Bohanon v. Winston

• Decision Date: 04 October 2007
• Docket Number: No. 09-07-075 CV.,09-07-075 CV.
• Parties: Prince Joseph BOHANNON, Individually and as Representative of the Estate of Shainel Leigh Bohannon, Deceased, and as Next Friend of Madison Leigh Bohannon; Michael Inman and Gale Inman, Appellants v. Barry WINSTON, Appellee.
• Court: Texas Court of Appeals

238 S.W.3d 535

Prince Joseph BOHANNON, Individually and as Representative of the Estate of Shainel Leigh Bohannon, Deceased, and as Next Friend of Madison Leigh Bohannon; Michael Inman and Gale Inman, Appellants v. Barry WINSTON, Appellee.

No. 09-07-075 CV.

Court of Appeals of Texas, Beaumont.

Submitted September 20, 2007.

Decided October 4, 2007.

Chad Matthews, Sanes, Matthews & Forester, League City, for appellants.

William J. Sharp, Houston, TX, for appellees.

Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.

OPINION

STEVE McKEITHEN, Chief Justice.

The trial court dismissed with prejudice the medical malpractice claims brought against Barry Winston, M.D., by Prince Joseph Bohannon, acting individually and in his capacity as the representative of the estate of his deceased wife, Shainel Leigh Bohannon, and as next friend of their child, Madison Leigh Bohannon, and by Shainel's parents, Michael Inman and Gale Inman.¹ In three issues, appellants contend (1) the trial court erred in granting Winston's motion to dismiss and in awarding attorney's fees to Winston, (2) the 120-day deadline for serving an expert report does not apply when the defendant avoids service of process, and (3) the rule governing service provides an exception for invited delay. On the record filed in this appeal, the trial court reasonably could have found that Winston did not avoid service. Accordingly, we affirm the trial court's order dismissing the suit and awarding attorney's fees to Winston.

We apply an abuse of discretion standard in reviewing the trial court's ruling on a motion to dismiss for failure to serve the expert report within 120 days of suit. Mokkala v. Mead, 178 S.W.3d 66, 70 (Tex.App.-Houston [14th Dist.] 2005, pet. denied). We defer to the trial court's determinations of fact. Id. We review de novo questions of law, including the trial court's construction of the applicable statute. See Lal v. Harris Methodist Fort Worth, No. 02-06-421 CV, 2007 WL 2012866, at *2 (Tex.App.-Fort Worth July 12, 2007, no pet. h.) (not yet reported). In this case, Winston based his motion to dismiss on Bohannon's failure to serve the experts' reports and curricula vitae within the time required by Section 74.351(a). See TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(a) (Vernon Supp.2006). By granting the motion to dismiss, the trial court implicitly found that the appellants served the reports late.

The appellants first brought claims against Winston in a petition filed on April 24, 2006. A civil process request form directed service on Winston at a business address on Peakwood in Houston. In June 2006, the appellants filed copies of their experts' reports and curricula vitae with the trial court, but Winston had not yet been served with citation, and the parties agree that Winston did not receive copies of the reports when appellants filed them. The constable served Winston on August 29, 2006. Appellants do not dispute that they served the report on Winston more than 120 days after they filed their suit against him. The appellants argue that Winston cannot invoke the 120-day deadline for serving the expert reports because Winston caused the delay in service of process of their original petition.

The parties submitted the issue to the trial court on documents and affidavits. Winston's affidavit stated that the Peakwood address was his only place of business in 2006. Winston's receptionist supplied an affidavit stating that she worked for Winston at the Peakwood address from before the date the suit was filed, and that the office closes every Friday at noon. A constable attempted service of citation after noon on Friday, May 24, 2006. The receptionist averred that she accepts deliveries, that she would have been the only person who would have spoken with anyone attempting service of process, and that she did not speak with a constable on that date. She swore that she did not represent to anyone that they had moved their office, that a note on the front door notified patients that they would be moving to a Cypress Station address in the summer of 2006, but that Winston's office continued to operate as usual up to and including November 13, 2006, when she made her affidavit.

Bohannon relied on the constable's return to establish that Winston evaded service of process. The constable attempted service on Winston at the Peakwood address at 3:00 p.m. on May 26, 2006, and noted "moved out to new address." The constable attempted service on Winston at the Cypress Station address at 3:20 p.m. on May 30, 2006, and noted "not moving in for two more months." The return stated "Barry Winston is in between offices now and . . . will not be moved in for two more months" and noted that citation should "reissue in late July to be served then."

Bohannon argues the evidence demonstrates that Winston caused the delay in service by placing a sign on the door announcing a change in location that summer and by his office being closed when the constable attempted service. A party who fails to provide a current address for service cannot complain of a delay in actual notice. Kelly v. Demoss Owners Ass'n, 71 S.W.3d 419, 424 (Tex.App.-Amarillo 2002, no pet.). Bohannon's reliance on Kelly is misplaced for two reasons: first, Winston was not yet a party when the constable attempted service; and second, the address listed with the Board of Medical Examiners was the address where Winston's office was physically located and where service was eventually perfected. There is no evidence that Winston intended to deceive anyone by...