law-presumption-of-proper-service-receipt | notice of trial | notice of hearing |


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.).
certificate by a party or an attorney of record is prima facie evidence of the fact of service. Miller v. Prosperity
Bank, N.A., 239 S.W.3d 440, 442 (Tex. App.--Dallas 2007, no pet.). As noted by the Texas Supreme Court,
"notice properly sent pursuant to Rule 21a raises a presumption that notice was received." Mathis v. Lockwood,
166 S.W.3d 743, 745 (Tex. 2005). However, the opposing party may rebut this presumption by offering proof
that the notice or document was not received. Cliff, 724 S.W.2d at 780; see also Tex. R. Civ. P. 21a ("Nothing [in
Rule 21a] shall preclude any party from offering proof that the notice or instrument was not received. . . ."). The
presumption may be rebutted by an offer of proof of nonreceipt. Id.; Approximately $14,980.00, 261 S.W.3d at
189 (returned envelope bearing United States Post Office "unclaimed" mark deemed sufficient to rebut
presumption of service).
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.
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    
Finally, we note that Methodist's response to the Mitchells' complaints regarding the timeliness of its objections
and motion to dismiss provided the uncontroverted affidavit of Methodist's attorney, testifying that he personally
mailed the document in question on June 12, 2008 via certified mail, return receipt requested. Even if the
Mitchells' bare allegations were sufficient to rebut the presumption of timely service raised by the certificate of
service, this affidavit would have sufficed to carry Methodist's burden to show that the document was, in fact,
timely mailed to the Mitchells on June 12, 2008. Under these facts, we overrule the Mitchells' first issue and hold
that the trial court did not err by considering Methodist's objections and motion to dismiss pursuant to Chapter

Approximately $14,980.00 v. The State of Texas (Tex.App. - Houston [14th Dist.] Jun. 12, 2008)(Yates)(default
deemed admission, opportunity to rebut presumption of proper service)  
REVERSED AND REMANDED: Opinion by Justice Brock Yates  
Before Justices Brock Yates, Guzman and Brown
14-07-00164-CV Approximately $14,980.00 v. The State of Texas
Appeal from 125th District Court of Harris County
Concurring Opinion by Justice Brown  

Confirmation of arbitration award affirmed on appeal - court rejects lack of proper notice argument
Tan v. Lee (Tex.App.- Houston [14th Dist.] Feb. 27, 2007)(Hedges)(arbitration, securities fraud, motion to
confirm arbitration award, arbitration award confirmed; lack of notice, rebuttable presumption of notice argument
due process challenges rejected)
AFFIRMED: Opinion by
Chief Justice Hedges
14-06-00319-CV        Ying Chun Tan v. Hung Pin Lee
Appeal from 55th District Court of Harris County (
Hon. Jeff Brown)