E-Filed Document Jun 30 2016 11:18:49 2015-CA-01772 Pages: 11 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI BROOKS V. MONAGHAN VERSUS ROBERT AUTRY APPELLANT CAUSE NO. 2015-CA-01772 APPELLEE APPEAL FROM THE CIRCUIT COURT OF ATTALA COUNTY, MISSISSIPPI BRIEF OF APPELLEE ORAL ARGUMENT NOT REQUESTED JOHN E. SHAW State Bar No. 6740 Attorney at Law P.O. Box 744 Kosciusko, Mississippi 39090 Telephone: (662) 289-5157 Facsimilie: (662) 289-5157
CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the justices of the Court may evaluate the possible disqualification or recusal. 1. The Honorable Joseph H. Loper, Jr. Circuit Court Judge 2. Brooks V. Monaghan Appellant 3. Robert Autry, Jr. Appellee 4. Michael A. Jacob II Attorney for the Appellant 5. John E. Shaw Attorney for the Appellee s/s John E. Shaw Attorney for the Appellee JOHN E. SHAW State Bar No. 6740 Attorney at Law P.O. Box 744 Kosciusko, Mississippi 39090 Telephone: (662) 289-5157 Facsimilie: (662) 289-5157 -1-
TABLE OF CONTENTS CERTIFICATE OF INTERESTED PARTIES.. 1 TABLE OF CONTENTS 2 TABLE OF CASES. 3 STATEMENT OF FACTS.. 4 ARGUMENT.. 5-8 CONCLUSION... 9 CERTIFICATE OF SERVICE... 10-2-
TABLE OF CASES State Cases Page Mississippi Guaranty Association v. Cole 954 So 2d 407 (Miss 2007) 7 L. G. Moore, James West and State of Mississippi v. Peter P. Kuljis 207 So 2d 604 (Miss 1967) 7 In RE Karen H. Spencer 985 So 2d 330 (Miss 2008) 7 M. L. Virden Lumber Co. v. Sherrod et al. 167 Miss 297, 139 So 813 (Miss 1921) 7 Statutes Miss. Code Ann. 11-55-5 6-7 -3-
STATEMENT OF THE FACTS This is a case where a doctor filed suit in an effort to collect his bill for medical services rendered. Unfortunately, the doctor sued the wrong man. More unfortunately, the doctor continued to prosecute his suit after he knew or should have known that he was suing the wrong man. The doctor did dismiss the suit 130 days after process on the Appellee, but after the Appellee had to incur attorney fees, costs and expenses defending himself and preventing a default judgment. -4-
ARGUMENT Robert Autry, Jr., also known as Robert Autry, hereinafter Appellee, lives at 498 Calvary Drive in Kosciusko, Mississippi. He has lived at that address for many years. Summons was issued by the clerk on March 10, 2015, and served by process server on Appellee at 498 Calvary Drive, Kosciusko, Mississippi, on April 23, 2015. (ARE 1-2) The process server identified Robert Autry by race, sex, height, weight, and estimated age in the return. (ARE 2) Appellee had received a letter from the office of Appellant s attorney prior to the filing of this suit. Appellee had called the telephone number listed on the letter from Appellant s attorney and spoke with a lady in that office. He advised her that he was not the Robert Autry being sued, had never lived in Walls, Mississippi where apparently the patient Robert Autry had lived, had a different social security number from the patient, and apparently was 20 years older than the patient. Appellee s affidavit (ARE 3-4) Two days after service of process on Appellee, counsel for the Appellee directed a letter to counsel for the Appellant and again advised counsel for the Appellant that process in this cause had been served on the wrong man. (ARE 5-6) To prevent a default judgment Appellee filed his answer on May 7, 2015. The answer was filed 116 days before the case was dismissed by the Appellant. After never hearing from opposing counsel by letter or telephone counsel for the Appellee noticed Appellant for a deposition to be taken at 1 P.M. on Tuesday, June 16, 2015. (ARE 7-8) Neither the Appellant nor his attorney appeared for said deposition. Thereafter, on July 24, 2015, counsel for the Appellee filed his motion to compel deposition and stated that it would be called up on the first day of the September 2015 term in the Attala County Circuit Court. (ARE 9-10) A letter from Appellant s counsel dated August 21, 2015, was filed August 31, 2105, which contained Appellant s notice of dismissal without prejudice. (ARE 11-12) Although there is attached a certificate of service to counsel for the Appellee, Appellee s counsel never received a copy of this notice of dismissal and only learned of same after inspecting the court file. A period of 130 passed from the time the process was served until the case was dismissed. -5-
Appellant now states that Appellee was a non-party to the law suit and had no standing to seek attorney fees, etc. This implies that Appellee had nothing to worry about, should not concern himself with filing any responsive pleadings, and he could rest assured that since he was a non-party a default judgment would not be taken against him. Counsel for the Appellee is not aware of a single case where a default judgment is not taken against a defendant who fails to file responsive pleadings. Counsel is also satisfied that a default judgment certainly would have been taken in this case had Appellee not filed responsive pleadings. After all of the above the lower court correctly granted a judgment in favor of Appellee in the amount of $810.00 under and by virtue of 11-55-5 of our code. More especially 11-55-5 (2): No attorney fees and costs shall be assessed if a voluntary dismissal is filed as to any action, claim or defense within a reasonable time after the attorney or party filing the action, claim or defense knows or reasonably should have known that it would not prevail on the action, claim or defense. (emphasis added) Appellee does not deny that the case was dismissed. However, as stated above, it was dismissed 130 days after it was filed. It was dismissed more than 130 days after the Appellant was advised that Appellee was not the Robert Autry who owed the Appellant any sum whatsoever. The process server identified Appellee on his return. This identification, if discussed with the client, could have advised counsel for the Appellant that he was suing the wrong man. Certainly, a lady in his office had been told by Appellee, prior to the filing of the law suit, that he was suing the wrong man. Without a doubt after the suit was filed he was told by counsel for the Appellee in a letter the wrong man was being sued. Is it therefore reasonable for the appellant to let 130 days pass before dismissing the law suit? Is it reasonable to allow Appellee to incur attorney fees and costs simply to prevent a default judgment from being taken in this matter? Appellee thinks not. After filing the complaint the Appellant never filed any other pleadings other than the voluntary dismissal and his response to Appellee s motion for attorney fees and expenses. Appellant has never denied knowledge that he was repeatedly advised that Appellee was not -6-
the patient of Dr. Monaghan. It is well settled law that what is not denied is admitted. It is elementary law that a plaintiff need not prove the facts, which are admitted in the pleadings. M. L. Virden Lumber Co. v. Sherrod et. al 167 Miss 297, 139 So. 813 (Miss. 1932) In the case of L. G. Moore, James West and State of Mississippi v. Peter P. Kuljis 207 So. 2d 604 (Miss. 1967), the Court citing Judge Griffith stated generally where averments of fact are not denied by the answer they are taken as admitted. Obviously, the facts not denied by either party are to be taken as admitted. We see then that the Appellant never denied that he was advised that the Appellee was not the patient of Dr. Monaghan. Appellant s failure to deny is an admission that Appellee was not the patient. Appellant cites Mississippi Insurance Guaranty Association v. Cole, 954 So. 2d 407 (Miss. 2007) as authority for the Court to follow the plain language of a statute. Appellee has no problem with the Court following the plain meaning of 11-55-5. Other cases cited by the Appellant do not address the facts of this litigation. Appellant does cite In RE Karen H. Spencer, 985 So. 2d 330 (Miss. 2008). That case is authority for approving the acts of the lower court herein. Specifically: The decision to award monetary sanctions under the Litigation Accountability Act is left to the discretion of the trial court. Miss. Code Ann. 11-55-7 (rev. 2002).985 So. 2d. 330 at page 337 Appellee understands 11-55-5 to require the lower court to consider reasonable attorney fees. Certainly, double the award in this case would be more than reasonable attorney fees for the work required by the Appellee to defend himself from the real possibility of a default judgment. The motion for attorney fees was heard by the lower court in Carrollton, Mississippi on October 27, 2015. Counsel for the Appellant did not appear but arranged for an attorney from Carrollton, Mississippi, to appear for him. After direct examination by counsel for the Appellee the Court asked the Carrollton attorney if she had any questions for the witness. She stated no sir (ARE 16) thereafter the lower court judge advised the parties of his thoughts concerning whether or not the Appellee had a duty to defend himself to prevent a default judgment. We find these words in the transcript: -7-
BY THE COURT: Well, I ll say this: 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 answer or suffer the consequences for it. But from what I see, Mr. Autry advised the doctor s office prior to them filing the suit, that they were attempting to collect from the wrong person. Nevertheless, they went right ahead full speed ahead and served him. And so, I believe under the Litigation Accountability Act, they are responsible for paying his attorney fees because he had to incur unnecessary expenses. And I have no doubt that if he had not filed an answer, there would have been a default entered, and they would have a default judgment with the Court. So I m going to order I do find the attorney fees being sought to reasonable especially, you know, even to just file an answer to the respond to the complaint alone plus the other work that was done. So I am going to order the plaintiff and his attorneys jointly to pay $810 to Robert Autry, Jr. for attorney fees that he incurred. (ARE 17-18) We therefore see from the comments of the Circuit Court Judge that he was of the opinion that the Appellant knew or certainly should have known that Appellee was not the patient of Dr. Monaghan and did not owe Dr. Monaghan any sum whatsoever. By not acknowledging what he had been repeatedly advised the Appellant forced the Appellee to incur fees and costs for which he should be reimbursed. -8-
CONCLUSION The lower court correctly held that it was necessary for the Appellee to file responsive pleadings in order to prevent a default judgment from being taken against him. If the Appellant had never filed a lawsuit, obviously we would not be where we are today. If the Appellant had considered the knowledge that he had concerning Appellee not being the patient and dismissed the lawsuit immediately, we would not be here today. However, Appellant s dilatory actions in dismissing the suit caused the Appellee to incur fees and expenses and borders on frivolous, if not frivolous. Requiring the Appellee to respond to his brief is the same. Accordingly, Appellee respectfully requests that this Court affirm the action of the lower court and assess such additional fees and interest against the Appellant and his counsel, jointly and severally as this Honorable Court deems proper. Respectfully submitted /s/ John E. Shaw John E. Shaw, attorney for Robert Autry, Jr. -9-
CERTIFICATE OF SERVICE I, John E. Shaw, attorney for the Appellee, Robert Autry, Jr. do hereby certify that I have this day filed the Brief of Appellee with the clerk of this Court, and have served a copy via the Mississippi Electronic Courts Systems which will provide a copy to the following persons: Michael A. Jacob, II, Esq. Jacob Law Group, PLLC 2623 West Oxford Loop Post Office Box 948 Oxford, MS 38655 and by United States mail, postage prepaid, to the following: Circuit Judge Joseph H. Loper, Jr. PO Box 616 Ackerman, MS 39735 SO CERTIFIED, this the 30 th day of June, 2016. /s/ John E. Shaw John E. Shaw, attorney for Robert Autry, Jr. JOHN E. SHAW State Bar No. 6740 Attorney at Law P.O. Box 744 Kosciusko, Mississippi 39090 Telephone: (662) 289-5157 Facsimilie: (662) 289-5157 -10-