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Lucas v. Rapides Health Care System, L.L.C.

Court of Appeals of Louisiana, Third Circuit

April 5, 2017



          Sage Middleton COUNSEL FOR PLAINTIFFS/APPELLANTS: Melvin R. Lucas, Jr. Evangeline Lucas

          Robert L. Bussey Bussey & Lauve, LLC COUNSEL FOR INTERVENOR/APPELLEE: The Louisiana Patient's Compensation Fund and Oversight Board

          Randall M. Seeser Kay H. Micheils Gold, Weems, Bruser, Sues & Rundell COUNSEL FOR DEFENDANT/APPELLEE: Rapides Healthcare System, L.L.C. D/B/A Rapides Regional Medical Center

          Gregory N. Wampler COUNSEL FOR APPELLEES: John E. Morton and Morton Law, LLC

          Court composed of Sylvia R. Cooks, John E. Conery, and D. Kent Savoie, Judges.


         Before this court is an appeal of the trial court's judgment dated August 15, 2016, granting a motion by the intervenor, the Louisiana Patient's Compensation Fund (LPCF), to enforce the settlement of a medical malpractice action filed by Melvin R. Lucas, Jr. seeking damages from the Rapides Healthcare System, L.L.C. d/b/a Rapides Regional Medical Center (Rapides). For the following reasons, we reverse and remand to the trial court for further proceedings.


         After the submission of his claim to a medical review panel pursuant to the provisions of La.R.S. 40:1299.41 and the receipt of the panel's opinion on September 11, 2013, Melvin and Evangeline Lucas timely filed suit on November 25, 2013. Their petition sought damages against Rapides for a pressure ulcer Mr. Lucas developed in March 2011 while he was in the care of Rapides for strep pneumonia. Mrs. Lucas is a native of the Philippines, and English is not her first language. She was not married to Mr. Lucas at the time of the alleged malpractice, but was married to him by the time suit was filed. Rapides responded to the petition by filing a dilatory exception of lack of procedural capacity and a peremptory exception of no right of action based on the Lucas' failure to plead whether or not they were married at the time of the alleged incident.

         On June 17, 2015, the parties engaged in mediation. Mr. Lucas was represented by attorney John Morton at that time, but claimed he could not attend because of medical reasons. He sent Mrs. Lucas to attend in his place. As the couple was not married at the time of the alleged injury to Mr. Lucas, she was not a proper party to the litigation. However, Mrs. Lucas had a power of attorney signed by Mr. Lucas allegedly granting her the authority to participate in the mediation and possibly settle the lawsuit. During the mediation an offer was conveyed to Mr. Lucas by Mrs. Lucas. Mr. Lucas did not decline the offer or issue a counteroffer during the mediation, but then, according to Mr. Morton, he called Mr. Lucas, who allegedly agreed verbally to the offer. Nothing was placed in writing and no written settlement agreement was signed at that time.

         Shortly thereafter, Mr. Lucas discharged Mr. Morton and asked him for his file materials. Pursuant to Mr. Morton's motion to withdraw as counsel the trial court signed an order on July 7, 2015, allowing Mr. Morton to withdraw as counsel for Mr. Lucas. Obviously, no settlement agreement had been completed or signed at that time.

         On October 22, 2015, Mr. Morton filed an intervention seeking his fees and costs based on a contingency fee contract signed by Mr. Lucas. The trial court signed an order on October 22, 2015, allowing Mr. Morton to intervene in the case. In the same order allowing the intervention, Mr. Morton requested the trial court further order, "that all parties and/or their counsel of record are ordered to appear for a status conference on November 30, 2015 at 9:30" in the trial court's chambers. Mr. Lucas was sent a subpoena, requested by Mr. Morton on October 23, 2015, requiring him to attend the status conference. Again, Mr. Morton was no longer counsel for Mr. Lucas and his interests at this time were adverse to his former client, as he was obviously trying to get Mr. Lucas to agree to the settlement offer made during mediation. In any event, Mr. Lucas was unable to attend the status conference due to illness. Mrs. Lucas, who still possessed a valid power of attorney for Mr. Lucas, attended in his place.

         There is nothing in the record to support Rapides' assertion that a settlement conference took place between the parties and the trial court prior to the "status conference" on November 30, 2015. No motion to set a "settlement conference" appears in the record. The order setting the "status conference" on November 30, 2015, in chambers was part of Mr. Morton's motion to intervene in the lawsuit.

         At the status conference on November 30, 2015, former counsel for Mr. Lucas, Mr. Morton, and counsel for Rapides, Mr. Seeser, sought to place an alleged "confidential settlement agreement" on the record and to have the trial court confirm by the testimony of Mrs. Lucas, acting pursuant to a power of attorney, that Mr. Lucas had agreed to settle his case. Mrs. Lucas did appear on behalf of Mr. Lucas and her power of attorney was presented to the trial court, and was filed into the record as a part of the proceedings by the trial court. However, no "confidential settlement agreement" was placed on the record, under seal or otherwise.

         Again, Mr. Morton no longer represented Mr. Lucas and, in fact, had filed a motion to intervene in Mr. Lucas' lawsuit, seeking his full fee and expenses based on an alleged settlement offer procured before he withdrew as counsel. At this point in the proceedings, Mr. Morton had no authority whatsoever to speak on behalf of either Mr. or Mrs. Lucas.

         A colloquy occurred on the record between the trial court and Mr. Morton, intervenor, and Mr. Seeser, attorney for Rapides, which stated in pertinent part:

The parties have discussed the matter and there is - we think a binding settlement, unless - the Court can question Ms. Lucas about the matter.
All righty. Ms. Lucas, I need you to raise your right hand in a minute.
having been first duly sworn, testify (sic) as follow[s]:
Q All right. Do you understand what you[] are doing here today?
A Yes, sir.
Q Okay. You do have the Power of Attorney for Mr. Lucas?
A Yes, Your Honor.
Q Okay. Where is that Power of Attorney? Do you have a copy of it?
A Yes, sir.
. . . .
Okay let's file this into the record and we'll make a[] copy of it and we'll put it into the record.
Q Do you understand ma'am that the - the settlement agreements are open to you and your husband, so that you'll know exactly what's going on.
A Yes, Your Honor.
Q Do you understand that you have to go to Mr. Seeser's office to execute the documents that will provide the basis of the settlement?
A Yes, Your ...

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