Michael Massengale Justice

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

MEMORANDUM OPINION

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 by awarding Caum attorney's fees to be paid by him personally.

Caum raises a cross-issue in which she contends that the trial court did not err by finding that Krajca failed to present sufficient evidence to survive her no-evidence motion for summary judgment.

I. Effect of electronic-filing error resulting in untimely service of summary-judgment response

In his first issue, Krajca argues, among other things, that the late service of his response to Caum's motion for summary judgment was the result of an unintentional typographical error, and that no undue prejudice would have resulted if the trial court had considered his response. Based on this argument, he contends that the trial court erred by granting summary judgment without considering his summary-judgment response.

In support of his contentions, Krajca argues that this case is similar to Texas Department of Aging and Disability Services v. Mersch, 418 S.W.3d 736 (Tex. App.—Houston [1st Dist.] 2013, no pet.), in which this court reversed a summary judgment after concluding that the trial court abused its discretion by striking a summary-judgment response. We agree.

In Mersch, the appellee had filed a motion for summary judgment. Id. at 737-38. The appellant timely filed a response to the motion but failed to serve it timely because of a mistaken understanding of how the e-filing system worked. Id. Because the appellant did not serve its response prior to seven days before the hearing, the appellee filed a motion to strike the response. Id. at 739; see also TEX. R. CIV. P. 166a(c). The appellant filed an affidavit from one of its legal assistants explaining why its response was untimely served. Mersch, 418 S.W.3d at 739. The trial court struck the response and granted summary judgment in favor of the appellee. Id.

On appeal, this court reviewed the trial court's order striking the appellant's response for an abuse of discretion. Id. at 739-40. The court applied the standard used to determine if a court abused its discretion in denying a motion for leave to file a late summary-judgment response. Id. at 740. Under that standard, if the nonmovant shows good cause for failing to timely file its response and that there will be no undue prejudice as a result of considering the response, then the trial court should grant leave to file the response late. Id. (citing Wheeler v. Green, 157 S.W.3d 439, 442 (Tex. 2005)). "A non-movant establishes good cause if it shows that its failure to timely respond was not intentional or the result of conscious indifference, but was the result of an accident or mistake." Id. "Undue prejudice depends on whether filing a late response will delay trial or significantly hamper the opposing party's ability to prepare for it." Id. The Mersch panel concluded that by producing an affidavit from a legal assistant explaining her mistaken belief that the steps she had taken with respect to the e-filing system were sufficient to complete timely service, the appellant demonstrated good cause for late service. Id. at 740-41 (citing In re M.N., 262 S.W.3d 799, 804 (Tex. 2008)).

In this case, Krajca timely filed a response to Caum's no-evidence motion for summary judgment, but he did not serve it timely. Caum moved to strike the response. Krajca served his summary-judgment response and responded to the motion to strike by arguing that his failure to timely serve resulted from an error in typing opposing counsel's email address into the e-filing system. He attached the e-filing receipt as evidence of this inadvertent mistake. While the record contains no indication that the trial court expressly ruled on the motion to strike, the court did send a letter to the attorneys that stated that it "did not consider" Krajca's response "since it was not properly served" on Caum. A trial court's ruling can be either express or implied. See TEX. R. APP. P. 33.1(a)(2)(A). A ruling is implied if it is unexpressed but capable of being understood from something else. See Delfino v. Perry Homes, 223 S.W.3d 32, 34-35 (Tex. App.—Houston [1st Dist.] 2006, no pet.); Well Sols., Inc. v. Stafford, 32 S.W.3d 313, 316 (Tex. App.—San Antonio 2000, no pet.). There must be some indication that the trial court ruled on the objections in the record or in the summary judgment itself, other than the mere granting of the summary judgment. See Delfino, 223 S.W.3d at 34-35; Stafford, 32 S.W.3d at 316. The trial court's letter specifically stating that the response was not considered, and the rationale for disregarding it, was sufficient to constitute an implicit ruling granting Caum's motion to strike. See Delfino, 223 S.W.3d at 34-35; Stafford, 32 S.W.3d at 316.

With respect to good cause for failing to serve the response timely, Krajca explained his failure by demonstrating, through undisputed evidence, that it was not intentional or the result of conscious indifference, but the result of an accident. See M.N., 262 S.W.3d at 804; Mersch, 418 S.W.3d at 742. Caum contends that while Krajca has "judicially admitted" that he did not serve the response by email, the certificate of service attached to the summary-judgment response indicated, incorrectly, that he served the response both by e-filing and by email. Caum contends that "[s]uch conduct," i.e. the erroneous certificate of service, "should not be countenanced." Although Krajca did not attempt separately to serve Caum by email, he did attempt to do so through the e-filing system. This is a valid and required method of filing which incorporates a valid method of service. See TEX. R. CIV. P. 21(f)(1), 21a(a)(1). Had Krajca successfully completed service by e-filing, Caum would have received service of the response, from the e-filing service, by email. Thus, if there had been no mistake in Krajca's attempted e-filing, there would have been service through both e-filing and email. We therefore conclude that the latent mistake in the certificate of service did not negate the other evidence supporting Krajca's showing of good cause for serving his summary-judgment response late. See Mersch, 418 S.W.3d at 742.

With respect to the absence of undue prejudice, Caum never claimed that any prejudice would have resulted from allowing Krajca to serve his summary-judgment response late. Although failure to disclose evidence until the eve of a trial may hamper the opposing counsel's preparation, when the party opposing a late filing makes no claim that it would be prejudiced, a finding of no undue prejudice is proper. See M.N., 262 S.W.3d at 804; Mersch, 418 S.W.3d at 741. Thus, in this no-evidence summary-judgment context, we conclude no undue prejudice would have resulted if the trial court had considered the merits of Krajca's response. See M.N., 262 S.W.3d at 804; Mersch, 418 S.W.3d at 741.

As noted in Mersch, the Supreme Court of Texas has indicated that the overarching policy in approaching the unintentional errors of counsel is to decide cases on the merits rather than on a procedural default when possible. Mersch, 418 S.W.3d at 742; see Milestone Operating, Inc. v. ExxonMobil Corp., 388 S.W.3d 307, 310 (Tex. 2012); Marino v. King, 355 S.W.3d 629, 634 (Tex. 2011); see also Gessner Eng'g, LLC v. St Paraskevi Greek Orthodox Monastery, Inc., 507 S.W.3d 865, 870-71 (Tex. App.—Houston [1st Dist.] 2016, pet. denied). With respect to e-filing, the Rules of Civil Procedure provide that "[i]f a document is untimely due to a technical failure or a system outage, the filing party may seek appropriate relief from the court." TEX. R. CIV. P. 21(f)(6). Thus, the rules themselves provide a mechanism to promote the resolution of cases on their merits rather than procedural defaults resulting from clerical or technical mistakes. "The electronic filing and service rules should not become a trap for the unwary when no harm is done." Mersch, 418 S.W.3d at 742; see Gessner Eng'g, 507 S.W.3d at 871.

Despite the demonstration of good cause and a lack of undue prejudice, Caum further argues that the trial court properly refused to consider the response because Krajca did not file a motion for leave to serve the response late or request a continuance of the summary-judgment hearing. But as previously noted, Krajca did file a response to Caum's motion to strike. As a part of the relief requested by that filing, Krajca urged the court to consider his summary-judgment response, showed good cause for his failure to serve it timely, and suggested that the court give Caum more time to review it. Although Krajca's response to the motion to strike did not formally seek a continuance or leave to serve a late response, in substance it served these functions. Thus, in accordance with the Texas courts' overarching policy goal of deciding cases on the merits, we conclude Krajca did not waive his challenge to the court's refusal to consider his response by failing to file a motion for leave or motion for continuance. Id. To conclude otherwise would elevate unnecessarily the form of Krajca's response over its substance.

Because Krajca established that he did not serve his response late intentionally or with conscious indifference, and no undue prejudice would have resulted from forgiving those errors, the trial court abused its discretion by striking his summary-judgment response. See M.N., 262 S.W.3d at 804; Mersch, 418 S.W.3d at 742. Further, because our disposition of this issue requires reversal of the summary judgment, we need not reach Krajca's other issue regarding the trial court's award of attorney's fees. See TEX. R. APP. P. 47.1.

II. Caum's cross-issue

In her cross-issue, Caum argues that the trial court correctly granted summary judgment based on Krajca's failure to produce sufficient summary-judgment evidence to defeat her motion. She quotes a portion of the trial court's order which stated: "the Court, after examining the pleadings and the summary judgment evidence and hearing the arguments of counsel, is of the opinion and finds that . . . Caum . . . is entitled to summary judgment." Caum argues that this quoted text from the order indicates that the trial court actually did consider Krajca's summary-judgment response and found that there was no evidence to support the allegations in his motion to remove her as executrix of the estate.

Despite the text quoted above, we have concluded that other indications in the record unequivocally demonstrate that the trial court struck Krajca's summary-judgment response. Because the court struck Krajca's response, we reject Caum's contention that the court considered it, and we overrule this issue.

Conclusion

We reverse the summary judgment and remand the case for further proceedings.

Michael Massengale

Justice Panel consists of Justices Massengale, Brown, and Huddle.