Opinion issued May 17, 2016




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                              NO. 01-14-00928-CV
                           ———————————
    DOUGLAS MORAN, ROYAL BODKIN, LLC, AND WOOLWORTH
                INTERESTS, LLC, Appellants
                                       V.
   RICHARD WILLIAMSON D/B/A WILLIAMSON REALTY, Appellee


                    On Appeal from the 11th District Court
                            Harris County, Texas
                      Trial Court Case No. 2011-45234


                                 OPINION

      Appellants, Douglas Moran, Royal Bodkin, LLC, and Woolworth Interests,

LLC (collectively, “Moran”), sued appellee, Richard Williamson d/b/a Williamson

Realty, for fraud and other torts related to the purchase of two multi-unit rental

properties located in Houston. Williamson counter-claimed, also alleging various
tort claims arising from the dispute regarding the properties. The trial court

rendered judgment in favor of Williamson. In ten issues on appeal, Moran argues

that the trial court erred because its judgment was not supported by the pleadings

and because the evidence was insufficient to support its various findings of fact

and conclusions of law. We conclude that the judgment favoring Williamson was

not supported by the pleadings and was not tried by consent; we therefore set aside

the judgment on those claims and modify the judgment accordingly. We affirm the

judgment in all other respects.

                                      Background

      Moran is an attorney who was friends with Williamson, a real estate broker.

In 2008, Williamson and Moran learned of an opportunity to purchase some

distressed properties during foreclosure proceedings. One of the properties was a

multi-unit complex consisting of twenty-six duplexes located on Woolworth Street

(“Woolworth Property”). The parties disagree about the exact events surrounding

this endeavor, but the end result was that in December 2008, they purchased the

Woolworth Property for $235,000. They intended to “flip” the Woolworth

Property by reselling it at a profit within a short period of time. Moran and a third

party, Fred Urich,1 each invested $50,000 in cash, and Williamson obtained a loan

in the amount of $135,000 for the remainder of the purchase price. Williamson


1
      Fred Urich is not a party to this appeal.

                                             2
took title to the Woolworth Property by a deed dated December 22, 2008. Also on

December 22, 2008, Moran formed Woolworth Interests, LLC and filed the

relevant documents with the Texas Secretary of State showing himself as the sole

manager and member of Woolworth Interests. On January 10, 2009, Williamson

conveyed title to the Woolworth Property to Woolworth Interests, LLC.

      Williamson listed the Woolworth Property for sale but never found a buyer.

In the meantime, Williamson collected rent from the property’s tenants and used

the rent to maintain the property and make interest payments on the $135,000 note.

Moran subsequently invested more money to pay for necessary insurance and

taxes. When he was unable to locate a buyer for the Woolworth Property and the

principal amount on the $135,000 note had come due, Williamson restructured the

note and paid the monthly payments, at least in part, out of the rental incomes and

with cash infusions from Moran and Urich. In 2011, Moran took over management

of the Woolworth Property, stating that he had fired Williamson as the property

manager. Moran and Urich retired the restructured note when it came due by

making the final payments. Woolworth Interests, LLC continued to hold the

Woolworth Property and operated it until October 2013, when it entered into a sale

contract for approximately $350,000. Under the terms of that sale, Woolworth

Interests, LLC received approximately $25,000 in cash and a $325,000 seller-




                                        3
financed note that was payable over a term of fifteen years. Moran subsequently

bought out Urich’s interest in the Woolworth Property.

      In a separate transaction, Moran also purchased at foreclosure an investment

property consisting of ten apartment units and nine single-family homes on Reid

and Sayers Streets (“the Reid Property”). Moran purchased that property for

$207,000 in cash and took title to the Reid Property through his corporation Royal

Bodkin, LLC.

      Moran filed this suit based on conflicts arising out the Woolworth Property.

He asserted causes of action for fraud, fraud by misrepresentation, fraud by

nondisclosure, negligent misrepresentation, breach of fiduciary duty, breach of an

express warranty, and violations of the Deceptive Trade Practices Act (“DTPA”).

Among other tort claims, Moran asserted that Williamson violated his fiduciary

duties as a real estate broker and property manager, misrepresented the nature and

expense of flipping the property, and failed to disclose the existence of the

$135,000 note at the time he purchased the Woolworth Property.

      Williamson filed a countersuit. His live pleading as of the time of trial

asserted causes of action for breach of fiduciary duty, rescission of the deed

transferring title of the Woolworth Property to Woolworth Interests, LLC,

violations of the DTPA, unjust enrichment, and fraud. Williamson also sought the

imposition of a constructive trust and attorney’s fees.



                                          4
      The parties tried the case to the bench in April 2014. The trial court

attempted to resolve the dispute between Moran and Williamson on the basis that it

was an “oral partnership agreement gone bad.” At the outset of the bench trial, the

trial court stated that it had viewed the pre-admitted exhibits and that, based on his

“preliminary look at things,” he did not believe any of the tort claims had merit and

that he had “to figure out what the terms of the partnership agreement were.” As

the trial court sought evidence regarding who were members of the partnership that

had bought the properties, Moran’s attorney answered, “Your Honor, until we

walked in I had no contention of partnership. We had an agreement between two

individuals. Whether that would be a partnership I hadn’t quite thought that

through. It would have been Doug Moran and [Urich LLC] to the extent that they

held an interest in [Woolworth Interests LLC], if Woolworth was being held

simply as a vessel to hold [the Woolworth Property].”

      The trial court also sought evidence from Moran regarding contributions to a

partnership, and his attorney stated, “We started off, Your Honor, with

determination of who has the ownership interest in the properties. I did not come

down here to discuss the capitalization of a partnership. That was not part of the

case that we pled. It was who owns the . . . the property.” Moran also disagreed on

the record with the trial court’s characterization of the relationship between Moran

and Urich as a partnership:



                                          5
      [The Court]: You agreed it was an oral partnership.

      [Moran]:        I don’t—No, I don’t, Your Honor. I don’t agree with that
                      as a principle.

      [The Court]: I though you just told me a few minutes ago that there
                  was an oral partnership agreement between Mr. Moran
                  and Mr. [Urich].

      [Moran]:        That there was an agreement between the two and there
                      is—there’s—that is not an issue, Your Honor. The
                      difference between Mr. Moran and Mr. [Urich] is not[—]
                      I didn’t come to prove that case.

      [The Court]: Is there a counterclaim? Are you claiming there was an
                  oral partnership agreement?

      [Williamson]: Yes, Your Honor.

      Thus, although Williamson represented at trial that he was asserting a claim

for breach of contract and breach of a partnership agreement, Moran objected to

that characterization of the case. Moreover, the pleadings did not reflect either a

breach of contract claim by Williamson or a claim by him for breach of a

partnership agreement. Moran notified the trial court that he did not have the

evidence ready to present at trial regarding his capital contributions to the

partnership and other related issues. On the record, the trial court discussed

continuing the bench trial to allow Moran to gather evidence or to refer the case to

an accountant to resolve the partnership questions, but ultimately it did not

continue the trial.




                                           6
      Throughout the bench trial, Moran continued to object to testimony relating

to a breach of partnership claim. When the trial court requested information about

partnership tax returns, Moran’s attorney stated that the taxes were done through

Woolworth Interests, LLC and said, “Until we walked in this court, Your Honor,

we would have put everything forward under the Woolworth LLC and come

forward. We would not have worked it as a partnership.” Moran and Williamson

both testified regarding their understanding of the parties’ roles in purchasing the

Woolworth and Reid Properties and the various amounts invested.

      Based on an exchange that occurred off the record, the trial court reviewed

the pleadings and recognized on the record that Williamson “did not plead breach

of contract, breach of an oral partnership agreement. . . . Breach of contract wasn’t

in it, okay, but there is a, you called it unjust enrichment, which I can construe, I

guess as quantum meruit, all right, and . . . this sounds like a quantum meruit claim

if I ever heard one.” The trial court expressed its belief that Williamson was

entitled to some amount of recovery although the amount remained unclear. It

stated,

      I’ve got some numbers here for, you know, outstanding payments.
      The only thing I don’t have is any evidence regarding the value of
      those services [rendered by Williamson] and the quantum meruit
      [theory of recovery] also provides for the recovery of attorney’s fees.
      So, you know, I don’t have sufficient evidence before me to value the
      partnership and—nor what the—all the capital contributions of the
      partners were. I just don’t have that in front of me.



                                          7
      The attorneys and trial court discussed on the record the value of various

aspects of the transactions under a quantum meruit theory of recovery. Moran

contradicted Williamson’s and the trial court’s representations regarding the capital

contributions of each party, arguing that he had incurred expenses that were not

represented in the record, stating, for example, that he had paid over $6,000 in

water bills over the ninety days before trial. However, his attorney stated, again,

that he did not have that information included as a trial exhibit because he “didn’t

come with that—that was not the lawsuit we were going to be trying.” And the trial

court acknowledged that Williamson had not pleaded that cause of action.

      Moran again stated on the record:

      And just before we get started [introducing rebuttal testimony], Your
      Honor, just for the record’s sake, I would just like to put on the record
      that, in fact, we’ve come to attempt to try the case that was pled by
      both plaintiff and defendant. And some of the discovery—or some of
      the testimony that’s been solicited by Your Honor in an attempt to
      encumber us is not necessarily the same case that was pled to the
      extent that we would—we’re not waiving our insistence that the
      judgment and the evidence adhere to the petition.
             We just wanted to put that on the record so that it’s not waived
      should things go awry. We intend to fully cooperate with the Court,
      but we would like the pleadings to be held.

      After final arguments, Williamson stated,

      Finally, Your Honor, to the extent that there’s any issue with respect
      to Mr. Williamson’s pleadings in this matter, we have prepared and
      would like to submit a motion for leave to amend our pleadings to
      conform to the testimony in trial. We don’t believe there’s any
      surprise or unfair surprise to the plaintiffs in this case that that’s what
      this case was about.


                                          8
Moran objected, as his attorney characterized, “loudly, strongly, and at great

length.” The trial court overruled Moran’s objection and granted Williamson leave

to amend his pleadings. However, Williamson did not file any amended pleadings

at that time.

       The trial court then stated that it was “going to treat this as a partnership

accounting or breach of an oral partnership case.” The trial court stated that it

thought “the pleadings [on file at the time of trial] were sufficient to raise the issue.

They weren’t as clear as I would have liked. I didn’t see a specific breach of

contract claim. But there were several references to there being a partnership

agreement and joint ownership and request for constructive trust until respective

interest could be determined.” The trial court gave an oral ruling that it was going

to hold that Moran take nothing on all of his claims and that Williamson take

nothing on his claims for “breach of fiduciary duty, DTPA, fraud, et cetera” and

would render judgment based on “a claim that there was an oral partnership

agreement with respect to both properties that they claim that that was breached

and for an accounting regarding the various interest[s] in this partnership.”

However, the trial court continued to express frustration about arriving at the best

way to settle the final judgment between the parties. Moran’s attorney asked, “Can

I know upon what statutory or legal basis the attorney’s fees are being awarded?”

The trial court answered,



                                           9
      They’re going to be awarded for breach of contract, an oral
      partnership agreement; and whether the pleadings are sufficient to
      support that, I don’t know. They may not be. But that’s part of why,
      again, I cut them from 53 to 20, okay, partly because things are
      muddy on the pleadings and what theory would support the attorney’s
      fees. That’s why I cut them down.

      On September 15, 2014, the trial court signed its final judgment awarding

Williamson $94,611.75 from Moran and Woolworth Interests, LLC for his interest

in the Woolworth Property; $82,240.25 from Moran and Royal Bodkin, LLC for

his interest in the Reid Property; and $20,000 in attorney’s fees from Moran,

Woolworth Interests, LLC, and Royal Bodkin, LLC. The trial court specifically

ordered that Moran take nothing against Williamson on the claims Moran had

pleaded. It also ordered that Williamson “take nothing against [Moran] by this suit,

save and except for the causes of action of breach of partnership agreement and

breach of contract.”

      On October 9, 2014, the trial court signed its Findings of Fact and

Conclusions of Law determining that there was an agreement between Moran,

Urich, and Williamson that proceeds from the Woolworth Property would be

distributed “40%, 40%, and 20%, respectively.” The trial court found that

Williamson was entitled to a cash payment based on the sale price of the

Woolworth Property, even though it recognized that the Woolworth Property was

sold pursuant to a seller-financed promissory note payable over fifteen years,

which term had not been completed at the time of trial. The trial court made no


                                        10
findings and entered no order allocating any risk to Williamson in the event the

purchaser quit paying the note and the sale transaction fell through at some point

after the trial.

       The trial court also concluded that there was an agreement between Moran

and Williamson to “compensate Williamson 10% of the value of the Reid Property

for his assistance locating and acquiring said property,” even though Williamson

had alleged a 50% ownership interest in the Reid Property and Moran had alleged

that Williamson had no interest in the Reid Property. The trial court entered

findings on the specific values of the Properties involved and the capital

contributions of each party, determining that Williamson was owed certain sums

for unreimbursed expenses in arriving at the amounts included in the final

judgment.

       On October 14, 2014, Moran moved for new trial, arguing, in part, that the

trial court erred in allowing Williamson to try the unpleaded theories of oral

partnership and breach of contract and in finding the existence of an oral

partnership. Moran also argued that the trial court erred in granting Williamson a

trial amendment because Moran proved that he was surprised and prejudiced by

the late amendment to the pleadings. Williamson responded to the motion for new

trial by arguing that the trial court “properly allowed [Williamson] to file an

amendment to [his] pleadings to allege an oral partnership and oral contract.” He



                                       11
also argued that he had proven the existence of a partnership. Williamson filed

amended pleadings asserting causes of action for breach of an oral partnership and

breach of contract with his response to the motion for new trial on November 17,

2014. The trial court denied the motion for new trial, and this appeal followed.

                  Conformity of the Judgment to the Pleadings

      Moran does not challenge on appeal the trial court’s take-nothing judgment

on his own claims. Rather, in his first and second issues, Moran argues that the

trial court’s judgment in favor of Williamson is not supported by the pleadings

because Williamson did not file any pleadings asserting oral partnership or breach

of contract theories until after the trial court signed the final judgment and these

issues were not tried by consent. Williamson argues that his first amended

counterclaim, which did not expressly include a cause of action for breach of

partnership or breach of contract, nevertheless provided Moran with fair notice of

those claims in that the first amended counterclaim asserted causes of action for

unjust enrichment and constructive trust.

A.    Standard of Review

      Texas follows a fair notice standard for pleading, which looks to whether the

opposing party can ascertain from the pleading the nature and basic issues of the

controversy and what type of evidence might be relevant. Low v. Henry, 221

S.W.3d 609, 612 (Tex. 2007); see also TEX. R. CIV. P. 45 (setting out definition



                                         12
and basic requirements of “pleadings”). Pleadings must give fair notice of the

claim asserted and the relief sought to provide the opposing party with enough

information to enable him to prepare a defense. In re Lipsky, 460 S.W.3d 579, 590

(Tex. 2015). Pleadings are sufficient if a cause of action may be reasonably

inferred from what is specifically stated, even if an element of the cause of action

is not specifically alleged. See id.; Boyles v. Kerr, 855 S.W.2d 593, 601 (Tex.

1993) (op. on reh’g). In the absence of special exceptions, the petition should be

construed liberally in favor of the pleader. Boyles, 855 S.W.2d at 601; McNeil v.

Nabors Drilling USA, Inc., 36 S.W.3d 248, 250 (Tex. App.—Houston [1st Dist.]

2001, no pet.). However, a court may not use a liberal construction of the petition

as a license to read into the petition a claim that it does not contain. Moneyhon v.

Moneyhon, 278 S.W.3d 874, 878 (Tex. App.—Houston [14th Dist.] 2009, no pet.).

      A court’s jurisdiction to render judgment is invoked by the pleadings, and a

judgment unsupported by the pleadings is erroneous. In re S.A.A., 279 S.W.3d 853,

856 (Tex. App.—Dallas 2009, no pet.); see Cunningham v. Parkdale Bank, 660

S.W.2d 810, 812–13 (Tex. 1983) (“The jurisdiction [of the court] is activated and

becomes actual jurisdiction over a party only after the filing of a petition the

subject matter of which is within the jurisdiction of the court. . . . [A] judgment

must be supported by the pleadings and, if not so supported, it is erroneous.”).

Therefore, a trial court’s judgment must conform to the pleadings. TEX. R. CIV. P.



                                        13
301; Khalaf v. Williams, 814 S.W.2d 854, 858 (Tex. App.—Houston [1st Dist.]

1991, no writ). In determining whether the judgment conforms to the pleadings, we

must view the pleadings as a whole. Khalaf, 814 S.W.2d at 858. A general prayer

for relief will support any relief raised by the evidence that is consistent with the

allegations and causes of action stated in the petition. Salomon v. Lesay, 369

S.W.3d 540, 553 (Tex. App.—Houston [1st Dist.] 2012, no pet.); Nelson v. Najm,

127 S.W.3d 170, 177 (Tex. App.—Houston [1st Dist.] 2003, pet. denied); Khalaf,

814 S.W.2d at 858. Absent trial by consent, a claimant may not be granted a

favorable judgment on an unpleaded cause of action. TEX. R. CIV. P. 301; Binder v.

Joe, 193 S.W.3d 29, 32 (Tex. App.—Houston [1st Dist.] 2006, no pet.); Marrs &

Smith P’ship v. D.K. Boyd Oil & Gas Co., 223 S.W.3d 1, 18 (Tex. App.—El Paso

2005, pet. denied).

B.    The Pleadings

      Moran argues that the trial court committed error by rendering a judgment

that was not supported by the live pleadings. He argues that “Williamson’s

pleading did not assert that there was an oral partnership between him and Moran,

nor did it include a cause of action for breach of contract or request a partnership

accounting,” which were the claims on which the trial court rendered its judgment

in favor of Williamson and awarded him damages. Moran does not challenge the

trial court’s rendition of a take-nothing judgment on his own claims.



                                         14
      Williamson acknowledges that his live pleading did not expressly plead a

cause of action for breach of a partnership agreement or breach of contract, but he

argues that his pleadings gave Moran fair notice of those claims and were

sufficient to support the trial court’s judgment.

      Here, Moran was the original plaintiff. His petition alleged facts indicating

that Williamson participated in the property transactions as a real estate broker and

property manager. Moran sued Williamson for fraud and other torts, alleging that

Williamson misrepresented various aspects of the real estate transactions and acted

fraudulently in his capacity as property manager. He did not allege a cause of

action for breach of a partnership agreement or breach of contract.

      Williamson countersued. His live pleading as of the time of trial asserted

causes of action for breach of fiduciary duty, rescission of the deed transferring

title of the Woolworth Property to Woolworth Interests, LLC, violations of the

DTPA, unjust enrichment, and fraud. Williamson also sought the imposition of a

constructive trust and attorney’s fees. He asserted no cause of action for breach of

a partnership agreement or breach of contract. Williamson also alleged as an

affirmative defense to Moran’s claims that Moran was “estopped from denying that

[he] owns a one-half interest in Woolworth, LLC and Royal Bodkin, LLC.”

      In support of his claims and affirmative defense, Williamson asserted that

he, Moran, and Urich “collectively purchased for profit a 26-unit apartment



                                          15
complex on Woolworth”; that he took title to the Woolworth Property upon

purchase; that, based on Moran’s suggestion, he subsequently transferred title to

the Property to Woolworth Interests, LLC, formed by Moran; that “Moran totally

disregarded Mr. Williamson’s contribution to the LLC”; that he listed the

Woolworth Property for sale but was unable to find a buyer and collected rent from

the tenants, which was used to maintain the property and pay the $135,000 note;

that he invested money in the course of restricting the note; and that he “invested

hundreds of hours managing, maintaining, and renovating the Woolworth Property

units without compensation from Woolworth Interests LLC.”

      Williamson also alleged, as facts in support of his claims, that he and Moran

“partnered to purchase and renovate” the Reid Property; that Moran “agreed to

invest the original purchase price” and that he himself “agreed to invest his time

and efforts to renovate and manage the properties”; that he “invested tens of

thousands of dollars and hundreds of hours managing, maintaining, and renovating

the Reid Property units”; and that “[n]otwithstanding [Moran’s] and [his]

agreement that they would share ownership of the Reid Property, Moran filed

Royal Bodkin, LLC’s certificate of formation stat[ing] that [Moran] was the

registered agent and sole manager of Royal Bodkin, LLC.”

      Williamson asserted that Moran had acted as his attorney prior to, during,

and after the purchases of the Woolworth and Reid Properties and, as such, owed



                                        16
him a fiduciary duty that Moran breached by putting the title to both properties in

holding companies solely owned by Moran and by not compensating Williamson

for his work and expenses relating to the properties.

      Williamson also alleged that Moran’s failure to disclose the structure of the

two holding companies was a violation of the DTPA and constituted fraud. He

alleged that “[t]he Plaintiffs in this lawsuit have been unjustly enriched in that they

seek to deny Mr. Williamson’s interests in the Woolworth and Reid Properties or,

in the alternative, interests in Woolworth Interests, LLC or Royal Bodkin, LLC—

notwithstanding Mr. Williamson’s longstanding investment of time, labor, and

money renovating and managing the Woolworth and Reid Properties.” He pleaded

that his interests could only be protected by rescinding the deed transferring the

Woolworth Property to Woolworth Interests, LLC, and he asked that the Properties

“be held in a constructive trust for the benefit of the other owners of such

properties to prevent the unjust enrichment of Mr. Moran, who has sole

management rights over the limited liability companies that hold title to such

properties.” He sought recovery of damages for “loss of his investment in time,

energy, and money invested in the Woolworth and Reid Properties,” including

exemplary and punitive damages and attorney’s fees under Civil Practice and

Remedies Code Chapter 38.




                                          17
      Moran filed his answer to these pleadings, asserting various affirmative

defenses. In his answer, Moran argued that Williamson’s own fraud in

misrepresenting that he had obtained “outside investors” to supply the additional

funds for purchasing the Woolworth Property, when he had, instead, engineered “a

loan with a lien against the property being purchased and then funded this loan

with the proceeds of the property without the knowledge of any of the other

investors” constituted an affirmative defense of his own against Williamson’s

claims. Moran also argued that, based on Williamson’s live pleading, Williamson

was “attempting to obtain either an interest in real property, or a real estate

commission, or [to] enforce a contract which cannot be completed within one year

which is not in writing,” and, thus, the statute of frauds would bar Williamson’s

ability to recover an interest in the Properties, to collect any real estate

commission, or to recover on any contract which was to take more than one year to

perform. He also asserted that the contracts in the case were the deeds that

transferred the Properties to their respective corporations and that the merger

doctrine and the parol evidence rule prevented Williamson from asserting a present

interest in the Properties. Finally, Moran argued that the statute of limitations

barred Williamson from challenging the deeds transferring the Properties to their

respective holding companies.




                                       18
      We cannot reasonably infer from these pleadings that Williamson intended

to plead a cause of action asserting that he was actually a member of a partnership

engaging in the transactions, as opposed to a real estate broker and property

manager. His pleadings do not assert facts relevant to the existence of a

partnership, a claim for breach of a partnership agreement, or a claim for a

partnership accounting. Factors indicating the formation of a partnership include:

(1) receipt or right to receive a share of profits of the business; (2) expression of

intent to be partners in the business; (3) participation or right to participate in

control of the business; (4) sharing or agreeing to share losses and liabilities of the

business; and (5) contributing or agreeing to contribute money or property to the

business. See TEX. BUS. ORGS. CODE ANN. § 152.052(a) (Vernon 2012); Sewing v.

Bowman, 371 S.W.3d 321, 333 (Tex. App.—Houston [1st Dist.] 2012, pet.

dism’d).

      Williamson’s pleadings did not identify any of the factors relevant to

formation of a partnership beyond his general assertion that he, Moran, and Urich

“collectively purchased for profit” the Woolworth Property and that he had an

ownership interest in the holding companies that held title to the properties, which

were limited liability companies. He did not plead facts indicating the nature of

any agreement regarding allocation of profits and losses or his right to participate

in the control of the business, as would indicate the existence of a partnership



                                          19
agreement. Nor did his pleadings identify any on-going business. He did not assert

any manner in which Moran breached an alleged partnership agreement, other than

to make a general assertion that Moran failed to compensate him for his

investments of time and money. All of the facts Williamson alleged are consistent

with his involvement in the transactions as a real estate broker or property manager

hired by the buyer and owner, as Moran alleged, and they did not serve to put

Moran on notice that Williamson was asserting the existence of a partnership. See

Low, 221 S.W.3d at 612 (fair notice pleadings looks to whether opposing party can

ascertain from pleadings nature and basic issues of controversy and what type of

evidence might be relevant).

      Williamson’s live pleading was likewise insufficient to put Moran on notice

of a breach of contract claim based on some other agreement, outside of a

partnership agreement, that invested him with a right or interest in the Properties.

The pleading did not allege or otherwise identify the existence of a valid contract

or the terms of such a contract, it did not assert that Williamson tendered

performance or the manner in which Moran breached, and it did not allege the

damages caused by such a breach. See Luccia v. Ross, 274 S.W.3d 140, 146 (Tex.

App.—Houston [1st Dist.] 2008, pet. denied) (setting out elements of breach of

contract claim). Rather, Williamson’s pleadings alleged generally that he was

involved in the purchases of the Properties and that he had not been compensated



                                        20
for his contributions, but they did not identify any contracts except for the deeds

transferring the Properties to their respective holding companies. He also asserted

that he was entitled to damages for “loss of his investment in time, energy, and

money invested in the Woolworth and Reid Properties,” including exemplary and

punitive damages and attorney’s fees under Civil Practice and Remedies Code

Chapter 38. However, considering the pleadings as a whole, these allegations did

not put Moran on notice that he would be required to defend his actions pursuant to

any specific agreement of the parties other than the deeds transferring the

Properties to his holding companies. And, even then, Williamson’s pleadings did

not identify any partnership or other agreement with respect to the transfer of those

deeds or allege facts that could constitute a breach of such an agreement.

      Williamson argues that his unjust enrichment claim, read in conjunction with

his claim for a constructive trust, “gave [Moran] fair notice of [his] cause of action

for breach of contract, including breach of a partnership agreement.” He argues

that unjust enrichment is an alternative remedy based on an implied-contract

theory. See Christus Health v. Quality Infusion Care, Inc., 359 S.W.3d 719, 722–

23 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (unjust enrichment is implied-

contract theory providing that one should make restitution if it would be unjust to

retain received benefits). However, when an express contract covers the subject

matter of the dispute, generally there can be no recovery under a quasi-contract



                                         21
theory such as unjust enrichment. Fortune Prod. Co. v. Conoco, Inc., 52 S.W.3d

671, 684 (Tex. 2000). Thus, Williamson’s pleading of only the equitable remedy of

unjust enrichment indicates that he was not seeking a legal remedy under any

valid, enforceable contract.

      We also observe that Williamson himself concedes that although the trial

court granted him leave to file a trial amendment, he did not take advantage of that

ruling by actually filing a timely amended pleading. See Dallas Area Rapid Transit

v. Morris, 434 S.W.3d 752, 760 (Tex. App.—Dallas 2014, pet. denied) (“A trial

amendment must be filed as a written pleading; an oral amendment at trial is

insufficient to modify the pleadings.”); Food Source, Inc. v. Zurich Ins. Co., 751

S.W.2d 596, 599 (Tex. App.—Dallas 1988, writ denied) (“Amended pleadings

may be filed up to the time judgment is signed.”).

      We conclude that none of Williamson’s pleadings asserted a cause of action

for the existence of a partnership agreement or for breach of that agreement or

other contract.

C.    Trial by Consent

      Moran also argues that the issues of breach of a partnership agreement or

other contract were not tried by consent and that, contrary to that claim, the record

demonstrates his repeated opposition to trial of any such claims in the absence of

appropriate pleadings and the opportunity to prepare for trial on those claims.



                                         22
Moran also complains of the trial court’s award of attorney’s fees based on breach

of a partnership agreement or other contract.

      Texas Rule of Civil Procedure 67 provides that when issues not raised by the

pleadings are tried by implied consent, they must be treated in all respects as if

they had been raised in the pleadings. TEX. R. CIV. P. 67; Gutierrez v. Gutierrez, 86

S.W.3d 721, 729 (Tex. App.—El Paso 2002, no pet.). This rule is limited to those

exceptional cases where it clearly appears from the record as a whole that the

parties tried an unpleaded issue by consent. Gutierrez, 86 S.W.3d at 729; In re

Walters, 39 S.W.3d 280, 289 (Tex. App.—Texarkana 2001, no pet.); Stephanz v.

Laird, 846 S.W.2d 895, 901 (Tex. App.—Houston [1st Dist.] 1993, writ denied). It

is not intended to establish a general rule of practice; it should be applied with

care, and never in a doubtful situation. Stephanz, 846 S.W.2d at 901. Trial by

implied consent “applies only where it appears from the record that the issue was

actually tried, although not pleaded.” Johnston v. McKinney Am., Inc., 9 S.W.3d

271, 281 (Tex. App.—Houston [14th Dist.] 1999, pet. denied). To determine

whether the issue was tried by consent, the court must examine the record not for

evidence of the issue, but rather for evidence of trial of the issue. Stephanz, 846

S.W.2d at 901. When evidence relevant to both a pleaded and an unpleaded issue

has been admitted without objection, the doctrine of trial by consent should not be

applied unless clearly warranted. Johnston, 9 S.W.3d at 281. “[A]n issue is not



                                         23
tried by consent when the evidence relevant to the unpleaded issue is also relevant

to a pleaded issue because admitting that evidence would not be calculated to elicit

an objection and its admission ordinarily would not prove the parties’ ‘clear intent’

to try the unpleaded issue.” Hampden Corp. v. Remark, Inc., 331 S.W.3d 489, 496

(Tex. App.—Dallas 2010, pet. denied).

      Here, Moran attempted to try the case on the causes of action that he

pleaded. He did not initially object to testimony regarding the circumstances under

which he, Urich, and Williamson purchased and operated the Properties in

question, nor was he required to do so, as that evidence was relevant to his own

causes of action. See id. Once the trial progressed sufficiently to make clear that

Williamson was presenting evidence on unpleaded causes of action and that the

trial court was attempting to elicit further evidence on those claims, Moran

repeatedly complained that causes of action for an oral partnership, for a

partnership accounting, and for breach of contract were not in the pleadings, and he

disagreed with the trial court’s characterization of the case as a partnership case.

Moran repeatedly informed the trial court that he could not provide evidence of the

existence of a partnership or of the capital contributions made by any alleged

partners, so as to provide an accounting, because he believed the trial would settle

questions of who held ownership interests in the Properties based on the validity of

the deeds transferring the Properties to the holding companies.



                                         24
      Williamson contends that Moran failed to object to trial of the unpleaded

partnership and breach of a partnership agreement claims. However, we observe

that no special language is required to present an objection to a trial court; rather, a

litigant must make a timely request, objection, or motion sufficient to put the trial

court on notice of the basis of the complaint. See TEX. R. APP. P. 33.1. And the

standard to determine whether an issue was tried by consent does not look solely to

whether the opposing party objected at a particular time, but whether the record as

a whole demonstrates that the parties consented to trial of an unpleaded claim. See

Gutierrez, 86 S.W.3d at 729. The record demonstrates that the trial court was

aware of Moran’s objection to trying Williamson’s unpleaded causes of action for

breach of a partnership agreement and breach of contract.

      Moran stated on the record,

      And just before we get started [introducing rebuttal testimony], Your
      Honor, just for the record’s sake, I would just like to put on the record
      that, in fact, we’ve come to attempt to try the case that was pled by
      both plaintiff and defendant. And some of the discovery—or some of
      the testimony that’s been solicited by Your Honor in an attempt to
      encumber us is not necessarily the same case that was pled to the
      extent that we would—we’re not waiving our insistence that the
      judgment and the evidence adhere to the petition.
             We just wanted to put that on the record so that it’s not waived
      should things go awry. We intend to fully cooperate with the Court,
      but we would like the pleadings to be held.

(Empahsis added).




                                          25
      Furthermore, Moran made the trial court aware that Williamson had not

pleaded the claims for breach of a partnership agreement and breach of contract

and that he was not prepared to present evidence on those issues at trial. The trial

court stated on the record that, at Moran’s insistence, it had reviewed the pleadings

and determined that Williamson “did not plead breach of contract [or] breach of an

oral partnership agreement. . . .” The trial court further recognized the lack of

adequate pleadings by allowing Williamson an opportunity to file a trial

amendment to add pleadings for breach of a partnership agreement and breach of

contract, but Williamson failed to do so. And Moran again raised this issue in his

motion for new trial, objecting to the rendition of judgment on unpleaded claims.

      Thus, Moran expressly challenged the trial court’s refusal to properly

characterize the case according to the parties’ pleadings, in which Moran had

asserted that Williamson committed various torts in his actions as a real estate

broker and property manager relating to the Properties. Moran repeatedly stated

that he had intended to try to prove his claims during trial. He stated that he was

not prepared to try other claims as recharacterized by the trial court. This objection

likewise indicated that Moran never consented to trying the issues of breach of

partnership agreement because that claim was never pleaded.

      In light of Moran’s repeated complaints and the record demonstrating that

the trial court was aware that Williamson had not pleaded claims for breach of a



                                         26
partnership agreement or breach of contract, that Moran had expressed that he was

unprepared to try those issues, and that Moran specifically stated that his

introduction of evidence on those claims was conditioned on his statement that he

was “not waiving [his] insistence that the judgment and the evidence adhere to the

petition” but was instead attempting to comply with the trial court’s directives, we

conclude that this is not a case where it clearly appears from the record as a whole

that the parties tried an unpleaded issue by consent. See Gutierrez, 86 S.W.3d at

729. We conclude that the unpleaded theories were not tried by consent. See, e.g.,

Hampden Corp., 331 S.W.3d at 496 (issue is not tried by consent when evidence

relevant to unpleaded issue is also relevant to pleaded issue because “admitting

that evidence would not be calculated to elicit an objection and its admission

ordinarily would not prove the parties’ ‘clear intent’ to try the unpleaded issue”);

Johnston, 9 S.W.3d at 281 (when evidence relevant to both pleaded and unpleaded

issue has been admitted without objection, doctrine of trial by consent should not

be applied unless clearly warranted); Stephanz, 846 S.W.2d at 901 (trial by consent

rule is limited to exceptional cases, is not intended to establish general rule of

practice, and should be applied with care and never in a doubtful situation).

      Because Williamson did not plead for the existence of a partnership or other

valid agreement regarding his interest in the Properties, for breach of such an

agreement, or for a partnership accounting, and these issues were not tried by



                                         27
consent, the trial court’s reliance on these claims in rendering its judgment in favor

of Williamson was unsupported by the pleadings. Because the portion of the trial

court’s judgment that awarded Williamson damages for breach of a partnership

agreement and breach of contract is not supported by the pleadings, it is erroneous

and must be set aside. See Cunningham, 660 S.W.2d at 813–14 (holding that trial

court erred in rendering personal judgment against party without pleadings and

thus judgment must be set aside); In re S.A.A., 279 S.W.3d at 857 (modifying trial

court’s judgment to delete portion not supported by pleadings and affirming

judgment as modified). Likewise, the award of attorney’s fees based on breach of a

partnership agreement and breach of contract must also be set aside. See Ventling

v. Johnson, 466 S.W.3d 143, 154 (Tex. 2015) (“To recover attorney’s fees under

[Civil Practice and Remedies Code chapter 38], a party must prevail on the

underlying claim and recover damages.”). We need not address Moran’s remaining

issues challenging the sufficiency of the evidence to support the trial court’s

judgment in Williamson’s favor and award of damages to him for breach of a

partnership agreement or other contract, and Moran does not challenge the trial

court’s take-nothing judgment on the other claims presented in the parties’

pleadings.




                                         28
                                    Conclusion

      We conclude that the trial court’s judgment in favor of Williamson on the

claims for breach of a partnership agreement or other contract was not supported

by the pleadings and these claims were not tried by consent; the trial court

therefore erred in entering it. We modify the trial court’s judgment to delete the

award of damages for breach of partnership agreement and breach of contract and

the related attorney’s fees and affirm the trial court’s judgment as modified.




                                              Evelyn V. Keyes
                                              Justice

Panel consists of Justices Jennings, Keyes, and Bland.




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