Affirm in part; Reverse and Render in part; Opinion Filed August 18, 2015.

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-13-01763-CV

CARDIOVASCULAR PROVIDER RESOURCES INC., Appellant

V.

CHARLES GOTTLICH M.D., Appellee

On Appeal from the 162nd Judicial District Court

Dallas County, Texas

Trial Court Cause No. 11-08894

MEMORANDUM OPINION

Before Justices Fillmore, Myers, and Evans

Opinion by Justice Evans

Cardiovascular Provider Resources Inc. appeals a jury verdict in favor of Charles 

Gottlich, M.D. on his claim for misappropriation of his name. Bringing four issues, CPR 

contends the evidence is legally insufficient to support the jury’s findings on liability and 

damages. CPR further contends the trial court erred in failing to award it attorney’s fees under 

the Texas Theft Liability Act. After reviewing the record on appeal, we agree that Gottlich 

presented no evidence that his name was misappropriated. We further conclude CPR was not 

entitled to an award of attorney’s fees. Accordingly we reverse the trial court’s judgment in part 

and render judgment that Gottlich take nothing by his claim for misappropriation. We affirm the 

remainder of the judgment.
–2–

BACKGROUND FACTS

Gottlich is a retired cardiologist who practiced as a physician with Dallas Cardiology 

Associates doing business as “HeartPlace.” The HeartPlace physicians formed Cardiovascular 

Provider Resources, Inc. to handle the group’s administrative tasks and make investments for the 

benefit of participating physicians. 

While Gottlich was practicing at HeartPlace and an owner/shareholder of CPR, CPR 

invested in Baylor Heart and Vascular Hospital, a facility at which the HeartPlace physicians 

would be working. BHVH is a limited liability partnership that offers partnership interests or 

“units” for purchase by individual physicians practicing at BHVH and entities like CPR that 

manage physicians practicing at BHVH. As part of making this investment, CPR signed a 

partnership agreement with BHVH requiring the physicians it represented to sign a noncompetition agreement. The non-competition agreement stated that the signing physician was a 

“Qualified Physician Investor” who had not purchased BHVH partnership units individually and 

was choosing to allow CPR to purchase units on his behalf. Gottlich signed the non-competition 

agreement in November 1999.

BHVH made cash distributions to its investors on a quarterly basis based on the number 

of partnership units owned. Once CPR received the distribution, it would retain a certain amount 

to pay expenses and distribute the remainder as dividends to its shareholders. The number of

BHVH units that CPR was allowed to own was determined annually and was calculated based on 

the number of Qualified Physician Investors it represented. The partnership agreement generally 

defined a “Qualified Physician” as a physician (a) licensed to practice medicine in Texas, (b) on 

staff at Baylor, (c) with privileges to conduct cardiology and vascular surgery procedures, that 

(d) has not violated federal or state health laws or been excluded from participation in Medicare 

or any state health care program. Every year CPR would provide BHVH with a list of its
–3–

Qualified Physician Investors. BHVH would then verify that the listed physicians met the 

contract requirements. Gottlich’s name was included on this list from its inception. 

In June 2009, Gottlich chose to redeem his shares and ownership position in CPR and 

HeartPlace. Although Gottlich was no longer an owner and shareholder, he continued to be 

employed by and work at HeartPlace. CPR continued to manage the administrative tasks 

associated with Gottlich’s practice. Gottlich did not, however, receive any dividend income 

from CPR’s investments. Despite this, Gottlich’s name remained on the list of CPR’s Qualified 

Physician Investors. According to CPR, it routinely listed the names of physicians who were not 

shareholders of CPR because its position was that a physician’s association with HeartPlace was 

sufficient to make him a Qualified Physician Investor. 

In early 2010, Gottlich began inquiring about purchasing BHVH units personally. 

Gottlich contacted BHVH and was told he was not eligible to purchase units individually 

because his name was still on the list of Qualified Physician Investors represented by CPR. 

Gottlich thereafter sought to have his name removed from CPR’s list. CPR responded that 

Gottlich’s name would remain on the Qualified Physician Investors list as long as he was 

employed by HeartPlace. Gottlich sent numerous follow-up communications to CPR seeking 

justification for the entity’s continued use of his name. On August 27, 2010, a representative of 

CPR sent Gottlich an email stating that the board had unanimously decided that his name should 

remain on the list based on “historical precedence, continued employment at HeartPlace, and 

concerns regarding maintaining the collective investment mentality of HP physicians.” It is 

undisputed that there were no BHVH units available for purchase by Gottlich during the time 

period that Gottlich sought to remove his name from CPR’s list. 

On September 3, 2010, Gottlich sent CPR a letter of resignation stating that he was 

resigning his position as a HeartPlace physician effective September 30, 2010. HeartPlace 
–4–

responded stating that, pursuant to his employment agreement, Gottlich was required to give six 

months’ notice. Accordingly, HeartPlace stated it would consider Gottlich’s employment 

terminated on March 3, 2011. 

On January 18, 2011, Gottlich sent a letter to HeartPlace complaining about the 

continued use of his name on the Qualified Physician Investors list. Gottlich noted, among other 

things, that although HeartPlace claimed his termination was not effective until March 3, it had 

already terminated his benefits, taken him off of the work schedule, and removed him from the 

computers. Because HeartPlace was treating him as if his employment was effectively over, he 

contended CPR was not entitled to continue using his name for the purposes of receiving 

distributions from BHVH. Gottlich then demanded to be given “an accounting and payment of 

all funds received from Baylor based on the use of [his] identity to justify the distributions from 

the Hospital to CPR.” 

On February 9, 2011 HeartPlace sent Gottlich a letter informing him that “in 

contemplation of the formal termination of [his] association with HeartPlace,” it would “start the 

process” of removing him from the list of qualified physicians. Gottlich’s name was eventually 

removed from the list and replaced with the name of another HeartPlace physician. 

Gottlich filed this suit alleging claims against HeartPlace and CPR for conversion, 

violations of the Texas Theft Liability Act (TTLA), unjust enrichment, money had and received, 

breach of contract, and declaratory judgment. In his second amended petition, Gottlich added a 

claim for misappropriation of his name. Four months later, Gottlich filed a notice of non-suit 

without prejudice to refiling as to his claims for conversion, violations of the TTLA, and 

declaratory relief. 

The case was called to trial before a jury on August 19, 2013. After Gottlich rested his 

case, CPR and HeartPlace moved for a directed verdict. At that point, Gottlich announced he 
–5–

was non-suiting his claims against HeartPlace with prejudice. The trial court denied the motion 

for directed verdict and signed a separate order granting the non-suit. After hearing the 

evidence, the jury was asked whether CPR misappropriated Gottlich’s name for its own use or 

benefit. The jury responded “yes” and awarded Gottlich $306,435.12 in damages. The jury was 

also asked whether CPR was unjustly enriched through the receipt of BHVH distributions. 

Although the jury answered “yes” to this question, it did not award Gottlich any damages for this 

claim. Finally, the jury was asked whether CPR received BHVH distributions that, “in equity 

and good conscience, belong to Dr. Gottlich.” The jury responded “no.” No question was 

submitted to the jury on Gottlich’s claim for breach of contract. 

CPR filed a motion for judgment notwithstanding the verdict arguing that Gottlich failed 

to establish a claim for misappropriation of his name and failed to prove he was entitled to 

damages. The trial court signed a final judgment in favor of Gottlich effectively denying CPR’s 

motion. CPR then filed a second motion for judgment notwithstanding the verdict and, 

alternatively, for new trial arguing, again, that Gottlich failed to establish the elements of his 

claim for misappropriation of his name. In addition, CPR filed a motion to correct the final 

judgment to eliminate recitals it claimed contradicted the record, modify the award of 

prejudgment interest, and award CPR attorney’s fees pursuant to the TTLA and Uniform 

Declaratory Judgments Act. On November 27, 2013, the trial court signed an amended final 

judgment removing the recitals and amending the award of prejudgment interest. The court 

denied CPR’s request for attorney’s fees. CPR then brought this appeal.

ANALYSIS

I. Misappropriation of Name

In its first issue, CPR contends the evidence is legally insufficient to support a finding 

that it misappropriated Gottlich’s name. In reviewing the legal sufficiency of the evidence, we 
–6–

credit evidence favoring the jury verdict if reasonable jurors could and disregard contrary 

evidence unless reasonable jurors could not. Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 

770 (Tex. 2010) (citing City of Keller v. Wilson, 168 S.W.3d 802, 822, 827 (Tex. 2005)). We 

will uphold the jury’s finding if more than a scintilla of competent evidence supports it. Haggar 

Clothing Co. v. Hernandez, 164 S.W.3d 386, 388 (Tex. 2005) (per curiam); see also City of 

Keller, 168 S.W.3d at 810. The final test for legal sufficiency is “whether the evidence at trial 

would enable reasonable and fair-minded people to reach the verdict under review.” City of 

Keller, 168 S.W.3d at 827.

The three elements of a misappropriation claim under Texas law are (1) the defendant 

appropriated the plaintiff’s name or likeness for the value associated with it, and not in an 

incidental manner or for a newsworthy purpose; (2) the plaintiff can be identified from the 

publication; and (3) there was some advantage or benefit to the defendant. See Matthews v. 

Wozencraft, 15 F.3d 432, 437 (5th Cir. 1994). Name misappropriation is a species of invasion of 

privacy, and Texas law applies a very restrictive interpretation of the tort. See Meadows v. 

Hartford Life Ins. Co., 492 F.3d 634, 639 (5th Cir. 2007). For liability to arise, “the defendant 

must have appropriated to his own use or benefit the reputation, prestige, social or commercial 

standing, public interest or other values of the plaintiff’s name or likeness.” See Moore v. Big 

Picture Co., 828 F.2d 270, 275 (5th Cir. 1987) (citing RESTATEMENT (SECOND) OF TORTS

§ 652C, cmt. c (1977)). There must be something “unique” about the plaintiff’s name or likeness 

that creates value which may be appropriated. See Matthews, 15 F.3d at 437. Tort liability is 

intended to protect the value of the individual’s notoriety or skill and not the just name per se. 

Id. This value is protected by limiting the things with which the plaintiff’s reputation, goodwill, 

commercial standing, and the like are associated, thereby preventing excessive exploitation. Id. 
–7–

at 437–38. Excessive exploitation is use which reduces the value of the plaintiff’s property 

rights in his name. See Meadows, 492 F.3d at 639. 

CPR contends there is no evidence to show that its use of Gottlich’s name on its investor 

list had anything to do with seeking or deriving a benefit from Gottlich’s reputation, prestige, 

notoriety or skill and, therefore, there is no evidence to support a claim for name 

misappropriation. We agree. Nothing about Gottlich’s inclusion on the list had anything to do 

with his unique skills or reputation as a physician. Gottlich argues that CPR used his name

because he had the necessary credentials to be a “Qualified Physician Investor” under the BHVH 

partnership agreement including a license to practice medicine in Texas and privileges to 

perform cardiac and vascular surgery at Baylor Hospital. Gottlich attempts to equate these 

credentials with his skills, reputation, and commercial standing in the medical field. Gottlich’s 

credentials for purposes of the list were not unique to him, however, and were not used by CPR 

in a way that implicated his individual abilities. As Gottlich concedes, he was merely a member 

of a pool of physicians with identical qualifications. Indeed, when Gottlich’s name was removed 

from the investor list, it was replaced with that of another physician with no impact on CPR’s 

investment. Gottlich failed to provide any evidence that his name specifically had a unique value 

that was misappropriated and diluted by CPR.

Gottlich relies heavily on the case of Moore v. Big Picture Co. 828 F.2d 270 (5th Cir. 

1987) to support his position that CPR’s actions constituted misappropriation. But the evidence 

presented in Moore is exactly the type of evidence necessary to show misappropriation that is 

absent in this case. In Moore, the defendant, Big Picture, put together a presentation and bid 

package in an effort to be awarded a government audio-visual contract. Id. at 271. As part of the 

bid package, Big Picture included a proposed staffing chart which named the plaintiff as the 

media coordinator. Id. The plaintiff, who was not an employee of Big Picture, contended his 
–8–

name was placed on the staffing chart without his permission. Id. In challenging the jury’s 

finding that it misappropriated the plaintiff’s name, Big Picture contended that “[the plaintiff’s] 

name was only included on the proposed staffing chart as a symbol for someone with the same or 

similar qualifications” and that the name’s inclusion had no effect on Big Picture’s ability to 

procure the contract. Id. at 275–76. But in reviewing the record, the court determined there was 

sufficient evidence to support the jury’s finding that the plaintiff’s name in particular had value

and was not a mere “place holder” on the staffing chart. Id. at 276. The trial court specifically 

noted when it denied Big Picture’s motion for judgment notwithstanding the verdict that the 

evidence showed the plaintiff was “an especially desirable individual to fill the position in 

question.” Id. Furthermore, there was testimony to show the plaintiff was known to be a good 

worker and the audio-visual manager with the governmental entity receiving the bids stated he 

was familiar with the plaintiff’s work and the plaintiff’s name had value to him.” Id.

In contrast, Gottlich points to no evidence that his name had any unique value or was 

used as anything more than “a symbol for someone with the same or similar qualifications.” 

This is demonstrated by the fact that his name was eventually replaced with that of another 

doctor with no effect on CPR’s investment in BHVH. Gottlich conceded at trial that CPR did 

not try to exploit any notoriety or “fame” associated with his name. 

The damages sought by Gottlich and awarded by the jury further show that Gottlich did 

not claim, let alone prove, that CPR appropriated for its own benefit anything that was unique to 

his name. The list of Qualified Physician Investors included twenty-two physician names. 

Gottlich calculated his damages as 1/22 of the total amount of distributions CPR received during 

the time it allegedly made unauthorized use of his name. Accordingly, Gottlich’s name 

possessed no unique value for purposes of the list; it was fungible with every other name on it. 
–9–

Gottlich presented no evidence of any diminution or dilution in the property value of his name 

caused by CPR’s use nor did he make any showing that his privacy was violated.

Gottlich discusses at length his position that CPR’s use of his name after he was no 

longer a shareholder was a violation of the terms of the partnership agreement with BHVH. 

Even assuming CPR did not comply with the partnership agreement – a contract to which 

Gottlich was not a party – this has no bearing on whether his name was used for the unique value 

associated with it, a necessary element to recover for misappropriation of one’s name.

Based on the foregoing, we conclude Gottlich presented no evidence that CPR 

misappropriated Gottlich’s name for the value associated with it. The trial court erred, therefore, 

in denying CPR’s motion for judgment notwithstanding the verdict. We resolve CPR’s first 

issue in its favor.

II. Attorney’s Fees

In its second and third issues, CPR contends the trial court erred in failing to award it 

reasonable and necessary attorney’s fees as the prevailing party under the TTLA.

1

 CPR contends 

the trial court’s final judgment denying all relief not otherwise determined amounted to a takenothing judgment against Gottlich on the TTLA claim entitling CPR to an award of fees and 

costs limited to those incurred in defending against that claim. CPR acknowledges that Gottlich 

filed a notice of nonsuit without prejudice on his claim under the TTLA. CPR contends, 

however, that because the trial court did not sign an order granting the nonsuit, it was not until 

the final judgment was signed that the TTLA claim was disposed of on the merits and CPR 

became the prevailing party as to that claim.

 

1 CPR does not challenge the trial court’s failure to award it attorney’s fees under the Uniform Declaratory 

Judgments Act.
–10–

CPR’s argument is without merit. In Texas, a plaintiff may nonsuit at any time before 

introducing all of his evidence other than rebuttal evidence. See Epps v. Fowler, 351 S.W.3d

862, 868 (Tex. 2011). No court order is required for the nonsuit to be effective. Id.

A defendant may still be entitled to receive attorney’s fees as a “person who prevails” 

under the TTLA following voluntarily nonsuit of the claim against him without prejudice if the 

trial court determines, upon motion of the defendant, that the nonsuit was taken to avoid an 

unfavorable ruling on the merits. See BBP SubI LP v. Di Tucci, No. 05-12-01523-CV, 2014 WL 

3743669, at *4 (Tex. App.—Dallas July 29, 2014, no pet.) (mem. op.). CPR requested attorney’s 

fees under the TTLA in its live pleading and the trial court’s judgment denied this request. CPR 

did not file its motion seeking to recover its fees under the TTLA until after the judgment 

denying it an award of fees was rendered. Accordingly, we construe CPR’s motion seeking an 

award of attorney’s fees as a motion to modify the judgment or, alternatively, as a motion for 

new trial. See Surgitek, Bristol-Myers Corp. v. Abel, 997 S.W.2d 598, 601 (Tex. 1999) (we look 

to substance of motion to determine relief sought not merely its title). Both the denial of a 

motion to modify and the denial of a motion for new trial are reviewed for an abuse of discretion. 

See Wagner v. Edlund, 229 S.W.3d 870, 879 (Tex. App.—Dallas 2007, pet. denied). A trial 

court abuses its discretion if it acts in an arbitrary or unreasonable manner or if it acts without 

reference to any guiding rules or principles. See Downer v. Aquamarine Operators, Inc., 701 

S.W.2d 238, 241–42 (Tex. 1985). 

To be entitled to attorney’s fees, CPR was required to file a motion demonstrating that 

Gottlich nonsuited his TTLA claim to avoid an unfavorable ruling on the merits. See Epps, 351 

S.W.3d at 870. Because no such motion was filed before the initial judgment was rendered, the 

trial court did not err in denying CPR’s request for fees in its initial judgment. CPR contends, 

and Gottlich does not dispute, that the parties agreed to submit the issue of attorney’s fees to the 
–11–

trial court post-verdict. This agreement cannot be read, however, to permit CPR to file its 

motion post-judgment. CPR contends it could not file its motion until after judgment was 

rendered because it was not until the first judgment was signed that the TTLA claim was finally 

disposed of. As discussed above, however, this is not the case. Gottlich’s TTLA claim was 

disposed of for purposes of this suit when his notice of nonsuit was filed. Id. at 868. 

Gottlich’s notice of nonsuit of his claim under the TTLA was filed nine months before 

trial began in this case. CPR makes no showing as to why it could not file the required motion 

seeking its attorney’s fees before judgment was rendered. Because there was no motion prior to 

the initial judgment, the trial court’s denial of CPR’s request for fees in the initial judgment was 

not error requiring correction. Accordingly, we conclude the trial court did not abuse its 

discretion in denying CPR’s motion to modify the initial judgment and motion for new trial on 

the attorney’s fees issue. We resolve CPR’s second and third issues against it.

Because of our resolution of CPR’s first, second and third issues, it is unnecessary for us 

to address CPR’s remaining issue and arguments. We reverse the trial court’s judgment in part 

and render judgment that Gottlich take nothing by his claim for misappropriation. We affirm the 

remainder of the judgment.

 

 

131763F.P05

/David W. Evans/

DAVID EVANS

JUSTICE
–12–

Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

CARDIOVASCULAR PROVIDER 

RESOURCES INC., Appellant

No. 05-13-01763-CV V.

CHARLES GOTTLICH M.D., Appellee

On Appeal from the 162nd Judicial District 

Court, Dallas County, Texas

Trial Court Cause No. 11-08894.

Opinion delivered by Justice Evans. Justices 

Fillmore and Myers participating.

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

AFFIRMED in part and REVERSED in part. We REVERSE that portion of the trial court's 

judgment awarding Charles Gottlich M.D. damages for his claim for misappropriation and 

RENDER judgment that he take nothing by that claim. In all other respects, the trial court's 

judgment is AFFIRMED. 

It is ORDERED that each party bear its own costs of this appeal.

Judgment entered this 18th day of August, 2015.