Bohannon v. Winston
In Bohannon v. Winston, 238 S.W.3d 535 (Tex. App.--Beaumont 2007, no pet.), the plaintiffs conceded that they had failed to serve their expert report within 120 days of the filing of their original petition. Id. at 537.
The plaintiffs argued, however, that the defendant-physician was estopped from invoking the 120-day deadline for the service of expert reports because the physician has caused the delay in the service of process. Id.
The plaintiffs first attempted to serve the physician with process at his business, but were unsuccessful because the offices were closed for the day. Id.
A note on the physician's door stated that the physician would be moving to new offices in the summer of 2006. Id.
The constable noted on the return, "moved out to new address." Id. Testimony showed that the note informed clientele of a future move, but the existing offices were in regular operation and were simply closed that afternoon. Id.
The constable then attempted to serve the physician at the new address, but the petition was again returned unserved, with a notation, "not moving in for two more months. . . physician is in between offices now and . . . will not be moved in for two more months. . . . Citation should reissue in late July to be served then." Id.
The plaintiffs decided not to serve the citation and petition as well as the expert reports on the physician until he moved to his new address. Id.
On appeal in Bohannan, the plaintiffs argued that a party who fails to provide a current address for service cannot complain of a delay in actual notice. Id.
The court rejected this reasoning because the doctor was not yet "a party" at the time the constable attempted service. Id.
The court affirmed the trial court's dismissal of the suit because the expert reports were not served within the statutory 120-day period. Id. at 538.