                                 MEMORANDUM OPINION
                                        No. 04-10-00118-CV

                                         Senovio FLORES,
                                             Appellant

                                                   v.

                                         Thomas FLORES,
                                             Appellee

                     From the 45th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2008-CI-18960
                            Honorable Karen H. Pozza, Judge Presiding

Opinion by:       Catherine Stone, Chief Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: August 17, 2011

AFFIRMED

           Senovio Flores brings this restricted appeal from a post-answer default judgment. The

underlying suit involves a dispute between Senovio and his brother, Thomas Flores, regarding

their alleged agreement to purchase and develop property together. The trial court rendered

judgment in favor of Thomas. On appeal, we address procedural, substantive, and evidentiary

issues. We affirm the trial court’s judgment.
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                                              BACKGROUND

         Senovio and his brother Thomas entered into a partnership to acquire, develop, and sell

several tracts of real property. The parties agreed Thomas would provide working capital to the

partnership and that his engineering company, Flores & Company, Inc., would furnish

engineering services to enhance the investment properties’ marketability.            Senovio was

responsible under the parties’ agreement to hold the investment properties in his name, market

the property, and ensure all taxes were paid on the properties. Senovio failed to uphold his

partnership obligations and, as a result of his failure to ensure all taxes were paid on the

investment properties, liens were placed against the partnership’s properties and various taxing

entities initiated foreclosure proceedings.

         Thomas filed suit against Senovio after he learned about Senovio’s conduct, seeking to

establish the existence and assets of the partnership and the rights of the parties. He also sought

imposition of a constructive trust on the properties acquired in Senovio’s name for the benefit of

the partnership. After Senovio filed his answer, Flores & Company filed a plea in intervention

seeking damages for the value of the engineering services it had furnished in connection with the

development of the partnership’s properties.        Following Senovio’s answer to the plea in

intervention, defense counsel notified Senovio that he intended to withdraw as his counsel and

filed a motion to withdraw with the trial court. Counsel’s motion to withdraw stated he served

the motion upon Senovio at his last known address of 2211 Fresno Dr., San Antonio, Texas

78201.

         After the trial court granted Senovio’s counsel’s motion to withdraw, Thomas filed a

motion and order to set a non-jury trial for August 18, 2009. Thomas’s counsel attached a

certificate of service to the motion and order, stating that he had served Senovio by certified



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mail, return receipt requested. The address listed for Senovio in the certificate of service was

Senovio’s last known address of 2211 Fresno Dr., San Antonio, Texas 78201. When Senovio

failed to appear for trial on August 18, the trial court entered a default judgment against him.

Senovio did not file any post-judgment motions or request for findings of fact and conclusions of

law. Nor did he perfect an appeal within thirty days of the trial court’s judgment. Within the

time for perfecting a restricted appeal, however, Senovio filed a notice of restricted appeal.

                                      RESTRICTED APPEALS

       A party who did not participate in a hearing, either in person or through counsel, and who

did not timely file an appeal may file a restricted appeal. TEX. R. APP. P. 30. To secure a

reversal of an underlying judgment by restricted appeal, the appellant must demonstrate: (1) he

filed notice of the restricted appeal within six months after the judgment was signed; (2) he was a

party to the underlying lawsuit; (3) he neither participated in the hearing that resulted in the

judgment complained of, nor timely filed any post-judgment motions or requests for findings of

fact and conclusions of law; and (4) any error is apparent on the face of the record. TEX. R. APP.

P. 26.1(c), 30; see Ginn v. Forrester, 282 S.W.3d 430, 432 (Tex. 2009) (per curiam); Alexander

v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004). The face of the record for purposes of a

restricted appeal consists of all the papers on file in the appeal, including the reporter’s record.

Norman Commc’ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam).

       In this case, it is uncontested that Senovio filed a notice of appeal within six months of

the judgment, was a party to the underlying suit, and neither participated in the hearing that

resulted in the judgment complained of nor timely filed any post-judgment motions or requests

for findings of fact and conclusions of law. Thus, the only contested issue on appeal is whether

any error is apparent on the face of the record.



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                                             DISCUSSION

    A. Inadequate Record of the Default Judgment Hearing

        Senovio claims error appears on the face of the record because the trial court allowed

Thomas to withdraw the fifteen exhibits he introduced as evidence at the default judgment

hearing without requiring Thomas to comply with the requirements of Rule 75b of the Texas

Rules of Civil Procedure. See TEX. R. CIV. P. 75b(a) (stating all “exhibits admitted in evidence

or tendered on bill of exception shall . . . remain at all times in the clerk’s office or in the court or

in the custody of the clerk except . . . [t]he court may by order entered on the minutes allow a

filed exhibit to be withdrawn by any party only upon such party’s leaving on file a certified,

photo, or other reproduced copy of such exhibit.”). He asserts that without the exhibits in

question, there is “an improper record for review.”

        During the pendency of this appeal, the court reporter filed a supplemental reporter’s

record containing the fifteen exhibits that Thomas withdrew after the default judgment hearing.

In his reply brief, Senovio objects to our consideration of these exhibits. We, however, find

nothing that precludes our consideration of the exhibits.           Moreover, no question is raised

regarding the truth, correctness, or accuracy of the exhibits contained within the supplemental

reporter’s record. Given the supplementation of the record with the exhibits in question, a

thorough review of Senovio’s complaints can occur. Accordingly, we overrule Senovio’s first

issue on appeal.

    B. Lack of Notice

        Senovio contends the trial court erred in granting a post-answer default judgment because

he did not receive notice of the August 18, 2009 non-jury trial setting. We presume a trial court

will hear a case only after the parties have received proper notice. Boateng v. Trailblazer Health



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                                                                                                04-10-00118-CV


Enters., L.L.C., 171 S.W.3d 481, 492, n. 4 (Tex. App.—Houston [14th Dist.] 2005, pet. denied).

Under Texas Rule of Civil Procedure 21a, notice may be served by delivering a copy to the party

or the party’s attorney of record either in person, by agent, or by certified or registered mail.

TEX. R. CIV. P. 21a. A defendant who makes an appearance following service of process is

entitled to notice of the trial setting as a matter of constitutional due process. LBL Oil Co. v. Int’l

Power Servs., Inc., 777 S.W.2d 390, 390-91 (Tex. 1989) (per curiam). “A lack of notice,

however, does not necessarily void the trial court’s judgment because due process requires that

the method of service be reasonably calculated, under the circumstances, to apprise interested

parties of the proceeding and afford them an opportunity to present objections.” Morse v. Black,

No. 03-08-00785-CV, 2009 WL 2476686, at *2 (Tex. App.—Austin Aug. 12, 2009, no pet.)

(mem. op.).

        The record establishes that approximately seven months after Thomas filed his original

petition against Senovio, Senovio’s counsel moved to withdraw. Counsel’s motion to withdraw

stated the motion was served upon Senovio at his last known address of 2211 Fresno Dr., San

Antonio, Texas 78201. After the trial court granted counsel’s motion, Thomas filed a motion

and order to set a non-jury trial for August 18, 2009 and attached a certificate of service to his

motion and order, stating he had served Senovio by certified mail, return receipt requested. The

address listed for Senovio in the certificate of service was Senovio’s last known address of 2211

Fresno Dr., San Antonio, Texas 78201. 1

        “A certificate by a party or an attorney of record, or the return of the officer, or the

affidavit of any person showing service of a notice shall be prima facie evidence of the fact of

service.” TEX. R. CIV. P. 21a. “[N]otice properly sent pursuant to Rule 21a raises a presumption


1
 There is nothing in the record showing that Senovio ever informed the trial court or Thomas that his address had
changed.

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that notice was received.”       Mathis v. Lockwood, 166 S.W.3d 743, 745 (Tex. 2005).         The

presumption may be rebutted by an offer of proof that the notice was not received, but “[i]n the

absence of evidence to the contrary, the presumption has the force of a rule of law.” Cliff v.

Huggins, 724 S.W.2d 778, 780 (Tex. 1987). Accordingly, the certificate of service filed by

Thomas pursuant to Rule 21a created a presumption that Senovio received notice of the August

18, 2009 trial setting. See Mathis, 166 S.W.3d at 745.

       Senovio counters that Rule 21a’s presumption does not apply in this case because

Thomas knew the address he identified in his certificate of service was not Senovio’s current

address. As support for this contention, Senovio cites Thomas’s testimony from the default

judgment hearing. When asked “what the situation is as of this moment,” Thomas responded to

counsel’s question as follows:

       [r]ight now, I believe my brother is homeless, has lost . . . his home . . . I’m not
       positive, but I understand he may be living in some kind of VA facility over near
       Hudnell and Highway 90. I don’t know if there is one there or not. That’s what I
       was told.

Senovio, in essence, asks us to infer from Thomas’s remarks that service did not occur. Error

that is merely inferred, however, will not suffice for purposes of a restricted appeal. Gold v.

Gold, 145 S.W.3d 212, 213 (Tex. 2004) (stating a restricted appeal requires error that is

apparent, not error that may be inferred). Further, we note that Senovio did not produce any

evidence that he did not receive notice of the setting. Without evidence clearly establishing his

lack of notice, we reject Senovio’s argument and overrule his second issue on appeal.

   C. Judgment Not In Accord With the Pleadings

   Senovio also complains error appears on the face of the record because no pleadings support

the trial court’s award of $141,400 in damages to Thomas for the engineering services performed

by Flores & Company. He asserts the trial court was required to award such damages to Flores

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& Company, as opposed to Thomas, in order to conform to the pleadings in this case. Contrary

to Senovio’s contention, however, the record does not affirmatively demonstrate that the trial

court’s judgment erroneously awards monetary damages to Thomas that should have been

awarded to Flores & Company.

   A default judgment, like all judgments, must conform to the pleadings. TEX. R. CIV. P. 301;

see Mullen v. Roberts, 423 S.W.2d 576, 579 (Tex. 1968). Flores & Company’s live pleading, its

plea in intervention, provides:

       As the sole and controlling shareholder of Flores & Company, Inc., [plaintiff]
       Tom Flores is entitled to the benefit of any judgment or interest established by
       virtue of the services provided by intervenor. Intervenor requests judgment in its
       favor, or alternatively, in the favor of Plaintiff, for the reasonable value of the
       services provided and for the benefit of the parties and their respective ownership
       interest in and to the properties.

(emphasis added). The trial court’s award of damages to Thomas for the engineering services

provided by Flores & Company is entirely consistent with the relief requested by the intervenor

in its live trial pleading. As a result, error is not apparent from the face of the record. Senovio’s

third issue on appeal is therefore overruled.

   D. Improper Use of the Declaratory Judgment Statute

   Next, Senovio argues error appears on the face of the record because Thomas’s suit for

declaratory relief was improper because it raised title issues that needed to be adjudicated in a

trespass to try title suit.   The Texas Declaratory Judgments Act provides that “[a] person

interested under a deed, will, written contract, or other writings constituting a contract or whose

rights, status, or other legal relations are affected by a . . . contract . . . may have determined any

question of construction or validity arising under the instrument [or] contract . . . and obtain a

declaration of rights, status, or other legal relations thereunder.” TEX. CIV. PRAC. & REM. CODE

ANN. § 37.004(a) (West 2008). By contrast, a trespass to try title suit is “the method of

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determining title to lands, tenements, and other real property.”          TEX. PROP. CODE ANN.

§ 22.001(a) (West 2000); see Martin v. Amerman, 133 S.W.3d 262, 267 (Tex. 2004).

   The pleadings in this case allege the existence of a partnership between Thomas and Senovio

to acquire, develop, and sell several tracts of land. The pleadings allege Senovio owed Thomas a

fiduciary duty in light of their partnership arrangement and that Senovio breached his duty “by

allowing other liens to be placed on the Property and imperiling ownership of it by failing to pay

property taxes due and owing.” Thomas’s petition essentially asks the trial court to determine

the existence of the partnership, the assets of it, and the rights of the parties. Thomas’s petition

also seeks the imposition of a constructive trust on the investment properties acquired in

Senovio’s name for the benefit of the partnership.

   It is apparent from the parties’ pleadings that the underlying litigation does not directly

involve a question of title as suggested by Senovio, because the central issue of the case goes to

the existence of a partnership and the extent of the parties’ interest in the partnership.

Accordingly, we conclude the face of the record does not establish that Thomas was required to

pursue his action as a trespass to try title suit as opposed to a declaratory judgment action. Cf.

Finder v. O’Conner, 615 S.W.2d 283, 284-85 (Tex. Civ. App.—Dallas 1981, writ dism’d)

(deciding, for purposes of venue, that principal relief sought was not for the recovery of an

interest in land, but to prove the existence of a joint venture and a breach of fiduciary duty by the

defendant). Senovio’s fourth issue on appeal is overruled.

   E. Sufficiency of the Evidence

   Finally, Senovio claims error is apparent from the face of the record because the evidence is

insufficient to support the trial court’s default judgment in favor of Thomas. It is well settled




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that an appellant in a restricted appeal may challenge the legal and factual sufficiency of the

evidence to support the trial court’s judgment. Norman Commc’ns, 955 S.W.2d at 270.

       First, Senovio contends the evidence is insufficient to support the trial court’s default

judgment because the appellate record does not contain any of the exhibits relating to the issue of

damages that Thomas introduced at the default judgment hearing and Thomas’s testimony about

damages “does not square with the money stated in the judgment.” As previously noted, the

record contains all of the exhibits introduced at the default judgment hearing. These exhibits,

along with Thomas’s testimony, afforded the trial court with sufficient details about the nature of

the damages flowing from Senovio’s conduct. Because there is evidence to support each of the

damage amounts awarded by the court, we reject Senovio’s contention.

       Second, Senovio contends the evidence is insufficient to support the trial court’s default

judgment because Thomas failed to establish the existence of a partnership. Senovio provides no

explanatory argument for this contention, except for a single reference to Ingram v. Deere, 288

S.W.3d 886 (Tex. 2009) and the statement “the record is not detailed regarding the existence of a

partnership.”

       [I]t is Appellant’s burden to discuss his assertions of error, and we have no duty-
       or even right-to perform an independent review of the record and applicable law
       to determine whether there was error. Appellant’s argument should also explain
       why the law stated in the cited authorities is applicable to the facts of the case and
       why it supports the party’s position.

Hernandez v. Hernandez, 318 S.W.3d 464, 466 (Tex. App.—El Paso 2010, no pet.) (citations

omitted). Although Senovio provides a citation to a case, he fails to support his sufficiency

contention by applying the law of the case to the facts established in the record. Consequently,

we conclude Senovio has waived his contention. See TEX. R. APP. P. 38.1(i); Hernandez, 318

S.W.3d at 466.



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       Even if Senovio had not waived this contention, we believe it lacks merit because the

record contains evidence to support the existence of a partnership between Thomas and Senovio.

Texas law defines a partnership as “an association of two or more persons to carry on a business

for profit as owners.” TEX. BUS. ORGS. CODE ANN. § 152.051(b) (West 2010). In determining

whether a partnership was formed, courts look to five factors: (1) the receipt or right to receive a

share of profits, (2) the expression of an intent to be partners, (3) the right to participate in

control of the business, (4) an agreement to share losses or liabilities, and (5) an agreement to

contribute money or property to the business. Id. § 152.052(a) (West 2010); Ingram, 288

S.W.3d at 894, 898-903. No one factor is dispositive, and courts apply a “totality of the

circumstances test” in their formation analysis. Ingram, 288 S.W.3d at 898. Under this test,

conclusive evidence as to all five factors establishes the existence of a partnership as a matter of

law. Id. Likewise, the absence of all five factors preludes the recognition of a partnership as a

matter of law. Id. When a party offers conclusive evidence of just one factor, that “normally is

insufficient to establish the existence of a partnership.” Id.

       It appears from the record that Thomas controlled the engineering aspects of the

partnership, contributed significant amounts of money to the partnership, and had the right to an

equal share of the profits from the sale of the partnership’s investment properties. Based on the

evidence before the trial court, we believe the record supports the existence of a partnership

between Senovio and Thomas.

       Third, Senovio contends the evidence is insufficient to support the trial court’s default

judgment because “[t]here is no evidence of the metes and bounds and legal descriptions of the

properties in the judgment” and “[t]here is no separation of the amounts of money that Thomas

allegedly invested in each property.” Senovio provides no substantive analysis or citations to



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any authority in support of these contentions. “Absent citation to appropriate legal authority,

coupled with legal analysis relating the cited authority to the facts of the case[,]” see Frontera

Sanitation, L.L.C. v. Cervantes, No. 08-08-00330-CV, 2011 WL 1157559, at *6 (Tex. App.—El

Paso Mar. 30, 2011, no pet.), Senovio has presented nothing for us to review.

        Fourth, Senovio contends the evidence is insufficient to support the trial court’s default

judgment because there is no basis to support the imposition of a constructive trust on the

partnership’s investment properties. “The equitable remedy of constructive trust is broad and

flexible.” Newman v. Link, 866 S.W.2d 721, 725 (Tex. App.—Houston [14th Dist.] 1993), writ

denied, 889 S.W.2d 288 (Tex. 1994) (per curiam). A constructive trust is an equitable remedy

that is “imposed by law because the person holding title to property would profit by a wrong or

would be unjustly enriched if he were permitted to keep the property.” Omohundro v. Matthews,

161 Tex. 367, 341 S.W.2d 401, 405 (1960). Courts have recognized that constructive trusts are

“used, among other things, to adjust rights of partners.” Id. Constructive trusts are often

imposed when there is “constructive fraud based on a breach of a fiduciary duty or actual

fraud.” 2

        As discussed above, the record amply evidences a partnership relationship existed

between Senovio and Thomas. Case law indicates that a fiduciary duty arises from formal

relationships like the partnership between Senovio and Thomas. See Consolidated Bearing &

Supply Co. v. F. Nat’l Bank, 720 S.W.2d 647, 649 (Tex. App.—Amarillo 1986, no writ). Thus,

once the trial court made a finding that Senovio had breached his fiduciary duty to Thomas in

connection with their partnership, the court had sufficient basis to impose a constructive trust on


2
  Hoggett v. Brown, 971 S.W.2d 472, 494 (Tex. App.—Houston [14th Dist.] 1997, pet. denied). “[C]onstructive
fraud is the breach of some legal or equitable duty which, irrespective of moral guilt, the law decrees fraudulent
because of its tendency to deceive others, to violate confidence or to injure public interests.” Castleberry v.
Branscum, 721 S.W.2d 270, 273 (Tex. 1986).

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the investment properties held in Senovio’s name. We are not persuaded by any of Senovio’s

sufficiency complaints on appeal and overrule his fifth issue.

                                          CONCLUSION

       Based on the foregoing, the judgment of the trial court is affirmed.



                                                  Catherine Stone, Chief Justice




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