Opinion
NO. 14-19-00050-CV
08-06-2020
Debra HARRISON, Appellant v. Howard M. REINER, Successor Administrator of the Estate of Napoleon Harrison, Deceased and U.S. Specialty Insurance Company, Appellees
Debra Harrison, pro se. Howard M. Reiner, Ashley Reiner, Darlene Payne Smith, Alec Covey, Houston, for Appellees.
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. 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.
Harrison's initial brief contained sixty-three issues. This court granted in part U.S. Specialty's motion to require her to revise her brief to comply with the briefing rules, and Harrison filed an amended brief raising fifty-five issues. We have listed Harrison's fifty-five issues in an appendix appearing at the end of this opinion.
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, 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. 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.
Gaston did not represent Harrison in response to Reiner's petition.
U.S. Specialty notified Harrison in writing that it was required to file a responsive pleading to Reiner's petition for surcharge and that she was in breach of the bond agreement because she was without counsel. U.S. Specialty explained that, in accordance with the indemnity agreement Harrison signed when purchasing the bond, "any monies paid by the bond company, including attorney's fees, costs and expenses, will have to be reimbursed" by Harrison.
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 not dischargeable in bankruptcy" and cited 11 U.S.C. section 523(a)(4). The presiding judge signed and adopted the judgment on November 6, 2018.
Johnson moved to withdraw as Harrison's attorney with her consent, and the trial court signed an order granting the motion. Harrison, once again finding herself without counsel, filed a timely, unverified motion for new trial. In her motion, she alleged that her first attorney, Baughman, breached his employment contract by withdrawing as her counsel without filing an application for a family allowance. She also urged that: (1) there was no evidence that any of her expenditures of estate funds were not for the maintenance of the estate or the support of her and the decedent's minor child; (2) the final judgment "unconstitutionally makes Harrison's homestead payable to Reiner and U.S. Specialty" because it states that any assets payable to Harrison as inheritance shall be paid by Reiner to U.S. Specialty as an offset; and (3) the judgment "unconstitutionally makes Harrison's exempt personal property payable to Reiner and U.S. Specialty" because of this same language. The trial court denied Harrison's motion for new trial. Harrison timely appealed.
In the meantime, Harrison filed a motion to reconsider the denial of her motion for new trial, in which she challenged U.S. Specialty's standing to sue her because (1) only the personal representative is entitled to sue for the recovery of property belonging to the estate and (2) U.S. Specialty's power of attorney expired in 2011. Additionally, she challenged the judgment on the grounds that U.S. Specialty agreed to the final judgment and thus it could not be used to impose liability or damages on her, and U.S. Specialty failed to comply with Civil Practice and Remedies Code section 38.002. The trial court denied Harrison's motion to reconsider.
Analysis
Much of Harrison's "argument" in her appellate brief consists of quotations from legal authority with no discernable application of the quoted material or the law to the facts. Harrison also provides several pages of quotations from the record as "argument," without any discussion of how the record demonstrates that the trial court committed reversible error. We, of course, construe Harrison's brief liberally to reach her appellate issues on the merits when possible. See e.g., Weeks Marine, Inc. v. Garza , 371 S.W.3d 157, 162 (Tex. 2012). Even so, pro se litigants such as Harrison are held to the same standards as licensed attorneys and must comply with all applicable rules of procedure. Reule v. M & T Mortg. , 483 S.W.3d 600, 608 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) ; see also Burbage v. Burbage , 447 S.W.3d 249, 258 (Tex. 2014) (explaining that courts may not stray from procedural rules simply because litigant represented self). We remain mindful of these standards.
Before analyzing Harrison's issues, we address a threshold matter raised by Reiner and U.S. Specialty. They contend that Harrison has waived all or most of her appellate points because she consented to the judgment. Generally, a party cannot appeal from a judgment to which she has consented or agreed absent an allegation and proof of fraud, collusion, or misrepresentation. Chang v. Linh Nguyen , 81 S.W.3d 314, 316 n.1 (Tex. App.—Houston [14th Dist.] 2001, no pet.). Any errors that might have been committed by the trial court prior to rendition of a consent judgment are waived, except for jurisdictional error. See Tait v. Matthews , 33 Tex. 112, 112 (1870) ; Baw v. Baw , 949 S.W.2d 764, 766 (Tex. App.—Dallas 1997, no writ). To have a valid consent judgment, each party must explicitly and unmistakably give its consent. Khan v. Asset Acceptance, LLC , No. 14-13-00275-CV, 2014 WL 1410222, at *2 (Tex. App.—Houston [14th Dist.] Apr. 10, 2014, no pet.) (mem. op.).
The present judgment contains no language indicating that it is a consent judgment. The judgment lacks verbiage suggesting that the case was settled or that the judgment was rendered by consent of the parties. See id. To be sure, Harrison's counsel indicated that he would "sign the judgment," but he did not explicitly and unmistakably consent, see Chang , 81 S.W.3d at 316 n.1 ; and he "approved as to form" only, which does not establish Harrison's "consent" to the judgment's substance, such that she is deemed to have waived her appeal rights. See Khan , 2014 WL 1410222, at *2. Based on the record before us, we conclude that Harrison has not waived her right to appeal on the ground that the judgment is a consent judgment.
A. Harrison's Jurisdictional Challenges
In several of her appellate issues, Harrison purports to raise jurisdictional challenges, which may be raised for the first time on appeal. See, e.g., San Jacinto River Auth. v. Ogletree , 594 S.W.3d 833, 838 (Tex. App.—Houston [14th Dist.] 2020, no pet.). We consider the jurisdictional issues before addressing Harrison's other issues. A legal question we review de novo, "[s]ubject matter jurisdiction is essential to a court's power to decide a case." City of Houston v. Rhule , 417 S.W.3d 440, 442 (Tex. 2013).
1. Reiner's claims are not moot.
In issues eleven, twelve, fourteen, and eighteen, Harrison contends that Reiner's claims are moot. Mootness is relevant to a trial court's subject-matter jurisdiction. See Travelers Ins. Co. v. Joachim , 315 S.W.3d 860, 865 (Tex. 2010). The mootness doctrine requires that a controversy exist between the parties at every stage of the legal proceedings, including an appeal. Bd. of Adjustment of San Antonio v. Wende , 92 S.W.3d 424, 427 (Tex. 2002).
Harrison argues that several of Reiner's trial exhibits constituted "judicial admissions" that rendered his claims against her moot. She appears to argue that: (1) Reiner offered into evidence some of Harrison's pleadings, including her annual accounting and her inventory, appraisement, and list of claims; (2) by proffering this evidence, Reiner "judicially admitted" the truth of the information contained in these documents; and thus, (3) Reiner's claims of malfeasance or nonfeasance in his petition for surcharge were rendered moot.
Harrison misapprehends the nature of judicial admissions. A judicial admission is a clear, deliberate, and unequivocal assertion of fact that makes the introduction of other evidence on an issue unnecessary. See Anglo-Dutch Energy, LLC v. Crawford Hughes Operating Co. , No. 14-16-00635-CV, 2017 WL 4440530, at *6 (Tex. App.—Houston [14th Dist.] Oct. 5, 2017, pet. denied) (mem. op.) (citing Horizon/CMS Healthcare Corp. v. Auld , 34 S.W.3d 887, 905 (Tex. 2000) ). A party's own pleadings or a counsel's factual statements on behalf of a client may constitute judicial admissions. See Horizon/CMS Healthcare , 34 S.W.3d at 905 ; In re Estate of Guerrero , 465 S.W.3d 693, 705 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (en banc). To constitute a judicial admission, the statement must be: (1) made in the course of a judicial proceeding; (2) contrary to a fact essential for the party's recovery or defense; (3) deliberate, clear, and unequivocal; (4) in accordance with public policy if given conclusive effect; and (5) consistent with the opposing party's theory of recovery. Guerrero , 465 S.W.3d at 705-06.
By offering into evidence copies of Harrison's filings, Reiner did not admit the truth of what Harrison, an opposing party, represented in them. They are not his pleadings, nor did he make any statements concerning the accuracy of their contents. He was using those pleadings as evidence against Harrison. The record reflects that, other than Harrison's initial inventory and appraisement filed in November 2011, the exhibits are copies of Harrison's requests or applications that the trial court did not approve. Thus, the pleadings Harrison cites are not "contrary to a fact essential for [Reiner]'s recovery." See id. Rather, they support Reiner's recovery. Reiner's claims are not moot for the reasons Harrison suggests.
We overrule Harrison's eleventh, twelfth, fourteenth, and eighteenth issues.
2. Harrison's challenge to Reiner's standing fails.
In her twenty-fifth and thirty-fifth issues, Harrison claims that Reiner lacks standing to sue because he brought his surcharge petition as the "Dependent Administrator" instead of the "Successor Administrator," as he was named in the order removing Harrison and appointing Reiner. Harrison takes issue with the terms "dependent" versus "successor" administrator.
Harrison conflates standing with capacity. "A plaintiff has standing when it is personally aggrieved, regardless of whether it is acting with legal authority; a party has capacity when it has the legal authority to act, regardless of whether it has a justiciable interest in the controversy." Nootsie, Ltd. v. Williamson Cty. Appraisal Dist. , 925 S.W.2d 659, 661 (Tex. 1996). Thus, as here, an estate may have suffered an injury and have a justiciable interest in the controversy—i.e., the estate has standing to sue—but the estate itself lacks the legal authority to sue. See Austin Nursing Ctr., Inc. v. Lovato , 171 S.W.3d 845, 849 (Tex. 2005). The law accordingly grants another party the capacity to sue on the estate's behalf. See id. And, unlike standing, which may be raised at any time, a challenge to a person's capacity must be raised by verified pleading in the trial court. Id. (citing Tex. R. Civ. P. 93(1)-(2) ; Sixth RMA Partners v. Sibley , 111 S.W.3d 46, 56 (Tex. 2003) ); see also Vertical N. Am., Inc. v. Vopak Terminal Deer Park, Inc. , No. 14-15-01088-CV, 2017 WL 4197027, at *1-2 (Tex. App.—Houston [14th Dist.] Sept. 21, 2017, pet. denied) (mem. op. on reh'g).
Harrison's argument is in substance, and at most, a challenge to Reiner's capacity. Her argument fails because, among other reasons, Reiner, having been appointed the estate's administrator, was granted the capacity to sue on the estate's behalf. See Nootsie , 925 S.W.2d at 661. Harrison, however, did not challenge Reiner's capacity to sue by verified pleading in the trial court pursuant to Texas Rule of Civil Procedure 93, so she cannot raise a capacity challenge for the first time on appeal. Tex. R. App. P. 33.1(a)(1). We can reject Harrison's arguments on this ground alone, and we need not address whether Reiner was properly named as "Dependent Administrator" as opposed to "Successor Administrator." See Vertical N. Am., Inc. , 2017 WL 4197027, at *2 (declining to address capacity argument on appeal because it was not raised in trial court pursuant to Tex. R. Civ. P. 93 ).
Harrison's arguments do not present a question of standing, and she did not preserve error in the trial court on a challenge to Reiner's capacity to sue. Her arguments do not implicate the court's subject-matter jurisdiction. See Nootsie , 925 S.W.2d at 661 ; Vertical N. Am. , 2017 WL 4197027, at *2. We overrule Harrison's twenty-fifth and thirty-fifth issues.
3. Harrison's challenge to U.S. Specialty's standing fails.
Harrison challenges U.S. Specialty's standing in issues forty-six and forty-seven. Harrison first contends that U.S. Specialty lacks standing to sue her because only the personal representative of an estate may sue for recovery of property belonging to the estate. See, e.g., Austin Nursing Ctr., Inc. v. Lovato , 171 S.W.3d 845, 850 (Tex. 2005) ("In general, only the estate's personal representative has the capacity to bring a survival claim."). However, as explained above, U.S. Specialty's cross-claim against Harrison was for breach of contract and indemnity based on the surety bond. U.S. Specialty sought damages for Harrison's breach of contract; U.S. Specialty did not seek to recover estate assets from Harrison. Because U.S. Specialty has an enforceable interest as a party to the surety bond contract, it has standing to sue for the contract's alleged breach. See Republic Petroleum LLC v. Dynamic Offshore Res. NS LLC , 474 S.W.3d 424, 430 (Tex. App.—Houston [1st Dist.] 2015, pet. denied). Thus, this argument affords Harrison no basis for relief.
As with the previous issues, Harrison seems to confuse capacity with standing.
Harrison also claims that U.S. Specialty lacks standing due to various asserted defects with the form or validity of the surety bond. For example, she contends the power of attorney recited in the bond expired in 2011, and that U.S. Specialty's damages were "self-imposed by [its] agreement to the final judgment." As she provides no record references or legal authority in support of these additional arguments, we conclude they are waived due to inadequate briefing. See Tex. R. App. P. 38.1(i) ; Marathon Petroleum Co. v. Cherry Moving Co. , 550 S.W.3d 791, 798 (Tex. App.—Houston [14th Dist.] 2018, no pet.) ; In re R.H.W. III , 542 S.W.3d 724, 742 (Tex. App.—Houston [14th Dist.] 2018, no pet.) ; San Saba Energy, L.P. v. Crawford , 171 S.W.3d 323, 337 (Tex. App.—Houston [14th Dist.] 2005, no pet.).
We overrule Harrison's issues forty-six and forty-seven.
4. The trial court exceeded its authority by ordering that the judgment is not dischargeable in bankruptcy.
The judgment states that it is "not dischargeable in bankruptcy or any other proceeding pursuant to 11 U.S.C. § 523(a)(4), and that Debra Harrison, Individually, will not be entitled to be discharged for any such actions by way of any bankruptcy proceeding." In issues fifty-four and fifty-five, Harrison appears to argue that the quoted language deprives her of the "fresh start" bankruptcy law affords debtors, and more particularly that the probate court lacked jurisdiction to rule that the judgment is not dischargeable in bankruptcy.
Under section 523(a)(4), a debtor cannot receive a discharge "from any debt ... for fraud or defalcation while acting in a fiduciary capacity." 11 U.S.C. § 523(a)(4). According to the United States Court of Appeals for the Fifth Circuit, "[t]his bar to discharge ‘reaches debts incurred through abuses of fiduciary positions ... [and] involv[ing] debts arising from the debtor's acquisition or use of property that is not the debtor's.’ " In re Harwood , 637 F.3d 615, 620 (5th Cir. 2011) (quoting Tex. Lottery Comm'n v. Tran (In re Tran) , 151 F.3d 339, 342 (5th Cir. 1998) ). The party promoting the discharge exception must prove by a preponderance of the evidence that the debt is not dischargeable. Id.
A bankruptcy court, however, has exclusive jurisdiction to decide the issue of dischargeability under section 523(a)(4). See In re Bingham , 163 B.R. 769, 771 (Bankr. N.D. Tex. 1994) ; see also In re Koper , 516 B.R. 707, 721 (Bankr. E.D.N.Y. 2014) ; Bowles v. Quigley , No. 3:05-CV-2414-M, 2006 WL 1627921, at *2 (Bankr. N.D. Tex. June 7, 2006) (mem. op. and order). Pursuant to Federal Bankruptcy Rule 4007(c), either the debtor or creditor must initiate an adversary proceeding with the Bankruptcy Court to determine dischargeability under section 523(a)(2), (4) or (6), or the debt will be discharged. In re Bingham , 163 B.R. at 771 (citing Fed. Bankr. R. 4007(c) ). Because a bankruptcy court has exclusive jurisdiction to decide whether a debt is dischargeable under section 523(a)(4), the probate court lacked authority to determine the issue in its judgment. See Archer v. Warner , 538 U.S. 314, 321, 123 S.Ct. 1462, 155 L.Ed.2d 454 (2003) ("Congress ... intended to allow the relevant determination (whether a debt arises out of fraud) to take place in bankruptcy court, not to force it to occur earlier in state court at a time when nondischargeability concerns ‘are not directly in issue and neither party has a full incentive to litigate them.’ " (quoting Brown v. Felsen , 442 U.S. 127, 134, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979) ); cf. also Gonzales v. Parks , 830 F.2d 1033, 1035 (9th Cir. 1987) (holding that, in the context of abuse of bankruptcy process, "[s]tate courts are not authorized to determine whether a person's claim for relief under a federal law, in a federal court, and within that court's exclusive jurisdiction is an appropriate one").
We may modify the judgment to delete improper language. See Tex. R. App. P. 43.2(b) ; see also Corey v. Rankin , No. 14-17-00752-CV, 2018 WL 5914531, at *12 (Tex. App.—Houston [14th Dist.] Nov. 13, 2018, no pet.) (mem. op.). Accordingly, we sustain in part Harrison's fifty-fourth and fifty-fifth issues and modify the judgment to delete the following language:
ORDERED, that the judgment against Defendant, Debra Harrison is not dischargeable in bankruptcy or any other proceeding pursuant to 11 U.S.C. § 523(a)(4), and that Debra Harrison, Individually, will not be entitled to be discharged for any such actions by way of any bankruptcy proceeding.
B. Harrison's Evidentiary Sufficiency Issues
We construe Harrison's issues thirteen and fifteen through seventeen as challenges to the legal sufficiency of the evidence to support the judgment in Reiner's favor. For example, in these issues, she contends that Reiner's "judicial admissions" negate the proof offered at trial to support his claims. In issue twenty-four, Harrison suggests that the judgment is not supported because, as an administrator, she did not owe a fiduciary duty to care for estate property. And, in issue thirty-four, she contends that her filing of the record "caused the implied findings to be inconclusive." We conclude that Harrison has not demonstrated a lack of evidentiary or legal support for the judgment or implied fact findings in the particulars she articulates.
See supra , section A.1.
When reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the judgment and indulge every reasonable inference that would support it. City of Keller v. Wilson , 168 S.W.3d 802, 822 (Tex. 2005). We credit favorable evidence if a reasonable fact finder could and disregard contrary evidence unless a reasonable fact finder could not. Id. at 807, 827 ; Vast Constr., LLC v. CTC Contractors, LLC , 526 S.W.3d 709, 719 (Tex. App.—Houston [14th Dist.] 2017, no pet.). If there exists more than a scintilla of evidence to support the judgment, we must uphold it. Vast Constr. , 526 S.W.3d at 719. More than a scintilla of evidence exists when the evidence supporting the finding rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Id. Our record contains neither signed findings of fact nor a request for them. When the trial court does not sign findings of fact after a bench trial, we imply all necessary findings in support of the judgment. See APMD Holdings, Inc. v. Praesidium Med. Prof'l Liab. Ins. Co. , 555 S.W.3d 697, 706 (Tex. App.—Houston [1st Dist.] 2018, no pet.).
Reiner asserted claims for breach of the duty of loyalty, breach of the duty of disclosure, breach of the duty of reasonable care, and negligence. To prevail on each of these claims, Reiner had to show the existence of a duty, breach of that duty, and damages proximately caused by that breach. See Belteton v. Desco Steel Erectors & Concrete, Inc. , 222 S.W.3d 600, 605 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (negligence) (citing Praesel v. Johnson , 967 S.W.2d 391, 394 (Tex. 1998) ). An estate administrator has a fiduciary relationship with the estate's heirs and owes them the duty of full disclosure of all material facts that might affect their rights. Montgomery v. Kennedy , 669 S.W.2d 309, 313 (Tex. 1984) ; see Huie v. DeShazo , 922 S.W.2d 920, 923 (Tex. 1996) ; FCLT Loans, L.P. v. Estate of Bracher , 93 S.W.3d 469, 480 (Tex. App.—Houston [14th Dist.] 2002, no pet.). As well, a fiduciary owes her principals "a high duty of good faith, fair dealing, honest performance, and strict accountability." Ludlow v. DeBerry , 959 S.W.2d 265, 279 (Tex. App.—Houston [14th Dist.] 1997, no pet.).
During trial, Harrison acknowledged that she: (1) owed certain duties as administratrix of the estate, including, inter alia , the duty to protect estate assets; (2) failed to account for all the estate's assets; (3) failed to sell depreciating estate assets within a reasonable time; and (4) depleted estate bank accounts without court authority. This evidence was uncontradicted and amounts to more than a scintilla of evidence that Harrison breached her fiduciary duties. We conclude that Harrison has not shown that the judgment is unsupported by legally sufficient evidence.
We overrule Harrison's thirteenth, fifteenth through seventeenth, twenty-fourth, and thirty-fourth issues.
C. Harrison's Challenge to the Judgment's Validity
In issues twenty-six and twenty-seven, Harrison contends the judgment is void because the probate judge adopted the judgment signed by an associate judge, resulting in "two" judgments, and because the judgment is insufficiently definite. We disagree. The judgment was signed on November 2, 2018 by Associate Judge Ruth Ann Stiles, who presided over the bench trial. Four days later, the presiding judge of Probate Court No. 1 at that time, Hon. Loyd Wright, adopted the associate court's judgment:
Contrary to Harrison's contention, this case does not involve two judgments; rather the judgment signed by the associate judge who presided over the bench trial became the judgment of the referring court when signed by the presiding judge of Probate Court No. 1. See Tex. Gov't Code § 54A.214(b). "Except as provided by Section 54A.209(c), if a request for a de novo hearing before the referring court is not timely filed or the right to a de novo hearing before the referring court is waived, the decisions and recommendations of the associate judge or the proposed order or judgment of the associate judge becomes the order or judgment of the referring court at the time the judge of the referring court signs the proposed order or judgment." Id. A judgment signed first by an associate probate judge and later signed by the referring probate judge is a valid judgment and is not void. See id. We overrule Harrison's twenty-sixth issue.
In her twenty-seventh issue, Harrison contends the final judgment is not sufficiently definite to be enforceable. See Stewart v. USA Custom Paint & Body Shop, Inc. , 870 S.W.2d 18, 20 (Tex. 1994) ("A judgment must be sufficiently definite and certain to define and protect the rights of all litigants, or it should provide a definite means of ascertaining such rights, to the end that ministerial officers can carry the judgment into execution without ascertainment of facts not therein stated."). She complains, inter alia , that the judgment "is unclear and indefinite what is being ‘ORDERED’ to be done, and by whom, and why."
The judgment clearly states that Harrison's actions as the estate's administratrix breached her fiduciary duty, causing $15,000 in damages to the estate, and that Reiner is entitled to recover $15,000 in reasonable and necessary attorney's fees. Further, in the judgment the trial court orders that:
Plaintiff, Howard Reiner, Successor Administrator of the Estate of Napoleon Harrison, Deceased, have and be awarded Judgment of and from Defendant, Debra Harrison, and Defendant/Cross-Plaintiff U.S. Specialty Insurance Company in the amount of $30,000 for damages to the Estate of Napoleon Harrison, Deceased, and reasonable and necessary attorney's fees and costs for prosecution of this claim and the recovery of assets....
The judgment further provides that by her actions Harrison breached her contract with U.S. Specialty and that U.S. Specialty is entitled to judgment on its claim of indemnity and for attorney's fees in the amount of $20,030.39. In the judgment the trial court clearly orders that U.S. Specialty be awarded a total judgment of $50,030.39 from Harrison for indemnity, breach of contract, and attorney's fees. Finally, the judgment provides that any assets payable to Harrison as inheritance shall be paid by Reiner to U.S. Specialty as an offset.
We conclude the judgment provides a definite means of ascertaining the litigants' rights and may be carried into execution without ascertaining facts not stated therein. See id.
We overrule Harrison's twenty-seventh issue.
D. Unpreserved Issues
Generally, to present a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion, and that the trial court either ruled on the complaint or refused to rule and the party objected to that refusal. See Tex. R. App. P. 33.1(a). This error preservation rule "reflects important prudential considerations recognizing that the judicial process benefits greatly when trial courts have the opportunity to consider and rule on asserted error first. Affording courts this opportunity conserves judicial resources and promotes fairness by ensuring that a party does not neglect a complaint at trial and raise it for the first time on appeal." Burbage , 447 S.W.3d at 258 (citation omitted). Pro se litigants are not exempt from our error preservation rules. See id. The following of Harrison's issues were not preserved for our review.
1. Complaints about the withdrawal of attorney Charles Gaston
In issues one through six, eight, nine, thirty-two, and thirty-three, Harrison raises various complaints about the withdrawal of Charles Gaston, her second attorney. Her arguments include whether Gaston remained her attorney of record because the trial court did not sign an order permitting his withdrawal, and complaints that appellees communicated directly with Harrison rather than with Gaston in violation of Texas Rule of Civil Procedure 8 and the disciplinary rules.
Harrison raised no arguments about Gaston's withdrawal in the trial court. Harrison therefore failed to preserve any complaints about Gaston's withdrawal or appellees' communications with her rather than with Gaston. See Tex. R. App. P. 33.1(a) ; cf. In re A.W.L. , No. 05-16-00916-CV, 2018 WL 446421, at *6 (Tex. App.—Dallas Jan. 17, 2018, no pet.) (mem. op.) (appellant waived complaint that trial court violated his due-process rights by granting his first attorney's "facially-deficient motion" because he did not raise complaint regarding withdrawal in the trial court); Aduli v. Aduli , 368 S.W.3d 805, 817-18 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (appellant did not preserve complaint about allegedly untimely withdrawal of counsel because he did not move for a continuance requesting more time to obtain new counsel); O'Kane v. Chuoke , No. 01-05-00523-CV, 2007 WL 926494, at *2 (Tex. App.—Houston [1st Dist.] Mar. 29, 2007, no pet.) (mem. op.) (concluding that failure to state pending settings or deadlines in withdrawal motion may violate a client's due-process rights, but concluding that any such error was not fundamental and that party's failure to object to withdrawal motion in the trial court waived error).
In her motion for new trial, Harrison raised issues concerning the performance and withdrawal of her first counsel, Steven Baughman.
Moreover, Harrison does not explain how Gaston's withdrawal as her counsel or the appellees' communication with her rather than Gaston caused her any harm. Harrison does not claim that she was given inadequate time to secure new counsel and prepare for trial. See Reule , 483 S.W.3d at 615 (explaining that any error in trial court's allowing counsel to withdraw on noncompliant or inadequate motion is rendered harmless where party is given adequate time to secure new counsel and for counsel to investigate the case and prepare for trial). The record reflects that attorney Calvin Johnson filed a notice of appearance as her counsel of record, and he represented her during the trial; Harrison brings forth no complaints about Johnson's performance. Thus, on our record, we cannot say that Harrison was harmed by Gaston's withdrawal. See id.
We overrule Harrison's issues one through six, eight, nine, thirty-two, and thirty-three.
2. Issues concerning Harrison's and U.S. Specialty's purported fraud
In several issues, including issues nineteen through twenty-three, Harrison complains in a conclusory manner that Reiner and U.S. Specialty engaged in fraud and collusion. She did not raise this defensive theory in the trial court, nor was any evidence introduced or findings secured regarding appellees' purported fraud or collusion. See Tex. R. Civ. P. 94 (defense of fraud must be affirmatively pleaded); see also Assoc. Tel. Directory Publishers, Inc. v. Five D's Pub. Co., Inc. , 849 S.W.2d 894, 899 (Tex. App.—Austin 1993, no writ) (defensive fraud theory may not be raised for the first time on appeal).
Accordingly, we overrule Harrison's nineteenth through twenty-third issues.
3. Other challenges to the judgment
Harrison challenges certain forms of relief in issues twenty-eight through thirty-one. For example, she contends the judgment improperly conditions recovery on the uncertainty of her inheritance, erroneously orders her inheritance payable to Reiner, and fails to give her credit for attorney's fees that were ratified by the trial court.
In all of these issues Harrison attacks the judgment on grounds that she did not raise in the trial or post-trial proceedings on Reiner's claim. See Tex. R. Civ. P. 329b(g) (providing for motion to modify, correct, or reform a judgment); Sheets v. Autogroup Premier, Inc. , No. 14-18-00279-CV, 2020 WL 548366, at *4 n.6 (Tex. App.—Houston [14th Dist.] Feb. 4, 2020, no pet.) (mem. op.) (explaining that, to complain about purported error in signed judgment, an appellant must preserve issue by motion for new trial or motion to alter, modify, or correct the judgment).
Harrison failed to preserve issues twenty-eight through thirty-one for appellate review, and we overrule them.
E. Inadequately Briefed Issues
Under our rules of appellate procedure, briefs must contain "a clear and concise argument for the contentions made with appropriate citations to authorities and the record." See Tex. R. App. P. 38.1(i). Although we must construe briefs liberally so as to avoid disposing of issues without reaching the merits when possible, the complete dearth of applicable argument in support of the following issues compels us to conclude that Harrison has waived them due to inadequate briefing. See R.H.W. , 542 S.W.3d at 742 ; San Saba Energy , 171 S.W.3d at 338.
See Perry v. Cohen , 272 S.W.3d 585, 587 (Tex. 2008).
1. Issues concerning the requirement that Harrison be represented by counsel
Harrison groups two issues—issues seven and ten—concerning the bond's requirement that she be represented by counsel with her complaints about Gaston's withdrawal, which are discussed supra. She presents these issues as follows:
7. Whether the court erred as a matter of law by failing to rule that Appellees' failure to enforce their trial amendment requiring Appellant to retain an attorney throughout the administration of this estate negates damages as plead by Appellees.
***
10. Whether the surety bond required Appellant to retain counsel throughout the administration of this estate.
The only argument in this section of her brief that could apply to these two issues is Harrison's conclusory statement that "Reiner and U.S. Specialty admitted the bond into evidence, which was their judicial admission of their knowledge and awareness that Appellant was required to retain counsel throughout the administration of this estate." She makes no further argument concerning these issues and presents no authority to support them. By failing to adequately brief these issues, Harrison has forfeited them.
Accordingly, we overrule issues seven and ten as inadequately briefed. See Tex. R. App. P. 38.1(i) ; Marathon Petroleum , 550 S.W.3d at 798 ; R.H.W. , 542 S.W.3d at 742 ; San Saba Energy , 171 S.W.3d at 338.
2. Contentions that U.S. Specialty lacked standing or breached its bond
Harrison also challenges U.S. Specialty's "standing" to sue in issues thirty-six through thirty-eight. In issue thirty-nine, she contends that U.S. Specialty breached its bond by entering into an "agreed judgment" with Reiner. In issues forty through forty-four, Harrison urges that U.S. Specialty's indemnity provision violated Estates Code sections 305.106 and 305.109. And, in issue forty-five, she asserts that U.S. Specialty owed her a duty of good faith. The entirety of her argument in support of these issues appears as follows:
In DALLAS/FORT WORTH INTERNATIONAL AIRPORT BOARD V. VIZANT TECHNOLOGIES, LLC, [576 S.W.3d 362, (Tex. 2019) ], the Texas Supreme Court held:
"We have previously recognized in other contexts that good-faith conduct commonly "refers to conduct which is honest in fact [and] free of improper motive or wilful ignorance of the facts at hand." Associated Indemnity [Corp. v. CAT Contracting, Inc. ], 964 S.W.2d [276] at 285 [ (Tex.1998) ] (addressing contractual good-faith standard governing surety's settlement of claims); see also R.R. Comm'n of Tex. v. Gulf Energy Expl. Corp. , 482 S.W.3d 559, 567 (Tex. 2016) (addressing statutory defense for acts performed "in a good-faith effort"); see also Tex. Bus. & Com. Code § 1.201(2) (defining good faith under the Uniform Commercial Code to mean "honesty in fact and the observance of reasonable commercial standards of fair dealing").
Nothing in this "argument" supports her standing issues, nor does it support several of the other issues she has grouped here in her appellate brief, such as her challenge to the indemnity provision of the U.S. Specialty bond on various grounds. As well, there is no application of this law to any of the issues she raises concerning good faith in this section of her brief.
Accordingly, we overrule Harrison's thirty-sixth through forty-fifth issues because they are inadequately briefed. See Tex. R. App. P. 38.1(i) ; R.H.W. , 542 S.W.3d at 742.
3. Complaints about the family allowance, show cause orders, "taking" of Harrison's daughter's remainder interest, purported limitation on damages, and management of her own assets
In Harrison's forty-eighth through fifty-third issues, she raises a variety of challenges to the trial court's actions. These issues are all grouped together in her brief with the same "argument" section following them. However, the "argument" consists entirely of Harrison's transcription of various portions of the record in which Reiner questioned Harrison about several estate assets. The following is a representative excerpt copied directly from her brief:
1999 Chevy S-10
Reiner asked what happened to the 1999 Chevy S-10. Appellant answered that she sold it to a church member, without court permission, and deposited the funds into the checking. CRR 34, L21-25; CRR 35, L1-6.
Bank of America 3999
Reiner asked: Bank of America account ... No. 3999 ... $5,809.42 ... Can you tell the court what happened to that money? CRR 35, L 11-14. Appellant stated that it was spent to maintain the Estate, without Court permission. CRR 35, L15. Appellant further explained that she has documentation with her at trial showing the expenditures of $5,809.42, [that the documentation] will actually exceed the amount [of $5,809.42]. CRR 35, L16-24.
Bank of America 7687
Reiner asked: Bank of America, 7687, $10,346.85, what happened to that money? CRR 35, L25; CRR 36, L1. Appellant stated Spent to maintain the Estate. CRR 36, L2. Reiner asked if she got Court permission to spend any of that money? CRR 36, L3-4. Appellant answered: I did not. CRR 36, L5. Reiner then asked: And do you have documentation here today to show what happened to the $10,346.58? CRR 36, L6-7. Appellant answered: Yes, sir. CRR 36, L8.
Harrison offers no discernible argument and cites no authority in support of her issues in this section of her brief. Thus, Harrison has waived these issues because she has inadequately briefed them. See Marathon Petroleum , 550 S.W.3d at 798 ; R.H.W. , 542 S.W.3d at 742 ; San Saba Energy , 171 S.W.3d at 337.
Based on this briefing waiver, we overrule Harrison's forty-eighth through fifty-third issues. See Marathon Petroleum , 550 S.W.3d at 798 ; San Saba Energy , 171 S.W.3d at 337.
Conclusion
Harrison presents no appellate issues warranting reversal of the trial court's judgment. However, we have sustained in part her issues challenging the trial court's authority to decide the bankruptcy dischargeablity of sums awarded in the judgment. Accordingly, we modify the judgment to delete the language ordering that the judgment is not dischargeable in bankruptcy under 11 U.S.C. section 523(a)(4), as set forth above. Having overruled Harrison's remaining issues, we affirm the judgment as modified.
( Spain, J., concurs in the judgment without opinion).
Appendix
Appendix: Harrison's Issues Presented
We quote the issues verbatim from Harrison's amended brief, although the capitalization has been normalized.
1. Whether attorney Charles Gaston remained appellant's attorney of record because the court did not sign an order withdrawing him.
2. Whether Appellees, as a matter of law, should have directed all communications to Charles Gaston, Appellant's attorney of record, instead of to Appellant directly pursuant to Tex. R. Civ. P. 8.
3. Whether the court erred as a matter of law by allowing the parties to stipulate that Mr. Gaston had withdrawn as attorney of record for Appellant when the court did not sign an order withdrawing him.
4. Whether the court's failure to sign an order withdrawing Charles Gaston as appellant's attorney of record effected [sic] him continuing to be appellant's attorney of record.
5. Whether the trial court erred as a matter of law by allowing the trial to proceed without first requiring Charles Gaston to state on the record whether he continued as appellant's attorney of record or wished to withdraw.
6. Whether the trial court erred as a matter of law by allowing the trial to proceed without first signing an order withdrawing Charles Gaston as attorney of record for Appellant.
7. Whether the court erred as a matter of law by failing to rule that Appellees' failure to enforce their trial amendment requiring Appellant to retain an attorney throughout the administration of this estate negates damages as plead by Appellees.
8. Whether Appellees waived damages by violating Tex. R. Civ. P. 8 requiring that they communicate with Appellant through her attorney of record.
9. Whether Reiner's direct communications with Appellant rather than her attorney of record violated disciplinary rules. 10. Whether the surety bond required Appellant to retain counsel throughout the administration of the estate.
11. Whether Reiner's judicial admissions made his claims against Appellant moot.
12. Whether, as a matter of law, the court erred by granting Reiner relief for claims against Appellant contained in paragraph V of his petition which had become moot due to Reiner's judicial admissions of the claims at trial.
13. Whether Reiner's judicial admissions bar him from disputing the content of the exhibits.
14. Whether Reiner's judicial admissions in his Exhibits E, F, G, H, I and J admitted at trial made the remaining issues alleged in paragraph V of his petition moot.
15. Whether, as a matter of law, Reiner's Exhibit I fails to disclose the amount of funds, if any available in the Scotttrade Account on 1/29/2011, the Deceased's date of death.
16. Whether Reiner's judicial admission of Exhibit J proved that Jean Harrison, pursuant to Estates Code § 113.004(2), owned the Bank of America "Joint Account."
17. Whether Reiner's judicial admissions contained in his exhibits are conclusive and bars him from disputing the documents contained therein.
18. Whether Reiner's judicial admissions contained in his exhibits made the following issues moot.
19. Whether Reiner fraudulently claimed damages for funds he judicially admitted were used by Appellant to fulfill her statutory duties to care for estate's property as a prudent person.
20. Whether Reiner fraudulently claimed Appellant's homestead in violation of Property Code section 41.
21. Whether Reiner fraudulently claimed Appellant's exempt personal property in violation of Estate Code 353.053.
22. Whether the judgment should be set aside for fraud committed by Howard Reiner, Successor Administrator, pursuant to Estates Code § 3451.054(b).
23. Whether the judgment may be set aside for collusion committed by the Successor Administrator with the Surety, pursuant to Estates Code § 354.054(b).
24. Whether Appellant had the duty as an administrator of an estate to take care of estate property as a prudent person would take care of that persons' own property and if any buildings belong to the estate, the administrator shall keep those buildings in good repair, except for extraordinary casualties, unless directed by a court order not to do so, pursuant to Estates Code § 351.101.
25. Whether the court erred as a matter of law by granting judgment to Howard Reiner as Successor Administrator although his petition brought the suit as Dependent Administrator.
26. Whether the final judgments signed by two different "presiding judges" in the same case void both judgments.
27. Whether the final judgment is sufficiently definite enough to be enforceable.
28. Whether the final judgment improperly conditions recovery on an uncertain event.
29. Whether the court erred as a matter of law by failing to give appellant credit for the attorney's fees of $2350 already granted to her by a prior court order. 30. Whether the judgment erred by ordering that Appellant's inheritance should be payable to Reiner.
31. Whether the judgment conditions recovery on the uncertain recovery of Appellant's inheritance.
32. Whether the court erred by awarding damages to Reiner and to U.S. Specialty although neither Appellee dealt with Appellant's attorney of record during trial rather than with Appellant directly.
33. Whether parties can stipulate that an attorney withdrew although no order of withdrawal was signed by the court.
34. Whether Appellant's filing of a court reporter's record and a clerk's record cause the implied findings to be inconclusive.
35. Whether Reiner failed to bring his petition for surcharge as Successor Administrator, thus failing to establish that he has standing to bring the action.
36. Whether Surety has standing to sue Appellant for alleged breach of contract prior to a judicial determination of breach of Appellant's Adminstratrix's duties.
37. Whether U.S. Specialty Insurance Company has standing to sue Appellant for recovery of estate property.
38. Whether U.S. Specialty Insurance Company has standing to sue Appellant on an alleged provision of the bond not approved by the judge.
39. Whether U.S. Specialty Insurance Company breached its bond by its agreed judgment with Reiner that Appellant is liable to the estate prior to an independent judicial declaration of same.
40. Whether U.S. Specialty Insurance Company's indemnity provision violated Estates Code section 305.106(1).
41. Whether U.S. Specialty Insurance Company's indemnity provision violated Estates Code section 305.106(2).
42. Whether U.S. Specialty Insurance Company's indemnity provision violated Estates Code section 305.106(3).
43. Whether U.S. Specialty Insurance Company's indemnity provision violated Estates Code section 305.106(4).
44. Whether U.S. Specialty Insurance Company's indemnity provision violated Estates Code section 305.109.
45. Whether U.S. Specialty Insurance Company owes a duty of good faith to Appellant.
46. Whether U.S. Specialty Insurance Company has standing to sue Appellant for the manner in which Appellant handled her joint community property in the estate.
47. Whether U.S. Specialty Insurance Company has standing to sue Appellant prior to judgment against Appellant for the manner in which Appellant handled her adminstratrix's duties.
48. Whether the court erred as a matter of law by denying Appellant a family allowance, thus violating Family Code § 151.001(a)(3).
49. Whether the Court erred as a matter of law by issuing five show causes against Appellant for failure to file an Annual Account although Appellant filed an annual account on January 11, 2013.
50. Whether the Court erred as a matter of law by issuing five show causes against Appellant for failure to file an Annual account although Appellant filed a Supplemental Annual Account on March 8, 2013. 51. Whether Appellees may take Nyia Harrison (minor daughter, age 11) remainder interest, subject to Appellant's 1/3 life estate in separate property.
52. Whether Est Code Sect 359.102 limited the court's penalty to $1000.
53. Whether as a matter of law an administrator can mismanage assets which she owns half.
54. Whether the probate court has jurisdiction to render judgment that Appellant may not discharge the judgment in the bankruptcy court, pursuant to 11 U.S.C. § 523(a)(4).
55. Whether the probate court has jurisdiction to render that the judgment against Appellant is not dischargeable in any other proceedings pursuant to 11 U.S.C. § 523(a)(4).