Revered and Rendered and Opinion Filed Fetruary 12, 20x9.Fourteenth Court of AppealsNO. 14-06-00873-CVBRIAN D. MONEYHON AND CHERYL PARRISH.MONEYHON, AppellantsPatricia and standing tha together at Brian usedAll of the Brian, by Lake Jac to Patrici In Mare vacatePatricia also pe allegations: Patri for 1 the ThCOrePPATRICIA MONEYHON, AppelleeOn Appeal from the 412th District CourtBrazoria County, TexasTrial Court Cause No. 37527OPINIONA husband and wife appeal a judgment from the trial court ordering the couple to convey title to a home, which the couple shared with the husband's mother, to the husband's mother. In five issues, the couple complains that (1) the judgment imposing a constructive trust on the home based on an alleged breach of fiduciary duty is improper because the judgment does not comport with the pleadings; (2) the trial court's judgment cannot be affirmed on any other basis; (3) the mother is precluded from seeking judicial assistance to re-acquire title to the home that allegedly was fraudulently conveyed; (4) injunctive relief is improper; and (5) the home was a gift from the mother to the son. We reverse and render.I. Factual and Procedural BackgroundBefore appellant Brian Moneyhon's marriage to appellant Cheryl Parrish-Moneyhon, Brian lived with appellee, his 75-year-old mother, Patricia Moneyhon in a Houston home referred to by the parties as "Bash Place." By her own admission, Patricia was dependent on Brian's care, and had been for many years, because she was not in good health.' Patricia sold Bash Place, and proceeds from that sale were used to purchase a home in Lake Jackson. The title to the Lake Jackson home was transferred to Brian alone. Brian and Patricia moved to the home in Lake Jackson, which is the home at issue in this case.Brian and Cheryl were married shortly after he and Patricia moved to Lake Jackson. Cheryl moved into the Lake Jackson home with Brian and Patricia. In the months that followed, Brian and Cheryl's relationship with Patricia deteriorated, which the couple attributed to Patricia's declining health and growing demands. The couple believed it was in Patricia's best interest for her to live in a facility that was better-equipped to meet her needs, and they served Patricia with a notice of eviction in hope that she would move to an assisted-living facility. Upon receiving the eviction notice, Patricia sued Brian and Cheryl, seeking an injunction against the couple to prevent her eviction.Patricia petitioned the district court to determine ownership of the home and to declare a constructive trust. In her petition for injunction, Patricia made the following factual allegations: Patricia agreed to sell her Bash Place home and purchase the Lake Jackson home. The proceeds from the sale of Bash Place were dispersed to Patricia and Brian, with the bulk of the proceeds transferred to a title company in Lake Jackson. Patricia received roughly $49,000 by check, which was endorsed by Brian and deposited in a bank. Brian subsequently withdrew or spent the money to Patricia's damage.Patricia und Brian discuses the purchase of the Lake fackson frome with the understanding that they would reside there together. Each of them continuously have lived241together at the Lake Jackson home since moving to the home in November 2004. Brian used the proceedof the sale of Bush Place to purchase the Lake Jekson horne.All of the money used for the purchase of the Lake Jackson home was Patricia's. Brian, by deed transfers, purposely transferred an undivided one-half interest in the Lake Jackson home to Cheryl, which was done without Patricia's consent or approval to Patricia's damage. In March 2006, the couple gave Patricia a thirty-day eviction notice, requesting her to vacate the premises of the Lake Jackson home.allegations:Patricia also petitioned for the district court to declare a constructive trust, based on the following Patricia sold her Bash Place home. Unbeknownst to Patricia, Brian and Cheryl arranged for the purchase of the Lake Jackson home using entirely the proceeds from the sale of the Bash Place home. Brian took title to the Lake Jackson property. The couple, through a series of conveyances, transferred the home to each other. The couple obtained the property in complete disregard to Patricia's rights by promising or representing to Patricia that Patricia would own the property, but "if anything ever hap-pened" to Patricia, Brian would receive the property. Brian promised to let Patricia live the rest of her life at the Lake Jackson home. After Patricia learned of the couple's "plan to dispossess [her] and own the property." Brian promised Patricia that he would convey the property to her. The couple did not convey the Lake Jackson home to Patricia. Brian's promises were material representations because Patricia did not agree that Brian would own the property to Patricia's exclusion. The couple's representations were false because they never intended to reconvey the property to Patricia, though the representations were made with the intent that Patricia would act upon them. Patricia fully performed on the agreement, and Brian and Cheryl breached the agreement by failing to fulfill the expressed promises and representations made. Brian and Cheryl collaborated with each other to obtain title to the Lake Jackson property using all of Patricia's funds. Patricia has been injured and deprived of her funds and property because she relied on the couple's promises and representations. The couple has been unjustly enriched by being permitted to stay on the Lake Jackson property. A constructive trust is the only remedy to prevent their unjust enrichment at Patricia's expense. Because the couple's conduct was fraudulent and malicious, Patricia is owed exemplary damages to deter similar conduct by the couple in connection with a home-equity mortgage on the Lake Jackson home?The couple denied Patricia's allegations and alleged that the Lake Jackson home was Brian's sole and separate property, in which he conveyed an undivided one-half interest to Cheryl just before their marriage. The couple alleged that they permitted Patricia to reside in the Lake Jackson home until she began verbally and physically assaulting the couple, and then they sought to evict Patricia. They also filed a counterclaim, alleging trespass to try title and that Patricia made an unconditional gift of the home to Brian.After a bench trial, the trial court made the following findings: Clear and convincing evidence shows Patricia did not intend to make an absolute gift of the Lake Jackson home to Brian to her exclusion. A fiduciary relationship existed between Patricia and Brian, and Brian breached the relationship in failing to disclose factual information about Medicare and estate taxes and potential effects from the transaction. The conveyance to Brian from Patricia was a fraudulent conveyance.The trial court issued a permanent injunction in favor of Patricia and ordered the couple to convey the Lake Jackson home to Patricia. The trial court ordered that Patricia take nothing for exemplary damages or for attorney's fees. The couple now appeals the trial court's judgment. Il. Issues and AnalysisDid the trial court err in rendering judgment based on the existence and breach of a fiduciary duty?In their first issue, Brian and Cheryl complain that the trial court erich in awarding Patricia relier based on a ting Briaria Ched laila a fiduciary duty and breache a that duty. According lo Brian and Cheryl, beet se aricia did not assert a claim for breach of a fiduciary duty, and the issue was not tried by consent, the trial court's finding is in error.A til ours couse, must conform to the pleadings, ex Rha.P. 301. Pleadings must give reasonable notice of mhe claims asserted. Smith Kline Beecham Carp. v. Doe, 9035. W.28 347, 354855 (Tox. 195 Sh A reviewing court should liberally construe the petition to contain any claims that reasonably may be inferred from the specific language as used in the petition and uphold the petition as to those claims, even if an element of a claim is not spe-cificallyaleged. See id. In making this determination, however, a reviewing court cannot use a liberal construction of the petition as a license to read into the petition a claim that it does not contain. San Saba Enersy, L.P. V. Crawford, 171 S.W.3d 323, 338 (Tex. App. CHouston[14 Dist.) 2005, no pet.). The petition must give fair and adequate notice of the claims being asserted, and, if the reviewing court cannot reasonably infer that the petition contains a claim, then it must conclude the petition does not contain this claim, even under a liberal construc-tion. See SmithKline Beecham Corp., 903 S. W.2d at 354B55. It is against this standard that we must analyze Patricia's pleadings to determine if they may be construed as containing a claim for breach of fiduciary duty.Although Patricia pleaded for equitable relief in the form of a constructive trust, even under a liberal construction, Patricia's live petition for constructive trust cannot be said to contain any allegation or even a mention of the existence of a fiduciary relationship or the breach of a fiduciary relationship.* Because the trial court's judgment awarded title to Patriciabased on a breach of a fiduciary duty, the judgment did not conform to the pleadings, and the trial court erred in granting such relief in the absence of pleadings to support such relief or trial by consent. See Tex. R. Civ. P. 301; Binder v. Joe, 193 S. W.3d 29, 32 (Tex. App.CHouston [Ist Dist.] 2005, no pet.). If issues not raised by the pleadings are tried by express or implied consent of the parties, these issues shall be treated as if they had been raised by the pleadings.See Tex. R. Civ. P. 67, 301; Baltzer v. Medina, 240 S.W.3d 469, 476 (Tex. App. CHouston [14th Dist.] 2007, no pet.). 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.Greene v. Young, 174 S.W.3d 291, 301 (Tex. App. CHouston [1st Dist.] 2005, pet. denied). Thus, absent record evidence that a breach-of-fiduciary-duty claim was tried by consent, the judgment on that claim cannot stand.The record utterly fails to support trial by consent of a breach-of-fiduciary-duty claim.At no point did any party present evidence of a fiduciary relationship based on trust or con-fidence. Though the record indicates that Patricia depended on Brian for care and that he shared a joint checking account with her, nothing in the record indicates that the parties were trying the issue of whether Patricia and Brian's relationship involved such a high degree of trust and confidence as to give rise to a fiduciary duty or that Brian breached such a fiduciary duty. To the contrary, it was only during closing arguments that Patricia's trial counsel mentioned B for the first time B a "confidential relationship" between Brian and Patricia.Prior to the close of evidence, however, no party presented evidence or made any reference to this alleged confidential relationship. Thus, we can only conclude that the issue of the existence or breach of a fiduciary duty was not tried by consent of the parties. Absent either trial by consent or pleadings to support a breach-of-fiduciary-duty claim, the trial court erred inBrian and Cheryl's first issue.granting Patricia relief on this basis. See Baltzer, 240 S.W.3d at 476. Accordingly, we sustainMay the trial court's judgment be affirmed based on any other claim?In Brian and Cheryl's second issue, they assert that the trial court did not find that they committed actual fraud and that the judgment may not be affirmed based on Patricia's actual fraud claims. Patricia asserts that the trial court did find in her favor as to the actual fraud claims basedIl. Issues and AnalysisDid the trial court err in rendering judgment based on the existence and breach of a fiduciary duty?In their first issue, Brian and Cheryl complain that the trial court erich in awarding Patricia relier based on a ting Briaria Ched laila a fiduciary duty and breache a that duty. According lo Brian and Cheryl, beet se aricia did not assert a claim for breach of a fiduciary duty, and the issue was not tried by consent, the trial court's finding is in error.A til ours couse, must conform to the pleadings, ex Rha.P. 301. Pleadings must give reasonable notice of mhe claims asserted. Smith Kline Beecham Carp. v. Doe, 9035. W.28 347, 354855 (Tox. 195 Sh A reviewing court should liberally construe the petition to contain any claims that reasonably may be inferred from the specific language as used in the petition and uphold the petition as to those claims, even if an element of a claim is not spe-cificallyaleged. See id. In making this determination, however, a reviewing court cannot use a liberal construction of the petition as a license to read into the petition a claim that it does not contain. San Saba Enersy, L.P. V. Crawford, 171 S.W.3d 323, 338 (Tex. App. CHouston[14 Dist.) 2005, no pet.). The petition must give fair and adequate notice of the claims being asserted, and, if the reviewing court cannot reasonably infer that the petition contains a claim, then it must conclude the petition does not contain this claim, even under a liberal construc-tion. See SmithKline Beecham Corp., 903 S. W.2d at 354B55. It is against this standard that we must analyze Patricia's pleadings to determine if they may be construed as containing a claim for breach of fiduciary duty.Although Patricia pleaded for equitable relief in the form of a constructive trust, even under a liberal construction, Patricia's live petition for constructive trust cannot be said to contain any allegation or even a mention of the existence of a fiduciary relationship or the breach of a fiduciary relationship.* Because the trial court's judgment awarded title to Patriciabased on a breach of a fiduciary duty, the judgment did not conform to the pleadings, and the trial court erred in granting such relief in the absence of pleadings to support such relief or trial by consent. See Tex. R. Civ. P. 301; Binder v. Joe, 193 S. W.3d 29, 32 (Tex. App.CHouston [Ist Dist.] 2005, no pet.). If issues not raised by the pleadings are tried by express or implied consent of the parties, these issues shall be treated as if they had been raised by the pleadings.See Tex. R. Civ. P. 67, 301; Baltzer v. Medina, 240 S.W.3d 469, 476 (Tex. App. CHouston [14th Dist.] 2007, no pet.). 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.Greene v. Young, 174 S.W.3d 291, 301 (Tex. App. CHouston [1st Dist.] 2005, pet. denied). Thus, absent record evidence that a breach-of-fiduciary-duty claim was tried by consent, the judgment on that claim cannot stand.The record utterly fails to support trial by consent of a breach-of-fiduciary-duty claim.At no point did any party present evidence of a fiduciary relationship based on trust or con-fidence. Though the record indicates that Patricia depended on Brian for care and that he shared a joint checking account with her, nothing in the record indicates that the parties were trying the issue of whether Patricia and Brian's relationship involved such a high degree of trust and confidence as to give rise to a fiduciary duty or that Brian breached such a fiduciary duty. To the contrary, it was only during closing arguments that Patricia's trial counsel mentioned B for the first time B a "confidential relationship" between Brian and Patricia.Prior to the close of evidence, however, no party presented evidence or made any reference to this alleged confidential relationship. Thus, we can only conclude that the issue of the existence or breach of a fiduciary duty was not tried by consent of the parties. Absent either trial by consent or pleadings to support a breach-of-fiduciary-duty claim, the trial court erred inBrian and Cheryl's first issue.granting Patricia relief on this basis. See Baltzer, 240 S.W.3d at 476. Accordingly, we sustainMay the trial court's judgment be affirmed based on any other claim?In Brian and Cheryl's second issue, they assert that the trial court did not find that they committed actual fraud and that the judgment may not be affirmed based on Patricia's actual fraud claims. Patricia asserts that the trial court did find in her favor as to the actual fraud claims basedIl. Issues and AnalysisDid the trial court err in rendering judgment based on the existence and breach of a fiduciary duty?In their first issue, Brian and Cheryl complain that the trial court erich in awarding Patricia relier based on a ting Briaria Ched laila a fiduciary duty and breache a that duty. According lo Brian and Cheryl, beet se aricia did not assert a claim for breach of a fiduciary duty, and the issue was not tried by consent, the trial court's finding is in error.A til ours couse, must conform to the pleadings, ex Rha.P. 301. Pleadings must give reasonable notice of mhe claims asserted. Smith Kline Beecham Carp. v. Doe, 9035. W.28 347, 354855 (Tox. 195 Sh A reviewing court should liberally construe the petition to contain any claims that reasonably may be inferred from the specific language as used in the petition and uphold the petition as to those claims, even if an element of a claim is not spe-cificallyaleged. See id. In making this determination, however, a reviewing court cannot use a liberal construction of the petition as a license to read into the petition a claim that it does not contain. San Saba Enersy, L.P. V. Crawford, 171 S.W.3d 323, 338 (Tex. App. CHouston[14 Dist.) 2005, no pet.). The petition must give fair and adequate notice of the claims being asserted, and, if the reviewing court cannot reasonably infer that the petition contains a claim, then it must conclude the petition does not contain this claim, even under a liberal construc-tion. See SmithKline Beecham Corp., 903 S. W.2d at 354B55. It is against this standard that we must analyze Patricia's pleadings to determine if they may be construed as containing a claim for breach of fiduciary duty.Although Patricia pleaded for equitable relief in the form of a constructive trust, even under a liberal construction, Patricia's live petition for constructive trust cannot be said to contain any allegation or even a mention of the existence of a fiduciary relationship or the breach of a fiduciary relationship.* Because the trial court's judgment awarded title to Patriciabased on a breach of a fiduciary duty, the judgment did not conform to the pleadings, and the trial court erred in granting such relief in the absence of pleadings to support such relief or trial by consent. See Tex. R. Civ. P. 301; Binder v. Joe, 193 S. W.3d 29, 32 (Tex. App.CHouston [Ist Dist.] 2005, no pet.). If issues not raised by the pleadings are tried by express or implied consent of the parties, these issues shall be treated as if they had been raised by the pleadings.See Tex. R. Civ. P. 67, 301; Baltzer v. Medina, 240 S.W.3d 469, 476 (Tex. App. CHouston [14th Dist.] 2007, no pet.). 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.Greene v. Young, 174 S.W.3d 291, 301 (Tex. App. CHouston [1st Dist.] 2005, pet. denied). Thus, absent record evidence that a breach-of-fiduciary-duty claim was tried by consent, the judgment on that claim cannot stand.The record utterly fails to support trial by consent of a breach-of-fiduciary-duty claim.At no point did any party present evidence of a fiduciary relationship based on trust or con-fidence. Though the record indicates that Patricia depended on Brian for care and that he shared a joint checking account with her, nothing in the record indicates that the parties were trying the issue of whether Patricia and Brian's relationship involved such a high degree of trust and confidence as to give rise to a fiduciary duty or that Brian breached such a fiduciary duty. To the contrary, it was only during closing arguments that Patricia's trial counsel mentioned B for the first time B a "confidential relationship" between Brian and Patricia.Prior to the close of evidence, however, no party presented evidence or made any reference to this alleged confidential relationship. Thus, we can only conclude that the issue of the existence or breach of a fiduciary duty was not tried by consent of the parties. Absent either trial by consent or pleadings to support a breach-of-fiduciary-duty claim, the trial court erred inBrian and Cheryl's first issue.granting Patricia relief on this basis. See Baltzer, 240 S.W.3d at 476. Accordingly, we sustainMay the trial court's judgment be affirmed based on any other claim?In Brian and Cheryl's second issue, they assert that the trial court did not find that they committed actual fraud and that the judgment may not be affirmed based on Patricia's actual fraud claims. Patricia asserts that the trial court did find in her favor as to the actual fraud claims basedon the trial cour egling:* Based on stat to aime d Menehon from Patricia Monaston aTrusts: Elements and Purposrent conveyance" is no colM. CODE tr er under the Uniform Feal TransferAct. See TEX. Buse brough by one Di moe cret. 1, et sea. (Yermon Sup lens catesunder this statute are brought orm fraudulent Treaditors to challenge transfers made by a Clear.Seeid. Claims under the Uniform Fraudulent Transfer Act do not match up with the a leations in Patricia's pleadings. In her petition, Patricia does not purport to assert any claims under the Uniform Fraudulent Transfer Act, and liberally construing the petition to contain any claims that reasonably may be inferred from its language, we cannot reasonably conclude that Patricia has pleaded any claims under this statute. On appeal, Patricia agrees that the trial court was nor referring to the Uniform Fraudulent Transfer Act when it found a "fraudulent conveyance." The trial court's intent in finding a "fraudulent conveyance" is explained in a letter that thetrial court sent to counsel. In this letter, the trial court explains its decision, stating that,since the Court has found that Patricia had no intent to convey the property unconditionally to her son, and because of Brian's breach of the fiduciary relationship to his mother in failing to completely disclose factual information concerning Medicaid and estate taxes and his failure to disclose the potential affects of transaction, [sic] the Court hereby finds the conveyance to Brian from Patricia a fraudulent conveyance.We conclude that the trial court's subsequent finding of a "fraudulent conveyance" reflected its findings of no gift and a breach of fiduciary duty. In the context of this record, we cannot reasonably conclude that the trial court found that Brian and Cheryl committed actual fraud. Accordingly. we sustain Brian and Cheryl's second issue.Because the trial court did not find any element of Brian and Cheryl's other pleaded claims, these claims cannot provide a basis for affirming the trial court's judgment. See TEX. R. CIV.P. 299; Vickery v. Comm'n for Lawyer Discipline, 5 S.W.3d 241, 252 (Tex. App.CHouston [14th Dist.] 1999, pet. denied). The only claim on which the trial court's judgment is based is a breach-of-fiduciary-duty claim that was not pleaded or tried by consent. Therefore, the equitable relief awarded in the trial court's order, conveying title in the Lake Jackson home to Patricia, necessarily must be reversed. See W & F Transp., Inc. v. Wilhelm, 208 S.W.3d 32, 46B7 (Tex. App. CHouston [14th Dist.] 2006, no pet.) (reversing and rendering a take-nothing judgment because jury's findings did not support liability against two appellants). Accordingly, the trial court's judgment is reversed.?Ill. ConclusionThe trial court awarded relief based on the existence and breach of a fiduciary duty. This theory, however, was neither pleaded nor tried by consent. The trial court did not find any elements of Patricia's other claims that would support the relief it granted; therefore, Patricia's other claims cannot provide a basis for affirming the trial court's judgment. For this reason, we reverse the trial court's judgment and render judgment that Patricia take nothing against Brian and Cheryl./s/ Kem Thompson

panel consists of Justices Anderson, Frost, and Guzman

QUESTION # 8

8(a) DO YOU BELIEVE THE DECISION OF THE APPELLATE COURT WAS FAIR?

ANSWERS:

8(b) WHY OR WHY NOT?

ANSWERS:

8(c) HOW COULD BETTER ESTATE PLANNING HELPED PATRICIA MONEYHON?

ANSWERS:

FrostJusticePanel consists of Justices Anderson, Frost, and Guzman.