Appeal from the County Court at Law #1 and Probate Court
Brazoria County, Texas Trial Court Case No. PR32084
consists of Justices Massengale, Brown, and Huddle.
Michael Massengale Justice.
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.
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.
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.
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.
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.
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
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.
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.
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 ...