Harrison v. Reiner

607 S.W.3d 450

Debra HARRISON, Appellant

v.Howard M. REINER, Successor Administrator of the Estate of Napoleon Harrison, Deceased and U.S. Specialty Insurance Company, Appellees

NO. 14-19-00050-CV

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed August 6, 2020

Rehearing Denied September 17, 2020

Debra Harrison, pro se.

Howard M. Reiner, Ashley Reiner, Darlene Payne Smith, Alec Covey, Houston, for Appellees.

Panel consists of Chief Justice Frost and Justices Jewell and Spain.

Kevin Jewell, Justice

Debra Harrison appeals from a final judgment in favor of appellees, Howard M. Reiner, Successor Administrator of the Estate of Napoleon Harrison, Deceased and U.S. Specialty Insurance Co. Representing herself, Harrison challenges the judgment in fifty-five issues.¹ Construing her amended brief liberally, we group Harrison's issues into the following general categories: (1) jurisdictional challenges; (2) legal-sufficiency issues; (3) complaints about the validity of the judgment; (4) issues concerning the withdrawal of her counsel; (5) issues concerning Reiner's and U.S. Specialty's purported fraud; (6) complaints about the form of the final judgment; (7) issues regarding the judgment's non-dischargeability in bankruptcy; (8) contentions regarding the bond's requirement that Harrison be represented by counsel; (9) issues related to U.S. Specialty's bond; and (10) various challenges to the trial court's actions.

Addressing Harrison's jurisdictional arguments first, we sustain in part her issues that the probate court exceeded its authority by ordering that the judgment is not dischargeable in bankruptcy because that is a matter the United States Bankruptcy Code and interpretive jurisprudence reserve for a bankruptcy court in the first instance. We modify the judgment to delete that language. We overrule the rest of Harrison's jurisdictional issues.

We overrule the remainder of Harrison's appellate issues because she did not preserve them in the trial court, she did not brief them adequately in our court, or she has failed to demonstrate reversible error.

We modify the trial court's judgment and affirm the judgment as modified.

Background

On January 29, 2011, Harrison's husband, Napoleon Anthony Harrison, died intestate. Harrison filed an application for letters of administration, which the trial court—Harris County Probate Court No. 1—granted. The court appointed Harrison dependent administratrix. Harrison obtained a $30,000 bond from U.S. Specialty and took her oath of administration. Harrison filed an inventory and appraisement in November 2011, which the trial court approved. During these proceedings, she was represented by counsel Steven Baughman. Baughman withdrew as counsel, with Harrison's consent, in November 2012.

Representing herself, Harrison filed an annual accounting in January 2013. The accounting reflected that the estate's bank accounts had been "fully depleted," resulting from payment of car insurance, mortgage, taxes, insurance on the homestead, and attorney's fees. The trial court informed Harrison that her accounting could not be approved absent applications for court ratification of various expenses she paid from estate funds without court authority. The court approved the attorney's fee payments but did not approve the remainder of Harrison's applications.

Over the following two years, the court signed four show-cause orders, which were served on Harrison. These orders explained that Harrison had failed to correct the January 2013 annual accounting and failed to file further annual accountings. The orders required Harrison to appear and show cause why she "should not be removed ... and/or held in contempt and/or fined for her failure" to correct the annual accounting. Our record does not reflect the results of the show-cause hearings.

The trial court signed a fifth show-cause order. That show-cause order was served on Harrison and also faxed to attorney Charles Gaston, who by that time had appeared as counsel for Harrison. Thereafter, Harrison, represented by Gaston, submitted an amended inventory, appraisement, and list of claims. Gaston filed another application to ratify expenses made without court authority. The trial court did not approve the amended inventory, appraisement, and list of claims, nor did the trial court ratify any of Harrison's expenses.

The trial court signed an order in which the court: (a) removed Harrison as administratrix of the estate for failing to file an annual accounting; (b) revoked her letters of administration; and (c) required her to deliver "any and all" estate property to the successor administrator. The trial court appointed Reiner successor administrator of the estate.

Reiner promptly notified Gaston in writing that he had been appointed successor administrator. Reiner explained that he was responsible for recovering the assets of the estate and "surcharging [Harrison's] bond for the failure to complete and perform her duties." He demanded that Harrison "account [for] and deliver all of the assets of the estate and ... [reimburse] for all losses associated with such malfeasance or nonfeasance." Additionally, Reiner's letter notified Gaston that Harrison was ordered to deliver all estate property of "every kind" and produce a final accounting of her tenure as the administratrix of the estate within thirty days of her removal. Approximately three weeks later, Reiner sent a similar letter directly to Harrison because Gaston had "not been responsive."

Reiner filed an original petition for surcharge against Harrison and U.S. Specialty. Reiner alleged that Harrison breached her duties as administratrix of the estate by failing to: (1) properly account for the estate; (2) provide the source and nature of estate receipts and disbursements; (3) obtain court approval for cash disbursements from the estate; and (4) support each accounting with proper vouchers or receipts. In the petition, Reiner alleged that Harrison's mishandling and mismanagement of the estate "resulted in the loss and waste of the Estate's assets" and "caused the Estate to incur unnecessary losses and expenses." Reiner asserted that U.S. Specialty, as Harrison's surety, was jointly and severally liable for damages and attorney's fees for Harrison's wrongful conduct.

Harrison, unrepresented by counsel,² filed an answer generally denying Reiner's allegations. U.S. Specialty filed (1) an answer generally denying Reiner's assertions and raising several affirmative defenses, and (2) a cross-claim against Harrison for indemnity. U.S. Specialty alleged that the bond was "conditioned upon [Harrison's] well and truly performing her duties by law as Dependent Administrator of the Estate of Napoleon Harrison." U.S. Specialty claimed that it was entitled to a judgment over and against Harrison for indemnity from any and all claims it might be required to pay to Reiner.³ U.S. Specialty also sought attorney's fees against Harrison for her alleged breach of the bond contract. Harrison answered U.S. Specialty's cross-claim with a general denial.

Several months later, a third lawyer, attorney Calvin Johnson, filed an appearance as Harrison's attorney of record. Johnson filed several pleadings on Harrison's behalf, including an application for a family allowance and an application for reimbursement of funeral expenses. The trial court did not approve any of these applications.

Reiner's surcharge claim and U.S. Specialty's indemnity cross-claim proceeded to trial before the bench. Johnson appeared as Harrison's counsel. An associate judge presided over the trial. During trial, the court admitted into evidence Harrison's various unapproved annual accountings filed in January 2013, an unapproved supplement to annual accounting filed in March 2013, and her unapproved amended inventory, appraisement, and list of claims filed in October 2016. Harrison's counsel attempted to introduce evidence purporting to support Harrison's unapproved applications for ratification, but opposing counsel objected to them, and they were excluded.

Harrison acknowledged that she understood her duties as administratrix of the estate, including her duty to provide an estate accounting to the court and to obtain court permission before spending estate funds. Harrison agreed that she sold estate assets and spent estate funds without court permission. At the end of trial, the parties discussed the terms of the judgment. Harrison's attorney was concerned about language in Reiner's proposed judgment stating that the judgment would not be dischargeable in bankruptcy. Harrison's attorney did not believe the Bankruptcy Code provision cited in the proposed judgment applied to this case. The proposed judgment cited 11 U.S.C. section 523(a)(4), which states: "(a) A discharge under section 727, 1141, 1192[,] 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt ... (4) for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny." Harrison's counsel argued that the court had not found that Harrison committed fraud or defalcation. After some discussion, however, Harrison's attorney, with Harrison present, stated that "we will sign it." Harrison's attorney also initialed the trial court's handwritten addition to the judgment, stating, "Any assets payable to Debra Harrison as inheritance shall be paid by Howard Reiner to U.S. Specialty as an offset."

The associate judge signed the judgment on November 2, 2018. In the judgment the court ordered that: (1) Harrison's breach of her fiduciary duties resulted in $15,000 in damages to the estate; (2) Reiner recover $15,000 in reasonable and necessary attorney's fees; (3) Harrison and U.S. Specialty were jointly and severally liable to Reiner for these damages and attorney's fees; and (4) U.S. Specialty be awarded judgment from Harrison for $50,030.39 for indemnity, breach of contract, and attorney's fees. Additionally, the judgment stated that it "is...