law-presumption-of-receipt-service-under-rule-21a | sufficiency of notice | right to notice of hearing, trial |
notice of summary judgment hearing or date of submission | notice of hearing generally | notice of trial setting |
Texas Rule of Civil Procedure 21a creates a presumption that a document
properly mailed has been received. TEX. R. CIV. P. 21a; Thomas v. Ray, 889 S.W.2d
237, 238 (Tex. 1994); Meek v. Bishop Peterson and Sharp, P.C., 919 S.W.2d 805,810 (Tex. App.—Houston
[14th Dist.] 1996, writ denied). The presumption may be rebutted by an offer of proof of nonreceipt. Thomas,
889 S.W.2d at 238; Meek, 919 S.W.2d at 810. The presumption of receipt under Rule 21a vanishes when
verified evidence is introduced that the document was not received. Wembley Inv. Co. v. Herrera, 11 S.W.3d
924, 927 (Tex. 1999).
PRESUMPTION OF RECEIPT OF DOCUMENT SERVED PURSUANT TO TRCP 21a
| Tex. R. Civ. P. 21a (certificate of service attached to motion)
Under Rule 21a, “[a] certificate by a party to an attorney of record, or the return of an
officer, or the affidavit of any person showing service of a notice shall be prima facie
evidence of the fact of service." Tex. R. Civ. P. 21a; Spiegel v. Strother, 262 S.W.3d 481, 486 (Tex.
App.- Beaumont 2008, no pet.). When a party has certified that service was made by
telephonic transfer to the correct number, a rebuttable presumption arises that service
was actually effected and the addressee was served. See Tex. R. Civ. P. 21a; Thomas v. Ray,
889 S.W.2d 237, 238 (Tex. 1994); Spiegel, 262 S.W.3d at 483; see also Berger v. King, No. 01-06-00871-CV,
2007 WL 1775991, at *3 (Tex. App.- Houston [1st Dist.] June 21, 2007, pet. denied) (mem. op.) (involving
service by fax under Rule 21a). The presumption, however, “vanishes" when a party
presents verified proof of non-receipt. See Tex. R. Civ. P. 21a; Thomas, 889 S.W.2d at 238
(requiring verified proof of non-receipt); Spiegel, 262 S.W.3d at 483, 484, 486. Absent verified proof to the
contrary, the presumption has the force of a rule of law. Thomas, 889 S.W.2d at 238.
Rosemond v. Al-Lahiq, MD (Tex.App.- Houston [14th Dist.] Aug. 4, 2009)(Seymore)
(med mal suit, untimely, insufficient expert report, Rule 21a presumption of receipt and rebuttal)
AFFIRMED: Opinion by Justice Frost
Before Chief Justice Hedges, Justices Brock Yates and Frost)
14-08-00550-CV Ulysses L. Rosemond v. Maha Khalifa Al-Lahiq, M.D.
Appeal from 133rd District Court of Harris County
Trial Court Judge: LAMAR MCCORKLE
It is undisputed that the 120-day period in section 74.351(a) expired on February 8, 2008 (hereinafter the
“Statutory Deadline"). The record contains an affidavit from Rosemond's trial counsel in which she affirmed
that on February 6, 2008, two days before the Statutory Deadline, she encountered difficulties in transmitting
the expert report, and accordingly, used another entity's fax machine. In the affidavit, she stated, “The 15-
page report was faxed to Dr. Al-Lahiq's attorney, Larry Thompson at fax number 713-864-4671. The report
was faxed at 4:15 p.m. and was delivered “'o.k.'" In addition to attaching Dr. Katz's expert report and his
curriculum vitae, Rosemond attached to the affidavit two facsimile pages printed from the borrowed fax
machine, which indicate the “result" of “OK," as evidence that Dr. Al-Lahiq and the hospital were served with
the expert report before the expiration of the Statutory Deadline. Under Rule 21a, this affidavit and the
attached fax confirmation pages filed with the trial court gave rise to a rebuttable presumption that service was
effected. See Tex. R. Civ. P. 21a; Spiegel, 262 S.W.3d at 486; see also Berger, 2007 WL 1775991, at *3
(involving notice of hearing faxed to the correct number as giving rise to presumption under Rule 21a).
However, the Rule 21a presumption of service vanished because Dr. Al-Lahiq rebutted the presumption of
service by offering evidence of non-receipt. See Tex. R. Civ. P. 21a; Cliff v. Huggins, 724 S.W.2d 778, 780
(Tex. 1987) (determining that presumption of service vanishes upon proof of non-receipt); see also Patel v.
Williams, No. 11-06-00254-CV, 2007 WL 632989, at *3 (Tex. App.- Eastland 2007, no pet.) (involving
conflicting evidence as to whether a party achieved service under Rule 21a of an expert report within the 120-
day deadline under section 74.351(a)). The record reflects that both the hospital and Dr. Al-Lahiq filed
motions to dismiss Rosemond's claims on the basis that the expert report was not timely served in accordance
with section 74.351(a). Dr. Al-Lahiq filed a supplemental motion and attached to it a sworn affidavit from an
information technology administrator in the defense counsel's law firm asserting that he reviewed the firm's
electronic logging system, “received fax log," and “incoming electronic faxes." The administrator verified that
the law firm received no such document from either of the fax numbers specified by Rosemond on February 6,
2008, or on the days immediately preceding or following that date.
Gundogan v. Woodgrove Condo (pdf) (Tex.App.- Houston [1st Dist.] Dec. 17, 2009)(Keyes)
(appeals from small claims and JP court, failure to Timely Respond to Discovery Requests,
rebuttal of presumption of receipt of documents served pursuant to Rule 21a)
Woodgrove objected to each of the four pieces of evidence on the grounds that Gundogan failed to timely respond to discovery
requests. The trial court sustained each of Woodgrove’s four objections and excluded Gundogan’s four pieces of evidence.
Having held that the trial court erred in indulging the presumption that the request for production and notice of the motion to
compel Woodgrove properly sent were received, we further hold that the trial court erred in excluding Gundogan’s four pieces of
evidence on the ground of failure to timely respond to discovery requests.
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Keyes
Before Justices Jennings, Keyes and Higley
01-07-00876-CV Peter Kemal Gundogan v. Woodgrove Condominum
Appeal from Co Civil Ct at Law No 1 of Harris County
Trial Court Judge: Hon. R. Jack Cagle
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