IN THE

TENTH COURT OF APPEALS

No. 10-14-00374-CV

COLLEGE STATION MEDICAL CENTER, LLC 

D/B/A COLLEGE STATION MEDICAL CENTER,

Appellants

v.

ELEANOR KILASPA AND WILLIAM KILASPA,

Appellees

From the 85th District Court

Brazos County, Texas

Trial Court No. 13-002982-CV-85

O P I N I O N

On November 29, 2013, Eleanor and William Kilaspa filed a healthcare liability 

suit against College Station Medical Center, LLC d/b/a College Station Medical Center

(CSMC), Brazos Spine, and Mukund Gundanna, M.D. CSMC, as well as Brazos Spine 

and Dr. Gundanna jointly, filed traditional motions for summary judgment, contending 

that the Kilaspas’ claims are barred by the statute of limitations. They argued that the 

Kilaspas’ suit was filed untimely because it stems from care Mrs. Kilaspa received 
College Station Med. Ctr., LLC v. Kilaspa Page 2

between September 19, 2011 and October 25, 2011, making October 25, 2013 the latest 

possible date for the Kilaspas to have timely filed their suit. CSMC, Brazos Spine, and 

Dr. Gundanna maintained that the Kilaspas did not timely provide either CSMC or Dr. 

Gundanna with notice or a medical authorization as required to toll limitations beyond 

October 25, 2013. The Kilaspas responded that they sent their notice with authorization 

by certified mail to Dr. Gundanna, thereby tolling the statute of limitations until 

December 3, 2013. The Kilaspas argued that notice is effective even when unclaimed or 

undelivered.

On July 9, 2014, the trial court generally denied the “Defendants’ Motions for 

Summary Judgment.” Subsequently, on July 30, 2014, the trial court signed an order 

finding “that its July 9, 2014 order, denying [CSMC’s] Motion for Summary Judgment 

involves a controlling question of law as to which there is a substantial ground for 

difference of opinion” and “that an immediate appeal of this order denying [CSMC’s] 

Motion for Summary Judgment may materially advance the ultimate termination of this 

litigation.” The trial court therefore vacated its July 9, 2014 order denying CSMC’s 

motion for summary judgment and then again denied CSMC’s motion for summary 

judgment without explanation but stated that CSMC was “permitted to seek an 

immediate interlocutory appeal of this Order pursuant to Tex. Civ. Prac. & Rem. Code § 

51.014(d).” 

CSMC filed a Petition for Permissive Interlocutory Appeal in this Court, seeking 

leave to appeal the trial court’s July 30, 2014 interlocutory order; however, we denied 

CSMC’s petition and dismissed the appeal for want of jurisdiction. College Station Med. 
College Station Med. Ctr., LLC v. Kilaspa Page 3

Ctr., LLC v. Kilaspa, No. 10-14-00241-CV, 2014 WL 4792649 (Tex. App.—Waco Sept. 18, 

2014, no pet.) (mem. op.).

CSMC filed in the trial court a motion for entry of an amended order denying its 

motion for summary judgment sufficient to cure the jurisdictional defect. On November 

21, 2014, the trial court signed an amended order that states as follows:

The Court finds that TEX. CIV. PRAC. & REM. CODE § 74.051 does not 

require actual receipt by a physician or health care provider of a Chapter 74 

notice letter and medical authorization for Plaintiffs to be entitled to the 75-

day tolling of the statute of limitations provided in § 74.051. Accordingly, 

the Court denies Defendant’s motion for summary judgment on the 

grounds that Plaintiffs’ mailing of a Chapter 74 notice letter and medical 

authorization, prior to the expiration of the two year statute of limitations, 

is sufficient to trigger operation of the 75-day limitation tolling provision in 

§ 74.051, even though no physician or healthcare provider – specifically Dr. 

Gundanna – ever actually received such notice and authorization.

The Court further finds that whether a physician or healthcare 

provider must actually receive a Chapter 74 notice letter and medical 

authorization for a plaintiff to be entitled to the 75-day limitation tolling 

provision of § 74.051---as presented to this Court in Defendant’s motion for 

summary judgment---involves a controlling question of law as to which 

there is a substantial ground for difference of opinion. The Court further 

finds that an immediate appeal of this Order denying Defendant’s Motion 

for Summary Judgment may materially advance the ultimate termination 

of this litigation, because if the controlling question of law is determined on 

appeal in favor of College Station Medical Center it will bar Plaintiffs 

lawsuit pursuant to the affirmative defense of the statute of limitations. It 

is therefore,

ORDERED, ADJUDGED, and DECREED that the Court’s July 30, 

2014 Order denying Defendant College Station Medical Center, LLC’s 

Motion for Summary Judgment is hereby VACATED. It is further,

ORDERED, ADJUDGED, and DECREED that College Station 

Medical Center, LLC’s Motion for Summary Judgment is hereby DENIED. 

It is further,
College Station Med. Ctr., LLC v. Kilaspa Page 4

ORDERED, ADJUDGED, and DECREED that Defendant College 

Station Medical Center, LLC is permitted to seek an immediate 

interlocutory appeal of this Order pursuant to TEX. CIV. PRAC. & REM. CODE 

§ 51.014(d). 

CSMC then filed another Petition for Permissive Interlocutory Appeal in this 

Court, requesting that we review the trial court’s denial of its motion for summary 

judgment as set forth in the November 21, 2014 amended order. We granted CSMC’s 

petition. In its sole issue, CSMC contends that the trial court erred in denying its motion 

for summary judgment because the Kilaspas filed suit after limitations expired. CSMC 

argues that the seventy-five-day limitations tolling provision in Civil Practice and 

Remedies Code section 74.051 does not apply in this case because no defendant received 

a notice letter and medical authorization.

We review de novo a trial court’s grant or denial of a traditional motion for 

summary judgment. See Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816 n.7 (Tex. 2005). 

In reviewing a traditional summary judgment, we must consider whether reasonable and 

fair-minded jurors could differ in their conclusions in light of all of the evidence 

presented. See Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007). The 

movant carries the burden of establishing that no material fact issue exists and that it is 

entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); M.D. Anderson Hosp. & 

Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000) (per curiam). The nonmovant has no 

burden to respond to a summary-judgment motion unless the movant conclusively 

establishes its cause of action or defense. M.D. Anderson Hosp. & Tumor Inst., 28 S.W.3d 

at 23. Once the movant produces sufficient evidence conclusively establishing its right 
College Station Med. Ctr., LLC v. Kilaspa Page 5

to summary judgment, however, the burden shifts to the nonmovant to present evidence 

sufficient to raise a fact issue. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). 

In reviewing a traditional summary judgment, we must consider all the evidence in the 

light most favorable to the nonmovant, indulging every reasonable inference in favor of 

the nonmovant and resolving any doubts against the motion. See Goodyear Tire & Rubber 

Co., 236 S.W.3d at 756. 

CSMC moved for traditional summary judgment on its defense of limitations; 

therefore, it had the burden to establish that it was entitled to the defense of limitations 

as a matter of law. See Holstein v. Fed. Debt Mgmt., Inc., 902 S.W.2d 31, 35 (Tex. App.—

Houston [1st Dist.] 1995, no writ). A healthcare-liability claim has a two-year limitations 

period. TEX. CIV. PRAC. & REM. CODE ANN. § 74.251(a) (West 2011). When the plaintiff 

gives proper notice of his or her claim to a health care provider before the expiration of 

the two-year limitation period, the statute of limitations is tolled for seventy-five days 

from the date of the notice. Id. § 74.051(c) (West 2011). 

The Kilaspas did not dispute that CSMC met its burden of establishing as a matter 

of law that the initial two-year limitations period had expired before they filed their suit.

1 

Instead, the Kilaspas asserted that the tolling provision applied. Therefore, CSMC must 

 

1 CSMC contended that the latest possible accrual date for the Kilaspas’ claims against it was 

October 25, 2011. To support this proposition, CSMC presented in its summary-judgment evidence an 

Operative Report for Mrs. Kilaspa, prepared by Dr. Gundanna, to show that she was admitted to CSMC’s 

facility on September 19, 2011 and underwent surgery by Dr. Gundanna. CSMC also presented as 

summary-judgment evidence a Discharge Summary for Mrs. Kilaspa, dictated by Dr. Gundanna. It shows 

that after her initial surgery, she was discharged to a rehabilitation service but then readmitted to CSMC; 

after Mrs. Kilaspa underwent additional surgeries by Dr. Gundanna, she was again discharged on October 

25, 2011. Based on this evidence, the two-year limitations period would have expired, absent application 

of the tolling provision, on October 25, 2013 at the latest, which was over a month before the Kilaspas 

actually filed their suit on November 29, 2013.
College Station Med. Ctr., LLC v. Kilaspa Page 6

have also conclusively negated the tolling provision’s application to show its entitlement 

to summary judgment. See Jennings v. Burgess, 917 S.W.2d 790, 793 (Tex. 1996) (“If the 

nonmovant asserts that a tolling provision applies, the movant must conclusively negate 

the tolling provision’s application to show his entitlement to summary judgment.”). 

CSMC claimed that limitations was not tolled because the Kilaspas did not timely 

“provide” notice or a medical authorization to it or to Dr. Gundanna as required by 

section 74.051. CSMC contended that notice and authorization were not “provided”

because neither it nor Dr. Gundanna actually received the notice and authorization.

2

CSMC relies heavily on Carreras v. Marroquin, 339 S.W.3d 68 (Tex. 2011), to support 

its argument that section 74.051 requires actual receipt of the notice and authorization by 

the intended recipient for a plaintiff to be entitled to the benefit of tolling limitations. In 

Carreras, the plaintiffs attempted to toll the statute of limitations by sending pre-suit 

 

2 To support this proposition, CSMC presented the Kilaspas’ notice-of-claim letter required by 

section 74.051, accompanied by the authorization required by section 74.052. The notice of claim letter is 

dated September 17, 2013 and addressed to Dr. Gundanna. It states that it was sent by certified mail, return 

receipt requested, with tracking number 7011 1570 0002 7152 4805. CSMC then presented the United States 

Postal Service (USPS) product and tracking information for an item with the tracking number 

70111570000271524805. The document provides that the item was processed through a USPS Sort Facility 

on September 19, 2013. On September 20, 2013 at 10:25 a.m., the item was “Out for Delivery,” and at 1:28 

p.m. that day, a notice was left. On October 11, 2013, the status of the item was “Unclaimed,” and on 

October 21, 2013, the status was “Undeliverable as Addressed.” CSMC also presented an email dated 

December 12, 2013 from the Kilaspas’ counsel to Pat Murray with the Texas Medical Liability Trust (TMLT). 

TMLT is apparently Dr. Gundanna’s insurance carrier. The email subject line provides that the email is 

about the “Kilaspa case.” The substance of the email states: “Here are pertinent documents in the case. 

These include the notice letter. I ask that you contact your insured and advise me of counsel to serve with 

the papers.”

CSMC’s summary-judgment evidence shows only that Dr. Gundanna never actually received the 

notice and authorization; however, we need not discuss the implication of any lack of evidence. The trial

court did not deny CSMC’s motion for summary judgment for that reason. Instead, the trial court 

specifically stated in its amended order that it was denying CSMC’s motion for summary judgment because 

it concluded that the Kilaspas’ mailing of the notice letter and medical authorization before the expiration 

of the two-year limitations period was sufficient to trigger operation of the tolling provision even though 

Dr. Gundanna never actually received the notice and authorization. 
College Station Med. Ctr., LLC v. Kilaspa Page 7

notice of their health care liability claims to the defendant physician shortly before the 

statute of limitations ran, but failed to accompany it with an authorization form as 

required by chapter 74. Id. at 69-70. After the plaintiffs filed suit, the defendant physician 

moved for summary judgment, arguing that the notice alone did not toll the statute of 

limitations and that the suit was therefore untimely. Id. The trial court denied the 

defendant physician’s motion for summary judgment and entered an agreed order 

permitting an interlocutory appeal. Id. The court of appeals affirmed the trial court’s 

judgment. Id. at 69-71. The supreme court, however, disagreed, reversed the trial court’s 

judgment, and rendered judgment that the plaintiffs take nothing. Id. at 74. The supreme 

court stated that after considering the text, history, and purpose of the statutes at issue, it 

concluded that for the statute of limitations to be tolled in a health care liability claim 

under chapter 74, a plaintiff must provide both the statutorily required notice and the 

statutorily required authorization form. Id.

CSMC argues that, as in Carreras, no defendant in this case received the statutorily 

required medical authorization. CSMC maintains that in this case the notice letter was 

never received either. CSMC argues that, like the Carreras court, which held that the 

defendant’s receipt of only the notice letter without a medical authorization did not 

entitle the plaintiff to the benefit of tolling limitations, we should therefore hold that a 

plaintiff is not entitled to the benefits of tolling limitations when a defendant does not 

receive both a notice letter and medical authorization. We disagree, however, with 

CSMC’s interpretation of Carreras. 

The Carreras court first examined the text of the statute. Id. at 71-72. The court 
College Station Med. Ctr., LLC v. Kilaspa Page 8

observed that section 74.051(c) states, “Notice given as provided in this chapter shall toll the 

applicable statute of limitations ....” Id. at 72; see TEX. CIV. PRAC. & REM. CODE ANN. § 

74.051(c) (emphasis added). The court thus looked to sections 74.051(a) and 74.052(a) and 

noted that they specify that the notice “must be accompanied by” an authorization form 

and that section 74.052(a) provides for abatement if an authorization form is not provided 

“along with” notice. Carreras, 339 S.W.3d at 72; see TEX. CIV. PRAC. & REM. CODE ANN. §§ 

74.051(a), 74.052(a). The Carreras court stated that “must accompany” is a directive that 

creates a mandatory condition precedent and that the benefit of the notice—tolling—may 

not therefore be utilized if the authorization does not accompany the notice. Carreras, 339 

S.W.3d at 72. The Carreras court also went on to conclude that the statutory history 

bolstered this interpretation of the statutes and that the interpretation followed from the 

purpose of the notice provision, which is to encourage negotiations and settlement of 

disputes prior to suit, thereby reducing litigation costs. Id. at 72-73.

As in Carreras, we must therefore first determine what the text of the statutes 

requires as relevant to this case for notice to be “given as provided in this chapter.” See 

TEX. CIV. PRAC. & REM. CODE ANN. § 74.051(c). Section 74.051(a) requires that written 

notice of a health care liability claim be given “by certified mail, return receipt requested.” 

Id. § 74.051(a). The statutes do not state that a plaintiff must also ensure that a defendant 

receives the notice and authorization form that the plaintiff gives by certified mail, return 

receipt requested. Instead, the courts in this state have held that where a statute 

authorizes notice by mail, the notice is effective when the notice is properly provided in 

accordance with the statute—even if unclaimed or undelivered. See Wesco Distrib., Inc. v. 
College Station Med. Ctr., LLC v. Kilaspa Page 9

Westport Group, Inc., 150 S.W.3d 553, 561 (Tex. App.—Austin 2004, no pet.) (“When a 

sender has done everything necessary for notice to arrive, notice is considered effective 

as to the intended recipient.”); McClung v. Komorn, 629 S.W.2d 813, 814-15 (Tex. App.—

Houston [14th Dist.] 1982, writ ref’d n.r.e.) (holding that notice required by Medical 

Liability and Insurance Improvement Act, so as to toll statute of limitations, was effective 

when mailed by certified mail, return receipt requested, even though the notice was not 

received until four days after imitations expired); Tex. Real Estate Comm’n v. Howard, 538 

S.W.2d 429, 431-33 (Tex. App.—Houston [1st Dist.] 1976, writ ref’d n.r.e.) (holding that 

where statute provided for notice by registered mail, notice was effective when properly 

stamped, addressed, and mailed—even though returned “unclaimed”).3

CSMC argues that permitting tolling without actual receipt of notice and the 

authorization form would defeat the legislative purpose of section 74.051 to enable presuit settlement and identification of non-meritorious claims, which CSMC claims would 

be “an absurd result.” See Carreras, 339 S.W.3d at 73 (“We also interpret statutes to avoid 

an absurd result.”); Garcia v. Gomez, 319 S.W.3d 638, 643 (Tex. 2010) (stating that purpose 

of requiring pre-suit notice of health care liability claims is to encourage pre-suit 

negotiations and settlement and thereby reduce litigation costs). We believe, however,

that the statute does not require a plaintiff to ensure (1) that the notice and authorization 

form that he properly gave by certified mail, return receipt requested, as required by the 

statute, is correctly delivered and then (2) that the defendant actually claims the mail once 

 

3 CSMC devotes a significant portion of its reply brief attempting to distinguish these cases, and 

while we agree that they do not address the exact same facts and issue that we address in this case, they 

are instructive and support our conclusion.
College Station Med. Ctr., LLC v. Kilaspa Page 10

it has been delivered for the tolling provision to apply. For these reasons, we conclude 

that for the tolling provision of section 74.051(c) to apply, a plaintiff need only give

written notice, accompanied by the authorization form, in accordance with section 74.051, 

i.e., by certified mail, return receipt requested. 

Here, CSMC’s summary-judgment evidence indicates that the Kilaspas did give

both the statutorily required notice and the statutorily required authorization form to Dr. 

Gundanna when the Kilaspas sent the notice and authorization form to him by certified 

mail, return receipt requested, as provided by section 74.051(a), within the two-year 

limitations period. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.051(a). The tolling 

provision’s application has not therefore been conclusively negated, and CSMC was not 

entitled to summary judgment. We thus overrule CSMC’s sole issue and affirm the trial 

court’s amended order. 

The Kilaspas’ emergency motion to supplement the clerk’s record is dismissed as 

moot.

 

REX D. DAVIS

Justice

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

(Chief Justice Gray dissenting)

Affirmed; motion dismissed as moot

Opinion delivered and filed July 23, 2015

[CV06]
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