## In the C ourt of Appeals Second Appellate District of Texas at Fort W orth

___________________________ No. 02

- 20

- 00049

- CV

___________________________

On Appeal from the 48th District Court Tarrant County, Texas Trial Court No. 048

- 290140

- 17
Before Kerr, Birdwell, and Bassel, JJ. M emorandum Opin ion by Justice Kerr 

### O SMO 

### H AUTAN E N AND 

### ISCHGL H OLDINGS 

### , LLC , Appellants

V


### . J OHN 

### R. P IC I NIC 

### , Appellee2 MEMORANDUM OPINION
Osmo Hautan e n and I SCHGL Holdings, LLC ( collectively, “ Hautanen ” ) sued John Picinic for breach of contract, bre ach of fiduciary duty, and negligence

. Following a bench trial, the court entere d a take

- no thi ng judgment but also entered findings of fact and conclusi o ns of law in which it concluded that Hautanen , appellee John Picinic , and a third person, James Mannering , had formed a joint venture

. In his sole issue on appeal, Hautanen contends t hat the cou rt erred by f a iling to as sign a proportionate share of the jo i nt venture ’ s lo s ses to Picinic. We affirm. Background
The Project
Haut anen and Pi cinic decided to t r y their hands at “ flipping ” a house. The parties ha d s o mewhat different views of Pi cinic ’ s and Ma nnering ’ s roles , but they all

a greed that Hautanen ’ s role w as to finance the p r oject

. They also agreed that the original deal was for Hautanen and Picinic t o split the profits equally

. When
Mann ering was later brought into t he deal, the y modified th e ar ra nge ment so that
Hautanen wo u ld still recei ve 50% of the prof its and Picinic and Mannering would split the remaining 50%. Hautanen testified that he bore the financial risk, and Picinic

te stified that he had no obligation to cove r any los ses on th e projec t.
Hautanen bought a house in the Cre stwood area of Fort Worth for $ 390,000 , which the parties hoped to renovate and then resell for over $600,000

. T he project was plagued with problems that significant ly i ncrease d the reno vation costs
. Although3 the origin al renovation budget was roughly $70,000, Hautanen ultim ately spent $142,000 for renovations and an additional $10,00 0 for repairs.
After sever al delay s, including one ca used by a n electrical fire , t he house was put on the market for $650,000. For six mon t hs, no one put in an offer

. T he parties
then reduced the purcha s e price , but a fter anoth er year they had still not rece i ved an y offers. Th ey finally leased t he hous e for $3,400 per month under a one

- year lease. The property still had numerous defects , though , and the ten ants left after only 90 days

. The house ultimately sold in 2018 for $4 50, 000.
Hautanen ’ s Claims
Hautanen sued Picinic , Manner ing , and two gen eral contractors who had worked on the project

. He asse rted claims for breach of contract, breach of fiduciary duty, negligence, gross negligence, and negligent mi srepres enta tion , seeking actual and exemplary damages

. By the time of trial, on ly Picinic remained as a defendant.
The C o urt ’ s Findings of Fact and C o nclusion s of Law
The t rial court conducted a two

- day benc h trial, at t he end of w hich it as ked the parties each to submit a short letter brief addressing “ whether or not a joint [

- ] venture agreement necessarily implies an obligation or agreement to share los ses . ”
Both parties responded that an agree me nt to share losse s is one factor to c onsider when determining whether a joint venture ha s been formed but that it is not
determinative

.4 The trial court then entered a take

- nothing judgment i n P icinic ’ s fa vor on all of
Hautanen ’ s claims. T he court file d f indings of fact and conclusions of law in which it

con cluded that the parties entered into a joint

- venture agree ment 1 and that Picinic did not breach that agreement, breach any fid uciary duty ow ed to Hautanen, or mak e any negligent misrepresentation. The c ourt further con cluded that Hautanen ’ s losses, if any, were not the re sult of negligence or gross n egligence by Picinic. The court made a fact finding that “ [t ] here was no a greement, expresse d or impl ied, to share any losses arising from the [joint

- venture agreement]. ” Hautanen requested that the trial court enter an additional findin g of fact :

“ L osses were suffered in connection with the IVA [sic] as f ollows: A loss of $94,321 ($390, 000 purchase price plus $153,321 reno vati on costs for a total of $554,321, less $450,000 sale s price). ” 2 The court denied that req uest. Hautanen ’ s L oss - S haring T heory o n Appe al
Hautan en contends in a singl e issue that t he trial court erred as a matter of law by failing to assig n a pro portionate share of the joint venture ’ s los se s among the joint

venturers. He characterizes his complaint as se eking review of “ the trial court ’ s

1 Hautanen c riticizes Picinic for characterizin g the agreemen t as “ oral ” or
“ verbal ” because the court ’ s finding d o es no t s p ecify that the agreement was not in writing. But the record does not contain any written agreement between the parties , and Hautane n admitted at trial that there was no written ag reement.

2 Hautanen ’ s requested finding contains a mathemati cal error : $390,000 + $153,321

- $450,000 = $93 ,321 not $94,321.5 conclu sion of law th at an absence of an express or implied agreement to share l osse s

means the parties do not share the losses of the joi nt venture
. ” T h e co urt did not, however, make any such legal conclusion

. Hautanen ’ s re al conten tion is that, because
the court found that the parties did not e x pre ssly or impliedly agree to share losses, it
should have concluded th at , by stat ute, T exas law provides for loss sharing as a
default mechanism and thus should have rendered judgme nt allocating a p ortion of the joint venture ’ s losses to Picinic.
Hautan e n ’ s loss

- sharing theory of recove r y 3 is based on chapter 1 52 of the Business Organizations Code. That chapter provid es that “ a n association of two or more persons to carry on a busin ess for profit as owners creates a p artnership, regardless of whether: (1 ) the persons intend to create a p artnership; or ( 2) the

a s sociation is called a ‘ partnership, ’ ‘ joint venture, ’ or o ther name. ” Tex. Bus. Orgs. Code Ann. § 152.051 ( b). With certain i napplicable ex ceptions , “ a pa rtnership agreement governs th e relations of the partners and between t he partners and the
partn ership. ” Id. § 152.002(a)

. But t he Code governs those relation shi ps “ [t ] o the extent that the partnership agreement does not otherw ise provide

. ” Id.
No party contests t h e trial cou rt ’ s conclusion that Ha u t anen, Pic inic, and
Man nering formed a joint venture or its finding that there was no expr ess or implied

3 Picinic characterizes this theory as one ei ther fo r wi nding up of the joint venture or for an accounting. We need not address this d istinction because as we explain below , regar dless of how it is characterized the theory is no t properly before
us .6 agreement to share losses

. Ha utan en urges that the absence of such an agreeme nt leaves a ga p that is filled by Texas law , s ee id. , pointing specifical l y to S ection 152.202 : (b) Each partner is charged with an amount equal to: (1)

. . . (2 ) the partner ’ s share of the p artnership ’ s losses. (c) Each partner

. . . is chargeable with a share of the partnership ’ s capital or operating lo sses in proportion to t he partner ’ s s hare of the profits. Id

. § 152.202 ( b ) , (c).
Hautanen argues tha t because the trial court found that the parties ha d not agreed to share any join t

- venture lo sses, t he co urt was requir ed to conclude that each joi nt venturer had to share losses in the same proportion as his share of the (theoretical) pro fits. See i d. He further argues that he would have been en titled to

re ndition of judgment from this court if the trial cou rt had also es ta blished the

a mo unt of t he joint venture ’ s losses by enter i ng his additional requested finding of
fact . Consequently , he asks that we remand for the trial court to determine the
amount of losses su ffered by the joi nt venture and to enter jud gment against Picinic
for his share of those losses.
Waiver of the L oss - S haring T heory

“ An appellant is limited to th e theories up on which the case is tried, and may not appeal the case on new or different theories. ” Pratt v. City of Denton , 670 S.W.2d
78 6, 789 (Tex. A pp.

— For t Worth 1984 , no writ ) ; accord First United Pentecos t al Church of7 Beaumont v. Parker , 514 S.W.3d 214, 224 (Tex . 2017) ; Mitc hell v. Bank of Am., N.A. , 156 S.W.3d 622, 629

– 30 (Tex. App.

— Dallas 2004 , pet. denied ); Cecil v. Frost , 14 S.W.3 d 414, 417 (Te x. App.

— Houston [14th Dist .] 2000 , no pet. )

. Hautanen alleg e d three specific causes of action against Pi cinic: breach of
contract, breach of fiduciary duty, and negligence (includ ing gross negligence and
neg ligent misrepresentation). The trial c ourt co ncluded that Haut anen did not prove any of these cau s es of action, and Hautanen does not challenge those concl usions o n
app eal. Instead, he asserts that he is entitled to recover on t he independent theory
that , unless the parties have expressly agre ed on a differ ent spli t, joint venturer s must shar e losses

. Picinic responds that Hautanen waived t his loss

- sharing theory of recovery
because he neither allege d it in his petition nor other wise raise d it in the trial cou rt
. Indeed, the reco rd does not re veal that Hauta nen ever contend ed that Picinic should
be he l d responsible for a share of the joint venture ’ s losses merely by virtue of being a joint venture r. On the contrary, Hautanen repea t edly reque sted that the court award damages based on Picinic ’s a llege d fault. For exampl e, in his opening statement
Hautane n asserted , “ As a result of [Picinic ’s] conduct, Mr. Hautanen has s ustained actual damages in excess of $200,000 plus attorney fees

. ” In his closing stat ement,
Ha ut anen iden tified his dam ages as the total amount he had spent , including the purcha s e price and costs of renovation and additional repair s, less the $ 450,000 he recouped when the p roperty was sold. And i n his pr oposed finding s of fact and8 conclusions of l aw, Hautane n d id n ot correlate his reque sted recovery with any concept of proportionate loss sharing but instead identifi ed it as “ the differ ence between the purchase price plus renovation and miscellaneous costs, and the fina l sales price of the subject p roperty
. ” Nevertheless, Hautane n now argu es that he preserved hi s loss

- sharing theory of

reco very because Picinic was put on notice of it through both Ha utanen ’ s petit ion and
his proposed findings of fact and conclusions of la w. He also argues tha t the theory

w as tried by cons en t and that the tr ial court acknowledged t h e theory by requesting briefing on the i ssue of sharing losses. We address these four argument s in turn.
1. Fai r - N otice P leading
Hautanen argues that his current loss

- sharing theory is properly be fore us be c ause his petition gave “ fair notice ” of a claim f or proportionate alloc ation of
losses. Under Texas ’ s fair

- notice pleading standard, “ [a] petition is s ufficient if it gives fair and adequate notice of the facts upon which the plead er bases his c laim. The
purpos e of this rule is to give the opp osing part y information sufficient to enable him to prepare a defense.” Roark v. Allen , 633 S.W.2d 804, 810 (Tex. 1982 )

. In t he absence of special exceptions, courts libera lly construe pleading s in the plead er ’ s favor. Bos v. Smith , 556 S.W.3d 293, 306 (Tex. 2018)

. “ Even so, a liberal construction does not require a court to read into a petition what is plainly not t here.” Id. ( cleaned up ).
Haut anen allege d in his petition t hat he and the defe nd ants had enter ed a joint

venture agreement, but he did not a llege any rig h t to relief based on an y implied loss

-9 sharing term of that agreement
. He sought relief based only on various theories of
fault attributed t o the defen dants , incl uding brea ch of the agre ement , breach of fiduciary duty, and negligence

. In addition , Hautanen alleged that he was entit led to

recover “ actual (direct /general and cons equential/special) and/or compensatory damages caused by the wrongf ul acts, and/or inact i ons, of Defen dants , ” as well as exemplary damages for the defendants ’ al l eged wrongful conduct. This requeste d relief is echoed in the peti tion ’ s concluding prayer , w hich ask ed that the defendants

“ be found liab le for all actual, consequential, incidental an d exemplary damages

. ”
A liberal reading of Hautane n ’ s petition , including his factual allegations , cau s e s of action, and requeste d re lief, reveals that the loss

- sharing claim he now urges “ is plainly not there , ” in the words of Bos

. Id

. Still , Hau tanen c ontends that his petition
gave fair notice of a loss

- sharing theory of recovery because it request ed “ such o ther
and further relief to which Plaintiffs m ay be justly entitled. ” Hautanen r eads too much
into this ubiquitous wrap

- up of a p rayer for relief.

“ G enerally, a prayer for general relief w ill authorize judgmen t for any relief a
tri al court has jurisdiction to grant so long as the judgment is supported by the allegat ions a nd proof and is consistent with the theory of r ecovery stated in the pleadings

. ” P ringle
v. Nowlin , 629 S.W.2d 154, 157 ( Tex. App.

— Fort Worth 1982 , writ ref ’ d n.r.e . ) (emphasis added)

. As we have previously explained: But the prayer for g eneral relie f does not authorize the court to grant a form of rel ief which, tho ugh consistent with t he facts pleaded, would take the defen d ant by surprise, as for a cause of action n ot pleaded, etc.10 In this respect the prayer of the petition should not be read as enla rging the cause of action pleaded so as to embrace on e which is not pleaded and/or becau se of which there is no relief sought; nor when by a construction of the prayer it does not reasonably appear that there was intent to claim such relief.
A m. Quarter H orse A ss ’ n v. Rose , 525 S.W.2d 227, 231 (Tex. App.

— Fo rt Worth 1975 , no writ )

. Hautanen ’ s prayer for general relief might have p rovided grounds to recover various type s of r elief appropriate to the causes of actio n he actually alleged

. See Pringle , 629 S.W .2d at 157

. But i t cannot supply a cause of action tha t has not been alleged

. See Rose , 52 5 S.W.2d at 231

. Hautanen did not ple a d a claim for proportionate
loss

- sharing and di d not seek relief based on such a claim, and it does no t reasonably
appe ar from his prayer f or actual, consequential, incidental , an d e xemplary damag es that he asked for s uch relief. See id. As a consequence, h is prayer for general relief
does not s uffice to give fair notice of a claim for los s sharing or to authorize recovery

on such a cla im.
2. P roposed F inding on S haring L osses Hautan en also argues that he raised his los s

- sharing theory in the trial court b e cause he proposed a fact finding that “ [t] he parties also agre ed to split the losses of the Joint Venture

. ” B ut Hautanen did not propose this finding as a basis for relief.
Rather , he pr o posed it in the co ntext of esta blishing the joint venture ’ s existence , somethin g necessary to support his claims for breach of the agreement and breach of fiduciary duties owed among joint ventu rers .11 In addition, Hautanen ’ s prop osed finding i s not that the joint venturers agreed
to shar e lo sses based o n their share of profits, but t hat they agreed that each would bear spe cific costs : The parties agreed to deductions t o come from Mannering ’ s and Picinic ’ s companies; Mannering and Picinic forfei ted their commissions; Mannering and Picinic agre ed to bear t he loss of extra costs to the J oint Venture after the Silva Defendants walked off the job; Mannering and P icinic also agreed to bear the loss, i.e., forfeit all profit they would ha ve been due an d paid out of pocket any amount that had to b e pa id twice;
a n d Mannering and Picinic agreed to share in the losses when they agreed to “ pa [y] for things [for the Joint Venture] out of their own pockets [as opposed to paying for things out of the Joint Vent ure budget]. ” ( Secon d and t hird sets of b rack et s in original. )
H autanen ’ s pr oposed finding cuts against his current position that Picinic must share the joint venture ’ s losses accordin g to his s hare of any profits. In fact, it dire ctly
supports Picinic ’ s contrary interpre tation of the trial court ’ s f indi n g on the a bsence of

an agreement to share losses. Picinic contends that th e finding does not nec essarily mean that the agreemen t was silent on t he matter of losses ; r ather, it can b e construed

to mean that the parties agreed to handle losses by some m eans other th an

“ sharing ”

— for example, by agreeing that each party would absorb its own losses. In any event, n othi ng in Hautanen ’ s proposed findings of fact and conclusions

o f law would have alerted either Picinic or the trial cou rt t o the id ea that Pic i n ic must share the joint ventur e ’ s losses independent of any wrongdoing such as breach of

cont ract or breach of fiduciary duty.12 3. Trial b y C onsent
Hautanen next argues that h is loss

- sharing theory was tried b y consent because both par t ies presented evidenc e of expenses and losses associated with the j oint

venture
. “ [ B]ut a n issue is not tried by con sent merely bec ause evidence regarding it is
admitte d. ” Bos , 556 S.W.3d at 306

– 307. If evidence of an unpleaded m atter is relevant to a ple a ded issue, the doctri ne of tr ial by consent does not apply. Id. at 307 ; see City of The Colony v. N. Texas Mun. Wate r Dist ., 272 S. W.3d 699, 744 (Tex. App.

— Fort Worth
2008 , pet. dis m ’ d )

. T h e evid ence of expenses an d losses on whi ch Hautan en relies was rel e vant to his pleaded c laims for brea ch of contr act, breach of fiduciary duty, and negligence. Consequently, the mere admission of th at evidence does not support a conclusion
that Hau tanen ’ s loss

- s haring theory was tried by consent

. See Bos , 556 S.W.3d at 3 0 6

– 307.
4
. The Trial C ourt’s Request f or Briefing
In a variation on the trial

- by

- consent theme, Hautanen argues that h is loss

sharing theory of recovery was raised below because the trial court re quested briefing on the subject a nd Pi cinic did not object t h at loss

- sharing had n ot been pleaded. But
the record shows that , at the time , Haut anen himself did not construe the court ’ s

re quest as addressing a theory of recovery he ha d not pleaded

. The specific issue on which the trial court r equested briefing was “ whether or not a joint [

- ] venture agreement necessarily implies an obligation or agreement to share13 losses

. ” As evidenced by their respon ses, b oth p ar ties understoo d the court ’ s inquiry
to relate to the pleaded iss ue of join t

- ven ture formation , not to any unpleaded theory
of rec overy based on loss sharing

. Picinic ’ s response laid out five statutory factors to consider in de te rmining wh ether a joint vent ure exists, on e of which is an agreement to share los ses . He info r med the court that none of th e se factors is determinative f or j oint

- venture creation

. Hautanen responded similarly, giving “ a summary of Texas law regarding the
creation of par tnerships and joint ventures

. ” L ike Picinic, he not ed that “ n o one of
the ‘ five factors ’ listed, including the agreement of the parties to shar e losses, is
essential t o create a partnership/joint v enture
. ”
Hautan en now contends that the trial cour t ’ s question teed up his Section
152.202 theory

. S ee Tex. Bu s . Orgs. Code Ann. § 152.20 2 ( b ) , (c)

. Yet in responding to
the trial court ’ s inquiry , Hautan en did not mention it

. Thus c ontrary to the position he
now takes , Hautanen ’ s response sho ws that he did not assert a loss

- sharing theory of
recovery in t he cour t b e low , even when arguably given a clear opportunity to do so

. W e conclude from a review of Ha utanen ’ s pleadings , the evidenc e , and the
argument s presented to the trial court that Haut anen never rai sed or br ought to the

court ’ s attention the theory that P ici n ic should be ordered to pay a share of the joint

ventu re ’ s losses simply as a consequence o f being a joint venturer. That the ory cannot be raised for the first time on appeal; it is wai ved. See P arker , 514 S.W.3d at 224 ; Pratt , 670 S.W.2d at 789

. Hauta nen ’ s sole iss ue is overruled.14 The Requested Additional Fact Finding
Haut anen also argues that the trial court erred by refusing to enter the following requested additional finding : 4 “ L osses were suf fered in connection with the
IVA [sic] as follows: A los s of $9 [3] ,321 ($390,000 purchase price plus $153,321 renovation costs for a total of $554,321, less $450,000 sale s p rice). ”
Haut anen did not advise the court that he believed t his finding wa s necessary to support a c laim for loss

- s haring or e ven t ha t i t was related to such a claim

. A trial court need not make additional findings that a re “ unnecessar y or contrary to its judgment; a trial court is onl y required to make additional findings and

c onclusions that are appropriate.” Nicholas v. Envtl. Sys. ( Int ’ l) Ltd. , 499 S.W.3d 888, 894 (Tex. App.

— Hous ton [14th Dist.] 2016 , pet. denied ) (quoting Vic kery v . Comm ’ n for Lawyer Discipline , 5 S.W.3d 241, 254 (Tex. App.

— Houston [14th Dist.] 1999, pet. denied) ; see Kirby v. Chapman , 917 S.W.2d 902, 909 (Tex. App.

— Fort W o rth 1 996 , no writ )

. A finding concerni ng the joint v ent ure ’ s losses was neither necessary nor
appr opriat e becau se H autanen did not seek reco very based on a loss

- sharing theory

a nd did not pr evail on any of the theories he did pursue.

4 Hautanen discussed the court ’ s fa ilure to enter th is addi tion al findin g in his
o pening brief but did not identify it as a see mingly distinc t issue until his reply brief

. Although new appellate issues cannot be raised in a reply brief, we consid er Haut a n e n ’ s ar gume nt as being sufficiently related to his opening br ief to warrant discussion.15 In addition, a trial court is not required to mak e additiona l findings tha t the record does not support

. Buckeye Ret . Co., LLC v. Ban k o f Am., N.A. , 239 S.W.3d 3 94, 402 (Tex. App.

— Dallas 2007 , no pet. )

. Here, the record does not support Hautanen ’ s requested additional finding because it is incomplete and thus in acc urate
. His
cal culat ion of the joint venture ’ s losses acc ounts for sums he pa i d to purchase and

re novat e the house, as well as the amount he received when the house sold

. But i t does not account for anything he rece i ved in rent or in payment of the fi re

- rel ated
insurance claim , n or does it account for sums paid by Picinic and Ma nni n g

— the other joint venturers

— for renovations and repairs. The trial court did not err by refusing to enter Hautanen ’ s additional re que sted
fin din g . Hautanen ’ s complaint about this r efusal is unfoun ded

. Co ncl u sion

“ It is an established r ule of Texas Procedure that, absent fundamental error, an appellate court has no discretion to reverse an otherwise error

- free judgment b ased on

a new argument raise d for the first time o n appeal. ” Coleman v. Kloc kne r & Co. AG , 180 S.W.3d 577, 587 (Tex. Ap p.

— Houston [14th Dist.] 2005 , no pet. ) (citing Larsen v. FDIC/Manager Fund , 835 S.W.2d 66, 74 (Tex. 1992) )

. Hautanen does not challenge th e trial cou rt ’ s legal con clusions that he did n ot prevail on any of his pl ead ed c lai ms, nor does he challenge the fact findings underlying those conclusions. We thus have no basis upon which to dist urb the

court ’ s take

- nothing jud gm ent on those clai ms. Fu rther, we will not reverse this16 otherwise error

- free jud gment base d on Ha ut a n en ’ s newly asserted loss

- sharing theory

. S ee id. The judgment of the trial court is affirme d

.

/s/ Elizabeth Kerr Eliza beth Kerr Justice
Delivered: April 1, 2021