Full Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-24-00616-CV Dr. J. Scot Estep, DVM, DACVP and Texas Veterinary Pathology, LLC, Appellants v. Dipak Giri, Appellee FROM THE 433RD DISTRICT COURT OF COMAL COUNTY NO. C2017-1285E, THE HONORABLE STEPHANIE BASCON, JUDGE PRESIDING MEMORANDUM OPINION Appellants Dr. J. Scot Estep, DVM, DACVP and Texas Veterinary Pathology, LLC (TVP) sued appellee Dipak Giri after Giri stopped working for TVP. Among other allegations, Estep and TVP alleged that Giri refused to return certain patient records and other materials that they alleged belonged to them. Estep and TVP’s claims included claims for conversion, violations of the Texas Theft Liability Act (TTLA), see Tex. Civ. Prac. & Rem. Code §§ 134.001-.005, breach of contract, breach of fiduciary duty, fraud by non-disclosure, defamation (brought by Estep only), and tortious interference with business relations. Estep and TVP also sought a declaratory judgment that “the patient records at issue [were] the responsibility and property of Dr. J. Scot Estep, as owner of [TVP].” After a bench trial, the trial court rendered a take-nothing judgment against Estep and TVP. The trial court awarded Giri $109,965 for attorneys’ fees incurred in connection with Estep and TVP’s declaratory-judgment claims and $28,275 for attorneys’ fees incurred in connection with Estep and TVP’s TTLA claims, plus contingent appellate attorneys’ fees. In two issues, Estep and TVP challenge (1) the trial court’s findings of fact and conclusions of law related to its determination that Estep and TVP did not have ownership interest in those patient records and its consequent denial of Estep and TVP’s declaratory-judgment claim and (2) the trial court’s conclusions of law on Estep and TVP’s TTLA claims. For the reasons explained below, we affirm in part, reverse and render in part, and reverse and remand in part for further proceedings. BACKGROUND 1 The parties enter into an oral agreement Estep is the managing member of TVP, a veterinary practice in Comal County. Giri and TVP entered into an oral agreement in 2015 that Giri would perform certain veterinary pathology work for TVP. Estep helped Giri obtain a special veterinary license from the Texas State Board of Veterinary Medical Examiners by agreeing to supervise him and by certifying on Giri’s application that he was employed as a veterinary pathologist by TVP. 2 TVP did not pay Giri a salary or offer him benefits; instead, the parties agreed that TVP would pay Giri for his 1 The facts in this section are drawn from the parties’ pleadings, the testimony and evidence presented at trial, and the trial court’s findings of fact and conclusions of law that are unchallenged (except where a dispute is noted). 2 Giri was not licensed to practice veterinary medicine in Texas at the time. The letter from the Board authorizing Giri to practice under the special license states “A special license is valid only for the performance of duties within the scope of the special license holder’s employment or practice.” Tex. Occ. Code § 801.256(d). The letter further stated that the Board may suspend or revoke a special license if the special-license holder practices outside the scope of the license or his employment is terminated. See id. § 801.256(e). His application for the special license stated that the position making him eligible for a special license was “veterinary pathologist at [TVP].” 2 work per service provided to client veterinarians after deducting certain expenses. The agreement was terminable by either party at any time, and there was no noncompete agreement. Estep wanted to expand TVP’s reach in the Houston area. Giri lived in Harris County, and the parties agreed that Giri would be responsible for finding work in the Houston area by reaching out to veterinarians there. Giri explained that once a client veterinarian had obtained a tissue sample, the client would send the sample to a lab in San Antonio. The lab in San Antonio would make a slide for Giri to analyze and would send the slide back to Giri in Houston. Giri would analyze the slide and prepare a pathology report that he would email to the client and to Estep. TVP handled billing the client veterinarians. TVP would deduct shipping and other costs from the amount paid by the clients before paying Giri his portion. Estep required that Giri use certain formats for his reports. Estep provided Giri with documents with these formats and other materials that he wanted Giri to use and saved them on a used laptop that Giri bought from him. This digital archive contained 10,000 individual pathology reports written by Estep and other TVP pathologists. Estep testified that in addition to the digital archive, TVP kept a physical archive by having all its pathologists periodically (every six months to a year) turn in their slides to him to be organized, so that if they had a repeat biopsy on the same patient animal, they could compare the two slides. Giri terminates his agreement with Estep and TVP After working for Estep and TVP for eleven months, Giri informed Estep that he was terminating his contractual relationship with TVP. Estep requested that Giri return certain materials related to his work with TVP, including (1) the clinical slides that contained tissue or other material from patient animals and (2) the forms and patient animal records that were stored 3 electronically (both the digital archive and the new case reports generated by Giri), collectively “patient records.” 3 After Giri terminated his agreement with Estep and TVP, both Giri and Estep communicated by email with the Vet Board’s Director of Licensing and Examination, Marilyn Hartman, about the dissolution of their agreement. Relevant to this appeal, Estep explained to Hartman his realization that most of the clinics Giri had served for TVP had stopped sending cases to TVP at the beginning of June, even though Giri did not notify Estep that he was leaving TVP until mid-July. Accordingly, Estep stated, “as Dr Giri’s sponsor I feel the need to make sure that things are on the level,” because of his concern that Giri had been working outside the stipulations of his license since June 1 unless he had a different sponsor by then. In response, Hartman told Estep (with a copy to Giri) that Giri applied for and had been issued a special license for his new employer and assured Estep that he had “fulfilled [his] responsibility as [Giri’s] previous employer” and that Giri “is responsible for keeping his medical records, slides, and paperwork associated with the pathology work he performed as required by his license.” Giri interpreted this statement from Hartman to mean he was not required to return the TVP patient materials. Estep responded, She is speaking of your responsibility to keep the case material for your new cases. (some of which were done before July 12 when your licen[s]e was transferred). Any slides and forms that were done while working for TVP need to be sent back to me as soon as possible. The slides are the property of TVP not the pathologist. Drs Cowart, Thompson and Batey all return the slides to me at the end of the year for archiving. If you want to keep the slides I can have them recut here in San Antonio to put in the archive, but you will be charged $8 for each slide. 3Estep also requested the return of unused shipping containers, but on appeal, he only challenges the trial court’s findings of fact and conclusions of law related to the patient records. 4 After more back and forth between Giri and Estep about the ownership of the slides, Hartman sent a final email to the two of them stating, I’m very sorry that your business relationship did not work out, but this Board can’t be involved in your business disputes. Below is the record-keeping rule for veterinarians, although it does not specifically address the responsibility of pathologists working for a laboratory. RULE §573.52 Veterinarian Patient Record Keeping .... (b) Maintenance of Patient Records. (1) Patient records shall be current and readily available for a minimum of five years from the date of last treatment by the veterinarian. (2) A veterinarian may destroy medical records that relate to any civil, criminal or administrative proceeding only if the veterinarian knows the proceeding has been finally resolved. (3) Veterinarians shall retain patient records for such longer length of time than that imposed herein when mandated by other federal or state statute or regulation. (4) Patient records are the responsibility and property of the veterinarian or veterinarians who own the veterinary practice, provided however, the client is entitled to a copy of the patient records pertaining to the client’s animals. (5) If the veterinarian discontinues his or her practice, the veterinarian may transfer ownership of records to another licensed veterinarian or group of veterinarians only if the veterinarian provides notice consistent with §573.55 of this title (relating to Transfer and Disposal of Patient Records) and the veterinarian who assumes ownership of the records shall maintain the records consistent with this chapter. .... 5 Source Note: The provisions of this §573.52 adopted to be effective June 14, 2012, 37 TexReg 4229; amended to be effective December 23, 2013, 38 TexReg 9365[.] 4 (Second bold emphasis added.) Giri did not return the patient records. Estep and TVP sue Giri in county court at law and in district court The County-Court-at-Law Suit Estep and TVP sued Giri in April 2017 in County Court at Law No. 1 in Comal County. In that case, Estep and TVP alleged claims of conversion, theft under the TTLA, breach of fiduciary duty, breach of contract, and fraud by nondisclosure against Giri. They also sought a declaratory judgment that (1) Estep is duly licensed to practice veterinary medicine in Texas; (2) Giri is not licensed to practice veterinary medicine in Texas, “but rather has a provisional, specialty license limiting his practice to pathology only”; (3) Estep, to the exclusion of Giri, is the owner of TVP; and (4) “the patient records at issue are the responsibility and property of Dr. J. Scot Estep, as owner of [TVP].” On September 19, 2018, the county court at law granted Estep and TVP’s motion for traditional partial summary judgment as to declaratory relief, declaring that all patient records generated by TVP and in possession of Dr. Giri, along with all patient records generated by Dr. Dipak Giri from the date of granting of his special license (August 18, 2015) to the date of his resignation from TVP (July 14, 2016) are the property of Dr. J. Scot Estep. 4 Hartman provided the parties with the text of the rule in effect at that time. Although the rule has since been amended, this version of the rule in effect in 2016 governs this appeal. We refer to this version of the rule as Rule 573.52 throughout this opinion. 6 Giri subsequently hired new counsel, who filed a motion for traditional and no-evidence summary judgment and motion to reconsider the partial summary judgment granting declaratory relief. Estep and TVP filed a motion for summary judgment on Giri’s defenses. These motions had not been ruled upon when the parties agreed to transfer the case for consolidation with the suit that Estep and TVP had filed in district court. The District-Court Suit Estep filed a defamation suit against Giri in 2017 in Comal County District Court after obtaining in discovery in the county-court-at-law suit an allegedly defamatory email sent by Giri to other veterinary practices. Giri filed a TCPA motion to dismiss, which was denied. Giri appealed the denial of the motion to dismiss first to this Court and then to the Texas Supreme Court. 5 He lost those appeals. After the case resumed in district court, Giri filed a motion for summary judgment on the defamation claims, which was denied. The parties subsequently agreed to transfer the county-court-at-law case to the district court and to consolidate the two cases. After consolidation, the trial court signed a docket-control order requiring the parties to file consolidated pleadings limited to those claims and affirmative defenses already pleaded in the case. In Estep and TVP’s live petition, they continued to allege their claims for conversion, theft under the TTLA, breach of contract, breach of fiduciary duty, fraud by nondisclosure against Giri, and tortious interference with business relations, as well as their 5 See Giri v. Estep, No. 03-17-00759-CV, 2018 WL 2074652 (Tex. App.—Austin May 4, 2018, pet. denied) (mem op.). 7 declaratory-judgment claim, and Estep maintained his defamation claim. 6 The parties agreed to a bench trial. The bench trial began on February 29, 2024. During the course of pretrial argument on a motion for reconsideration of the court’s ruling on an evidentiary issue, Estep and TVP’s counsel informed the trial court that “[t]here was a motion for summary judgment filed in the County Court at Law on a declaratory judgment that was granted.” And then again during counsel’s opening argument, counsel informed the court, And last, just in regards to the Declaratory Judgment Act, these items, you know, as far as being in dispute about who owns them, this Court has already entered a summary judgment order on the Declaratory Judgment Act declaring that this property belongs to TVP. The Court did that on September 18th, 2018. So from that point forward there’s no dispute about who the property belongs to. We’re simply asking for the value of it, the value of what was taken. In addition, during his redirect examination of Estep on the second day of trial, Estep’s counsel read the relevant language from the 2018 partial summary judgment into the record. On the third day of the proceedings, the trial court sua sponte asked the parties to confirm whether the trial court’s summary-judgment ruling was “still an open issue for evidence in this case?” Estep’s counsel acknowledged that the trial court had the power to set aside the interlocutory order, but he objected to it being done in the middle of the trial, asserting that “it would be tantamount to a pleading amendment in the middle of trial that would create unfair surprise and prejudice” because not having the 2018 partial summary judgment would have changed their entire approach to settlement negotiations and presentation of evidence at trial. After briefly hearing argument from both sides, the trial court decided to reverse the ruling on the summary judgment, 6 Estep and TVP nonsuited their claims for tortious interference with business relations during trial, and Estep nonsuited his claim for breach of contract. 8 and to cure “any prejudice that may be perceived,” continued the case to give Estep and TVP time to further prepare any evidence or recall any witnesses. The trial resumed in May 2024. On June 28, 2024, the trial court signed its final judgment, and on August 23, 2024, it issued its findings of fact and conclusions of law. This appeal followed. ANALYSIS Estep and TVP challenge the trial court’s judgment in two issues. In their first issue, they contend that the trial court abused its discretion because it failed to apply the patient-records rule when it withdrew and reconsidered the county court’s prior partial summary judgment on the issue of ownership of the patient records. Estep and TVP argue that because the trial court failed to apply the applicable law, it “rendered erroneous findings of fact and conclusions of law as a result.” In their second issue, they assert the trial court erred by concluding that Estep and TVP’s theft claim failed. Standard of Review Estep and TVP’s first issue concerns their unsuccessful declaratory-judgment claim. Declaratory judgments are reviewed under the same standards as other judgments and decrees. See Tex. Civ. Prac. & Rem. Code § 37.010; Hawkins v. El Paso First Health Plans, Inc., 214 S.W.3d 709, 719 (Tex. App.—Austin 2007, pet. denied). Here, the trial court issued findings of fact and conclusions of law following a bench trial. We review findings of fact for legal and factual sufficiency of the evidence by the same standards applied to a jury verdict. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991). 9 When determining whether legally sufficient evidence supports a finding, we must consider evidence favorable to the finding if the factfinder could reasonably do so and disregard evidence contrary to the finding unless a reasonable factfinder could not. Shields Ltd. P’ship v. Bradberry, 526 S.W.3d 471, 480 (Tex. 2017). “When a party attacks the legal sufficiency of an adverse finding on an issue on which it bears the burden of proof, the judgment must be sustained unless the record conclusively establishes all vital facts in support of the issue.” Id. “The final test for legal sufficiency must always be whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review.” City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). When a party attacks the factual sufficiency of an adverse finding on an issue on which it has the burden of proof, it must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). We must consider and weigh all of the evidence, and we may “set aside a verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust.” Id. We review conclusions of law drawn from the facts de novo to determine their correctness, and we will uphold those conclusions if the judgment can be sustained on any legal theory supported by the evidence. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002); Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam). “[W]e will not reverse an erroneous conclusion if the trial court rendered the proper judgment.” City of Austin v. Whittington, 384 S.W.3d 766, 779 n.10 (Tex. 2012) (citing BMC Software, 83 S.W.3d at 794). In a bench trial, the trial court is the sole judge of the witnesses’ credibility and the weight to be given their testimony. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 10 1986). The trial court may believe one witness, disbelieve others, and resolve inconsistencies in any witness’s testimony. Id. We may not substitute our judgment for that of the factfinder merely because we reach a different conclusion. Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex. 1988). I. The Trial Court Erred by Denying Estep and TVP’s Declaratory-Judgment Claim In their first issue, Estep and TVP assert that the trial court erred in rendering judgment on their declaratory-judgment claim because they sought to have their ownership of the patient records determined under Rule 573.52, and the trial court failed to construe that administrative rule when denying the declaratory-judgment claim. Estep and TVP argue that instead the trial court rendered erroneous findings of fact and conclusions of law by elevating Hartman’s communications with the parties to a Vet Board decision and concluding that Estep and TVP had no ownership interest in the patient records. In response, Giri argues that Rule 573.52 is not relevant to the appeal because “the Board determined that section 573.52 did not apply in this situation and, if it did, Giri was the one who should possess the Slides.” Giri asserts that if Estep and TVP were dissatisfied with that decision, they should have appealed to the Board and exhausted their administrative remedies. Alternatively, Giri argues that Rule 573.52 can be construed to mean that Giri owns and should retain at least the slides he prepared when he was working for TVP. A. Estep and TVP seek a declaration that they own the “patient records” generated by Giri when he worked for TVP. In its findings of fact, the trial court defined the materials at issue in the suit as follows: 11 11. After this notification, Estep demanded that Giri return certain materials related to his work with TVP. 12. These materials (the “Materials”) included: a. clinical slides that contained tissue or other material from patient animals (the “Slides”); b. forms and patient animal records that were stored electronically (the “Documents”); and c. unused shipping containers. Although Estep and TVP challenge the trial court’s finding of fact number 16, “Estep and TVP have no ownership interest in the Materials,” they focus the arguments in their brief on the ownership status of the “patient records” that Giri retained after the termination of his agreement with Estep and TVP. Giri complains that throughout the case and in the briefing, “Estep uses vague and often different terms to describe the property” that is the subject of Estep and TVP’s declaratory-judgment and theft claims. In both their live petition and their briefing, Estep and TVP describe that property, the “patient records,” as the digital archive of TVP’s prior patient records that Estep initially provided to Giri to use in his work with TVP, the physical clinical slides generated by Giri after he began that work, and the newly generated case reports prepared by Giri in the course of that work. In other words, the “patient records” that Estep and TVP contend are theirs are the same thing as the Slides and Documents described in the trial court’s findings of fact. We will refer to the materials at issue as “patient records.” 12 B. We must construe Rule 573.52(b)(4) to determine whether the trial court’s ruling on Estep and TVP’s declaratory-judgment claim is correct. In their declaratory-judgment claim, Estep and TVP sought to have their “rights, status, or other legal relations” affected by Rule 573.52(b)(4) determined by construction of the rule. See Tex. Civ. Prac. & Rem. Code § 37.004(a) (establishing subject matter of relief that may be sought under Chapter 37). “We construe administrative rules, which have the same force as statutes, in the same manner as statutes.” Rodriguez v. Service Lloyds Ins., 997 S.W.2d 248, 254 (Tex. 1999). Statutory interpretation is a question of law that we review de novo. Aleman v. Texas Med. Bd., 573 S.W.3d 796, 802 (Tex. 2019). “Unless the rule is ambiguous, we follow the rule’s clear language.” Rodriguez, 997 S.W.2d at 254. Courts generally rely on the plain meaning of the chosen words to discern legislative or agency intent. See Aleman, 573 S.W.3d at 802 (discussing statutory interpretation). If a statute or rule uses a term with a particular meaning or assigns a particular meaning to a term, we are bound by that usage. TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011). Rule 573.52(b)(4) provides as follows: Patient records are the responsibility and property of the veterinarian or veterinarians who own the veterinary practice, provided however, the client is entitled to a copy of the patient records pertaining to the client’s animals. (Emphasis added.) We construe the plain meaning of the rule to unambiguously establish that patient records belong to the veterinarian or veterinarians who own the veterinary practice for which the patient records are generated, not to whomever generates the patient records. 13 Here, it is undisputed that Estep is the sole owner and managing member of TVP. The trial court made a finding of fact that Estep “owns and [c]ontrols TVP, a veterinary practice in Comal County.” It is also undisputed that Estep is a veterinarian licensed by the Board. See Tex. Occ. Code § 801.002(6) (“‘Veterinarian’ means a person licensed by the board under this chapter to practice veterinary medicine.”). The record evidence reflects that Giri was not a veterinarian licensed by the Board but instead that the Board granted him a special license to practice as a veterinary pathologist for TVP under the supervision of Estep. 7 See id. § 801.256(a)(4) (“The board may issue a special license to practice veterinary medicine to an applicant who is . . . a person licensed to practice veterinary medicine in another jurisdiction, if the board determines that the person’s specialty practice is unrepresented or underrepresented in this state.”), .256(d) (“A special license is valid only for the performance of duties within the scope of the special license holder’s employment or practice.”). It is also undisputed that the “patient records” at issue here, defined as Slides and Documents by the trial court, are “patient records” as defined by Rule 573.52(a)(1)-(18). The trial court made a number of findings of fact describing the parties’ agreement that “Giri would perform certain veterinary pathology work for TVP, and TVP would pay him for the work performed,” including that “Giri would perform the work, and TVP would handle billing” and that “TVP would pay Giri a certain amount for the work performed after deducting certain expenses.” Given the facts that Giri was not a licensed veterinarian and did not own the veterinary practice for which he was performing the pathology work and for which the 7 The trial court’s finding of fact number 20 states, “Giri and Estep were, at all times relevant to this case, veterinarians or veterinary pathologists who were licensed by or otherwise regulated by the Board.” 14 patient records at issue were generated, we hold that Rule 573.52(b)(4) unambiguously means that the patient records belong to Estep, as the owner of TVP. Giri argues that the Board determined that Giri should keep the patient records that he generated for TVP, and in the alternative, he argues that the rule may be interpreted to mean that Giri could keep them because he owned his own veterinary practice while he was working for TVP. We do not find these arguments persuasive. Giri asserts that a July 18, 2016 email from Hartman in which she stated, “Dr. Giri is responsible for keeping his medical records, slides, and paperwork associated with the pathology work he performed as required by his license, so I will advise him of this,” was an official determination by the Board that Giri owned the patient records for the work he performed for TVP. Giri provides no legal authority to support the proposition that an email from a Board staff member constitutes an official determination by the Board. 8 Moreover, Hartman followed up with another email on July 20 in which she modified her prior statement about recordkeeping by stating, “I’m very sorry that your business relationship did not work out, but this Board can’t be involved in your business disputes. Below is the record-keeping rule for veterinarians, although it does not specifically address the responsibility of pathologists working for a laboratory[,]” followed by the full text of Rule 573.52. Contrary to Giri’s argument that Estep should have pursued and exhausted administrative remedies with the Board, while the 8 Generally speaking, administrative orders are final and appealable if “they impose an obligation, deny a right or fix some legal relationship as a consummation of the administrative process.” Texas–New Mexico Power Co. v. Texas Indus. Energy Consumers, 806 S.W.2d 230, 232 (Tex. 1991) (emphasis added) (quoting Sierra Club v. United States Nuclear Regul. Comm’n, 862 F.2d 222, 225 (9th Cir.1988)). The email from Hartman was not a definitive decision promulgated in a formal manner or one with which the Board expected compliance. See id. (describing factors that courts should consider when evaluating finality of order issued by agency). 15 Board would have the authority to consider a disciplinary complaint against him had one been brought, the Board lacks the power to order the return of wrongfully retained records. See id. §§ 801.401 (enumerating Board’s disciplinary powers, which include power to revoke or suspend license, reprimand license holder, or impose administrative penalty), .402 (enumerating general grounds for license denial or disciplinary action). In the alternative, Giri argues that Rule 573.52 may be interpreted to mean that he should keep the patient records because he “owned his own veterinary services entity while he performed the relevant work, so he also owned a ‘veterinary practice.’” In addition, he contends that because he did the work as an independent contractor and TVP only did the invoicing, he should be the one who keeps the patient records. It is undisputed, however, that the patient records at issue were related to the work he did for TVP, not for any separate entity that he owned. And as noted above, the Board provided Giri with a special license only to perform veterinary pathology; it did not license him as a veterinarian. Thus, he is not the veterinarian who is the owner of the veterinary practice for which the patient records were generated. Accordingly, we hold that the trial court erred as a matter of law by concluding that “Estep and TVP have no ownership interest in the Materials” and by denying their claim for declaratory relief. 9 We sustain Estep’s first issue. We reverse the trial court’s judgment in part and render the requested declaratory judgment that “the patient records at issue are the responsibility and property of Dr. J. Scot Estep, as owner of [TVP].” 9 The trial court labeled this conclusion of law as a finding of fact, but we are not bound by that designation and may treat it as a conclusion of law subject to de novo review. See Texas Outfitters Ltd., LLC v. Nicholson, 572 S.W.3d 647, 653 n.7 (Tex. 2019) (“The trial court labeled this finding as a conclusion of law, but we are not bound by that designation and may treat it as a finding of fact subject to the appropriate standard of review.” (citing Ray v. Farmers’ State Bank of Hart, 576 S.W.2d 607, 608 n.1 (Tex. 1979))). 16 II. The Trial Court Erred in Part by Denying Estep and TVP’s Theft Claim for the Slides Estep and TVP challenge the trial court’s conclusions of law concerning their claim that Giri violated the TTLA by refusing to return the patient records that belong to Estep and TVP after Giri terminated his relationship with them and they requested the return of the patient records. The trial court issued the following conclusions of law on Estep and TVP’s theft claims: 62. All claims for theft fail because neither TVP nor Estep suffered damages. 63. All claims for theft also fail because: a. neither TVP nor Estep had a possessory right to the Materials; b. Giri did not unlawfully appropriate any property belonging to them; and c. There was no taking by Giri that was unlawful or made with the intent to deprive them of the Materials. The Act imposes civil liability on any person who commits theft as defined by Chapter 31 of the Texas Penal Code. Id. §§ 134.002(2) (defining “theft”), .003(a) (imposing liability for damages resulting from theft), .005 (allowing recovery of statutory damages not to exceed $1,000 in addition to actual damages and recovery of reasonable and necessary attorneys’ fees and court costs). A person commits theft if he “unlawfully appropriates property with intent to deprive the owner of property.” Tex. Penal Code § 31.03(a). “Appropriation of property is unlawful if: (1) it is without the owner’s effective consent . . . .” Id. § 31.03(b)(1); see also id. § 31.01(2)-(5) (defining “deprive,” “effective consent,” “appropriate,” and “property”). 17 Estep and TVP argue that the trial court’s finding that they did not suffer damages is not supported by sufficient evidence because they presented undisputed evidence of the value of the digital archive and of the damages caused by Giri’s failure to return the slides that he generated while working for TVP. 10 We agree that Estep and TVP conclusively established the value of the digital archive and of the slides that Giri failed to return with undisputed evidence, and they thus established as a matter of law the element of actual damages. We have already held that Estep and TVP had a possessory right to the patient records. We also hold that Giri’s retention of the patient records was unlawful because it was without Estep and TVP’s effective consent. However, as for the element of intent to deprive, we must address Estep and TVP’s claims for theft of the digital archive and of the slides separately because that element applies differently to those different types of patient records. Estep and TVP do not challenge the trial court’s finding that the digital archive, i.e., the Documents (forms and patient animal records that were stored electronically), “were merely copies of materials that Estep and TVP had in their own files at all times.” For that 10 Estep and TVP also assert that they established damages for lost income from what they describe as “the behind-the-back deals,” which refers to work that Giri did for some of TVP’s client veterinary clinics while still working for TVP but that he did not send to TVP. Estep and TVP’s counsel explained at trial that they sought these damages under a breach-of- contract theory “for money that should have been recovered by TVP, billed by TVP at a time when Dr. Giri was employed by TVP.” Estep and TVP have not challenged the trial court’s denial of TVP’s breach-of-contract claim on appeal; therefore, we do not consider whether they established their entitlement to these damages under the TTLA. See, e.g., Porter-Garcia v. Travis Law Firm, P.C., 564 S.W.3d 75, 91 (Tex. App.—Houston [1st Dist.] 2018, pet. denied) (explaining that “[w]hen a claim of theft is made in connection with a contract, there must be ‘proof of more than an intent to deprive the owner of property and subsequent appropriation of the property’” and “[t]he additional evidence must show that the appropriation was a result of a false pretext or fraud” (quoting Wirth v. State, 361 S.W.3d 694, 697 (Tex. Crim. App. 2012))); id. at 89-90 (explaining that failure to perform contract alone in absence of evidence of intent to deceive does not suffice to show intent to deprive). 18 reason, Estep and TVP have failed to establish that Giri retained the digital archive with the intent to deprive them of it. See Coe v. DNOW LP, 718 S.W.3d 338, 364-65 (Tex. App.— Houston [14th Dist.] 2025, pet. denied) (explaining distinction between intent to deprive under TTLA and misappropriation of trade secrets under Texas Uniform Trade Secrets Act and legislative history of 2013 amendment to TTLA, which stopped imposing liability under TTLA “for copying, communicating, transmitting, or otherwise misappropriating trade secrets, absent the intent to deprive the owner of access to the same information”). 11 Absent an intent to deprive Estep and TVP of the digital archive, Giri cannot be held liable for merely retaining a copy of the patient records. See id. However, Giri kept the slides (which are patient records as defined by Rule 573.52) after Estep and TVP requested their return. As we have held, the slides are patient records generated by Giri that belong to TVP. The record evidence established that Estep and TVP did not have copies of them. 12 Thus, we must consider whether the trial court properly concluded that Giri lacked the requisite intent to deprive Estep and TVP of the slides. “The relevant ‘intent to deprive’ is the person’s intent at the time of the taking.” See McCullough v. Scarbrough, Medlin & Assocs., 435 S.W.3d 871, 906 (Tex. App.—Dallas 2014, pet. denied) (citing Wirth v. State, 361 S.W.3d 694, 697 (Tex. Crim. App. 2012)). And “[t]he intent to deprive can be inferred from the words and acts of the person.” Id. at 907. 11 The Court notes that although Estep and TVP sometimes refer to the contents of the digital archive as intellectual property or proprietary in nature, they did not bring a claim against Giri under the Texas Uniform Trade Secrets Act. See generally Tex. Civ. Prac. & Rem. Code §§ 134A.001-.008. 12 We note that to the extent Giri retained any new client records that he generated while working for TVP without providing copies to TVP (in other words, documents that are not part of the digital archive), the same analysis applies. 19 Because under the Penal Code, “[a]ppropriation of property is unlawful if . . . it is without the owner’s effective consent,” Tex. Penal Code § 31.03(b)(1), Giri’s actions after Estep and TVP withdrew their consent for Giri to retain possession of the slides are what is pertinent here. “[I]n theft cases[,] the intent to deprive is often proven by an actual deprivation.” Draper v. State, 539 S.W.2d 61, 68 (Tex. Crim. App. 1976); see also Wirth, 361 S.W.3d at 697 (stating that courts should review “events occurring before, during and after the commission of the offense and may rely on actions of the defendant which show an understanding and common design to do the prohibited act” wh