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Click here for the full text of this decision FACTS: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 (the appellants) first brought claims against Dr. Barry 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 the appellants filed them. The constable served Winston on Aug. 29, 2006. The appellants did not dispute that they served the report on Winston more than 120 days after they filed their suit against him. The appellants argued that Winston could not 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 closed 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 and 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 Nov. 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 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.” HOLDING:Affirmed. Bohannon, the court stated, argued that the evidence demonstrated 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, the court stated, cannot complain of a delay in actual notice. But the court found that Winston was not trying to evade service, because 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. No evidence, the court stated, indicated that Winston intended to deceive anyone by placing a sign on his door; rather, by all accounts, Winston apparently placed the sign there for the benefit of his patients, and the sign referred to a future event. Bohannon, the court noted, did not controvert the receptionist’s assertion that Winston customarily closed the office at noon on Fridays. Thus, the court found that Bohannon’s two attempts at service, only one of which was at the correct address, did not compel a finding that Winston was actively avoiding service. The trial court could reasonably find as a matter of fact that Winston was not avoiding service. Next, Bohannon argued that Texas Rule of Civil Procedure 21a provides an exception when service is attempted but not achieved. But the court found that the part of Rule 21a upon which Bohannon relied provides the trial court with the discretion to establish a date of service based upon the actual receipt of notice as opposed to the date of constructive delivery. Rule 21a does not speak to extending the deadline for providing service, the court stated. Bohannon also argued that the 120-day requirement under Texas Civil Practice & Remedies Code �74.351(a) should not apply until after the plaintiff obtains service of process. Because an unserved party has neither a duty to answer nor a right to participate in the suit, Bohannon argued, a plaintiff could theoretically prevent a doctor from objecting to a defective report by serving the report but delaying service of the petition until after the time to object elapsed. Likewise, Bohannon argued, a defendant like Winston could avoid service of process until the 120-day deadline expired. The court reiterated its previous holding that �74.351 did not provide the trial court with the discretion to grant an extension of time in the absence of an agreement of the parties. The potential for gamesmanship, the court stated, does not vest the courts with the power to legislate. Thus, the court held that the trial court did not err in failing to grant an extension of time for complying with �74.351(a). OPINION:McKeithen, J.; McKeithen, C.J., and Gaultney and Horton, JJ.

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