law-certificate-of-service (CoS) | TRCP 21a | notice of trial | notice of summary judgment hearing
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presumption-of-proper-service-receipt   

CERTIFICATE OF SERVICE - PRESUMPTION OF RECEIPT - PRESUMPTION OF
PROPER SERVICE & REBUTTAL OF PRESUMPTION OF SERVICES

A certificate of service is prima facie evidence of the fact of service, but nothing in the rule
"preclude[s] any party from offering proof that the notice or instrument was not received,
or, if service by mail, that it was not received within three days . . . ." Tex. R. Civ. P. 21a.

Under Rule 21a, if a pleading is properly addressed and mailed, postage prepaid, a presumption arises that the
pleading was properly received by the addressee. Cliff v. Huggins, 724 S.W.2d 778, 780 (Tex. 1987). The
certificate of service of the party or attorney is the basis for the presumption. Cronen v. City of Pasadena, 835
S.W.2d 206, 209 (Tex. App.--Houston [1 st Dist.] 1992, no writ). Service by mail is complete upon deposit of the
document, enclosed in a postpaid, properly addressed wrapper, in a post office or official depository under the
care and custody of the United States Postal Service. Tex. R. Civ. P. 21a. The record before us contains a
certificate of service on the objections and motion to dismiss stating that the document was served pursuant to
Rule 21a upon all counsel of record. Although it did not mention the method of service, "Rule 21a does not
require that a certificate of service detail the method of service used." Approximately $14,980.00 v. State, 261
S.W.3d 182, 189 (Tex. App.--Houston [14th Dist.] 2008, no pet.).
Mitchell v. The Methodist Hospital (Tex.App.- Houston [1st Dist.] Dec. 31, 2009)(Hanks)
(
medical malpractice suit, adequacy of expert report, attorney's fees in HCLC suit) (presumption of proper
service, receipt of mail)
AFFIRM TC JUDGMENT: Opinion by Justice Hanks    
Before Justices Keyes, Alcala and Hanks   
01-08-00898-CV  Chiquita Mitchell, Verazonda Mitchell, Dominque Mitchell, Aaron Mitchell, Samuel Mitchell, Frank
Mitchell III, Carl Mitchell, Marie Ophelia, Theodore Mitchell & Johnation Mitchell v. The Methodist Hospital, Rose
Young, Melissa Abbot, Denise M. Stuckey and Bernice Onyenuzi   
Appeal from 270th District Court of Harris County
Trial Court Judge:
Hon. Brent Gamble    
The record before us, however, does not contain any evidence of the Mitchells' counsel non-receipt of the mailed
copy of the objections, and the Mitchells have not disputed the validity of Methodist's certificate of service, i.e.,
that the objections were mailed to their counsel on June 12, 2008. See Graham-Rutledge & Co., Inc. v. Nadia
Corp., 281 S.W.3d 683, 691 (Tex. App.--Dallas 2009, no pet.) (where party failed to provide offer of proof as to
non-receipt of notice of hearing, proper service pursuant to certificate of service was presumed). Instead, the
Mitchells continue to point to the faxed copy of the objections received on June 13, 2008. However, the fact that
Methodist may have faxed a second copy of its objections on June 13 does not mean that it did not mail an earlier
copy the day before. This document, standing by itself, is not sufficient to rebut the presumption raised by the
certificate of service.

RULE 21a. METHODS OF SERVICE
Every notice required by these rules, and every pleading, plea, motion, or other form of request
required to be served under Rule 21, other than the citation to be served upon the filing of a cause
of action and except as otherwise expressly provided in these rules, may be served by delivering a
copy to the party to be served, or the party's duly authorized agent or attorney of record, as the case
may be, either in person or by agent or by courier receipted delivery or by certified or registered mail,
to the party's last known address, or by telephonic document transfer to the recipient's current
telecopier number, or by such other manner as the court in its discretion may direct. Service by mail
shall be complete upon deposit of the paper, enclosed in a postpaid, properly addressed wrapper, in
a post office or official depository under the care and custody of the United States Postal Service.
Service by telephonic document transfer after 5:00 p.m. local time of the recipient shall be deemed
served on the following day. Whenever a party has the right or is required to do some act within a
prescribed period after the service of a notice or other paper upon him and the notice or paper is
served upon him by mail or by telephonic document transfer, three days shall be added to the
prescribed period. Notice may be served by a party to the suit, an attorney of record, a sheriff or
constable, or by any other person competent to testify. The party or attorney of record shall certify
to the court compliance with this rule in writing over signature and on the filed instrument. A
certificate by a party or an attorney of record, or the return of the officer, or the affidavit of any other
person showing service of a notice shall be prima facie evidence of the fact of service. Nothing
herein shall preclude any party from offering proof that the notice or instrument was not received,
or, if service was by mail, that it was not received within three days from the date of deposit in a
postoffice or official depository under the care and custody of the United States Postal Service, and
upon so finding, the court may extend the time for taking the action required of such party or grant
such other relief as it deems just. The provisions hereof relating to the method of service of notice
are cumulative of all other methods of service prescribed by these rules.
RULE 21b. SANCTIONS FOR FAILURE TO SERVE OR DELIVER COPY OF
PLEADINGS AND MOTIONS
If any party fails to serve on or deliver to the other parties a copy of any pleading, plea, motion, or
other application to the court for an order in accordance with Rules 21 and 21a, the court may in its
discretion, after notice and hearing, impose an appropriate sanction available under Rule 215-2b.

HOUSTON CASE LAW ON THIS LEGAL CONCEPT





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