the court held that Horizon failed to establish

entitlement to compensable damages. Id. at 862.

[¶ 66] The facts here mirror Horizon’s. TPC provided no evidence it

would not have entered into the Subject Investments but for Mann’s alleged

unauthorized transactions. Moreover, TPC failed to show that Mann’s actions

caused any financial injury. TPC’s damages are thus speculative and based on

the “mere hope for [better] success.” See id. at 860. But the law is skeptical

of claims that, in reality, are little more than wishful thinking. See Phillips v.

Carlton Energy Grp., LLC, 475 S.W.3d 265, 280 (Tex. 2015).

[¶ 67] Accordingly, the court denies plaintiffs’ motion as to TPC’s

employment breach claim because TPC did not conclusively prove that Mann’s

alleged breach caused damages. 70

70
Although there are similarities, the court’s recent decision in Slant Operating, LLC v.
Octane Energy Operating, LLC, 2025 Tex. Bus 53, 2025 WL 31716372 (8th Div.), which

MEMORANDUM OPINION AND ORDER, Page 24
E. Incentive Compensation Declaratory Judgment

1. Introduction

[¶ 68] TPC sought a declaration that Mann is not entitled to any further

incentive compensation due to either resigning or being fired for cause. 71

Mann responded that TPC’s inability to decide whether Mann resigned or was

fired for cause presents a fact issue but in either instance is not true.72 The

court concludes that there is a genuine dispute whether Mann resigned,

however, TPC conclusively proved it had a basis to fire Mann for cause.

likewise dealt with a request for partial summary judgment as to liability on a contract
breach claim, is not applicable. In that case, the disputed damages were the value of Slant’s
lost ability to drill longer horizontal wells due to Octane’s breach. Slant Operating, LLC v.
Octane Energy Operating, LLC, 2025 Tex. Bus. 22, 717 S.W.3d 409, 417–18 (8th Div.).
Accordingly, while the extent of damages is similarly speculative in nature, the fact that
Slant was harmed was certain—unlike here. See Slant Operating, 2025 Tex. Bus 53 ¶ 44
(“[I]f the RRC granted Slant Operating’s application to drill the Gardendale Wells on
Octane’s leasehold, Octane would have breached the Letter Agreement by not providing
the requested waiver, and Slant Operating would have a breach-of-contract claim. Slant
Operating would still suffer damages, including expenses related to the drilling redesign.”)
71
Motion ¶ 5.24.
72
Opp. at 39.

MEMORANDUM OPINION AND ORDER, Page 25
2. Background

[¶ 69] Mann’s entitlement to incentive compensation ends if he either

voluntarily resigned or was fired for cause. 73 Thus, he would be entitled to

incentive compensation only if TPC fired him without cause. 74

[¶ 70] To support its claim, TPC points to an internal March 1, 2025,

email and a separate May 1, 2025, follow-up email Lin sent Mann, both stating

that Mann was either fired for cause or resigned.75 However, Mann swore that

he never resigned.76

[¶ 71] A party moving for summary judgment on a declaratory

judgment claim must conclusively prove that no genuine issue of material fact

exists, and that it is entitled to the requested relief as a matter of law. Lil C

Ranch, LLC v. Ridgefield Eagle Ford Min., LLC, No. 14-21-00285-CV, 2023

WL 2386940, at *4 (Tex. App.—14th Dist. Mar. 7, 2023, no pet).

[¶ 72] Because there is a factual dispute whether Mann resigned, the

court denies TPC summary judgment on that premise that Mann allegedly

73
Motion ¶ 5.25; Motion Appx. 114.
74
See Motion ¶ 5.25.
75
See Motion Appx. at 376, 532.
76
Opp. at 39; Opp. 1 Appx. at 12.

MEMORANDUM OPINION AND ORDER, Page 26
resigned. Thus, the remaining issue is whether TPC conclusively proved that

cause existed to fire Mann.

[¶ 73] Employment Agreement § 3(a)(iv) provides the potential bases

for firing Mann with cause. 77 TPC asserts various bases it could have used,

including: (i) misfeasance and misappropriating TPC property; (ii) violating a

TPC rule, procedure, or policy; (iii) self-dealing, as to the Subject

Investments; or (iv) sending denigrating threats.78

[¶ 74] Bases (i) through (iii) concern Mann’s alleged unauthorized

Subject Investments without written pre-approval. 79 Meanwhile, basis (iv)

concerns texts Mann sent to other employees in late-February 2025.80 TPC

provides supporting evidence for both grounds.81

[¶ 75] Mann opposes all the alleged for-cause bases. He first asserts

that TPC could not fire him for cause without providing written notice. 82

Second, he argues that TPC lacks legal justification for bases (i) through (iii)

77
Motion Appx. at 112–13.
78
Motion ¶ 5.27 n.17; Motion Appx. at 112–13.
79
See Motion ¶ 5.27 n.17.
80
See Motion ¶ 5.27 n.17.
81
See Motion Appx. at 370–372, 74, 553.
82
Opp. at 40.

MEMORANDUM OPINION AND ORDER, Page 27
because Thompson allegedly waived the written pre-approval requirement

through oral approvals. 83 Finally, he asserts that the text messages merely

expressed his frustration at the situation and were neither offensive nor

denigrating.84

[¶ 76] The court addresses Mann’s arguments in turn.

3. Written Notice

[¶ 77] Within the various bases for “cause,” some include a specific

requirement that TPC give Mann written notice of the complained-of conduct

so that he has an opportunity to cure, whereas others do not. 85

[¶ 78] For example, Employment Agreement § 3(a)(iv)(I) provides that

TPC can fire Mann for cause for the “[e]mployee’s breach of, or failure to

comply with or observe, any provision of this Agreement which has continued

for fourteen (14) days following receipt of written notice from the Company of

such breach or failure.”86 However, Employment Agreement § 3(a)(iv)(E)

83
Opp. at 40–41.
84
Opp. at 41.
85
See Motion Appx. at 112–13.
86
Motion Appx. at 113 (emphasis added).

MEMORANDUM OPINION AND ORDER, Page 28
allows TPC to fire Mann upon his “indictment (or similar criminal charge) or

conviction of any felony.” 87

[¶ 79] TPC does not assert it fired Mann for any of the bases requiring

written notice. Nevertheless, Mann simply argues that because some of the

for-cause bases require written notice that he was necessarily entitled to

written notice for all the alleged bases.88

[¶ 80] However, the Employment Agreement’s plain language

controls. Apache Corp. v. Apollo Expl., LLC, 670 S.W.3d 319, 330 (Tex.

2023). “Courts may not rewrite agreements to insert provisions parties could

have included or to imply restraints for which they have not bargained.” Am.

Midstream (Ala. Intrastate), LLC v. Rainbow Energy Mktg. Corp., 715 S.W.3d

572, 579 (Tex. 2025).

[¶ 81] Had the parties wished that every for-cause basis include a

notice requirement they could have included that language. By choosing to

include written notice provisions in some bases and not others, the court must

presume that was part of the parties’ conscious bargaining process and respect

87
Motion Appx. at 112.
88
See Opp. at 40.

MEMORANDUM OPINION AND ORDER, Page 29
that decision. See id. at 580 (refusing to read in restrictive language not in the

contract).

[¶ 82] Because TPC’s alleged bases for firing Mann with cause do not

contain any written notice requirements, the failure to prove that Mann was

given written notice of his termination for cause does not create a fact issue

precluding summary judgment on this issue.

4. Waiver

a. Legal Standards

[¶ 83] “Waiver is the intentional relinquishment of a known right or

intentional conduct inconsistent with claiming that right.” LaLonde v.

Gosnell, 593 S.W.3d 212, 218–19 (Tex. 2019) (internal quotations omitted).

[¶ 84] Waiver is an affirmative defense, TEX. R. CIV. P. 94, and the

moving party has no duty to negate a nonmovant’s pleaded affirmative

defenses. Woodside v. Woodside, 154 S.W.3d 688, 691 (Tex. App.—8th Dist.

2004, no pet.). An affirmative defense will prevent granting summary

judgment if the nonmovant raises a genuine issue of material fact on each

affirmative defense element. Id. at 691–92.

[¶ 85] So, to defeat summary judgment based on waiver, Mann had to

raise a fact issue on whether plaintiffs (i) had an existing right, benefit, or

MEMORANDUM OPINION AND ORDER, Page 30
advantage; (ii) had actual knowledge of its existence; and (iii) intended to

relinquish their right or acted inconsistently with that right. See Ulico Cas. Co.

v. Allied Pilots Ass’n, 262 S.W.3d 773, 778 (Tex. 2008).

[¶ 86] The mere presence of a nonwaiver clause does not mean that

waiver did not occur. Included within the waiver doctrine is the concept of

individual self-determination. Shields Ltd. P’Ship v. Bradberry, 526 S.W.3d

471, 482 (Tex. 2017). So, a party can decide to waive a particular provision,

if it is in its best interest. Id. at 483.

[¶ 87] Nevertheless, nonwaiver provisions are generally “facially

dispositive.” Id. at 481. So, the court must analyze the party’s actions and

determine if the surrounding facts and circumstances show that Thompson

“manifest[ed] clear intent to waive the nonwaiver provision.” See id. at 481.

[¶ 88] The nonwaiver clause at issue here states:

Neither the waiver by either Party of any breach of or default
under any of the provisions of this Agreement, nor the failure of
either Party to enforce any of the provisions of this Agreement or
to exercise any right hereunder, will hereafter be construed as a
waiver of any subsequent breach of default, or a waiver of any
rights or provision hereunder. No waiver shall be effective unless
it is in writing and signed by the Party making such waiver. 89

89
Motion Appx. at 120.

MEMORANDUM OPINION AND ORDER, Page 31
[¶ 89] Thus, to prevail on his waiver argument, Mann had to adduce

evidence that Thompson’s alleged oral approvals demonstrated an intent to

waive or conduct that was inconsistent with (i) the requirement that Mann

receive her written approval before committing TPC to alternative

investments and (ii) the nonwaiver clause’s “in writing” provision. See id. at

481 (requiring waiving both late rent payments and nonwaiver clause);

Galactic Power LLC v. Pickens Res. Corp., No. 4:23-CV-00405-SDJ-AGD,

2024 WL 4101939, at *13 (N.D. Tex. 2024) (same). That is, orally waiving

the written pre-approval provision of the Employment Agreement is

ineffective unless there is also evidence of waiving the portion of the

nonwaiver provision that says waivers are not effective unless they are in

writing.

b. Analysis

[¶ 90] For starters, it is undisputed that despite not giving Mann

written pre-approval for the Subject Investments, TPC funded them.90 But, as

TPC asserts, funding the Subject Investments does not mean Thompson

90
Opp. at 37; Reply ¶ 28.

MEMORANDUM OPINION AND ORDER, Page 32
intended to waive the pre-approval requirement when the alternative meant

facing personal liability.91

[¶ 91] However, Mann presented some evidence that (i) the parties

were communicating about investing into the Subject Investments for months

prior to their execution and Mann’s employment and (ii) that Thompson gave

oral pre-approvals. 92

[¶ 92] These alleged pre-approvals are prior affirmative conduct

inconsistent with enforcing Thompson’s right that Mann first get her written

approval. Assuming the veracity of Mann’s summary judgment evidence,

Thompson’s oral approvals of the Subject Investments could have led Mann to

“reasonably believe[] strict compliance” with the written pre-approval

provision would not be required. 93 See Fritz Mgmt., LLC v. Huge Am. Real Est.,

Inc., No. 05-00332-CV, 2022 WL 3500011, at *6 (Tex. App.—5th Aug. 18,

91
Reply ¶ 28; see also Motion Appx. at 134, 138 (executed subscription agreement for one
of the Subject Investments stating the investor was “committing to contribute to the
capital” of the investment).
92
See Opp. 1 Appx. at 8–9, 174–76.
93
Opp. 1 Appx. at 8–9. These facts are distinguishable from Dallas Sports Group, LLC v.
DSE Hockey Club, L.P., 2026 Tex. Bus. 15, __S.W.3d__ (1st Div.). In Dallas Sports Group,
the Stars asserted that the Mavericks implicitly waived the contracts’ nonwaiver provisions
through inaction (as opposed to affirmative conduct). Id. ¶s 128–133. Thus, the court’s
waiver analysis in Dallas Sports Group is inapposite to the facts here.

MEMORANDUM OPINION AND ORDER, Page 33
2022, pet. denied) (evidence of oral approval sufficient to make party believe

written consent provision would not be required).

[¶ 93] Evidence supporting Mann’s position exists through the parties’

(i) long-standing business relationship, (ii) sophistication, and (iii) dealings as

to these specific investments in the months leading up to Mann’s hire. See id.

(similar attributes supporting existence of a fact issue). Likewise, given Mann

started executing these investments on January 2, 2025, (the day after his

hire) yet Thompson did not complain until February 23, 2025, (after execution

and financing) suggests she may have initially approved them.

[¶ 94] Nevertheless, Mann failed to present evidence that Thompson

also intended to waive the nonwaiver provision’s requirement that waivers be

in writing and signed by Thompson to be effective.

[¶ 95] “While waiver may sometimes be established by conduct, that

conduct must be unequivocally inconsistent with claiming a known right.”

Shields, 526 S.W.3d at 485. Thompson’s alleged oral pre-approvals may be

inconsistent with the Employment Agreement’s written pre-approval

requirement, but they are not inconsistent with the nonwaiver provision’s

writing requirement. See id. (continued acceptance of rental payments not

inconsistent with party claiming its rights under the nonwaiver provision).

MEMORANDUM OPINION AND ORDER, Page 34
[¶ 96] As the supreme court held, “[t]he many flavors in which

nonwaiver provisions may present are as varied as human capacity for

language and bargain, leaving [courts] bereft of an option for specifically

delineating the circumstances under which a nonwaiver agreement may be

waived vel non.” Id. at 484. The outcome might be different if the nonwaiver

provision did not have a required writing component. Compare id. (no waiver

because nonwaiver provision expressly required all waivers be in writing and

no such writing existed) with 12636 Res. Ltd. v. Indian Bros., Inc., No. 03-19-

00078, 2021 WL 417027, at *9 (Tex. App.—3rd Dist. Feb. 5, 2021, no pet.)

(waiver because nonwaiver provision did not expressly require waivers be in

writing).

[¶ 97] Because Mann failed to produce any evidence that Thompson

intended to waive the nonwaiver provision’s writing requirement, Mann did

not raise a fact issue on waiver.

5. Text Messages

[¶ 98] Having concluded that TPC had a for-cause basis to fire Mann

because of the Subject Investments, the court need not address the text

messages issue.

MEMORANDUM OPINION AND ORDER, Page 35
6. Conclusion

[¶ 99] Accordingly, the court concludes that TPC has conclusively

proven that Mann was fired for cause and thus grants TPC’s request for

declaratory relief.

IV. CONCLUSION

[¶ 100] The court concludes that plaintiffs are entitled to summary

judgment on only the declaratory judgment claim that Mann is not entitled to

his incentive compensation.

[¶ 101] Otherwise, the court denies plaintiffs’ motion.

So ORDERED.

BILL WHITEHILL
Judge of the Texas Business Court,
First Division

SIGNED: May 4, 2026

MEMORANDUM OPINION AND ORDER, Page 36
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