### IN THE TENTH COURT OF APPEALS

No. 10

- 10

- 00116

- CV

IN RE AVI B. MARKOWI TZ

Original Proceeding

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

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judgment discovery from a person who was never sued, but against who m , or possibly a third party , a judgment may have been rendered. What lies at the heart of the matter is that inadequate attentio n 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 c ollection 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.In re Markowitz Page 2

I find protection in the requirement that they mus t be followed. But I am scared by

what was brush ed past to allow collection efforts to proceed against Avi B. Markowitz,

M D when he was not properly sued. The Bank makes a simplistic response to the petition that basically Markowitz knew the suit was aga inst 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.

Mark o witz, 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 inco nsistencies 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. Mar k owitz, 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, th is entity will be identified as PA

.In re Markowitz Page 3

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 in dividual

. 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 orig inal 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 si gned 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 refere nces 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 foregoin g, “Defendant Avi B. Markowitz, MD, PA, personally guaranteed the above

- referenced note. ” The reference to d efendant is again singular and it unquestionably again identifies P A but says PA “Personally guaranteed” the note. The Bank probably intended to s ue Dr. Markowitz in his individual capacity as guarantor of the note but identified , and thus sued, only PA. The doctor individually, D r
. , was never identified as the defendant in the petition. One could argue, though I think it is a long stretch , that b ecause the guarant y agreement was incorporated by ref erence, D r
. was also sued. At the very least, however, there are glaring problems already present , and that is only through paragraph 6 of the petition.In re Markowitz Page 4

11. The documents in the appendix, after the note , s ecurity agreement, asset based financing agreement, and guarant y 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 D r
. 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 o f 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 D r
. This possible new identity will be referred to as “Center.”

12. I n 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 def ault judgment. It seeks a default judgment against only Center , not D r
. n or PA.

14. Nevertheless , the motion assert s 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 Ce nter 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 guarant y
. 16. Affidavits attached to the motion for default jud gment 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 A b i 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 i s the place to do it

— we have the name “ A b i ” appear for the first time, and it is still neither PA nor D r ., and the judgment is for $259,081.88 plus $2 , 000 in attorney fees, post

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judgment interest , and court cost. That judgment was not appealed and it do es not appear that it could have been because it does not appear to be final.In re Markowitz Page 5

18. But, nevertheless, w e 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 pla yer, or one of the old ones, Center , PA, or D r
. 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 defenda nt. 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 defendant s 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.

Fasti dious 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 instanc e, 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. D r
. may or may not
have been served , but he was not named in the peti tion 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 defe ndants, 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 evenIn re Markowitz Page 6

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 be en 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

ma ndamus.

TOM GRAY Chief Justice Dissenting opinion delivered and filed July 7 , 2010