Opinion
No. 10-10-00116-CV
Opinion delivered and filed July 7, 2010.
Original Proceeding.
Writ denied.
Before Chief Justice GRAY Justice REYNA, and Justice DAVIS. (Chief Justice GRAY dissenting).
MEMORANDUM OPINION
Avi B. Markowitz seeks a writ of mandamus directing Respondent, the Honorable Steve Smith, judge of the 361st Judicial District Court of Brazos County, to vacate an order granting a default judgment against him and an order compelling him to answer post-judgment discovery. We deny the relief requested.
MANDAMUS REQUIREMENTS
Generally, mandamus relief is available only to correct a clear abuse of discretion when there is no adequate remedy by appeal. See In re Bexar County Criminal Dist. Attorney's Office, 224 S.W.3d 182, 185 (Tex. 2007) (orig. proceeding); see also In re Tex. Dep't of Family Protective Servs., 210 S.W.3d 609, 612 (Tex. 2006) (orig. proceeding). Judicial review of post-judgment discovery orders may be sought via a petition for writ of mandamus. See In re Amaya, 34 S.W.3d 354, 355-56 (Tex. App.-Waco 2001, orig. proceeding); see also In re De La Garza, 159 S.W.3d 119, 120 (Tex. App.-Corpus Christi 2004, orig. proceeding). Mandamus is also available for correcting a void default judgment. See In re Disc. Rental, Inc., 216 S.W.3d 831, 832 (Tex. 2007) (per curiam).
DEFAULT JUDGMENT
In issue one, Markowitz contends that the default judgment is void because personal jurisdiction was never invoked. In reliance on this contention, Markowitz argues in his second issue that any attempt to reach his property violates his due process and property rights.
Brazos Valley Bank, N.A., entered a commercial promissory note with "Avi B. Markowitz, MD, PA, DBA Central Texas Cancer Care." "Avi B. Markowitz, MD" signed a guaranty. Brazos sued for default. The petition named "Avi B. Markowitz, MD, PA, D/B/A Central Texas Cancer Care" as the defendant. Brazos later moved for default judgment against "Avi B. Markowitz, M.D. D/B/A Central Texas Cancer Center." Respondent granted the motion.
Markowitz argues that Respondent lacked authority to grant the default judgment because: (1) the professional association is the sole defendant named in Brazos's petition; thus, judgment was rendered against a party not named in the law suit; (2) he was not served as a party to the suit and neither waived service nor entered a general appearance; and (3) judgment was rendered against a non-existent entity.
The petition as a whole must be considered in determining who is being sued. Boyattia v. Hinojosa, 18 S.W.3d 729, 733 (Tex. App.-Dallas 2000, pet. denied). When a party fails to specially except, courts should construe the pleadings liberally in favor of the pleader. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex. 2000).
The petition alleges that "Defendant Avi B. Markowitz, MD, PA, D/B/A Central Texas Cancer Care, an Individual who is a resident of Texas, may be served with process at his home . . ." and "Defendant Avi B. Markowitz, MD, PA personally guaranteed the . . . note." See TEX. R. CIV. P. 28 ("Any partnership, unincorporated association, private corporation, or individual doing business under an assumed name may sue or be sued in its partnership, assumed or common name for the purpose of enforcing for or against it a substantive right."); see also Ibrahim v. Young, 253 S.W.3d 790, 799-800 (Tex. App.-Eastland 2008, pet. denied) (Suit against "Dr. Camil Kreit, MD, PA" was a suit against the individual, not the professional association.). Construing the pleadings liberally and looking at the petition as a whole, we conclude that the petition evidences an intent to allege liability against Markowitz in his individual capacity.
Moreover, Markowitz, not a registered agent, was served with process. See Ibrahim, 253 S.W.3d at 800 ("Young did not request service on a registered agent."). The citation, however, named "Avi B. Markowitz, M.D., d/b/a Central Texas Cancer Center." This is the same name used in the order granting the default judgment and the name of an entity that Markowitz contends does not exist.
We first note that the record contains no verified denial that Markowitz is not doing business under the name Central Texas Cancer Care or Central Texas Cancer Center. See TEX. R. CIV. P. 93(14). Moreover, Rule 28 allows a plaintiff to "bring suit against an individual doing business under the name of an association, partnership, or corporation, even if the association, partnership, or corporation does not exist." Chilkewitz v. Hyson, 22 S.W.3d 825, 828-29 (Tex. 1999) (emphasis added). "[A] misnomer of a defendant does not render a judgment based on personal service, even one by default, void, provided the intention to sue the defendants actually served with citation is so evident from the pleadings and process that the defendant could not have been misled." Layton v. Nationsbanc Mortg. Corp., 141 S.W.3d 760, 764 (Tex. App.-Corpus Christi 2004, no pet.).
The record contains the process server's affidavit, stating that he personally served Markowitz at the address listed in the petition. The petition placed Markowitz on notice that he was the intended defendant, the body of the citation contains the style of the case used in the petition, service was had at the same address as that listed in the petition, and there is no contention that Markowitz did not receive service. See Glover Constr., Inc. v. Chemmark Corp., No. 02-04-00310-CV, 2005 Tex. App. LEXIS 5619, at *10, n. 3 (Tex. App.-Fort Worth July 14, 2005, pet. denied) (mem. op.) (Citation named Glober Construction Inc. instead of Glover Construction, Inc.); see also also R.C. Martinez Bakery Tortilla Factory, Inc. v. Hidalgo County, No. 13-03-00709-CV, 2005 Tex. App. LEXIS 3693, at *2-5 (Tex. App.-Corpus Christi May 12, 2005, no pet.) (mem.op.) (Default judgment was rendered against "R.C. Martinez, Inc., doing business as R.C. Martinez Bakery Tortilla Factory" instead of "R.C. Martinez Bakery Tortilla Factory, Inc."). The record indicates that Markowitz was served as a party to the suit.
Accordingly, we conclude that Markowitz was both named as the intended defendant in the petition and was served with process. See TEX. R. CIV. P. 124. Because the default judgment is not void, we overrule issue one and need not address issue two. See TEX. R. APP. P. 47.1.
SUBPOENA
In issue three, Markowitz complains that the subpoena does not include the correct style of the suit. See TEX. R. CIV. P. 176.1(a). The style of the petition is: "Brazos Valley Bank v. Avi B. Markowitz, MD, PA, d/b/a Central Texas Cancer Care." The subpoena describes the style as: "Brazos Valley Bank, N.A. v. Dr. Avi B. Markowitz D/B/A Central Texas Cancer Care."
Brazos contends that Markowitz failed to timely raise this objection within the time for responding to the subpoena. The subpoena commanded Markowitz to appear on July 10, 2009. He filed his motion to quash the subpoena on July 6, alleging violations of Rules 176.1(a), 176.1(d), 176.3(a), and 199.2(b)(2). Markowitz's complaint is preserved. See TEX. R. APP. P. 33.1(a).
We first note that, because Markowitz is a party to the suit, Brazos was not required to serve him with a subpoena in order to compel his attendance at the deposition. See Tex. R. Civ. P. 199.2(b)(5); see also 3 ROY W. MCDONALD ELAINE A. GRAFTON CARLSON, TEXAS CIVIL PRACTICE § 13:13(b) (2d ed. 2000) (Service of a notice of deposition is sufficient to compel a party's attendance). Rule 176 applies to discovery sought from non-parties. See TEX. R. CIV. P. 199.2(b)(5); see also TEX. R. CIV. P. 199.3. Moreover, we cannot say that such a minor variance in the subpoena is sufficient to render the subpoena fatally defective. There is no indication in the record that Markowitz was misled or prejudiced by the variance or knew that he was not the intended witness. See Galveston, H. S. A. R. Co. v. Morris, 94 Tex. 505, 61 S.W. 709, 710 (1901) (Names listed on interrogatories and deposition notice differed from the names on the depositions taken, but motion to suppress was properly denied because: "If a wrong name is given, we think that, in order to obviate the effect of the mistake, it should appear that the party was not misled or prejudiced by it, but in fact knew what witness was intended."); see also 3 MCDONALD CARLSON, § 13:11(b). We overrule issue three.
In issue four, Markowitz complains that the subpoena is directed to an entity that does not exist and is not named in the default judgment, i.e., "Central Texas Cancer Center." See TEX. R. CIV. P. 176.1(d). As previously discussed, Avi B. Markowitz is the intended defendant. The subpoena identifies the person to whom it is directed. See id. We overrule issue four.
In issue five, Markowitz complains that the subpoena does not state the nature of the action; specifically, the subpoena orders Markowitz to appear for a deposition, but does not order him to produce documents. See TEX. R. CIV. P. 176.1(e); see also TEX. R. CIV. P. 176.2. Brazos responds that Markowitz was also served with a notice of deposition with a request for production of documents and interrogatories. See TEX. R. CIV. P. 199.2(b)(5).
The record contains a notice of intent to take Markowitz's deposition "in aid of judgment with duces tecum." The certificate of service states that the notice was "served by personal delivery." In accordance with Rule 199.2(b)(5), this is the proper manner for compelling the attendance of a party to the suit. See TEX. R. CIV. P. 199.2(b)(5); see also 3 MCDONALD CARLSON, § 13:13(b). However, in his affidavit, Markowitz claimed that he was not served with the notice of intent or a "duces tecum." After the hearing on Brazos's motion to compel, but before Respondent signed an order granting the motion, Brazos provided the process server's affidavit, stating that he served Markowitz with the notice of deposition with duces tecum. Because the record contains evidence that Markowitz was served with both the subpoena and the notice of intent with duces tecum, we overrule issue five.
In issue six, Markowitz contends that he resides in and conducts business in Galveston County, Texas; thus, he cannot be required to attend a deposition in Brazos County. See TEX. R. CIV. P. 176.3(a); see also TEX. R. CIV. P. 199.2(b)(2)(A)-(C), (5); TEX. R. CIV. P. 205.2. Because Markowitz is a party to the suit, his deposition may properly be taken in Brazos County, which is the county of suit. See TEX. R. CIV. P. 199.2(b)(2)(C). We overrule issue six.
In issue seven, Markowitz complains that he did not receive a witness fee with the subpoena. See TEX. CIV. PRAC. REM. CODE ANN. § 22.001(a) (Vernon 2008); see also TEX. R. CIV. P. 176.5(a); TEX. R. CIV. P. 176.8(b). As a party to the suit, Markowitz is not entitled to a witness fee. See Villanueva v. Rodriguez, 300 S.W.2d 668, 669 (Tex. Civ. App.-San Antonio 1957, writ ref'd n.r.e.); see also In re Carter, 958 S.W.2d 919, 922-23 (Tex. App.-Amarillo 1997, orig. proceeding) (Assuming Carter was entitled to the witness fee, he failed to show the absence of an adequate legal remedy). We overrule issue seven.
Brazos contends that Markowitz failed to raise this issue below. The argument was not presented in the motion to quash, but was presented at the hearing on the motion to quash, without objection. See In re Cynthia Kethley, No. 12-08-00133-CV, 2009 Tex. App. LEXIS 4956, at * 8-9 (Tex. App.-Tyler June 30, 2009, orig. proceeding) (mem. op.).
In summary, we conclude that Respondent did not abuse his discretion by granting the default judgment or entering the post-judgment discovery order against Markowitz. Because Markowitz has not established his right to mandamus relief, we deny his petition for writ of mandamus.
DISSENTING OPINION
This mandamus proceeding is targeting what appears to be, at best, an order compelling discovery in aid of collection of a judgment that is not final. That order, in my view, seeks post-judgment discovery from a person who was never sued, but against whom, or possibly a third party, a judgment may have been rendered.
What lies at the heart of the matter is that inadequate attention was paid to the details when the suit was filed and as the suit progressed. The underlying trial court proceeding was processed with an extraordinary lack of regard for the rules and the details necessary to successfully sue for collection of a note and guaranty, secure a valid judgment, and then be able to collect on that judgment. Many rules and details were simply ignored or swept past. I like rules. I find comfort in their consistent application. I find protection in the requirement that they must be followed. But I am scared by what was brushed past to allow collection efforts to proceed against Avi B. Markowitz, MD when he was not properly sued. The Bank makes a simplistic response to the petition that basically Markowitz knew the suit was against him, that he received the citation and the petition, and because he took the risk of not appearing in the suit and defending against it there is no reason why he should not personally be held liable for the judgment. The Bank's primary legal response is that this was a simple misnomer, not a misidentification of parties. The Bank could be right but the record does not show it to be so. And I note, with some degree of satisfaction, that the Bank was meticulous in its preparation of the loan, security, and guaranty documents, obtaining the signatures of a separate legal entity that it now contends may not even exist, Avi B. Markowitz, MD, PA. In this proceeding, the Bank takes the incredible position that "PA" may stand for physicians assistant rather than professional association. And any suggestion that the suit was clearly only a suit against the guarantor must ignore the record.
Some description of the inconsistencies and errors is necessary, but I will not burden this opinion with all the inconsistencies and lack of attention to detail. I will only mention some of the many flaws in the underlying proceeding including, the most important, that Avi B. Markowitz, MD was never sued.
1. The original petition speaks throughout, including the style, in terms of only one defendant.
2. The defendant identified is Avi B. Markowitz, MD, PA. In this dissenting opinion, this entity will be identified as PA.
3. The style and text of the original petition indicates that PA is doing business as Central Texas Cancer Care.
4. The original petition is captioned "Original Petition for Suit on Note." It does not indicate it is a suit on a guaranty agreement.
5. The original petition first identifies PA as an individual. But obviously, a professional association is not an individual.
6. The original petition states that PA may be served at "his home." But professional associations do not have genders. Nor do we normally think of professional associations as having a home but rather a primary place of doing business.
7. The original petition also states that service may be made on "said Defendant" again indicating a singular defendant.
8. The original petition then states that a copy of the note was signed by PA, and is attached and incorporated. The note is attached and it was signed by the president of PA.
9. Next the original petition states that the defendant, again singular, is in default, and that the sum currently due on the note is an amount that is almost a quarter-of-a-million dollars.
Up to here, other than some references to a professional association, PA, as if it is a human person, as opposed to a fictitious person, there is nothing fatal to the Bank's claim against PA. But that is about to change.
10. The original petition then states that without waiving the foregoing, "Defendant Avi B. Markowitz, MD, PA, personally guaranteed the above-referenced note." The reference to defendant is again singular and it unquestionably again identifies PA but says PA "Personally guaranteed" the note. The Bank probably intended to sue Dr. Markowitz in his individual capacity as guarantor of the note but identified, and thus sued, only PA. The doctor individually, Dr., was never identified as the defendant in the petition. One could argue, though I think it is a long stretch, that because the guaranty agreement was incorporated by reference, Dr. was also sued. At the very least, however, there are glaring problems already present, and that is only through paragraph 6 of the petition.
11. The documents in the appendix, after the note, security agreement, asset based financing agreement, and guaranty that appear behind the tab with the original petition, and which appear to be proper copies, are the papers regarding service. The citation is issued to "Defendant Avi B. Markowitz, M.D. D/B/A Central Texas Cancer Center." Now remember that only PA has been referenced with a D/B/A, so it is somewhat confusing to have Dr. referred to with a D/B/A and the D/B/A is not Central Texas Cancer Care, as appeared in the style, text, and attachments of the original petition but by the name Central Texas Cancer Center. So it is unknown if this is a different D/B/A, or whether they intended to reference PA or Dr. This possible new identity will be referred to as "Center."
12. In the affidavit attached to the citation showing the proof of service by the professional process server, the style of the suit still identifies only PA as the only defendant, but identifies Center as the recipient of the papers.
13. The next document in the appendix is a motion for default judgment. It seeks a default judgment against only Center, not Dr. nor PA.
14. Nevertheless, the motion asserts that this new creature, Center, is the singular defendant and was properly served with a copy of the original petition by personal delivery (and according to the affidavit that would be correct). And it does not assert that PA or Dr. was served, only Center (and according to the affidavit that would be correct). And, by the way, the style of the case on the motion was changed to identify Center as the lone defendant.
15. The motion makes the observation that Center has not filed an answer. I note that Center was not identified in the original petition and did not sign the note or the guaranty.
16. Affidavits attached to the motion for default judgment have some statements in them that are demonstrably untrue based on the original petition and the attachments thereto. For example, it says that Center is the defendant and signed the note.
17. The order signed by the trial court granted the motion for default judgment in a document styled with Center as the only defendant and rendered the judgment against one Abi B. Markowitz, M.D. D/B/A Central Texas Cancer Center. Note that in this critical document — if you are going to get it right anywhere, this is the place to do it — we have the name "Abi" appear for the first time, and it is still neither PA nor Dr., and the judgment is for $259,081.88 plus $2,000 in attorney fees, post-judgment interest, and court cost. That judgment was not appealed and it does not appear that it could have been because it does not appear to be final.
18. But, nevertheless, we then have a subpoena for post-judgment collection efforts styled Dr. Avi B. Markowitz D/B/A Central Texas Cancer Care. We do not know if this is a new player, or one of the old ones, Center, PA, or Dr. identified in some other manner. We will call this new identity Dr. Care. But the subpoena was to summon Center to give testimony at a date and time specified. The notice attached to the subpoena is issued to Center but indicates it is going to take the deposition of the latest new identity, Dr. Care.
19. By the time the motion to compel the oral deposition is filed, the style of the suit has again changed. It is back to identifying Center as the only defendant. It wants Center to answer the discovery and attend the deposition.
20. The notice of setting is interesting because it indicates the suit is Brazos Valley Bank v. Avi B. Markowitz, M.D., et al. Thus for the first time the existence of multiple defendants is suggested. Oddly enough Brazos Valley Bank N.A. is no longer identified with the "N.A." and could suggest a change in ownership.
21. Finally, the style of the order and target of the discovery reverts to identifying Center as the only defendant.
Fastidious attention to detail this proceeding is not. At some point, a proceeding becomes so gnarly due to the actions of one of the parties that the party that caused it has to suffer the consequences of what has been, or has not been, done. In this instance, the only person clearly identified in the live pleadings as a defendant is PA and there has been no judgment for or against PA. PA has not been served. Dr. may or may not have been served, but he was not named in the petition as the defendant, PA was.
It may not be too late for the Bank to clean up this suit so that it is clear who has been sued and for what, and then proceed to proper collection efforts if the Bank again prevails. But if, as the Court has determined, there are multiple intended defendants, the interlocutory default judgment against Center can be ignored or set aside by the trial court; the trial court still has jurisdiction because the judgment did not even purport to dispose of all claims against all parties and, therefore, does not appear to be final.
In the final analysis, I would grant mandamus relief and issue a writ of mandamus if the trial court failed to quash the discovery sought against Dr. Avi B. Markowitz until such time as these and the other procedural anomalies have been cleaned up and a proper final judgment is obtained against the maker or guarantor of the note that is the subject of the suit. Then let proper collection efforts begin.
Accordingly, I respectfully dissent from the denial of the petition for writ of mandamus.