Affirmed in Part and Reversed and Remanded in Part and Opinion filed

August 13, 2013.

In The

Fourteenth Court of Appeals

NO. 14-12-00611-CV

MICHELLE M. ARRIAGA, Appellant,

V.

ROBERT A. CARTMILL, TROY CARTMILL AND TRAVIS CARTMILL, 

Appellees.

On Appeal from the 240th District Court

Fort Bend County

Trial Court Cause No. 08-DCV-167124

O P I N I O N

This is a dispute involving the Uniform Fraudulent Transfer Act (UFTA). 

Appellant Michelle M. Arriaga sued her former husband, appellee Robert A. 

Cartmill, and his two adult sons, appellees Troy and Travis Cartmill, alleging that 

Robert fraudulently transferred tracts of real property to his sons to avoid a money 

judgment Michelle was granted in their divorce. After a bench trial, the trial court 
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found in Michelle’s favor on her claim under the UFTA, but declined to set aside 

Robert’s transfers of the property. Instead, the trial court granted Michelle a 

judgment for the amount Robert owed on the earlier money judgment plus interest, 

totaling $52,000. On appeal, Michelle contends that the trial court erred in (1) 

rendering a money judgment rather than an order to execute on the transferred 

properties as she requested under the UFTA, and (2) failing to file findings of fact 

and conclusions of law. We reverse in part and remand for further proceedings 

consistent with this opinion.

I

On March 10, 2006, Michelle and Robert divorced. In the divorce decree, 

Michelle was awarded two judgments against Robert totaling $38,500, with 6

percent interest compounded annually from the date of the divorce until paid. 

Robert appealed from the divorce decree, but this court dismissed Robert’s 

appeal as untimely and denied his request for en banc reconsideration. Shortly after 

that, Robert executed five special warranty deeds transferring his ownership of five 

separate tracts of land to his sons, Troy and Travis. The two largest of the tracts 

were roughly 39 acres and 23 acres, and the three others were 4.232 acres, 3 acres, 

and 2.232 acres. In the meantime, Michelle had hired an attorney to collect on the 

divorce judgments. When the attorney tried to execute against the properties, 

however, Michelle discovered that the properties had been transferred to Robert’s 

two sons. 

In October 2008, Michelle sued Robert, Travis, and Troy, alleging that the 

transfers were fraudulent and that the defendants had participated in a civil 

conspiracy. Relevant here, Michelle alleged that Robert fraudulently transferred 

the properties to his sons in violation of UFTA section 24.006, which provides that 

a transfer made by a debtor is fraudulent as to a creditor “whose claim arose before 
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the transfer was made . . . if the debtor made the transfer . . . without receiving a 

reasonably equivalent value in exchange for the transfer . . . and the debtor was 

insolvent at that time or the debtor became insolvent as a result of the transfer.” 

See Tex. Bus. & Com. Code § 24.006(a). Michelle also set out in her petition the 

statutory relief available under UFTA section 24.008, including avoidance of the 

transfers, attachment against the properties, injunctive or other equitable relief, and 

an order to levy execution on the properties transferred or their proceeds. See id.

§ 24.008.

After filing suit, Michelle attempted to obtain discovery concerning the 

transfers. According to interrogatory answers, Travis and Troy each paid Robert 

$20,000 for the 39-acre and 23-acre tracts. However, the Cartmills failed to 

produce any evidence of bank statements or accounts showing the money Robert 

received from his sons for the purchase of the land. Michelle moved to compel the 

production of relevant documents, but despite an agreed order on the motion, the 

Cartmills again failed to produce any documents before trial indicating the amount 

of money paid for the properties.

The case was tried to the court in January 2012. Michelle and Robert both 

testified, but neither Travis nor Troy appeared at trial. Michelle presented evidence 

that Robert purchased all five tracts of land between 1990 and 1998 for a total cost 

of $267,000.1 Michelle testified that she was familiar with the 39-acre and 23-acre 

tracts, and that the properties were rural land used by Robert in his business. 

Robert’s business, known as Independent Tree Services, harvested and sold trees to 

homebuilders. Robert did not dispute Michelle’s testimony that he purchased the 

properties for $267,000, other than to testify that the 23-acre tract was purchased 

 

1 Michelle testified that Robert paid $60,000 for the 39-acre tract in 1998, $147,000 for 

the 23-acre tract in 1990, and $20,000 each for the three smaller tracts in 1992.
4

for about $220,000, rather than $147,000, because of the value of the then-existing 

trees on the property.

Robert testified that in exchange for all five tracts, he received $41,000 from 

each of his sons—for a total of $82,000—but he produced no supporting evidence.

Robert valued the 39-acre tract at $2,150 per acre, or $83,850. He valued the 23-

acre tract at $3,000 per acre, or $69,000. Thus, based on Robert’s testimony, the 

value of these two properties was $152,850. Robert also testified that he deposited 

the $82,000 he received from his sons into the Independent Tree Services account, 

but he presented no documentary evidence to support this contention.

Robert further testified that his two sons were aware of his divorce from 

Michelle and that he was on the verge of going out of business. According to 

Robert, at the time he made the transfers to his sons he was “financially whooped” 

and was unable to pay his bills. Robert further testified that he transferred the 

properties to get money to pay his bills and to survive. According to Robert, his

sons paid for the properties with life-insurance proceeds they received after their 

mother passed away, but even after the transfers, Robert maintained, he was “still 

struggling.” When asked whether he produced any documents to show how much 

he received for the properties, Robert stated that he produced six boxes of 

discovery that he gave to his attorney. However, none of these documents were 

produced at trial. 

When examined by his attorney, Robert testified that he had tried to settle 

with Michelle but she would not take what was offered. He also testified that, after 

adding all of his resources together, he was willing to give Michelle $53,000 to get 

the judgment satisfied that day. 

During closing arguments, Michelle’s counsel argued that the evidence 

supported Michelle’s UFTA claim that Robert fraudulently transferred the 
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properties to his sons without receiving a reasonably equivalent value for them and 

that Robert was insolvent at the time. Further, Michelle’s counsel noted that she

was simply trying to collect on her prior judgment, as she had been trying to do for

the last four years.

In response, Robert’s counsel argued that Michelle was “overreaching” and 

requested that the trial court instead enter a money judgment for the principal and 

interest Robert still owed Michelle. Robert’s counsel represented that Robert had 

“$53,000 that he will go pick up right now and bring back to this court and satisfy 

this judgment.” 

Michelle’s counsel agreed that the amount Robert owed Michelle was about 

$52,000, but he argued that the relief Robert’s counsel was requesting was “really 

not before the Court” and asked to have “a judgment that we may levy against the 

assets transferred” as the UFTA provides. At the conclusion of the trial, the trial 

court announced that it was awarding Michelle a money judgment against Robert 

for $52,000, plus attorney’s fees. The trial court also dismissed Michelle’s 

conspiracy claims against Troy and Travis and refused to set aside the conveyances 

of the properties.2

Several months later, on April 4, 2012, the trial court signed a written 

judgment consistent with its rulings. In the judgment, the trial court recited that 

“[o]n the claim of Fraudulent Transfer, the Court finds in favor of [Michelle] and 

against [Robert],” and ordered that Michelle recover damages of $52,000 from 

Robert, “for the principal and interest due on the outstanding claim.” The trial 

court also awarded Michelle $17,653 in reasonable attorney’s fees and costs, plus 

post-judgment interest of 5 percent. The trial court dismissed the claims against 

 

2 On appeal, Michelle does not challenge the trial court’s dismissal of her conspiracy 

claims against Troy and Travis.
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Travis and Troy, and expressly declined to order the previous conveyances of the 

properties to be set aside.

Michelle moved to modify the trial court’s judgment on the grounds that the 

money judgment she was awarded was neither requested nor allowed under chapter 

24 of the UFTA. She also stated that the relief she sought was for the court to 

enable her to levy execution against the two largest properties as provided under 

section 24.008(b) of the UFTA, and noted that the trial court also could have 

ordered other appropriate relief under section 24.008(a). The trial court denied the 

motion, and this appeal followed.

II

We begin with Michelle’s second issue, in which she contends that the trial 

court’s failure to file findings of fact and conclusions of law was harmful error.

When properly requested, the trial court has a mandatory duty to file findings of 

fact and conclusions of law. Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768, 

770 (Tex. 1989). If the trial court does not file findings of fact and conclusions of 

law, harm is presumed unless the record affirmatively shows that the requesting 

party was not harmed by their absence. Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex.

1996) (per curiam). Error is harmful if it prevents an appellant from properly 

presenting a case to the appellate court. Id.

Michelle claims that she was harmed because she is forced to guess at the 

reasons why the trial court ruled in her favor but did not give her the relief she 

requested under the UFTA. She requested that we abate this appeal and order the 

trial court to file findings of fact and conclusions of law. We granted Michelle’s 

request, abated the appeal, and directed the trial court to file findings of fact and 

conclusions of law.
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The trial court promptly forwarded its findings and conclusions. Although 

the trial court found in Michelle’s favor and granted her a money judgment and 

attorney’s fees on her only surviving claim, the trial court’s findings and 

conclusions do not identify the basis for the money judgment or explain why the 

trial court did not grant the relief Michelle requested. The only new information in 

the trial court’s findings and conclusions is the following: “The Court does not 

order that the previous conveyances of land be set aside. The Court finds those 

transfer [sic] were for adequate consideration.”

This finding explains that the trial court did not grant Michelle the equitable 

relief of setting aside the conveyances because it found they were for adequate 

consideration. See Tex. Bus. & Com. Code § 24.008(a)(1) (providing that a 

creditor may obtain “avoidance of the transfer or obligation to the extent necessary 

to satisfy the creditor’s claim”). But at trial, Michelle did not seek to set aside the 

conveyances under subsection (a)(1); instead, she expressly requested that she be 

allowed to levy execution on the properties as provided under subsection (b). See 

id. § 24.008(b) (“If a creditor has obtained a judgment on a claim against the 

debtor, the creditor, if the court so orders, may levy execution on the asset 

transferred or its proceeds.”). We therefore disregard this finding as immaterial to 

the trial court’s judgment. See Wells Fargo Bank, N.A. v. Citizens Bank of Tex., 

N.A., 181 S.W.3d 790, 796 (Tex. App.—Waco 2005, pet. denied). 

Thus, although the trial court responded to this court’s order, its findings of 

fact and conclusions of law shed no light on the basis for its judgment. We 

therefore proceed to Michelle’s first issue and address the parties’ arguments as 

briefed.
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III

In her first issue, Michelle contends that the trial court erred in rendering a 

money judgment rather than an order to execute on the transferred properties as she 

requested under chapter 24 of the UFTA. According to Michelle, the relief the trial 

court granted was actually no relief at all, because she had already obtained a 

money judgment against Robert in the divorce and her reason for filing the 

fraudulent transfer action was that she had been unable to collect the judgment for 

several years.

The UFTA is intended to prevent a debtor from defrauding his creditors by 

moving assets out of reach. Citizens Nat’l Bank of Tex. v. NXS Constr., Inc., 387 

S.W.3d 74, 79 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Numerous types 

of transactions are fraudulent for purposes of the UFTA. See Tex. Bus. & Com. 

Code §§ 24.005, 24.006; NXS Constr., Inc., 387 S.W.3d at 79. Relevant here, 

section 24.006(a) provides that a debtor’s transfer is fraudulent as to a creditor 

whose claim arose before the transfer if the debtor did not receive a reasonably 

equivalent value in exchange for the transfer and the debtor was insolvent at that 

time or became insolvent as a result of the transfer. See Tex. Bus. & Com. Code § 

24.006(a). A fraudulent transfer defined by section 24.006(a) does not include 

intent as an element of required proof. Esse v. Empire Energy III, Ltd., 333 S.W.3d 

166, 178 (Tex. App.—Houston [1st Dist.] 2010, pet. denied); Metra United 

Escalante, L.P. v. Lynd Co., 158 S.W.3d 535, 542 (Tex. App.—San Antonio 2004, 

no pet.).

Consistent with its purpose, the UFTA provides a comprehensive statutory 

scheme through which a creditor may seek recourse for a fraudulent transfer of 

assets or property. See Tex. Bus. & Com. Code §§ 24.008, 24.009; Tel. Equip. 

Network, Inc. v. TA/Westchase Place, Ltd., 80 S.W.3d 601, 607 (Tex. App.—
9

Houston [1st Dist.] 2002, no pet.). The UFTA’s remedies under section 24.008 

include avoidance of the transfer, temporary attachment of the transferred asset, 

and other equitable remedies. See Tex. Bus. & Com. Code § 24.008(a). And, if a 

creditor has obtained a judgment on a claim against the debtor, and the trial court 

so orders, the creditor may levy execution on the asset transferred or its proceeds. 

Id. § 24.008(b). The trial court may also award costs and reasonable attorney’s fees

in proceedings under the UFTA. See id. § 24.013; NXS Constr., Inc., 387 S.W.3d at 

80.

On appeal, Robert does not seek to overturn the trial court’s judgment 

against him. Instead, he argues that the trial court did not abuse its discretion by 

declining to award Michelle the right to levy execution on the transferred 

properties. Specifically, Robert argues that the trial court was entitled to believe his 

testimony that he had experienced a downturn in his business, his sons had 

obtained money from their inheritance, and he transferred the properties to his sons 

because “they had the funds available and the funds were needed” for Robert’s 

business to survive. Thus, Robert maintains, the trial court could have concluded 

that there was no intent to defraud Michelle when he made the transfers. In 

connection with this argument, Robert also asserts that that the fair market value of 

the properties was “within the purview of the seller in need of funds to survive.” 

To impose liability under section 24.006(a), Michelle was required to prove 

that (1) her claim arose against Robert prior to the transfer; (2) Robert did not 

receive a reasonably equivalent value for the transfer; and (3) Robert was insolvent 

at the time of the transfer or became insolvent as a result of the transfer. See Tex. 

Bus. & Com. Code § 24.006(a). The trial court’s judgment reflects that it found in

Michelle’s favor on her UFTA claim and awarded her damages and attorney’s fees 

and costs. On appeal, Robert does not challenge the trial court’s judgment of 
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liability; he argues only that the trial court did not abuse its discretion in awarding 

a money judgment rather than execution on the properties, and he expressly asserts 

that the trial court’s judgment should be affirmed.

To the extent Robert is contending that the money judgment was equitable 

under the circumstances, he cites no authorities to support this assertion, nor does 

he identify any statutory basis for the award of a money judgment on these facts. 

Robert’s argument appears to be directed at the requirement that he made the 

transfer “without receiving a reasonably equivalent value in exchange for the 

transfer.” See id. To the extent that Robert may be attempting to argue that the trial 

court did not abuse its discretion by concluding that the transfers were for a 

reasonably equivalent value, Robert’s argument is contrary to the trial court’s 

unchallenged determination that Michelle prevailed on her UFTA claim. In any 

event, the UFTA defines “reasonably equivalent value” as including, without 

limitation, “a transfer or obligation that is within the range of values for which the 

transferor would have sold the assets in an arm’s length transaction.” See Tex. Bus. 

& Com. Code § 24.004(d). Robert cites no authorities in support of his argument 

that fair market value is in the eyes of the seller in need of cash. And, as noted 

above, intent to defraud is not an element of liability under section 24.006(a). See

Esse, 333 S.W.3d at 178; Metra United Escalante, L.P., 158 S.W.3d at 542.

Michelle suggests that, although the trial court may have been convinced 

that Robert was going to immediately tender the $52,000 he owed her at the 

conclusion of trial as he and his counsel represented, that was not the relief she 

requested at trial. Michelle already had a money judgment on which she was 

unable to collect—which is why she sought relief under the UFTA—and the trial 

court’s judgment merely gave her the same relief she already had. Consequently, 

the trial court’s award of another money judgment was no relief at all. Further, 
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Robert acknowledged he owed Michelle money under the previous judgment but 

was unwilling or unable to pay it, and it is undisputed that the amount owed as of 

the date of the judgment is $52,000. On these facts, the trial court’s award of a 

money judgment effectively denies Michelle, the prevailing party, the equitable 

relief she sought—a result that is contrary to the purpose of the UFTA. See NXS 

Constr., Inc., 387 S.W.3d at 79 (noting that the UFTA is intended to prevent a 

debtor from defrauding his creditors by moving assets out of reach); Tex. Bus. & 

Com. Code §24.008(b) (authorizing the trial court to order a creditor who has 

obtained a judgment against the debtor to “levy execution on the asset transferred 

or its proceeds”); see also Tex. Bus. & Com. Code § 24.008(a) (authorizing 

avoidance of the transfer, temporary attachment of the transferred asset, and other 

remedies consistent with principles of equity and applicable rules of civil 

procedure).

We conclude that, under the facts and circumstances of this case, the trial 

court erred by awarding Michelle a judgment for money damages when Michelle 

(1) had previously obtained a money judgment on a claim against Robert on which 

she had been unable to collect, (2) prevailed on her UFTA claim, and (3)

specifically requested that she be allowed to levy execution on the properties 

Robert transferred to his sons as provided under section 24.008(b). See Tex. Bus. 

& Com. Code §§ 24.006(a), 24.008(b). We therefore sustain Michelle’s first issue 

and reverse that portion of the trial court’s judgment granting a money judgment to 

Michelle for $52,000. The trial court’s finding of liability under the UFTA remains 

undisturbed. We remand for the trial court to consider Michelle’s request for levied 

execution on some or all of the transferred properties under section 24.008(b). See 

Corpus v. Arriaga, 294 S.W.3d 629, 631, 637 (Tex. App.—Houston [1st Dist.] 

2009, no pet.) (remanding for consideration of request for levied execution on real 
12

property under UFTA section 24.008(b)). We affirm the remainder of the 

judgment.

/s/ Jeffrey V. Brown

Justice

Panel consists of Justices Brown, Christopher, and McCally.