BROOKS MONAGHAN, M.D. APPELLANT
ROBERT AUTRY JR. A/K/A ROBERT AUTRY APPELLEE
of Judgment: 10/27/2015
FROM WHICH APPEALED: ATTALA COUNTY CIRCUIT COURT HON. JOSEPH
H. LOPER JR. TRIAL JUDGE.
ATTORNEY FOR APPELLANT: MICHAEL ALFRED JACOB II.
ATTORNEY FOR APPELLEE: JOHN E. SHAW.
Dr. Brooks Monaghan appeals the judgment of the Attala County
Circuit Court awarding Robert Autry Jr. (Autry Jr.)
attorney's fees and expenses against Dr. Monaghan. Dr.
Monaghan claims that the trial court erred in finding that
Autry Jr. possessed standing to seek attorney's fees and
expenses pursuant to Mississippi Code Annotated section
11-55-5 (Rev. 2012). Finding no error in the trial
court's judgment, we affirm.
On March 10, 2015, Dr. Monaghan filed a complaint against
"Robert Autry" (Autry) seeking payment for medical
services provided to Autry by Dr. Monaghan, plus legal fees
and court costs incurred as a result of Autry's failure
to pay. The complaint listed a Kosciusko, Mississippi street
address for Autry.
The record contains the affidavit of a process server, which
reflects that, on April 23, 2015, the process server served
Autry Jr. with a summons and complaint filed by Dr. Monaghan.
The record reflects that process was personally served to a
"Robert Autry" at the Kosciusko address listed in
the complaint. The process server described the person served
as a white male in his late fifties or sixties.
On April 25, 2015, Autry Jr.'s counsel sent a letter to
Dr. Monaghan's counsel explaining that a mistake
occurred. In the letter, Autry Jr.'s counsel provided
that, in the course of conversations with collection agents,
Autry Jr. was advised that the debtor Robert Autry lives in
Walls, Mississippi, and not Kosciusko. Autry Jr.'s
counsel also explained that the last four digits of the
debtor Autry's Social Security number are different than
the last four digits of Autry Jr.'s Social Security
number. Finally, Autry Jr.'s counsel stated that the
debtor Autry was born in 1968, more than twenty years after
Autry Jr. was born.
On May 7, 2015, Autry Jr. filed an answer to Dr.
Monaghan's complaint denying that he is the "Robert
Autry" named as a defendant in the case. On August 21,
2015, Dr. Monaghan filed a motion to dismiss the case without
On September 22, 2015, Autry Jr. filed a motion for
attorney's fees and expenses incurred as a result of
defending the matter. In his motion, Autry Jr. provided that,
in January or February 2015, he received a letter from the
law office of Michael Jacob II concerning the debt of a
Robert Autry. Autry Jr. called the number provided in the
letter and spoke to a woman at the law office. Autry Jr.
stated he explained that he was not the Robert Autry who owed
the debt and that he had never received medical services from
Dr. Monaghan. Autry Jr. stated that the woman on the phone
assured him that she would take care of the matter. Autry Jr.
claims that he ultimately incurred $810 in attorney's
fees as a result of defending the matter. As a result, Autry
Jr. maintains that he is entitled to attorney's fees and
costs under section 11-55-5, since Dr. Monaghan knew or
should have known that Autry Jr. was not one of his patients.
Dr. Monaghan's attorney filed a response to Autry
Jr.'s motion for attorney's fees and expenses,
arguing that the subject lawsuit was filed against Autry, not
Autry Jr., and since Autry Jr. was not a party to the
lawsuit, he possessed no obligation or standing to file any
pleadings with the court in relation to the lawsuit. Dr.
Monaghan's attorney also asserted that, after discovering
that the summons was served upon a nonparty, the lawsuit was
The trial court heard arguments on the matter. After the
hearing, the trial court stated:
My name is Joseph Loper Jr. But if I got a summons issued
and delivered to me along with a complaint telling me I had
to answer as Joseph Loper, I assure you, I would ...