author: I MAMES F. McKAY III, Judge.

text:
    Dennis AKINS, Wendell Goins and Aliska Landry, v. HOUSING AUTHORITY OF NEW ORLEANS.
    No. 2003-CA-1086.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 10, 2003.
    Floyd J. Falcon, Jr., Daniel L. Avant, Avant & Falcon, Baton Rouge, LA, for Plaintiffs/Appellants.
    Michael A. Starks, Staff Attorney, Housing Authority Of New Orleans, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY III, Judge DENNIS R. BAGNERIS Sr.).
   I MAMES F. McKAY III, Judge.

The claimants appeal the granting of an exception of subject matter jurisdiction in which their case was dismissed. For the reasons stated herein, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Appellants, Dennis Akins, Wendell Goins, and Aliska Landry, are New Orleans Police officers who are employed by appellee, the Housing Authority of New Orleans. On April 19, 2002, appellants brought an action in the Civil District Court for the Parish of Orleans seeking payment of overtime wages. The petition alleged that appellee failed to pay appellants’ overtime wages at the rate of one and one-half times the regular rate of pay as required by Civil Service Rule 6.19.

On January 15, 2003, appellee filed a declinatory exception of lack of subject matter jurisdiction. The exception asserted that because appellants’ employment was classified under the Civil Service Commission, the Commission had exclusive jurisdiction to decide pay classification suits pursuant to La. Const, art. 10 sec.10 (A)(1). The trial court granted the exception on April 21, 2003, agreeing with appel-lee that the Civil Service Commission had exclusive jurisdiction over appellants’ claims. This appeal followed.

| ^Appellants present two issues for review by this court: first, that the trial court erred in determining that the Civil Service Commission had exclusive subject matter jurisdiction over their overtime wage claims; and second, that the trial court erred in dismissing appellants’ claims that they were entitled to a money judgment.

Appellants submit that the trial court misconstrued the nature of their complaint. Specifically, appellants argue that this is not a “pay classification suit” as urged by appellee, rather, it is a suit for a money judgment. In that respect, appellants contend that the Civil Service Commission does not have jurisdiction over a claim seeking a money judgment for past due overtime wages. Hawkins v. State Through Department of Health and Hospitals, 613 So.2d 229 (La.App. 1 Cir.1992); Bennett v. Louisiana Wild Life and Fisheries Commission, 234 La. 678, 101 So.2d 199 (1958). Moreover, appellants submit that the Louisiana Supreme Court, in Louisiana Department of Agriculture and Forestry v. Sumrall, 98-1587 (La.3/02/99), 728 So.2d 1254, established that the Civil Service Commission has exclusive subject matter jurisdiction only over claims involving political, religious, sex or race discrimination or removal and disciplinary cases.

In defense of this appeal, appellee submits that the overtime wages sought by appellants are clearly within the parameters of La. Const, art. 10 sec. 10(A)(1), which vests the Civil Service Commission with exclusive jurisdiction over wages and salaries. Moreover, appellee argues that appellants’ claim for a money judgment is being advanced to circumvent that exclusive jurisdiction.

It is well established in our jurisprudence that the Civil Service Commission has exclusive jurisdiction over classified civil service employer-employee disputes that are employment related. La. Const. art. 10 sec. 10(A)(1); Eberhardt v. Levasseur, 630 So.2d 844 (La.App. 4 Cir.1993). Article 10 provides as follows:

| ¡¡Section 10. (A) Rules (1) Powers.

[The state civil service] commission is vested with broad and general rulemak-ing and subpoena powers for the administration and regulation of the classified service, including the power to adopt rules for regulating employment, promotion, demotion, suspension, reduction in pay, removal, certification, qualifications, political activities, employment conditions, compensation and disbursements to employees, and other personnel matters and transactions; to adopt a uniform pay and classification plan; to require an appointing authority to institute an employee training and safety program; and generally to accomplish the objectives and purposes of the merit system of civil service as herein established. It may make recommendations with respect to employee training and safety.

Our courts have interpreted article 10 of the Constitution as evidencing an intention to grant exclusive jurisdiction to the Civil Service Commission in those areas where the Commission has exercised its “broad and general rule-making” power. Hawkins. As stated by the First Circuit court in Strickland v. Office of the Governor, 525 So.2d 740, 748 (La.App. 1 Cir.1988), if that jurisdiction were not exclusive, the orderly fashion of resolving employer-employee related disputes would be disrupted if employees were allowed to forum shop between the Civil Service Commission and the courts. The general thrust of the exclusive jurisdiction grant is to preclude district courts from having concurrent jurisdiction with the Civil Service Commission over classified civil service employer-employee disputes that are essentially employment-related. Crockett v. State Through Department of Safety and Corrections, 97-2528 (La.App.1 Cir. 11/6/98), 721 So.2d 1081.

While appellants’ position is correct that the Civil Service Commission has no subject matter jurisdiction to award monetary judgments (such as in a tort action), it is apparent from the petition that the relief sought herein is not simply a money judgment, but an accounting for past-due wages and a declaration as to future wages of these current civil service employees. We find Hawkins, as cited 14by appellants, to be distinguishable. In Hawkins, the plaintiff brought an action under La. R.S. 23:631 for wages allegedly due after her discharge as a civil service employee. The court held that the issue of plaintiffs past-due wages did not fall within the exclusive jurisdiction of the Civil Service Commission because it was a money judgment that did not affect any aspect of the uniform classification and pay plan. In the instant case, we find by contrast that the allegations of appellants’ petition clearly establish that this case is an employment related matter involving the calculation of past-due and future overtime wages, sufficient to invoke the Civil Service Commission’s exclusive jurisdiction. In particular, paragraph eight of the petition seeks “an accounting and payment of time and one-half for all hours worked in excess of forty per week during the three years prior to institution of suit and for a declaration that they are entitled to be paid overtime wages equal to one and one-half times their regular pay for all hours worked over forty per week in the future ...” We find that the Civil Service Commission has exclusive jurisdiction to administer and regulate such matters pursuant to La. Const. Art. 10 sec. 10(A)(1).

For the reasons stated herein, we affirm the judgment of the trial court granting the exception of lack of subject matter jurisdiction.

AFFIRMED.


source: Caselaw Access Project

author: | .PICKETT, Judge.

license: Public Domain

text:
    Ben MORRISON, et al. v. C.A. GUIDRY PRODUCE, et al.
    No. 2003-307.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 1, 2003.

      Jacque Berchmans Pucheu, Jr., John Henri Pucheu, Pucheu, Pucheu, & Robinson, Eunice, LA, for Defendants/Appellees, C.A. Guidry Produce, Inc., Vivian Stelty Guidry, Dorian Guidry, C.A. Guidry House of Quality, Inc., Charlie Andrew Guidry, IV, Carl Guidry, Sophia Guidry Quebe-deaux, Cynthia Marie Guidry, Julie Marie Guidry, Debra Ann Guidry, Anthony Gui-dry, Jonathan Keith Guidry, Gerard Gui-dry, Vivian Guidry Taylor, Stephanie Gui-dry Richard, Andre Phillip Guidry.
    Lawrence Sandoz, Jr., Sandoz & Sandoz, Opelousas, LA, for Defendant/Appellee, Kevin Cade Guidry.
    Michele Smith Caballero, Milo A. Nickel, Nickel & Caballero Lake Charles, LA, for Plaintiff/Appellant, Cynthia Bridges.
    Court composed of OSWALD A. DECUIR, MICHAEL G. SULLIVAN, and ELIZABETH A. PICKETT, Judges.
   | .PICKETT, Judge.

FACTS

This case has appeared before us before, and the facts of this case were set out in an opinion by this court as follows:

On October 2, 1995, the State filed suit against C.A. Guidry Produce, Inc. to collect past due sales taxes for the years January 1, 1990 through June 31, 1993. The total assessment was for $363,777.99, together with interest, until paid. According to a state audit, C.A. Guidry Produce, Inc. had understated its tax obligation for the period by more than $198,000.00. At the time, C.A. Gui-dry Produce, Inc. was a closely held corporation with shareholders consisting of either Charles Andrew Guidry, Jr. alone, or he and his wife, Vivian Stelly Guidry.
On August 29, 1991, Charles Andrew Guidry, Jr. died. He was survived by Vivian Guidry and fourteen major heirs. On September 17, 1991, Charles Andrew Guidry, Jr.’s surviving spouse and heirs petitioned the court to open his succession. By judgment, dated January 27, 1992, the surviving spouse and heirs unconditionally accepted the succession, without benefit of inventory, and were placed in possession of the estate.
On August 17, 1993, Vivian Guidry, as president of the corporation, signed an agreement to suspend prescription as to the period January 1, 1990 through December 31, 1990 for one year. On October 5, 1994, Cynthia Marie Guidry, as Secretary of the corporation, executed another agreement to suspend prescription for an additional year.
On September 16, 1996, the State amended its petition to add a request for statutory attorney fees based on its referral of the matter to outside counsel for summary proceedings. The State again amended its petition on November 5, 1997, naming Vivian Stelly Guidry, Cynthia Marie Guidry, Kevin Cade Gui-dry, and Andre Phillip Guidry, individually, and as directors and officers of the corporation, as additional party defendants. In addition, since the decedent was a director, the State added the above named defendants and the remaining heirs as additional party defendants pursuant to La.R.S. 47:1561.1.
On December 9,1997, defendants filed an exception of prescription contending that the State had three years from the last date taxes were due to name the additional defendants. Again in January of 1998, the defendants urged an exception of prescription alleging that the cause of action for recovery of 1990-1991 taxes had prescribed.
| ¿The trial court granted the exceptions of prescription as to the individual heirs finding that prescription had run on both the 1990-1991 taxes and the 1992-1993 taxes. The court also found that the agreement to suspend prescription executed by the corporate officers did not bind the heirs individually and that the heirs were not solidary obligors. The state lodged this appeal contending that the trial court erred in finding that the heirs were not solidary obligors and in granting the exceptions of prescription.

Morrison v. C.A. Guidry Produce, Inc., 98-1688, p. 1-3 (La.App. 3 Cir. 3/31/99), 733 So.2d 119, 120-121.

This court reversed in part, affirmed in part, and remanded the case to the trial court. With regards to the 1990-1991 taxes, we found that Charlie A. Guidry, Jr.’s estate, and his heirs, were solidarity liable with the corporation for the taxes due, since during this period he was an officer or director of C.A. Guidry Produce, Inc., “who possessed significant responsibility for the tax-making decisions of that business entity.” State v. DeJesus, 94-261 (La.9/16/94), 642 So.2d 854, 857. Since the heirs accepted the succession without the benefit of inventory, interruption of prescription against an obligor was effective against the heirs to the extent of their virile share. Thus, the trial court’s grant of the exception of prescription for the 1990-1991 taxes was reversed.

On the issue of the 1992-1993 taxes, we found that the court had property granted the exception of prescription as to those heirs who had not served as officers or directors during those years. As the record was not clear on which heirs had served in such a capacity, the matter was remanded to determine that issue.

When the case was remanded, the following were still defendants in the law suit:

1. C.A. Guidry House of Produce, Inc. (named in original petition)
|g2. Vivian Stelly Guidry, wife of Charlie Andrew Guidry, Jr., as heir of Charlie A. Guidry, Jr., and as an officer of the corporation pursuant to La. R.S. 47:1561.1. (2nd Supp. and Amending Petition).
3. Cynthia Maria Guidry, Kevin Cade Guidry, and Andre Phillip Guidry, as heirs of Charlie A. Guidry, Jr., (with respect to the 1990-1991 liability) and as officers of the corporation (for the liability which arose in the years which they were officers).
4. Timothy Carl Guidry, Deborah Ann Guidry Fontenot, Jonathon Keith Guidry, Vivian Guidry Taylor, Stephanie Guidry Richard, Gerard Gui-dry, Anthony Guidry, Julia Mary Guidry, Sophia Guidry Quebedeaux, Charles Andrew Guidry IV, and Dorian Guidry, as heirs of Charlie A. Guidry, Jr., with respect to the 1990-1991 liability. (These 11, as well as Cynthia, Kevin, and Andre, in their capacity as heirs, will be referred to collectively hereinafter as the Guidry children.)

On remand, the state, now acting through Cynthia Bridges, the current Secretary of the Department of Revenue and Taxation, State of Louisiana, filed a Third Supplemental and Amending Petition. In it the state added as defendants Chad Pitre, the administrator of the Estate of Charlie Andrew Guidry, Jr., and C.A. Gui-dry House of Quality, Inc., a Louisiana corporation. The state alleges that the wife and heirs of Charlie A. Guidry, Jr., transferred the assets and goodwill of C.A. Guidry Produce, Inc., to C.A. Guidry house of Quality, Inc., in an attempt to avoid income tax liability. Further, the state named Vivian Stelly Guidry as a defendant yet again, claiming that the taxes owed are a community obligation that she owed to the state as the wife of Charlie A. Guidry, Jr. The state also claimed that all of the children were officers or directors of one or both of the corporations.

In response, the Guidry children, with the exception of Kevin Cade Guidry, answered and filed three Exceptions of Prescription. The first dealt with the claims related to the 1992-1993 tax obligation. The second asserted that none of them were officers or directors of C.A. Guidry Produce, Inc. The final exception argued that since the succession proceeding in which they had taken possession without the | ¿benefit of an inventory had been declared a nullity, they were not solidarity hable based on their status as legal heirs of Charlie A. Guidry, Inc. C.A. Guidry House of Quality, Inc., filed an Exception of Prescription and an Exception of No Cause of Action. They also asserted an Exception of Vagueness. Separately, Kevin Cade Guidry filed an Exception of Prescription, based on the same grounds as that filed by the other Guidry children. Kevin Cade Guidry also filed Exceptions of No Right of Action and No Cause of Action, claiming he did not receive any property of the succession of Charlie A. Guidry, Jr., and that he was never an officer or director of C.A. Guidry Produce, Inc., nor was he ever responsible for the payment of taxes for C.A. Guidry Produce, Inc.

A hearing was held on November 7, 2002, on the various exceptions. The trial court found merit in all of them, granted the exceptions, and all of the Guidry children and C.A. Guidry House of Quality, Inc. were dismissed. The trial court designated the judgment a final judgment and the state appeals.

ASSIGNMENTS OF ERROR

The state alleges one all inclusive assignment of error:

“The trial court erred in granting the defendants’ exceptions of prescription and no right/no cause of action.”

DISCUSSION

Standard of Review

This court enunciated the standard of review in an appeal on a peremptory exception in Egle v. Egle, 01-0927, p. 4 (La.App. 3 Cir. 2/6/02), 817 So.2d 136, 139:

When a peremptory exception is filed prior to trial, “it shall be tried and disposed of in advance of or on the trial of the case.” La.Code Civ.P. art. 929. The trial court is not bound to accept as true the plaintiffs allegations in the petition at such a trial. “When evidence is |,^introduced and evaluated in the trial court on a peremptory exception, the appellate court must review the entire record to determine whether the trial court manifestly erred with its factual conclusions.” Parker v. Buteau, 99-519, p. 3 (La.App. 3 Cir. 10/13/99); 746 So.2d 127, 129.

Prescription

When the peremptory exception of prescription is filed, the burden of proof is generally on the party pleading prescription. If, however, on the face of the pleadings it appears that prescription has run, the burden shifts to the plaintiff to prove an interruption or suspension of the prescriptive period. When the basis for the claim of suspension of prescription is soli-dary liability, the plaintiff must prove that the defendant is a solidary obligor. Younger v. Marshall Indus., Inc., 618 So.2d 866 (La.1993).

The state, having been successful on appeal to this court earlier, now urges us to reverse the trial court and sustain our original position on the issue of the suspension of prescription for the taxes owed in 1990-1991. As discussed, a key factor in this court’s decision was the Gui-dry children’s acceptance of the succession of Charlie A. Guidry, Jr., without benefit of inventory. Now, however, the succession proceeding in which the acceptance was made has been declared a nullity, since it was filed in St. Martin Parish, which did not have jurisdiction over the suit. See La.Code Civ.P. art. 2002(A)(2). The state admitted this fact in their Third Supplemental and Amending Petition. Thus, an operative fact upon which this court’s previous decision was based no longer exists, and the law of the case doctrine is not applicable. A new succession proceeding was brought in St. Landry Parish, but the record of that proceeding was not introduced at the hearing on the exceptions in the instant ease. Most of the heirs testified at the hearing, however, that they received nothing from their father’s estate, and on that basis the trial court held that they were |finot solidary obligors with respect to the 1990-1991 tax liability, and therefore prescription had not been interrupted with respect to them. They all testified that their mother had received all of the assets of the succession. Vivian Guidry, the widow of Charlie A. Guidry, testified likewise. This testimony, taken as true, establishes that the Guidry children were not solidary obligors with the corporation as heirs of Charlie A. Gui-dry, Jr. Prescription was not interrupted when the documents extending the prescriptive period were signed on behalf of the corporation, and the claim against the Guidry children in their capacity as heirs has prescribed. Only the Succession of Charlie A. Guidry, Jr., Vivian Guidry and any children who served as officers or directors of the corporation can be maintained as defendants.

The state has in this appeal made no claim that any of the children except Cynthia, Andre, and Kevin were officers or directors of the corporation. The state, in its brief, makes the following statement regarding the remaining eleven Guidry children:

With respect to the remaining heirs, there was tacit acceptance of the succession. All of the defendants took and transferred the assets and good will [sic] of C.A. Guidry Produce, Inc. to C.A Guidry House of Quality, Inc. which began using those assets to conduct an identical business for the defendants.

This statement is not supported in the record. Finding no manifest error in the trial court’s factual conclusions, we find that all the Guidry children were not soli-dary obligors as heirs of Charlie A. Gui-dry. Further, we find that Timothy Carl Guidry, Deborah Ann Guidry Fontenot, Jonathon Keith Guidry, Vivian Guidry Taylor, Stephanie Guidry Richard, Gerard Guidry, Anthony Guidry, Julia Mary Gui-dry, Sophia Guidry Quebedeaux, Charles Andrew Guidry IV, and Dorian Guidry were not | solidary obligors as officers or directors of C.A. Guidry Produce, Inc. Therefore, the state has failed to prove that prescription has been interrupted, and the trial court’s judgment upholding the exception of prescription and dismissing these defendants is affirmed.

Cynthia, Andre, and Kevin Guidry

To support the contention that Kevin was an officer of the corporation, the state entered into evidence the articles of incorporation of C.A. Guidry Produce, Inc. from 1988. In it, Kevin is listed as a Vice-President. He is listed in the same capacity on Domestic Corporation Annual Reports filed with the Secretary of State’s office in 1989, 1990, 1991, 1994, 1995, 1996, 1997, 1998, 1999, and 2000. In the 2001 report, his name is crossed off.

Kevin testified that he was not an officer of the company after 1989, but that he worked for the company as a buyer. He also testified that he had nothing to do with the payment of taxes. Also, as the trial court notes in its reasons for judgment, the minutes of the corporation list only Charlie A. Guidry, Jr., as an officer and director of the corporation at the time the taxes in the case were due.

While the trial court may have been incorrect in finding that Kevin was not an officer of the corporation, the state offered no evidence that he had any control over the payment of taxes. An officer or director can only be held liable for delinquent taxes of a corporation under La.R.S. 47:1561.1 if he “possessed significant responsibility for the tax-making decisions of that business entity.” State v. DeJesus, 94-261, p. 7 (La.9/16/94), 642 So.2d 854, 857. The state has not met its burden of proving that Kevin was a solidary obligor, and Kevin’s exception of prescription was properly sustained.

|sTo support the contention that Andre was an officer of the corporation, the state offered only the Articles of Incorporation of C.A. Guidry Produce, Inc., which listed Andre as a Vice-President. Andre was one of only two of the Guidry children who did not testify at the hearing. Nevertheless, the state offered no evidence that Andre ever had any responsibility for the tax decisions of the corporation in the years 1990-1993. Thus, the state has failed to prove that he is a solidary obligor, and the exception of prescription was properly sustained.

Cynthia is an accountant who prepared tax returns for C.A. Guidry Produce, Inc. She was not paid for this work. She has never been an officer or director of C.A. Guidry Produce, Inc. She is listed as an agent for service of process for the corporation. She also signed one of the two agreements with the state allowing the interruption of prescription for the company. But, under 47:1561.1, she cannot be held liable because she is not an officer or director of the company with tax-making authority, thus she is not a solidary obli-gor, and prescription was not interrupted. The trial court’s decision was correct.

C.A. Guidry House of Quality, Inc.

The state also claims that C.A. House of Quality, Inc. (House of Quality) should be held liable for the tax debt because it is a successor corporation of C.A. Guidry Produce, Inc. House of Quality was set up as a separate corporation after Charlie A. Guidry, Jr., died. It occupies the same buildings as C.A. Guidry Produce, but it rents the land from Vivian Guidry, who is the sole shareholder. There is other property that House of Quality rents from Vivian Guidry. Vivian testified that she got the money to purchase the equipment that she rents to House of Quality from the assets she previously rented Guidry Produce, which still exists as a corporation.

|flThe state says that these two corporations have “the same operations, facilities, goodwill, personnel and ownership.” Thus, House of Quality is responsible for the liabilities of Guidry Produce. The state cites Wolff v. Shreveport Gas, Electric Light & Power Co., 138 La. 743, 70 So. 789 (1916). In Wolff, a gas company transferred all of its property to a new corporation following an explosion. The court held that the original corporation and the successor corporation were both liable for the damage, and the injured person could recover from both. The court held that where assets are transferred from a Louisiana corporation to a Delaware corporation without the successor corporation assuming any of the obligations of the former corporation, and such transfer is to the detriment of the creditors of the corporation, and the same persons are the owners of both corporations, they both will be liable for the damages.

The issue before us is whether House of Quality is a “successor corporation” who has assumed the assets of Guidry Produce and has become solidarity liable for its debts. House of Quality’s sole shareholder is Vivian Guidry, who was a shareholder in Guidry Produce. Although it uses the same land and buildings, it rents these assets, it does not own them. House of Quality has many of the same customers as Guidry Produce. However, House of Quality has purchased new and separate equipment to operate the business. Considering the evidence as a whole, we agree with the trial court that House of Quality is not a successor corporation of C.A. Gui-dry Produce, Inc., and cannot be held soli-darily liable for the tax debt.

The state can collect the past due sales taxes from the following entities: C.A. Guidry Produce, Inc., which still exists, though it does not operate; Vivian Guidry, either in her capacity as an officer, co-owner, or director of Guidry Produce, and to|inthe extent that she received any property from the estate of her husband; and the succession of Charlie A. Guidry, Jr., which is still pending.

CONCLUSION

We find no error in the trial court’s rulings on the exceptions. The ruling of the trial court is affirmed.

AFFIRMED.


author: h SULLIVAN, Judge.

text:
    William P. CREWS, Jr. v. Hillard M. (Mitch) GRIFFITH.
    No. 03-322.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 1, 2003.
    Rehearing Denied Nov. 5, 2003.

      John B. Scofield, Phillip W. DeVilbiss, Scofield, Gerard, Veron, Singletary & Po-horelsky, Lake Charles, LA, for Third-Party Plaintiffs/Appellants, Hillard Griffith, Linda Sue Griffith.
    William C. Kaufman, III, Charles K. Watts, Seale, Smith, Zuber & Barnette, Baton Rouge, LA, for Third-Party Defendant/Appellee, Fidelity National Title Insurance Company.
    Court composed of OSWALD A. DECUIR, MICHAEL G. SULLIVAN, and ELIZABETH A. PICKETT, Judges.
   h SULLIVAN, Judge.

Hillard “Mitch” Griffith and Linda Sue Griffith (the Griffiths) appeal a summary judgment dismissing their third-party demand against Fidelity National Title Insurance Company (Fidelity National), which had assumed a title insurance policy on property owned by the Griffiths that was the subject of an earlier lawsuit. For the following reasons, we affirm.

Facts and Procedural History

In 1987, the Griffiths purchased 15.5 acres of property known as the “Pendleton Marina” adjacent to the Toledo Bend reservoir in Sabine Parish, Louisiana. At the time of the sale, the Griffiths also purchased a policy of title insurance covering the subject property from American Title Insurance Company (American Title), which company Fidelity National subsequently acquired. The property is traversed by two roads, named in 1997 as Merritt Mountain Road and Tom Sawyer Lane, that were depicted without names on a survey that was filed in the Sabine Parish conveyance records in 1983.

In 1995, Conrad Cathey, Judy Cathey, and other individuals (collectively the Catheys) purchased property adjacent to the Griffiths’ land for the purpose of developing a subdivision. It is undisputed that the Catheys’ property is an enclosed estate. In March of 1998, the Griffiths sued the Catheys, seeking a permanent injunction prohibiting them from trespassing on the Pendleton Marina roads and a declaratory judgment as to the legal status of the roads. The trial court in that suit found that the roads were privately owned, but that they had become subject to public use through thirty years acquisitive prescription. On appeal of that ruling, this court disagreed with the trial court’s finding as to acquisitive prescription, holding instead that the Catheys, as the owners of an enclosed estate, were entitled to a right of | ¡.passage over the Griffiths’ property under La.Civ.Code art. 689. That judgment is now final. See Griffith v. Cathey, 99-923 (La.App. 3 Cir. 2/2/00), 762 So.2d 29, writ denied, 00-1875 (La.10/6/00), 771 So.2d 85.

The current litigation arose when William Crews, Jr., the attorney who represented the Griffiths in the previous suit, filed suit to recover his legal fees. The Griffiths then filed a third-party demand against Fidelity National, alleging that the American Title policy it had assumed provided coverage for their claim against the Catheys. In the third-party demand, the Griffiths sought recovery for reduction in property value; costs, expenses, and attorney fees incurred in both suits; and damages, penalties, and attorney fees for breach of Fidelity National’s obligations to its insureds under La.R.S. 22:658 and La. R.S. 22:1220.

The Griffiths eventually paid Mr. Crews the fees he sought in the main demand, leaving only their third-party demand against Fidelity National at issue. After a hearing, the trial court granted Fidelity National’s motion for summary judgment, finding that its policy did not provide coverage for the Catheys’ right of passage, as that predial servitude was not “of record” when the policy was issued.

Discussion

Appellate courts review summary judgments de novo, applying the same criteria as the trial court in determining whether a summary judgment is appropriate. Schroeder v. Bd. of Supervisors of La. State Univ., 591 So.2d 342 (La.1991). Under La.Code Civ.P. art. 966(B), the mover is entitled to judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the | ¡¡affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.”

The Griffiths argue that the policy provides coverage for their claim against the Catheys because it involves “[l]oss or damage ... costs, attorneys’ fees and expenses ... sustained or incurred by the insured by reason of: ... any defect in or hen or encumbrance on such title.” In denying coverage, Fidelity National has consistently relied on the exclusion: “This policy does not insure against loss or damage by reason of the following: ... Roads, ways, streams, or easements, if any, not shown of record.... ”

In well-written reasons for judgment, the trial court noted that the roads on the property “had never been declared or dedicated to public use” and that “there is no evidence that a servitude of passage had ever been established over these roads by an act translative of title per C.C. art. 722.” The trial court further commented that the mere filing of the survey in 1983 did not establish a public record or a servitude. Concerned that any other interpretation would require examining attorneys to know of unrecorded servitudes or to anticipate future events, the trial court concluded that Fidelity National’s policy did not provide coverage “because those servitudes were not ‘of record’ at the time of the title opinion.”

The Griffiths argue that the trial erred in not considering the Catheys’ physical intrusions on the property, as well as their claim that the roads were owned by the public, as “encumbrances” covered by the policy. They further argue that the trial | ¿court erred in reading into the policy a provision that it does not cover defects or encumbrances not observable by a title examiner prior to the issuance of the policy-

We disagree. Without expressly articulating such, the trial court essentially applied the exclusion that the policy does not provide coverage for “[rjoads, ways, streams, or easements, if any, not shown of record.... ” (Emphasis added.) Although the parties expended much effort debating whether the “roads” were “of record,” the trial court focused instead on the legal basis for the Catheys’ use of the roads, ie., their right of passage over the Griffiths’ property to the nearest public road. One definition in Black’s Law Dictionary (5th ed.1979) of “easement” is “[a] right in the owner of one parcel of land, by-reason of such ownership, to use the land of another for a special purpose not inconsistent with a general property in the owner.” In Humble Pipe Line Co. v. Wm. T. Burton Industries, Inc., 253 La. 166, 217 So.2d 188 (1968), the court recognized that “[a] ‘servitude’ is the term used in the civil law to express the idea conveyed by the word ‘easement’ in the common law.” Id. at 192 (quoting 25 Am.Jur.2d Easements and Licenses, Sec. 1) (emphasis added). Although much has been written distinguishing the terms, we find that the only reasonable interpretation of the exclusion is that it applies to a servitude such as the Catheys’. Otherwise, as the trial court predicted, the reliability of all title opinions in Louisiana would be undermined.

The Griffiths also argue that Fidelity National at least had an obligation to defend them against the Catheys’ claims and that Fidelity National arbitrarily and capriciously denied their claim without conducting a meaningful investigation.

In American Home Assurance Co. v. Czarniecki, 255 La. 251, 230 So.2d 253, 259 (1969) (citation omitted), the supreme court explained:

[T]he insurer’s duty to defend suits brought against its insured is determined by the allegations of the injured plaintiffs petition, with the insurer being obligated to furnish a defense unless the petition unambiguously excludes coverage.
Thus, if assuming all the allegations of the petition to be true, there would be both (1) coverage under the policy and (2) liability to the plaintiff, the insurer must defend the insured regardless of the outcome of the suit. Additionally, the allegations of the petition are liberally interpreted in determining whether they set forth grounds which bring the claims within the scope of the insurer’s duty to defend the suit brought against its insured.

Although the duty to defend is greater in scope than the duty to pay damages, “if it is clear that the allegations of the plaintiffs petition refer only to acts or omissions that are excluded from coverage under the terms of the policy, then the insurer owes no duty to defend.” Duhon v. Nitrogen Pumping & Coiled Tubing Specialists, Inc., 611 So.2d 158, 160 (La.App. 3 Cir.1992) (emphasis added).

In their petition for intervention in the previous suit, parties aligned with the Catheys alleged that the two roads on the Griffiths’ property were part of the Sabine Parish public road system, having been used by the public for “many, many years” and having been designated as public roads on “numerous public maps.” In the alternative, the intervenors also sought recognition of their right of passage, should the roads not be considered public. In finding these allegations did not trigger a duty to defend, the trial court stated:

[I]s an examiner of title bound to know what “numerous public maps” reveal in the absence of an actual public record establishment of the public road or servitude of passage? ... The phrases [sic] “of record” cannot be read so broadly as to include all vehicle travel paths that appear on every survey filed in the conveyance records. In this case, the travel path is a clearly defined paved (at least in part) road. The |fiGriffiths are seeking insurance against the prospective determination of the character of the road. That is not the purpose of title insurance.
Fidelity did not provide coverage for servitudes of passage established either by virtue of acquisitive prescription or because of an enclosed estate because those servitudes were not “of record” at the time of the title opinion. Nor were there allegations of a defective title examination that would trigger Fidelity’s duty to defend the Griffiths.

(Emphasis added.)

We agree with the trial court that the intervenors’ allegations fall within the policy’s exclusion; therefore, summary judgment was appropriately granted.

Decree

For the above reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Hillard and Linda Griffith.

AFFIRMED.

      . Louisiana Civil Code Article 689 provides: "The owner of an estate that has no access to a public road may claim a right of passage over neighboring property to the nearest public road. He is bound to indemnify his neighbor for the damage he may occasion.”

      . Louisiana Civil Code Article 722 provides: "Predial servitudes are established by all acts by which immovables may be transferred. Delivery of the act of transfer or use of the right by the owner of the dominant estate constitutes tradition.”

      . Black's Law Dictionary (5th ed.1979) explains that " 'servitude' rather has relation to the burden or the estate burdened, while 'easement' refers to the benefit or advantage or the estate to which it accrues.”


author: | .THIBODEAUX, Judge.

text:
    NORTH AMERICAN FIRE & CASUALTY CO., v. STATE FARM MUTUAL AUTO INS. CO., et al.
    No. 03-300.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 1, 2003.
    Rehearing Denied Nov. 5, 2003.

      Jackson Burke Bolinger, Lafayette, LA, for Defendant/Appellee, State Farm Mutual Auto Ins. Co.
    Stephen Robert Barry, Lafayette, LA, for Defendant/Appellee, Brittany Smith.
    James Paul Doherty, Andrus & Doherty, Opelousas, LA, for Plaintiff/Appellant, North American Fire & Casualty Co.
    Court composed of ULYSSES GENE THIBODEAUX, SYLVIA R. COOKS, and BILLY HOWARD EZELL, Judges.
   | .THIBODEAUX, Judge.

North American Fire and Casualty Insurance Company (North American) appeals the judgment of the trial court granting summary judgment in favor of State Farm Automobile Insurance Company (State Farm) and its insured, Brittany M. Smith, who caused property damage as a result of an automobile accident. North American insured the mortgage holder of the uninsured vehicle. The mortgage holder, First Federal Savings & Loan (First Federal), had purchased a policy to protect its interest in the property in the event of property damage. The trial court found that La.R.S. 32:866, the “no pay, no play” statute precluded North American from recovering when the owner/operator of the vehicle involved in the accident did not maintain the minimum amount of automobile liability coverage. For the following reasons, we affirm the judgment of the trial court.

I.

ISSUE

The issue in this case is whether North American, as the insurer of the company that holds the mortgage on a vehicle, operated by Jason Peloquin and damaged in an accident through the fault of Smith, is precluded from recovery pursuant to La. R.S. 32:866, the “no pay, no play” statute, where Peloquin failed to maintain the minimum amount of liability insurance.

II.

FACTS

There is no question that on December 24, 2001 Peloquin, the owner of a 1995 Pontiac Firebird, collided with a vehicle operated by Smith. It is also admitted that Peloquin did not have the required liability insurance or property damage | ¿insurance on his vehicle. Smith was covered by a policy of insurance issued by State Farm. The Peloquin vehicle was damaged in the amount of $6,300.00. First Federal financed the purchase of the Pelo-quin vehicle under a loan agreement in the amount of $9,708.00. As part of the financing package, First Federal required a “Vendor’s Single Interest Insurance Policy.” North American underwrote that policy. The policy provided that Peloquin was the borrower of the funds and that First Federal was Peloquin’s creditor and North American’s insured. It also provided for the description of the vehicle, the amount financed as well as the amount of the premium.

After the accident, State Farm, Smith’s insurer, refused to pay Peloquin any damage amount on behalf of Peloquin because he failed to maintain the mandatory minimum liability coverage on his vehicle. Louisiana Revised Statutes 82:866 states that a person who does not maintain the mandatory liability coverage could not recover the first $10,000.00 in damages. In the present case, the damages were less than $10,000.00; thus, there was no recovery.

Because Peloquin could not recover damages from the tortfeasor, First Federal made a claim against North American under its Vendor’s Single Interest Insurance Policy for the damages of $6,300.00. In connection with First Federal’s claim against it, North American paid the damages. Thereafter, North American filed a suit against Smith and State Farm to recover the $6,300.00 it paid to First Federal. Smith and State Farm denied North American’s entitlement to recover any sums it paid to First Federal. Smith and State Farm filed a motion for summary judgment alleging that North American stood in the shoes of Peloquin and is bound by the provisions of La.R.S. 32:866 and therefore should not be allowed to recover the first $10,000.00 in damages the Pelo-quin vehicle sustained from the accident caused by Smith.

13Finding that North American was a subrogee of Peloquin, the trial court granted State Farm and Smith’s motion for summary judgment and dismissed North American’s claims because Peloquin had not complied with the provisions of La.R.S. 32:866.

III.

LAW AND DISCUSSION

Summary Judgment

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact in dispute. Sanders v. Ashland Oil, Inc., 96-1751 (La.App. 1 Cir. 6/20/97), 696 So.2d 1031, writ denied, 97-1911 (La.10/31/97), 703 So.2d 29. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966 B. Summary judgment is favored and “is designed to secure the just, speedy, and inexpensive determination of every action.” La.Code Civ.P. art. 966 C(2).

The burden of proof on a motion for summary judgment is set forth in La.Code Civ.P. art. 966 C(2):

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

^Initially, the burden of going forward remains with the moving party and is not shifted to the non-moving party until the moving party has properly supported the motion. Only then must the non-moving party “submit evidence showing the existence of specific facts establishing a genuine issue of material fact.” See Scott v. McDaniel, 96-1509, p. 5 (La.App. 1 Cir. 5/9/97), 694 So.2d 1189, 1191-92, writ denied, 97-1551 (La.9/26/97), 701 So.2d 991. Failure by the non-moving party to submit such evidence negates the existence of material facts at issue and summary judgment should be granted. La.Code Civ.P. arts 966 and 967.

In determining whether summary judgment is appropriate in a case on appeal, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Succession of Granger v. Worthington, 02-133 (La.App. 3 Cir. 10/30/03), 829 So.2d 1108. It is the applicable substantive law that determines materiality of a fact; thus, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Rener v. State Farm Mut. Auto Ins. Co., 99-1703, (La.App. 3 Cir. 4/5/00), 759 So.2d 214.

Louisiana Revised Statutes 32:866 (“No pay, no play”)/La.Civ.Code art. 2315:

Throughout this litigation, State Farm has maintained that pursuant to La. R.S. 32:866, plaintiff, North American, as insurer of First Federal, the company that held the mortgage on Peloquin’s car, is not entitled to recovery because Peloquin failed to maintain the minimum amount of insurance. State Farm and Smith contend that the only cause of action North American has against them are the rights that Peloquin has against them. Louisiana Revised Statutes 32:866 provides in pertinent part:

| ¡A- (1) There shall be no recovery for the first ten thousand dollars of bodily injury and no recovery for the first ten thousand dollars of property damage based on any cause or right of action arising out of a motor vehicle accident, for such injury or damages occasioned by an owner or operator of a motor vehicle involved in such accident who fails to own or maintain compulsory motor vehicle liability security.

(Emphasis added).

Peloquin has no cause of action against State Farm and Smith because he failed to maintain the proper insurance coverage on his vehicle. Thus, North American has no cause of action against Smith and State Farm.

North American, on the other hand, argues that it is not asserting Pelo-quin’s rights against State Farm and Smith, but the rights that First Federal had against Smith as the tortfeasor and State Farm as her insurer. It is clear that North American maintains that First Federal has a separate and distinct cause of action against Smith and her insurer, State Farm, from the cause of action that Pelo-quin may have had against Smith, who caused the damages in this action. North American asserts two bases of its subrogation to First Federal’s rights against State Farm and Smith. First, it maintains that its cause of action against State Farm and Smith results from its policy of insurance with First Federal by conventional subro-gation. Second, North American contends that its claims of subrogation to the rights of First Federal are also based on La.Civ. Code art. 2315, the Civil Code Article that obliges every man whose fault causes damage to another to repair that damage. We disagree with North American’s contentions.

There is no dispute in this case with respect to the facts of this case and the fault of the respective parties involved in the accident. North American’s claim that it is subrogated to First Federal’s rights because it issued a policy of insurance to First Federal and paid First Federal’s claim does not abrogate North American’s | fineed to prove the rights that First Federal had against State Farm and the tort-feasor. There is no question that First Federal was damaged in that it lost the value of the collateral that supported the loan it made to Peloquin to purchase the car. However, there is no evidence that there was a contract between State Farm, Smith or Peloquin, giving First Federal any rights to recover from a tortfeasor who damaged the vehicle if Peloquin was not at fault and failed to maintain the compulsory Lability insurance. In fact, that is the reason First Federal sought its own protection from such a case by procuring insurance from North American.

North American relies on La.Civ. Code art. 2315 to argue that the Article somehow gives First Federal a right to make a claim against State Farm and Smith because Smith’s fault caused damage to its property. This reliance is misplaced. To recover against a defendant in a negligence action under La.Civ.Code art. 2315, the duty/risk analysis compels the plaintiff to prove (1) duty; (2) breach of duty; (3) cause-in-fact; (4) scope of liability or scope of protection; and, (5) damages. Bullara v. Checker’s Drive-In Restaurant, Inc., 98-1331 (La.App. 3 Cir. 3/3/99), 736 So.2d 936. From our reading of the record, we are unable to discern any evidence or policy considerations put forth by North American that show State Farm or Smith had a duty to protect First Federal from the possibility that the person to whom it lent money to purchase a vehicle, would fail to maintain the proper liability insurance on that vehicle, thereby precluding the recovery of the first $10,000.00 in property damage. Therefore, even if we were to conclude that North American is subrogated to the rights of First Federal, we find that First Federal had no rights against State Farm and Smith to which North American could be subrogated.

JiV.

CONCLUSION

For the above reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed against the plaintiff-appellant, North American Fire and Casualty Insurance Company.

AFFIRMED.


author: hDECUIR, Judge.

text:
    Yong TURNER v. SOUTHWEST LOUISIANA HOSPITAL ASSOCIATION, et al.
    No. 03-0237.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 1, 2003.
    Rehearing Denied Nov. 5, 2003.

      Richard B. Cappel, Raggio, Cappel, Chozen & Berniard, Lake Charles, LA, for Defendants, St. Paul Fire & Marine Ins. Co., Dr. David Drez.
    M. Keith Prudhomme, Lundy & Davis, L.L.P., Lake Charles, LA, for Defendant/Appellant, Louisiana Patients’ Compensation Fund.
    Randall Scott lies, Attorney at Law, Lafayette, LA, for Defendant, John B. Blackmon, Sr.
    Benjamin Joseph Guilbeau, Stockwell, Sievert, Viccellio, Lake Charles, LA, for Defendants, Southwest Louisiana Hospital Association, Judith Murray.
    Jeffery Wade McDonald, Attorney at Law, New Orleans, LA, for Plaintiff/Appel-lee, Yong Turner.
    Court composed of OSWALD A. DECUIR, MICHAEL G. SULLIVAN, and ELIZABETH A. PICKETT, Judges.
   hDECUIR, Judge.

This medical malpractice action against the Louisiana Patient’s Compensation Fund stems from one of two consolidated suits filed by the divorced parents of John Blackmon, Jr., a minor child who died following shoulder surgery in May of 1997. During the course of the litigation, one health care provider paid the maximum amount of his liability exposure in settlement of the plaintiffs’ claims, and the Fund paid $250,000.00 to John Blackmon, Sr. in settlement of his claims. The Fund appeals a $400,000.00 judgment rendered in favor of Yong Turner, the decedent’s mother, after a jury assessed damages at $10,000,000.00. Finding legal error, we amend the judgment rendered below, and as amended, affirm.

John Blackmon, Jr. injured his right shoulder at school in the winter of his sophomore year at East Beauregard High School. He was initially treated by a physician in DeRidder who then referred him to Dr. David Drez, a Lake Charles orthopedic surgeon. After physical therapy was unsuccessful, Dr. Drez recommended shoulder stabilization surgery to correct what he diagnosed as a recurrent traumatic anterior dislocating right humeral head. The recommended procedure was to be scheduled as outpatient surgery when the school year ended. Although the surgery was considered minor, John Blackmon, Sr. arranged his work schedule so that he could be home from Saudi Arabia when his son’s surgery was to take place. Yong Turner offered to travel from El Paso to Lake. Charles for the surgery, but her son persuaded her not to make the trip.

On the day of the surgery, Blackmon’s step-mother accompanied him to the hospital while his father tended to their farm animals. After a lengthy delay, the procedure began and turned out to be quite an extensive surgery. It was successful, however, and the operative report states that Blackmon was sent to the recovery room | ?in “excellent condition.” Because of the late hour, Dr. Drez decided to keep Black-mon in the hospital overnight. John Blackmon, Sr. testified his son was in good spirits when they visited in his room that evening. The family drove home to Pitkin for the night, planning to return to the hospital early the next morning to take Blackmon home.

During the night, Blackmon was given Dilaudid for pain, a medication which had been ordered by Dr. Drez to be administered every three hours as needed for pain. The nurse on duty, Judy Murray, gave Blackmon two milligrams at 12:30 a.m. and four milligrams at 8:30 a.m., both doses within the amount ordered by Dr. Drez. At 4:20 a.m., Nurse Murray noted Blackmon was resting peacefully, but the notes then indicate at 5:57, the patient was “found unresponsive.” Resuscitation efforts were started immediately. Dr. Drez was called, and he and a team of medical professionals continued the resuscitation procedures. Their attempts were unsuccessful, and Blackmon was pronounced dead at 7:44 a.m.

The medical records submitted into evidence indicate the cause of death is unknown. The pathologist who conducted an autopsy was unable to determine the cause of death. However, the plaintiffs allege the medical review panel convened in this matter found the actions of the hospital, Dr. Drez, and Nurse Murray more likely than not caused the death of the decedent. The evidence contains inferences and allegations that Blackmon perhaps may have been given too much medication for his age and size, was improperly monitored by the nursing staff, or may have even been the victim of a mix up in the hospital charts. None of these suggestions was proven because Dr. Drez admitted liability by paying $100,000.00 to the plaintiffs in settlement of their claims. The settlement was made pursuant to La. R.S. 40:1299.44, which provides in part that payment by a health care provider of the maximum ^amount of his liability exposure establishes that the patient is a victim of that health care provider’s malpractice. Stuka v. Fleming, 561 So.2d 1371 (La.1990).

The Fund’s liability under the statute is admitted and established for any excess damages “emanating from the original apparent consequences or harm from the medical malpractice.” Bijou v. Alton Ochsner Med. Found., 95-3074, p. 6 (La.9/5/96), 679 So.2d 893, 896. The Bijou court described such harm as “original or primary harm,” which was limited to “damages that are encompassed by the health care provider’s duty not to commit medical malpractice, and which directly result from the health care provider’s breach of duty or medical malpractice.” Id. In the present case, the harm to the decedent was death. By virtue of Dr. Drez’s payment of $100,000.00, the limit of his liability exposure, Dr. Drez is statutorily deemed to have admitted liability for Blackmon’s death.

In their original petitions, the plaintiffs named as defendants not only Dr. Drez but also the hospital and Nurse Murray. When they settled with Dr. Drez, they dismissed the remaining defendants. At the trial for excess damages against the Fund, the trial court refused to allow the Fund to present evidence of negligence or fault on the part of the hospital or the nursing staff. The Fund contends the trial court’s ruling was in error. We find, however, the evidentiary ruling was correct. In Stuka, the court concluded that the Fund is precluded from raising the issue of the fault of any health care provider when one has paid in settlement the maximum amount of his liability exposure. The court reasoned:

We recognize that this literal interpretation of the statute affords less rights to the Fund when claims against multiple health care providers are settled than when such claims are tried. In the case of a trial the Fund has the opportunity for reduced exposure when more than one health care provider is determined to be liable. But in the case of a settlement with one health care provider for $100,000 the Fund does not have this opportunity in the subsequent litigation with the victim. However, the Legislature chose in cases of settlement simply to declare |4the admission of liability by the $100,000 payment of one health care provider and did not provide for the Fund’s affirmative right to litigate liability on the part of any other named or unnamed health care providers.

561 So.2d at 1374. See also, Graham v. Willis-Knighton Med. Ctr., 97-0188 (La.9/9/97), 699 So.2d 365; Bijou.

The Fund contends the ruling of Stuka has been compromised by recent jurisprudence which has indicated the Fund may offer proof of victim or third party fault in a trial for excess damages. Indeed, the supreme court very recently handed down the case of Hall v. Brookshire Bros., Ltd., 02-2404, 02-2421 (La.6/27/03), 848 So.2d 559, which held that in a trial against the Fund for excess damages, evidence that victim or third party fault caused any portion of the damages “is clearly relevant and admissable.” Id., 848 So.2d at 568. In Hall, the third party was a pharmacist who was not a qualified health care professional under the malpractice act, and the victim herself was alleged to be partially at fault. In describing potential third parties, the Hall court specifically referred to the statutory listing of “a non-covered health care provider or a product manufacturer” found at La. R.S. 40:1299.44(D)(2)(b)(x), which provides authority for the Fund to seek indemnity or reimbursement from such parties. The Hall case originally included, as did the instant ease, two qualified health care professionals who were dismissed by the plaintiffs after their settlement with another physician. The Fund in Hall made no attempt to prove malpractice or fault on the part of the two dismissed health care professionals. The trial court, however, allowed the Fund to present evidence on the fault of the pharmacist and the victim, and this ruling was affirmed by the supreme court.

Conversely, the Fund in the case sub judice seeks to prove the fault of the hospital and its nursing staff. This is proee-durally identical to Stuka, where the plaintiffs dismissed the remaining defendants who were qualified health care ^professionals and proceeded to trial solely against the Fund for their damages. Stuka held the Fund was prohibited from asserting the fault of the dismissed parties, inferring that this reduction in the plaintiffs burden of proof was the legislature’s attempt to balance the myriad constraints, both procedural and substantive, on a medical malpractice claimant’s cause of action under the malpractice act. See also Graham, (Calogero, C.J. dissenting); Recent Developments, 72 Tul. L.Rev. 1431 (1998). More recently, the legislature has now barred the Fund from asserting claims for contribution against qualified health care professionals under circumstances such as that presented herein in its amendment to La.R.S. 40:1299.44(C)(5). Accordingly, |Rwe find the well reasoned and established rationale of Stuka controlling in the case before us.

The Fund also questions the trial court’s award of $400,000.00 to Mrs. Turner, an amount which, when combined with the Fund’s payment of $250,000.00 to Blackmon’s father, exceeds the $500,000.00 statutory cap on medical malpractice damages. The Fund contends the trial court should have awarded $150,000.00, reflecting credit for the Fund’s settlement with the father and the physician’s settlement with both parents. Mrs. Turner argues her damages are subject to a separate cap from the decedent’s father’s damages because their claims are personal to each of them and each is independent from the other. She also contends the Fund should not have the right to decide the value of each plaintiffs claim when there is a limited amount to be distributed among multiple plaintiffs.

The medical malpractice act contains the following limitation on damages:

§ 1299.42. Limitation of recovery
B. (1) The total amount recoverable for all malpractice claims for injuries to or death of a patient, exclusive of future medical care and related benefits as provided in R.S. 40:1299.43, shall not exceed five hundred thousand dollars plus interest and cost.

^Interpreting this provision, this circuit has previously determined that a single $500,000.00 cap applies collectively to all claims which flow from one act of malpractice resulting in a victim’s injury or wrongful death. See Todd v. Sauls, 94-10 (La.App. 3 Cir. 12/21/94), 647 So.2d 1366, writs denied, 95-206, 95-0219 (La.3/24/95), 651 So.2d 289, where the decedent’s surviving spouse and seven adult children shared in wrongful death damages limited to $500,000.00. Other circuits have reached the same conclusion: Moody v. United Nat. Ins. Co., 95-1 (La.App. 5 Cir. 5/10/95), 657 So.2d 236, writ denied, 95-2063, 95-2085 (La.11/17/95), 663 So.2d 713; LaMark v. NME Hospitals, Inc., 542 So.2d 753 (La.App. 4 Cir.1989), writ denied, 551 So.2d 1334 (La.1989). See also The Medical Malpractice Damages Cap, 60 La. L.Rev. 547 (2000). We are persuaded neither by the action of the trial court nor by Mrs. Turner’s arguments to disturb this well established principle articulated in both our statutory law and jurisprudence. Accordingly, the damages awarded to Yong Turner must be reduced to $150,000.00.

We address briefly the Fund’s remaining assignments of error raised in this appeal. First, the Fund contends the trial court erred in failing to grant a continuance requested because of the unavailability of the Fund’s expert witness. This witness was to give his opinion on the cause of death; he was unable to attend trial because of illness. In response, Mrs. Turner contends the trial had been continued on three previous occasions, and she notes the Fund made no effort to secure the out-of-court testimony of the witness. Indeed, the Fund chose to retain an expert witness from Georgia; given the uncertainty of litigation schedules, it would have been prudent for the Fund to depose its expert prior to trial or arrange for electronic testimony when it was learned the witness could not travel. Our review of the proceedings reveals no error in the denial of a continuance under these circumstances.

| sThe Fund next argues the trial court erred in striking the testimony of three witnesses who were to testify regarding liability. Following the rule of Stu-ka and its progeny, the trial court granted the plaintiffs’ motion in limine, finding the issue of liability irrelevant in this trial on damages. As we have previously determined, the trial court was correct in limiting this trial to a determination of damages in excess of $100,000.00. Liability was not at issue. Accordingly, we find no error in this evidentiary ruling.

The Fund contends the trial court improperly admitted into evidence certain photographs of the decedent and two works of art he had produced a short while before his untimely death. The items complained of were not disclosed to the Fund’s attorneys as required by the court’s pre-trial order and were not produced in discovery. While we certainly do not condone the admission of evidence which has not been shared with opposing counsel prior to trial, we believe the offerings, two childhood photos of the decedent and two drawings by him, were not prejudicial to the Fund, and their admission constitutes harmless error.

Finally, we find no merit to the Fund’s contention that the trial court improperly commented on the evidence by answering the jury’s question, posed during deliberations, as to whether Mrs. Turner had any other pending lawsuits. The trial judge answered the question in the negative, stating that he was not aware of any pending lawsuits. The Fund did not object to the court’s proposed answer. We do not find the court’s response to constitute an improper comment on the evidence.

For the above and foregoing reasons, the judgment of the trial court is amended to award damages in favor of Yong Turner and against the Louisiana Patient’s Compensation Fund in the amount of $150,000.00. In all other respects, the judgment |9of the trial court is affirmed. Costs of this appeal are assessed to the Louisiana Patient’s Compensation Fund.

AFFIRMED AS AMENDED.

      . 2003 La. Acts No. 882 provides in part:
      (b) The board shall not be entitled to file a suit or otherwise assert a claim against any qualified health care provider as defined in R.S. 40:1299.41(a)(l) on the basis that the qualified health care provider failed to comply with the appropriate standard of care in treating or failing to treat any patient.
      (c) The board may apply the provisions of Civil Code Article 2323 or 2324, or both, to assert a credit or offset for the allocated percentage of negligence or fault of a qualified health care provider provided at least one of the following conditions is met:
      (i)A payment has been made to the claimant by, in the name of, or on behalf of the qualified health care provider whose percentage of fault the board seeks to allocate.
      (ii) A payment has been made to the claimant by, in the name of, or on behalf of another qualified health care provider in order to obtain a dismissal or release of liability of the qualified health care provider whose percentage of fault the board seeks to allocate, provided that there shall be no separate credit or offset for the fault of an employer or other vicariously liable entity who was not independently negligent or otherwise at fault and who makes a payment in order to obtain a dismissal or release of liability of a single qualified health care provider for whom the payor is vicariously liable.
      (iii) All or a portion of a payment made by another qualified health care provider, by the insurer of another qualified health care provider, or by the employer of another qualified health care provider has been attributed to or allocated to the qualified health care provider whose percentage of fault the board seeks to allocate, provided that there shall be no separate credit or offset for the fault of an employer or other vicariously liable entity who was not independently negligent or otherwise at fault and who makes a payment in order to obtain a dismissal or release of liability of a single qualified health care provider for whom the payor is vicariously liable.
      (iv) A medical review panel has determined that the qualified health care provider whose percentage of fault the board seeks to allocate failed to comply with the appropriate standard of care and that the failure was a cause of the damage or injury suffered by the patient, or a medical review panel has determined that there is a material issue of fact, not requiring expert opinion, bearing on liability of the qualified health care provider whose percentage of fault the board seeks to allocate for consideration by the trier of fact.
      (v) The qualified health care provider does not object within thirty days after notice of the board's intention to allocate the health care provider’s percentage of fault is delivered via certified mail to the plaintiff, the qualified health care provider, and the qualified health care provider’s professional liability insurer or to their attorneys.
      (vi)The court determines, after a hearing in which the qualified health care provider whose percentage of fault the board seeks to allocate shall be given an opportunity to appear and participate, that there has been collusion or other improper conduct between the defendant health care providers to the detriment of the interests of the fund.
      (d) Except where the sum of one hundred thousand dollars has been paid by, in the name of, or on behalf of the qualified health care provider whose percentage of fault the board seeks to allocate, in any case in which the board is entitled pursuant to the provisions of Civil Code Article 2323 or 2324, or both, to assert a credit or offset for the allocated percentage of negligence or fault of a qualified health care provider, the board shall have the burden of proving the negligence or fault of the qualified health care provider whose percentage of fault the board seeks to allocate.


author: 11 GLENN B. GREMILLION, Judge.

text:
    William Henry SANDERS v. Jesse MOFFETT.
    No. 2003231.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 1, 2003.
    William Henry Sanders, J. Christopher Peters, Jena, LA for Plaintiff/Appellee, William Henry Sanders.
    Robert G. Nida Gold, Weems, Bruser, etc., Alexandria, LA, for Defendani/Appel-lant, Jesse V. Moffett, Jr.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and GLENN B. GREMILLION, Judges.
   11 GLENN B. GREMILLION, Judge.

The defendants, Jesse and Evelyn Mof-fett, appeal the judgment of the trial court granting summary judgment in favor of the plaintiffs, William and Bessie Sanders and Margaret Otwell (Sanders), and setting the boundary between their properties as determined by the Sanders and Otwell surveyor. For the following reasons, the judgment of the trial court is reversed and the matter is remanded for further proceedings.

FACTS

This matter began as a boundary action brought by Mr. Sanders against Mr. Mof-fett, concerning property owned by Mrs. Sanders, which is contained within the Charles McBride Riquet 39, Township 8 North, Range 3 East, lying within the fork made by the junction of Hemphill and Hair Creeks, in LaSalle Parish, Louisiana, known more particularly as the “forks in the creek field.” Mr. Sanders’ petition was later amended pursuant to court order to add his wife, Mrs. Sanders, and her mother, Otwell, as plaintiffs, and Mrs. Moffett, as a defendant in this suit.

The issue in this matter is the location of the eastern boundary of the Charles McBride Riquet, which is also the western boundary of Mr. Moffett’s property, which is located in Section 29, Township 8 North, Range 3 East. The official government survey of Township 8 North, Range 3 East was performed in November 1883 and approved by the Surveyor General’s Office on June 9,1884. The field notes of George Bradford, the government surveyor in 1883, states that the east boundary of the Charles McBride Riquet followed the general meanders of the right bank of Hemp-hill Creek. Both parties have proven title to their respective ^properties, and neither is claiming ownership of property located in their neighboring section.

In their petition, the Sanders alleged facts showing that the east prong of Hemphill Creek, a/k/a Hair Creek, was as “crooked as a snake,” and that it was straightened by the governing body of La-Salle Parish in 1929-30, in an attempt to control flooding above the property. As a result of this action, the east prong of Hemphill Creek was moved to its present day location, west of its original course. The alteration of the creek’s channel has resulted in this boundary action pertaining to the “forks in the creek field,” since the Sanders allege that the field, although now located east of Hemphill Creek, is still within the Charles McBride Riquet 39. They allege that the alteration of the creek’s channel has not changed the original section line as laid down by the government surveyor in 1883. The Sanders later amended their petition to plead acquisitive prescription of ten and thirty years. The Moffetts answered the petition affirmatively pleading that their respective properties are not contiguous because they are separated by a navigable body of water, Hemp-hill Creek.

At issue here is a motion for summary judgment filed by the Sanders. In their motion, they argue that, based on their pleadings and all evidence introduced into the record, there is no genuine issue of material fact and that the trial court should set the eastern boundary of their property as it existed prior to 1929. At the hearing on the motion, the trial court found that Hemphill Creek was not navigable and that the Sanders’ and Moffetts’ properties were contiguous. It further found that the boundary between Sections 39 and 24 was the boundary that existed in 1883, as established by the Sanders’ surveyor, Mark Tooke. This appeal by the Moffetts | -¡followed.

ISSUES

On appeal, the Moffetts raise four assignments of error. In effect, they argue that the trial court erred in fixing the boundary between the two properties in the face of genuine issues of material fact. They further argue that the trial court erred in granting summary judgment in this matter on a motion for summary judgment which was filed prior to the filing of their answer.

SUMMARY JUDGMENT

The standard of review in summary judgment eases is well settled, as is the fact that summary judgment is now favored pursuant to La.Code Civ.P. art. 966. The threshold question in reviewing a trial court’s grant of summary judgment is whether a genuine issue of material fact remains. Kumpe v. State, 97-386 (La.App. 3 Cir. 10/8/97), 701 So.2d 498, writ denied, 98-0050 (La.3/13/98), 712 So.2d 882. Further, “[i]t is not the court’s function on a motion for summary judgment to determine or even inquire into the merits of the issues presented.” Lexington House v. Gleason, 98-1818, p. 6 (La.App. 3 Cir. 3/31/99), 733 So.2d 123, 126, writ denied, 99-1290 (La.6/25/99), 746 So.2d 603.

After reviewing the record de novo, we find that a genuine issue of material fact remains in this matter, which is whether Hemphill Creek was navigable at the time of the 1883 government survey. If the creek was navigable at that time, then the properties in question are not contiguous and may not be subject to a boundary action. La.Civ.Code art. 784 et seq. The trial court found that the creek was not navigable at the time that Charles McBride was issued patent to the lands on |4March 3,1807.

Whether the creek was navigable is a material fact. Although Tooke testified that he retraced Bradford’s steps, including a showing that the east prong of Hemphill Creek made a hairpin turn in 1888, he did not testify as to navigability of the creek at that time. Frank Willis, Mof-fett’s expert, testified that he did not know when, or if at any time, the creek was navigable. Thus, we- find that a material issue of genuine fact exists as to whether Hemphill Creek was navigable. If it was navigable, then the boundary stopped at the bank. If it was not navigable, then the boundary stopped at the center of the creek bed. In finding that Hemphill Creek was not navigable, the trial court inquired into the merits of the issues presented. This is a factual determination which is inappropriate on summary judgment.

Moreover, a question of fact remains with regard to the location of the creek bed in 1883. Conflicting evidence was presented as to its location at that time through the Sanders’ surveyor, Tooke, and the Moffett’s expert, Willis. Accordingly, we find that the trial court’s grant of summary judgment and determination of the boundary was improper. This matter is remanded to the trial court for further proceedings.

As a result of this finding, the Moffett’s argument that the trial court erred in granting summary judgment based on a motion which was filed prior to their filing of an answer is rendered moot. Furthermore, Sanders had filed a motion to strike part of the Moffett’s brief, which was referred to the merits of this matter. The motion to strike pertained to a portion of the Moffett’s reply brief, which addressed issues not raised by the Sanders in their appellate brief. Based on our finding, the |Bmotion to strike is denied.

CONCLUSION

For the forgoing reasons, the judgment of the trial court is vacated and this matter is remanded for further proceedings. The costs of this appeal is assessed to the plaintiffs-appellees, William and Bessie Sanders and Margaret Otwell.

JUDGMENT VACATED AND REMANDED.


author: LAMY, Judge.

text:
    STATE of Louisiana v. Michael Charles MAGDALENO.
    No. KA 2003-618.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 1, 2003.
    Rehearing Denied Nov. 5, 2003.

      James C. Downs, District Attorney, Loren M. Lampert, Assistant District Attorney, 9th Judicial District Court, Alexandria, LA, for Appellee State of Louisiana.
    Paula Corley Marx, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant Michael Charles Magdaleno.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and GLENN B. GREMILLION, Judges.
   LAMY, Judge.

The defendant was convicted of possession of cocaine. A sentence of three years at hard labor was imposed, with boot camp recommended. The defendant appeals. For the following reasons, we affirm.

Factual and Procedural Background

On or about April 23, 2001, Detectives Reginald Cooper and James Fields of the Alexandria Police Department, Metro Narcotics division, arrested the defendant and another man, Christopher Ducote, for possession with intent to distribute cocaine. The detectives had received a tip that suspected drug activity was taking place at a hotel where the defendant and Ducote had rented a room. When the defendant and Ducote returned to the hotel after a night out, the detectives, who had been conducting surveillance, approached and presented the defendant with a consent-to-search form for the room, which defendant read and signed. Upon entry, the detectives saw a small bag of cocaine on a table. Larger bags of cocaine were discovered under the mattresses of each of the room’s two beds. In addition, baggies, a scale, and scissors were found. A total of twenty-two grams of cocaine was seized from the room, and a smaller quantity was seized from Ducote’s person.

The defendant and Christopher Ducote were charged by the same bill of information with possession with intent to distribute a controlled dangerous substance, Schedule II, cocaine, in an amount less than twenty-eight grams, in violation of La.R.S. 40:967(A)(1). Ducote pled guilty to possession of cocaine, a violation of La. R.S. 40:967(C), in exchange for three years’ probation and a five hundred dollar fine. A jury trial was held in the matter with respect to the defendant in January, 2003. The jury found the defendant guilty of the lesser included offense of possession of a controlled dangerous substance, Schedule II, cocaine, in violation |2of La. R.S. 40:967(C). The trial court sentenced the defendant to serve three years at hard labor and recommended boot camp.

The defendant appeals his conviction, asserting in his sole assignment of error that the jury verdict fails to meet the legal standard of sufficiency of evidence to convict him of possession of a controlled dangerous substance, Schedule II, cocaine.

Discussion

Errors Patent

Pursuant to La.Code Crim.P. art. 920, this court reviews all appeals for errors patent on the face of the record. We find no such errors.

Sufficiency of the Evidence

The defendant argues that the verdict convicting him of possession of cocaine is erroneous because the State failed to produce sufficient evidence that he had possession of or dominion and control over the cocaine and that he had the requisite guilty knowledge.

The standard for determining whether a conviction meets the legal standard for sufficiency of the evidence was set forth by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In Jackson, the Court noted that appellate courts must uphold a conviction when, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319, 99 S.Ct. at 2788. In cases where circumstantial evidence has played a significant role in conviction, La.R.S. 15:438 also provides: “The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” See State v. Antoine, 01-1036 (La.App. 3 Cir. 12/26/01), 804 So.2d 869. Moreover, if the trier of fact rejects the defendant’s hypothesis of innocence, that hypothesis fails, and the defendant is guilty unless another hypothesis presented creates reasonable doubt. State v. Marston, 00-0589 (La.3/16/01), 780 So.2d 1058, citing State v. Captville, 448 So.2d 676 (La.1984).

In the instant matter, the State presented key evidence in the form of testimony from Christopher Ducote, who was arrested with the defendant and who later pled guilty to possession of cocaine.

At the defendant’s trial, Ducote testified that he and the defendant had been partying together during the weekend of their arrest. Ducote recalled that he had two to three grams of cocaine with him when the two went out the night before their arrest, and that he shared part of it with the defendant. Later that same night, the pair met two women at a local bar and decided to rent a room at a local hotel. The next day, Ducote testified, he and the defendant went swimming at the hotel pool, and some friends of Ducote’s came by to purchase the remainder of his cocaine. Ducote explained that he wanted to acquire more cocaine, and he was hesitant to purchase from his usual suppliers because he had a feeling they were being watched by the police. Ducote testified that he asked the defendant if he knew anyone who would be willing to sell to him. The defendant provided Ducote with a dealer’s phone number, and Ducote arranged to purchase an ounce of cocaine. Ducote stated that while the defendant was at his house showering, Ducote went to pick up the cocaine. He then picked up scales and baggies from his house and went back to the hotel to “cut” the cocaine for later resale. Later that afternoon, Ducote met up with the defendant at his home, and the two went out to eat and then to local bars. Ducote |4noted that he had left the bulk of the cocaine at the hotel, but he had brought some with him to sell while he was out. Ducote testified that he and the defendant used some of this cocaine, and he sold some of it later while at a bar. At the end of the night, the two went back to the hotel, but upon arriving, they discovered that the key to their room no longer worked. While the defendant went to the front desk to get a new key, Ducote remained outside the room. At this point, Ducote recalled, Detectives Cooper and Fields approached Ducote, told him who they were, and asked him to identify himself. The defendant returned with a new key, and the detectives presented him with a consent form to search the hotel room. The defendant signed the form and allowed the detectives to search the room, where they found the cocaine on the table and under the mattresses. Cocaine was also found in Ducote’s pocket.

Regarding the charge of possession, the State is not required to prove that the defendant was in actual possession of the cocaine; instead, the defendant may be found to have been in constructive possession. State v. Scott, 00-113 (La.App. 3 Cir. 6/7/00), 768 So.2d 112, citing State v. Montgomery, 98-775 (La.App. 3 Cir. 1/27/99), 734 So.2d 650. If the State’s case is premised upon constructive possession, the State must prove that the controlled dangerous substance was within the defendant’s dominion and control or in his joint possession. Scott, 768 So.2d 112, citing State v. Trahan, 425 So.2d 1222 (La.1983), and State v. President, 97-1593 (La.App. 3 Cir. 7/15/98), 715 So.2d 745, writ denied, 98-2115 (La.12/11/98), 729 So.2d 590. Joint possession is described in State v. Segura, 546 So.2d 1347 (La.App. 3 Cir. 1989), as two people willingly and knowingly sharing a direct right in the thing and an ability to exercise control over it. Constructive possession is established by reference to the factors set forth in State v. Toups, 01-1875 (La.10/15/02), 833 So.2d 910, in an examination of the facts at hand: for example, the defendant’s knowledge that illegal drugs are in the area; the defendant’s relationship with the person who has physical possession of the drugs; the defendant’s access to the area where the drugs were found; evidence of recent drug use by the defendant; and the defendant’s physical proximity to the drugs. A sixth factor given parenthetical reference in Toups is “evidence that the area was frequented by drug users.” Toups, 833 So.2d at 913, citing Bujol v. Cain, 713 F.2d 112 (5th Cir.1983), cert. denied, 464 U.S. 1049, 104 S.Ct. 726, 79 L.Ed.2d 187 (1984). In addition, the State must prove the defendant’s guilty knowledge. Toups, 833 So.2d at 913. However, the mere presence of someone in the area where the controlled dangerous substance is located or mere association with the person found to be in possession of the controlled dangerous substance does not constitute constructive possession. Id.; see also State v. Walker, 369 So.2d 1345 (La.1979), State v. Cann, 319 So.2d 396 (La.1975).

When we examine the evidence in the light most favorable to the prosecution, we determine that a rational trier of fact could have found the defendant guilty of possession of cocaine. The prosecution provided the jury with the testimony of Christopher Ducote, which tended to show each of the factors listed in Toups for determining constructive possession, discussed above. (1) Ducote testified that while he and the defendant were out together during the weekend of their arrest, Ducote had cocaine with him at almost all times. The evidence supports the view that the defendant knew that illegal drugs were in Ducote’s pocket or in the hotel room when the two were there. (2) Du-cote explained that he and the defendant were friends and that they spent a lot of time drinking together. They spent the majority of the weekend in question in each other’s company. He also confirmed that the defendant |fiwas aware that Du-cote was a drug dealer. The record supports the inference that the defendant and Ducote had a close relationship. (3) Du-cote noted further that he would share his cocaine with the defendant when the two were out partying. Likewise, the defendant and Ducote paid for the hotel room where the cocaine was found, and the room had been rented in the defendant’s name. Defendant had access to the hotel room. Consequently, there is no question of defendant’s access to the area where the cocaine was. (4) Ducote testified that he and the defendant had used cocaine that weekend, which constitutes evidence of the defendant’s recent drug use. (5) The defendant was in close physical proximity to the cocaine throughout the weekend and at the time of his arrest. As mentioned, Ducote testified that he and the defendant went out together, and Ducote brought cocaine along for their use; when they went back to the hotel, there was cocaine there, as well. (6) Ducote testified that while he and the defendant were at the hotel, his friends had come there to purchase cocaine. There is nothing in the record to indicate that the defendant was unaware of that deal.

On appeal, counsel for the defendant stresses that it was Ducote, not the defendant, who was in possession, that it was Ducote’s cocaine, and that defendant’s having voluntarily signed the consent-to-search form evinces his lack of guilty knowledge regarding the presence of cocaine. We find that, despite the argument regarding actual possession, the record supports the position that the defendant had constructive possession. Moreover, although the defendant may not have had guilty knowledge as regarding the exact amount of cocaine at the hotel room, he knew that Ducote was in possession of cocaine because Ducote had produced the drug from his very pocket for their consumption earlier in the evening.

|7The jury’s verdict of guilt reflects a rejection of the defendant’s hypothesis of innocence. Given the evidence in the record, this rejection was reasonable, as was the jury’s determination of guilt. This assignment lacks merit.

DECREE

For the foregoing reasons, the conviction of the defendant, Michael Charles Magdaleno, is affirmed.

AFFIRMED.