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Krajca v. Caum

Court of Appeals of Texas, First District

June 8, 2017

BRIAN KRAJCA, Appellant
v.
VICKI CAUM, INDEPENDENT EXECUTRIX IN THE ESTATE OF BILLIE F. KRAJCA, DECEASED, Appellee

         On Appeal from the County Court at Law #1 and Probate Court Brazoria County, Texas Trial Court Case No. PR32084

          Panel consists of Justices Massengale, Brown, and Huddle.

          MEMORANDUM OPINION

          Michael Massengale Justice.

         This is an appeal from a summary judgment in an action to remove and replace the independent executrix of an estate. Due to a typographical error during the electronic-filing process, the appellant filed timely, but failed to serve timely, his response to a summary-judgment motion. Despite the appellant's explanation of the mistake, the trial court disregarded the late-served response and granted a no-evidence summary judgment.

         Because the appellant proffered an explanation demonstrating good cause for his untimely service, and no undue prejudice would have resulted from considering the response, the trial court erred by refusing to consider it and by entering judgment. We reverse and remand.

         Background

         Brian Krajca filed an action in Brazoria County probate court, seeking to compel an accounting from Vicki Caum, in her capacity as independent executrix of the estate of Billie F. Krajca. See Tex. Est. Code § 404.001(b). The trial court issued an order to show cause, and Caum filed a verified accounting. Krajca then filed a motion to remove Caum as independent executrix, alleging that she had breached fiduciary duties and committed negligence and fraud in her management of the estate. Caum filed a general denial.

         After the parties conducted initial discovery, Caum filed a motion for summary judgment in which she argued that Krajca had no evidence to prove the allegations in his motion to remove her as independent executrix. Krajca timely filed a response to the motion, but it is undisputed that he failed to serve it on Caum timely.

         Caum filed a motion objecting to Krajca's late-served response and requesting that the trial court strike it from the record. Following the filing of this motion, Krajca served his summary-judgment response on Caum. He also filed a response to the motion to strike, arguing that his failure to serve his response timely was the result of an unintentional typographical error and that the effect of striking the response would be to impose an unjust death-penalty sanction. He also suggested that the court give Caum more time to review his response.

         As an explanation for his untimely formal service of the summary-judgment response, Karjaca explained that he used an e-filing system and twice attempted to file and serve the response timely. The first time his response was rejected for insufficient funds. The second time his filing was accepted by the e-filing system, but he mistyped the email address for Caum's attorney for purposes of serving the response. As a result, Caum's attorney never received formal service of the response. Krajca attached a copy of the e-filing receipt to his response to the motion to strike. This receipt demonstrated that he attempted to serve Caum's attorney, but he left out the letter "y" in her email address.

         Despite the fact that Krajca demonstrated that his failure to serve Caum timely was unintentional, the trial court effectively struck his summary-judgment response by informing the parties that the response was not considered "since it was not properly served." The court then granted summary judgment in favor of Caum and awarded her attorney's fees to be paid by Krajca personally.

         Krajca filed a motion for new trial, arguing that he had shown good cause for failing to serve his response timely and that no undue prejudice would result if the court considered his response. After a hearing, the trial court denied the motion, and Krajca appealed.

         Analysis

         Krajca raises two issues on appeal. Primarily, he argues that the trial court erred by granting summary judgment in favor of Caum without considering his summary-judgment response. He also contends that the trial court erred ...


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