MELVIN R. LUCAS, JR., ET UX.
RAPIDES HEALTH CARE SYSTEM, L.L.C., ET AL.
FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO.
248, 884 HONORABLE GEORGE CLARENCE METOYER JR, DISTRICT JUDGE
Middleton COUNSEL FOR PLAINTIFFS/APPELLANTS: Melvin R. Lucas,
Jr. Evangeline Lucas
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
Gregory N. Wampler COUNSEL FOR APPELLEES: John E. Morton and
Morton Law, LLC
composed of Sylvia R. Cooks, John E. Conery, and D. Kent
E. CONERY JUDGE.
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.
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.
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.
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.
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.
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.
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
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.
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.
BY THE COURT:
All righty. Ms. Lucas, I need you to raise your right hand in
having been first duly sworn, testify (sic) as follow[s]:
OUESTIONED BY THE COURT
Q All right. Do you understand what you are doing here
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
A Yes, sir.
. . . .
BY THE COURT:
Okay let's file this into the record and we'll make
a copy of it and we'll put it into the record.
OUESTIONING CONTINUES BY THE COURT
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 ...