Texas Tech University Health Sciences Center–El Paso v. Philip E. Mohrman, Individually and as Representative of the Estate of Robert K. Borst

Summary

The Eighth Court of Appeals of Texas affirmed the denial of Texas Tech University Health Sciences Center–El Paso’s plea to the jurisdiction and motion to dismiss in a medical negligence action. The court held that counsel’s sworn statement that a Texas Tort Claims Act notice was properly mailed created a presumption of receipt, while the governmental entity’s evidence denying receipt rebutted the presumption but left a fact issue. Because TTUHSC did not conclusively establish noncompliance with the written notice requirement of Texas Civil Practice and Remedies Code section 101.101(a), the court remanded for further proceedings.

Holdings

1. A sworn statement that a Texas Tort Claims Act notice was properly addressed, postage prepaid, and mailed gives rise to a common-law mailbox-rule presumption that the notice was received in due course. A governmental entity’s sworn denial of receipt rebuts the presumption but does not eliminate the underlying mailing evidence; instead, the evidence creates a fact issue for the factfinder regarding receipt.
2. TTUHSC was not entitled to relief because it did not conclusively establish that Mohrman failed to comply with the written-notice requirement.

Questions Presented

1. Whether TTUHSC conclusively established that Mohrman failed to provide timely written notice of his claim as required by Texas Civil Practice and Remedies Code section 101.101(a).
2. Whether evidence that counsel properly mailed the statutory notice, combined with the governmental entity’s denial of receipt, created a fact issue regarding actual receipt of timely notice.

Disposition

affirmed