Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 116th Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-18-02456
Justices Brown, Schenck, and Pedersen III
an appeal from a mandamus proceeding initiated in the trial
court by appellee/judgment creditor Merry Outlaw.
Appellant/judgment debtor Gwendolyn Gabriel challenges the
trial court's order directing the Dallas County Sheriff
to execute a sheriff's deed to certain real property. In
two issues, Gabriel contends the trial court erred because
Outlaw did not join a necessary party and failed to prove she
was entitled to mandamus relief. For reasons that follow, we
background facts are taken from the parties' appellate
briefs and pleadings in the trial court. See Tex. R.
App. P. 38.1(g). On August 8, 2017, the judge of the 116th
Judicial District Court of Dallas County entered a final
judgment in an underlying lawsuit between Outlaw and
Gabriel. The judgment awarded Outlaw $82, 456.80
plus interest against Gabriel. On August 14, 2017, Outlaw
filed an abstract of judgment with the Dallas County
Clerk's Office. See Tex. Prop. Code Ann. §
52.001 (properly recorded and indexed abstract of judgment
creates lien on judgment debtor's non-exempt real
property in county). Two days later, Gabriel recorded a
special warranty deed conveying real property at 804 Calcutta
Drive in Dallas to Kenneth Gabriel. Outlaw alleges that
Kenneth is Gabriel's brother. In October 2017, the trial
court issued a writ of execution to enforce the judgment. As
a result, a deputy sheriff levied upon 804 Calcutta, and
notice of sale was published. The sheriff's sale took
place on January 2, 2018, and Outlaw was the successful
bidder. After the sale, Dallas County Sheriff Marian Brown
refused to execute the documents necessary to convey title to
filed a petition for writ of mandamus in the trial court
seeking a writ requiring the sheriff to execute a
sheriff's deed to 804 Calcutta. Gabriel opposed
Outlaw's petition for various reasons. Among other
things, Gabriel asserted that Kenneth owned the property at
the time of the sheriff's sale and complained of
Outlaw's failure to join him as a party. Outlaw
maintained the transfer to Kenneth was not effective because
it occurred after the judgment was abstracted. After a
hearing, the trial court granted Outlaw's petition and
ordered Sheriff Brown to execute the deed. This appeal
original proceeding for a writ of mandamus initiated in the
trial court is a civil action subject to trial and appeal on
substantive law issues and the rules of civil procedure as
any other lawsuit. Anderson v. City of Seven Points,
806 S.W.2d 791, 792 n.1 (Tex. 1991). This Court has appellate
jurisdiction over such proceedings. In re Heaven Sent
Floor Care, No. 05-15-01152-CV, 2016 WL 7230387, *1
(Tex. App.-Dallas Dec. 14, 2016, pet. denied) (mem. op.). We
review the trial court's findings of fact and conclusions
of law, whether express or implied, in accordance with the
standards generally applicable to a trial court's
findings and conclusions in any civil matter. Doe v.
Tarrant Cty. Dist. Attorney's Office, 269 S.W.3d
147, 151 (Tex. App.-Fort Worth 2009, no pet.). We review
findings of fact for legal and factual evidentiary support,
and we review conclusions of law de novo. Id. at
contends the trial court erred in granting the petition for
writ of mandamus because Outlaw failed to (1) join Kenneth
and (2) prove a ministerial duty and the lack of an adequate
remedy at law.
to obtain mandamus relief, a party must show both that the
trial court clearly abused its discretion and that she has no
adequate remedy at law. See Heaven Sent, 2016 WL
7230387, at *2 (citing In re Prudential Ins. Co.,
148 S.W.3d 124 (Tex. 2004) (orig. proceeding)). A writ of
mandamus will issue to compel a public official to perform a
ministerial act. Anderson, 806 S.W.2d at 793. An act
is ministerial when the law clearly spells out the duty to be
performed with sufficient certainty that nothing is left to
the exercise of discretion. Id. A writ of mandamus
will not issue to compel a public official to perform an act
which involves an exercise of discretion. Id.
Chapter 34 of the civil practice and remedies code governs
execution on judgments and sets out the manner in which an
execution sale is to be conducted. Tex. Civ. Prac. & Rem.
Code Ann. § 34.041. Section 34.045 provides, "When
the sale has been made and its terms complied with, the
officer shall execute and deliver to the purchaser a
conveyance of all the right, title, interest, and claim that
the defendant in execution had in the property sold."
Id. § 34.045(a).
address Gabriel's issues together as they are
intertwined. In her first issue, she argues the trial court
erred in granting mandamus relief because Outlaw failed to
join Kenneth, a necessary party. Gabriel contends Kenneth
owned the property on the date of the sheriff's sale and
the relief Outlaw sought could not be granted if he was not
before the court. She relies on rule of civil procedure 39.
Tex.R.Civ.P. 39 (joinder of persons needed for just
adjudication). In her second issue, Gabriel asserts the trial
court erred in granting mandamus relief because Outlaw cannot
show the sheriff had a ministerial duty to sign the deed or
show the lack of an adequate remedy at law. Gabriel asserts
the sheriff had discretion to refuse to sign a deed because
the property was conveyed to Kenneth. Gabriel also argues that
Outlaw had an adequate remedy at law-an action under the
Texas Uniform Fraudulent Transfers Act (TUFTA). See
Tex. Bus. & Com. Code Ann. §§ 24.001-.013.
stated, section 34.045 of the civil practice and remedies
code requires that when a sheriff's sale has been made
and its terms complied with, "the officer shall
execute and deliver to the purchaser a conveyance of all
right, title, interest, and claim that the defendant in
execution had in the property sold." Id. §
34.045(a) (emphasis added); see Perryman v. Spartan Tex.
Six Capital Partners, Ltd., 546 S.W.3d 110, 131 (Tex.
2018) ("By its plain and common meaning, 'shall'
denotes mandatory action."). Gabriel does not complain
the sheriff's sale was improperly conducted. See
Tex. Civ. Prac. & Rem. Code Ann. §§ 34.041
(date and time of sale), 34.0445 (persons eligible to
purchase real property). We fail to see how Gabriel's
claim that Kenneth owned the property at the time of sale
impacted the sheriff's obligation to execute a
sheriff's deed after the sale to Outlaw. We note that a
sheriff's sale conveys only the right, title, and
interest that the judgment debtor had in the property.
Apex Fin. Corp. v. Garza, 155 S.W.3d 230, 236 (Tex.
App.-Dallas 2004, pet. denied); see Tex. Prop. Code
Ann. § 34.045(a). A sheriff's deed would not impede
Kenneth's ability to pursue any claims he might have
related to ownership of the property in question.
cites H.D. Snow Housemoving, Inc. v. Moyers, 581
S.W.2d 809 (Tex. App.-Fort Worth 1979, no writ), for the
proposition that a sheriff has discretion to refuse to sign a
sheriff's deed if the judgment creditor cannot show a
superior right to the property as against the current owner.
The opinion does not expressly make such a statement.
Further, the case is distinguishable because, unlike this
case, the judgment creditor's mandamus action to order
the sheriff to sign the deed was not the only relief sought
from the trial court. In addition to its petition for writ of
mandamus, the judgment creditor also brought suit "to
foreclose the lien on the property and for a declaration that
the interests of subsequent grantees of the judgment debtor
and the holder of the first lien on the property are
subordinate" to its judgment lien. Id. at
810-11. After a trial before the court on these issues, the
trial court found that the subsequent transfers of the
property were valid, and the court of appeals held there was
evidentiary support for that conclusion. See id. at
811-12. The sole issue in this case was whether Sheriff Brown
was required to sign a sheriff's deed conveying the
property to Outlaw after the sheriff's sale. No party
sought a determination of the validity of Gabriel's
transfer to Kenneth, nor is there any evidence in this record
from which the trial court could have determined that issue.
The trial court did not err in determining the merits of
Outlaw's mandamus action in the absence of Kenneth or in
determining the sheriff had a ministerial duty to sign the
also argues that if Outlaw thought the conveyance to Kenneth
was fraudulent, she should have sought relief under TUFTA and
thus had an adequate remedy at law precluding mandamus
relief. It has long been the law in Texas that a judgment
creditor may establish and foreclose on her judgment lien
without first maintaining an action to set aside a fraudulent
conveyance. Texas Sand Co. v. Shield, 381 S.W.2d 48,
55 (Tex. 1964) (citing Eckert v. Wendel, 40 S.W.2d
796 (Tex. 1931)). ...