author: BROWN, Chief Judge. STEWART J.,

text:
    Robert W. MORGAN a/k/a Morgan Enterprises, Inc., Plaintiffs-Appellees v. WINBEAU OIL & GAS CO., INC. and Eugene Farr, Defendants-Appellants.
    No. 45,921-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 16, 2011.

      Ayres, Warren, Shelton & Williams, Shreveport, LA by Lee H. Ayres, J. Todd Benson, for Defendant-Appellant, Win-beau Oil & Gas Co., Inc./Eugene Farr.
    William A. Jones, Jr., for Plaintiffs-Ap-pellees, Robert W. Morgan and Morgan Enterprises, Inc.
    Before BROWN, STEWART and DREW, JJ.
   BROWN, Chief Judge.

1 plaintiff, Robert W. Morgan a/k/a Morgan Enterprises, Inc. (“Morgan”), filed suit on February 8, 2010, against Winbeau Oil & Gas Co., Inc. (“Winbeau”) and Eugene Farr (“Farr”) seeking either rescission of the assignment of mineral leases in Red River Parish or money damages. Morgan obtained a preliminary default on April 19, 2010. A hearing in open court for confirmation of the default took place on May 3, 2010. Morgan testified and three exhibits were introduced into the record. The exhibits included documentation of service or attempts to serve the defendants, the assignment from Morgan to Winbeau, and an assignment of the leases dated August 6, 2009, from Winbeau and Petrohawk Properties, L.P. The trial court granted judgment in favor of Morgan “rescinding' and declaring null and void the Assignment dated February 9, 2009, between Plaintiff Robert W. Morgan and Defendant Win-beau Oil & Gas Co. Inc.” Petrohawk was not a party to this action and the judgment did not determine the viability of the August assignment to Petrohawk. Winbeau now appeals.

Facts

Morgan testified that Farr called him in January 2009 to buy leases he had in Red River Parish. Morgan had purchased the leases in 1995. He told Farr that he was not sure the leases were still good and that he thought he had a total of 300 acres. Farr related that he would see whether he could find the leases and determine whether they were still good.

Morgan testified that Farr called two or three' days later to say that he had checked on the leases at the courthouse and found that the leases covered about 150 acres. Farr stated that he still wanted to buy them. When |2Morgan asked whether the leases were any good, Farr told him, “No, they’re no good.” Morgan then told Farr that he would have to send someone to the Red River Parish courthouse to check the leases. According to Morgan, Farr responded, “That’s not necessary. I’ve already checked it out. They’re no good.”

When asked by his attorney whether he asked Farr why he wanted the leases if they were no good, .Morgan answered, “Yeah. He said there may be some Hos-ston leases good or something in it that would help him get his leases back together under his well.”

Morgan testified that he did not send anyone to Red River Parish to check on the. validity of the leases. He explained that he knew Farr from a transaction they did in 1995 and that “he seemed to be an honest kind of guy and pretty capable of checking leases.” Morgan further explained that they had “talked leases a lot back in that span of time so I just went basically on his say so.” Morgan related that leasing was Farr’s forte and that his area of expertise was working on wells. He stated, “I didn’t know anything about leasing.” He further stated that Farr “knew that I didn’t know anything about leases.” When asked whether Farr was aware that he was relying on him or whether Farr tried to persuade him to rely on his statement regarding the validity of the leases, Morgan answered “yes” and said that Farr told him that he had checked out the leases and that they were no good.

Thereafter, Morgan found out that Win-beau had sold the leases to Petrohawk. Morgan testified that the leases listed in the attachment to his |sassignment to Win-beau were the same as those listed in an attachment to the assignment between Winbeau and Petrohawk.

When asked whether he would have assigned the leases to Winbeau if he had known they were still in effect, Morgan answered, “No, not, certainly not for that price. I doubt I would have-there’s been no point to sell them to him at all really. He still would be acting as a middle man.” Morgan testified that Winbeau paid him $7,000 and that he would not have sold good leases for that price but for the fact that Farr assured him that his leases had expired-.

Based on the above testimony and the exhibits in evidence, the trial court rendered judgment rescinding the February assignment to Winbeau and declaring the assignment to be null and void. Following the default judgment, Winbeau filed a sus-pensive appeal. Winbeau asserts that the trial court erred,by granting the default judgment and questions whether the default judgment is a final judgment. Arguing that Morgan Enterprises^ Inc., rather than Morgan individually, owned the leases and was the party, to the assignment but that Morgan, in his individual capacity, is the plaintiff in this suit, Winbeau has filed an exception of no right of action before this coui't. We reach neither these issues, however.

Discussion

We first note that the introduction of a certified copy of the assignment between Winbeau and Petrohawk raises questions about the practical effect of a default judgment rescinding the assignment from Morgan to Winbeau. The sale to Petrohawk was filed six months after | Morgan transferred his interest to Winbeau. As a third party, Petrohawk may be entitled to the protections afforded by the public records doctrine.

Petrohawk is the record owner of the leases and a party “needed for just adjudication” (formerly called an “indispensable party”).

La. C.C.P. art. 641 states:

A person shall be joined as a party in the action when either:
(1) In his absence complete relief cannot be accorded among those already parties.
(2) He claims an interest relating to the subject matter of the action and is so situated that the adjudication of the action in his absence may either:
(a) As a practical matter, impair or impede his ability to protect that interest.
(b) Leave any of the persons already parties subject to a substantial risk of incurring multiple or inconsistent obligations.

La. C.C.P. art. 642 states:

If a person described in Article 641 cannot be made a party, the court shall determine whether the action should proceed among the parties before it, or should be dismissed. The factors to be considered by the court include:

(1) To what extent a judgment rendered in the person’s absence might be prejudicial to him or those already present.
(2) The extent to which the prejudice can be lessened or avoided by protective provisions in the judgment, by the shaping of relief, or by other measures.
(3) Whether a judgment rendered in the person’s absence will be adequate.
(4) Whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.

|sLa. C.C.P. art. 645 provides that:

The failure to join a party to an action may be pleaded in the peremptory exception, or may be noticed by the trial or appellate court on its own motion. (Emphasis added).

La. C.C.P. art. 646:

When the failure to join a party is pleaded successfully in or noticed by a trial court, the latter may permit amendment of the petition so as to make him a party, and may reopen the case if it has been submitted and further evidence is necessary. When such failure is pleaded successfully in or noticed by an appellate court, the latter may remand the case for such amendment and further evidence. (Emphasis added).

Conclusion

Accordingly, we reverse and remand for plaintiff to amend its petition to add Petro-hawk as a party and to thereafter seek nullification, or alternatively, monetary damages.' '

Reversed and Remanded.

STEWART, J., concurs with reasons.

STEWART J.,

concurring.

^JjWhile I agree that the default judgment should be reversed and the matter remanded for further proceedings, I would reach this result upon finding that the plaintiff, Robert W. Morgan a/k/a Morgan Enterprises, Inc. (“Morgan”), failed to present evidence sufficient to establish a prima facie case of his fraud claim.

Confirmation of a default judgment requires “proof of the demand sufficient to establish a prima facie case.” La. C.C.P. art. 1702(A). A prima facie case is established by proving the essential allegations of the petition with competent evidence to the same extent as if the allegations had been specifically denied by the defendant. Williams v. Smith, 45,069 (La.App.2d Cir.5/28/10), 37 So.3d 1133, writ denied, 2010-1530 (La.10/1/10), 45 So.3d 1103; Williams v. Interstate Dodge Inc., 45,159 (La.App.2d Cir.4/14/10), 34 So.3d 1151. The plaintiffs evidence must convince the court that it is probable that he would prevail at trial on the merits. Id.

Appellate review of a default judgment is restricted to determining the sufficiency of the evidence offered in support of the judgment. Arias v. Stolthaven New Orleans, LLC, 08-1111 (La.5/5/09), 9 So.3d 815. Though there is a presumption that the evidence presented supports the default judgment, this presumption does not apply where the confirmation hearing was transcribed and the record is before the court for review. Williams v. Smith, supra. In such cases, the reviewing court is able to determine from the record whether sufficient and competent evidence supports the default | {.judgment. Williams v. Interstate Dodge, supra. Here, the presumption that the evidence presented supports the default judgment does not apply. Morgan testified and the record of the hearing is before this court for review.

Though a contract is formed by consent of the parties, consent may be vitiated by error, fraud, or duress. La. C.C. arts.1927 and 1948; Hickman v. Bates, 39,178 (La.App.2d Cir.12/15/04), 889 So.2d 1249. Fraud is a misrepresentation or suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. La. C.C. art.1953. Fraud may also result from silence or inaction. Id.

The basic elements of an action for fraud against a party to a contract are (1) a misrepresentation, suppression, or omission of true information, (2) the intent to obtain an unjust advantage or to cause damage or inconvenience to another, and (3) the error induced by a fraudulent act must relate to a circumstance substantially influencing the victim’s consent to the contract. Skannal v. Bamburg, 44,820 (La.App.2d Cir.1/27/10), 33 So.3d 227, writ denied, 2010-0707 (La.5/28/10), 36 So.3d 254; Shelton v. Standard/700 Associates, 2001-0587 (La.10/16/01), 798 So.2d 60. Additionally, there must be a resulting loss or damage. Williams v. Interstate Dodge, supra.

Fraud does not vitiate consent when the party against whom the fraud was directed could have ascertained the truth without difficulty, inconvenience, or special skill. La. C.C. art.1954. However, this |sexception does not apply when a relation of confidence has reasonably induced a party to rely on the other’s assertions or representations. Id.; Skannal, supra.

Morgan testified that he assigned the mineral leases to Winbeau after Farr told him that he checked the leases and that they were no good. Morgan further testified that he told Farr “what I’m going to have to do is send somebody down to Red River Parish to the courthouse to check the leases so I can find out what I got.” Instead, he “just went basically on [Farr’s] say so.” Morgan explained that he had known Farr since 1995 from a prior transaction. They had “talked leases” during that time, and he seemed honest and “pretty capable of checking leases.” He knew Farr to be experienced in leasing whereas he claimed to not know anything about leases.

Even if Farr misrepresented the validity of the leases .to Morgan, the evidence offered in support of confirmation of the default judgment was not sufficient to establish a prima facie case of fraud. Under La. C.C. art.1954 fraud does not vitiate consent when the truth could have been ascertained without difficulty, inconvenience or special skill. In Mims v. Hilli-ard, 125 So.2d 205 (LaApp. 3d Cir.1960), the plaintiffs sought the cancellation of a mineral lease on the basis of fraud. The plaintiffs claimed that when they leased the 50-acre tract to the defendant, the defendant’s agent knew but did not inform them that the Commissioner of Conservation had recently included part of the tract in a new unit. Though the court found that the defendant knew of the unit when it obtained the lease, it also found that the ^information was a matter of public record and available to the plaintiffs, but that they failed to inquire. Accordingly, the plaintiffs’ fraud claim was denied.

Similarly, in Silbernagel v. Harrell, 18 La.App. 536, 138 So. 713 (La.App. 2d Cir.1932), a case relied upon by Winbeau in support of its appeal, plaintiffs, who were residents of New York, sought to nullify on the basis of fraud a quitclaim deed they executed in favor of the defendant. The plaintiffs alleged that on the basis of representations made by the defendant they believed they had no interest in the land when they granted the quitclaim deed. After granting the deed, they learned that they had owned a one-sixth interest. The court refused to annul the sale finding, in part, that even if there was any misrepresentation by the defendant, the plaintiffs had the same opportunity as the defendant to have the public record examined to determine what rights they had in the land. The court observed that when the plaintiffs executed the deed, “they did not believe they had any right, title, or interest in the land, and thought they were getting something for nothing. That in itself does not give them the right to have the sale annulled.” Id., at La.App. 540, 138 So. at 716.

In both Mims, swpra, and Silbemagel, supra, fraud claims were denied because the truth was ascertainable by the plaintiffs from examination of the public records or matters of public record. See also Downs v. Hammett Properties, Inc., 39,-568 (La.App.2d Cir.4/6/05), 899 So.2d 792.

| «¡Morgan testified that he told Farr that he would have to send someone to the Red River Parish courthouse to check the leases for him and find out what exactly he had. Nothing in Morgan’s testimony indicates that checking the leases in the public records at the Red River Parish courthouse to determine whether they were still good, or sending someone to do so, would have involved inconvenience, -difficulty or special skill. Morgan’s testimony does not establish that Farr did anything to prevent him from checking the leases for himself. Moreover, Morgan’s testimony does not show that he had a relation of confidence with Farr that reasonably induced him to rely on Farr’s representations.

A “relation of confidence” is not defined in La. C.C. art.1954. However, a relation of confidence was found in Skannal, supra, where the parties had worked together in numerous business ventures over a 25-year period, and in Hickman, supra, where a young plaintiff with “diminished capabilities” relied on her father’s and cousin’s assertions and representations in selling her inherited interest in her mother’s community property. In Lupo v. Lupo, 475 So.2d 402 (La.App. 1st Cir.1985), Jack Guzzardo, who was 69 years old, blind in one eye, with poor vision in the other, and suffering from other serious health conditions, was induced to sign an appeal bond for his long-time friend and attorney for more than 40 years, Joseph Lupo, who was going through domestic litigation. These facts, which showed Guz-zardo’s “vulnerable position,” and the duty of trust involved in an attorney-client relationship, led the court to find that Guzzar-do was induced by fraud to sign the bond. In a footnote, the court Incited La. C.C. art.1954, noting that it had not become effective until after the date of the incident but that it seemed to reflect earlier jurisprudence.

More recently, in Trotter v. Charles M. Fife, Jr. & Associates, LLC, 2009-860 (La.App. 3d Cir.4/28/10), 36 So.3d 426, the court affirmed a judgment finding that fraud was committed on the plaintiff, who was induced by the defendant, Charles Fife, to purchase five royalty'acres; Fife knew there were serious questions about title to the acreage and this fact was not disclosed to the plaintiff: ' Though the court did not specifically address whether there was a relation of confidence, it did emphasize that the deal was related to the plaintiff by a long-time trusted friend and that the plaintiff and Fife had engaged in many business transactions over a five-year period. The court stated, “Based on his past experience and multiple dealings with these individuals, Trotter believed he could trust in honest fair . dealing from Fife.” Id, 2009-860, p. 7, 36 So.2d at 431.

Morgan’s testimony does not show that there was a familial relationship, that he was in a vulnerable position due to health problems, or that Farr acted in a role of trust similar to that of an attorney. Though Morgan testified that he knew Farr from a prior transaction they did in 1995 and that they had talked about leases “a lot back in that span of time,” this testimony shows, at most, that Morgan and Farr were acquaintances who had once done business together. Morgan did not testify that they had a long-term business relationship involving multiple dealings as in Skannal, supra, or Trotter, supra, from which a relation of confidence would have developed over the years. Morgan’s assessment of Farr as seeming “to be |7an honest kind of guy and pretty capable of checking leases” does not appear to be based on a relation of confidence within the intendment of Lá. C.C. art.1954. As interpreted by jurisprudence, a relation of confidence requires more than a casual business acquaintance with whom you once did a transaction.

I find that the evidence offered by Morgan does not establish a prima facie case of fraud and is not sufficient to support confirmation of the default judgment. It appears from Morgan’s testimony that he could have ascertained the truth about the validity of the leáses without difficulty, inconvenience, or special skill, and that he was not reasonably induced to rely on Farr’s misrepresentation due to a relation of confidence between them.

I also note that the leases were not introduced into evidence by Morgan and that the two-page document represented as a certified copy of the assignment appears to be an incomplete copy. A plaintiff who knows of a writing which is the principal basis of his claim must produce it when it provides the best evidence of the facts at issue. Ascension Builders, Inc. v. Jumonville, 262 La. 519, 268 So.2d 875 (1972). The assignment introduced into evidence consists of two pages with an additional two-page attachment listing the leases that were assigned. The first page of the assignment ends mid sentence stating, “ASSIGNOR also conveys herein all his right, title and Interest in and to all machinery,” but the sentence is not continued on the second page. Instead, the second page begins with the phrase “attesting witnesses, on this the 9th day of Feb. 2009.” Morgan is [ ¡¿relying on the fact that Winbeau subsequently transferred the lease rights to-Petrohawk with warranty of title to establish that the leases were still valid. The assignment in evidence has no warranty of title language, but one cannot conclude that it lacked similar language without reviewing the entire agreement. Because of the possible omission of pages, the assignment in evidence is not competent to prove a prima facie case, as suggested by Morgan, that he agreed to the assignment believing that the leases were “no good” as allegedly represented to him by Farr.

For these reasons, I concur.

      . There was some indication that Farr and Winbeau were working for Petrohawk; however, if Petrohawk’s claim is protected under the public records doctrine then petitioner’s only remedy would be money damages.


source: Caselaw Access Project

author: CARAWAY, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Jason Christopher TURNER, Appellant.
    No. 46,049-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 16, 2011.

      James E. Beal, Louisiana Appellate Project, Jonesboro, LA, for Appellant.
    Jerry L. Jones, District Attorney, Madeleine Slaughter-Young, Assistant District Attorney, for Appellee.
    Before STEWART, CARAWAY and LOLLEY, JJ.
   CARAWAY, J.

|¶ Defendant, Jason Christopher Turner (“Turner”), having previously pled guilty to aggravated battery, was found guilty of possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1. Turner was sentenced to 13 years at hard labor, without the benefit of parole, probation or suspension of sentence. For the following reasons, Turner’s conviction and sentence are affirmed.

Facts

In the early morning hours of July 1, 2008, Rosetta Banks (“Rosetta”) received a phone call from her daughter, Litisha Banks (“Litisha”). Litisha requested that her mother come over to her house because her boyfriend at the time, Turner, “had [a] gun on her all night.” Litisha sounded both upset and afraid during the conversation. Rosetta, along with her other daughter, LaToya Banks, drove immediately over to Litisha’s house. Upon arrival, Rosetta instructed LaToya to go and knock on the front door and get Litisha to come outside. Meanwhile, Rosetta made a 911 call on her cell phone.

Monroe police officers were dispatched to Litisha’s home in response to the 911 call. The call came in as a domestic, aggravated assault complaint and police were warned that the suspect was likely armed with a gun. Officers Casey Hodge, Michael Freeman, and Michael Plummer responded to the scene, all arriving around the same time, approximately 5:49 a.m. When they arrived, both Rosetta and Liti-sha were waiting outside the home. Corporal Casey Baker, of the Monroe Police Department Special Response Team, arrived at the scene shortly thereafter.

| gOfficer Hodge observed that the victim and her mother were visibly shaken and panicked. Litisha explained to Officer Hodge that Turner had come over to her house after she ended a relationship with him. Litisha, who already had one child with Turner, was six months pregnant with his second child. Litisha told Turner that she no longer wanted to work on their relationship, at which point he began threatening her and eventually pulled a gun from his waistband. Litisha indicated that she saw Turner with the gun, but was unsure whether or not it was actually loaded. Litisha stated that Turner was still in the house, but she did not know what he had done with the gun.

After this brief questioning, the four officers knocked on the front door and announced their presence, but no response was received. Litisha then gave the officers permission to enter her house. With weapons drawn, all four uniformed officers entered the dwelling and found Turner sleeping in a bedroom located in the southwest corner of the home. A cursory search of the bedroom did not reveal any weapons. Turner was placed in handcuffs, advised of his rights and questioned about the incident. Officer Freeman asked Turner where the gun was located and Turner subsequently directed him to the backyard, along the east side of the house. Turner then pointed underneath the house. A Taurus .38 revolver was found lying on the ground by one of the foundation pillars to the house.

A pair of pants was subsequently found on the ground in the bedroom where Turner was found sleeping. Officer Plummer searched the pants and in one of the pockets, he found six .38 caliber bullets. After the bullets were | .¡recovered, Turner put the pants on to be transported to the police station. Turner, who was previously convicted of aggravated battery on December 17, 1998, was arrested for possession of a firearm by a known felon. On August 28, 2008, Turner was charged by bill of information with one count of possession of a firearm by a convicted felon under La. R.S. 14:95.1.

A jury trial commenced on March 1, 2010, and the testimony of the four responding officers, Rosetta, Litisha, and Turner’s dad, Jason Christopher Turner, III, was received. The Taurus .38 revolver found underneath Litisha’s house was introduced into evidence, along with the six .38 bullets, identified as “special rounds.” After hearing all of the evidence, the jury found Turner guilty as charged. Turner subsequently filed a motion for new trial, which was denied. Turner was sentenced to 13 years at hard labor without benefit of probation, parole or suspension of sentence, with credit for time served. Additionally, he was ordered to pay a fine of $1,000 and court costs.

Turner now appeals his conviction and sentence.

Discussion

I.

In his pro se brief, Turner assigns various errors, essentially claiming that insufficient evidence existed to convict him of possession of a firearm by a convicted felon. Specifically, he argues that he was not possessing the gun because the gun was located in the backyard of Litisha’s house, while Lpolice found him sleeping inside the home. Moreover, he asserts that the gun was handled only by his father and that the pants where the bullets were found belonged to his ex-girlfriend, Litisha.

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

The Jackson standard, now legislatively embodied in La.C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir.1/14/09), 1 So.3d 833, unit denied, 09-0310 (La.11/6/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685, writ denied, 09-0725 (La.12/11/09), 23 So.3d 913, cert denied, — U.S. -, 130 S.Ct. 3472, 177 L.Ed.2d 1068 (2010); State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 07-1209 (La.12/14/07), 970 So.2d 529.

The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 99-0023 (La.1/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000). In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Gullette, 43,-032 (La.App.2d Cir.2/13/08), 975 So.2d 753; State v. Burd, 40,480 (La.App.2d Cir.1/27/06), 921 So.2d 219, writ denied, 06-1083 (La.11/9/06), 941 So.2d 35.

To support a conviction of possession of a firearm by a convicted felon, the state must prove: (1) the possession of the firearm; (2) a previous conviction of an enumerated felony; (3) absence of the ten-year statutory period of limitation; and (4) general intent to commit the offense. La. R.S. 14:95.1; State v. Husband, 437 So.2d 269 (La.1983); State v. Robert, 42,036 (La.App.2d Cir.5/9/07), 956 So.2d 750; State v. McCoy, 45,090 (La.App.2d Cir.4/14/10), 34 So.3d 1145.

The general intent to commit the offense of possession of a firearm by a convicted felon may be proved through the actual possession of the [ ^firearm or through the constructive possession of the firearm. - State v. Johnson, 03-1228 (La.4/14/04), 870 So.2d 995; State v. Chatman, 43,184 (La.App.2d Cir.4/30/08), 981 So.2d 260. For purposes of the offense of possession of a firearm by a convicted felon, whether the proof is sufficient to establish possession turns on the facts of each case. Further, guilty knowledge may be inferred from the circumstances of the transaction and proved by direct or circumstantial evidence. Id.

Constructive possession of a firearm occurs when the firearm is subject to the defendant’s dominion and control. A defendant’s dominion and control over a weapon constitutes constructive possession even if it is only temporary and even if the control is shared. State v. Bailey, 511 So.2d 1248 (La.App. 2d Cir.1987), writ denied, 519 So.2d 132 (La.1988). Constructive possession entails an element of awareness or knowledge that the firearm is there and the general intent to possess it. State v. Chatman, supra; State v. Culp, 44,270 (La.App.2d Cir.7/15/09), 17 So.3d 429.

It is uncontested that Turner’s previous five-year sentence for aggravated battery, an enumerated felony under La. R.S. 14:95.1, had not yet expired when the present offense was committed.

Rosetta’s tidal testimony was consistent with the above recitation of facts. Relevantly, she admitted that she rushed over to her daughter’s home |7in the early morning hours of July 1, 2008, because her daughter said that the defendant “had [a] gun on her all night.” She later testified that she regretted calling 911 that evening because the two subsequently resumed a relationship and that this was an isolated incident.

Officer Hodge, the investigating officer, revealed through his testimony that when he arrived, he observed the victim and the victim’s mother outside the house and both seemed panicked, visibly shaken and upset. Litisha told Officer Hodge that she had seen Turner that evening with a gun and that he threatened her with it after she refused to resume a relationship with him. She then indicated that at some point in the evening, she saw Turner walk around the house with the gun, but did not see him come back around to the front of the house with it. Importantly, Officer Hodge was questioned about statements made to him by the defendant:

Q: Did the defendant say anything to you concerning any threatening remarks or gestures he made to Litisha Banks?
A: Yes.
Q: What did he tell you?
A: He admitted to threatening her.
Q: With what?
A: With a gun.

Officer Hodge additionally testified that the .38 revolver recovered at the scene was capable of holding six bullets and that if the six bullets seized by Officer Plummer had been placed into the gun, it would have been|sfully loaded and operative. Although he admitted that he had not personally loaded the ammunition into the revolver’s cylinder, Officer Hodge testified that the six .38 special rounds would have been the proper ammunition for the revolver. Officer Hodge stated that the gun was not registered to the defendant and was not listed as stolen on the National Crime Information Center’s database.

Officer Freeman, who located the gun underneath Litisha’s house, testified that “Mr. Turner told me he specifically put the gun back there. He led me to it, pointed under the house to where it was and told me where it was. Then, I reached under the house and picked it up.” Officer Freeman testified that one would need to search for the gun under the house in order to locate it. Officer Freeman additionally testified that he advised Turner of his Miranda rights before questioning him about the gun’s location. Officer Freeman identified the .38 revolver in open court.

Officer Plummer testified that he searched a pah- of pants that were located beside Turner on the floor when the officers entered the bedroom. The pants, which were searched for officer safety, revealed the six .38 caliber bullets in one of the pockets. After the bullets were recovered, Turner put the pair of pants on so that he could be transported to the police station.

The defense called Litisha to the stand, who testified that Turner did not possess a gun at any point on the date in question and she did not recall telling the police officers that Turner threatened her. She admitted that she was upset with Turner because he refused to leave her house. She further | atestified that she found a gun on the previous day in her backyard. Because she was afraid of guns and concerned her children would find the gun and play with it, she called Turner’s father to take care of it. She stated that his father came over, unloaded the gun and threw it under the house. He then gave the bullets to Litisha who “put them up” in pants pockets in her bedroom. Litisha claimed that the pair of pants belonged to her. Litisha additionally testified that her cousin, Robert Banks, was also at the house during the evening and that he was still present when the police arrived. No other witness testified to seeing anyone other than the defendant in the house that morning.

Turner’s father, J.C. Turner III, also testified. He stated that he went over to Litisha’s house and unloaded the gun in question, which he believed had only four or five bullets. He surmised that because the house was vacant before Litisha moved in, it is likely that someone was simply storing the gun underneath the house. He was worried that its owner would come back to look for it, so he emptied the bullets and placed the gun under the house so Litisha would not be bothered if someone came back to retrieve it. Turner’s father also testified that he went to the police station on July 2, 2008, the day after his son was arrested to explain that he, and not his son, handled the gun. Additionally, he made a report of similar substance with the district attorney’s office.

From the above evidence, the jury could conclude that Turner possessed a gun on July 1, 2008. In the absence of internal contradiction or irreconcilable conflict with physical evidence, even one witness’s | ^testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Wiltcher, 41,981 (La.App.2d Cir.5/9/07), 956 So.2d 769. Here, the testimony demonstrated that responding officers located a revolver only after the defendant pointed to its exact location. Bullets were located in pants that officers found within close proximity to where the defendant had been sleeping. Moreover, these pants were subsequently worn by the defendant. Furthermore, at the time of the incident, both Litisha and the defendant admitted to officer Hodge that Turner threatened her with a gun. While Litisha and Turner’s father both testified that Turner never possessed a gun on the date in question, the jury chose to believe the testimony of Rosetta and the four officers who responded to the 911 call. This court affords great deference to such a credibility determination. State v. Casey, supra.

Although Turner argues the impossibility of his possessing the firearm because he was found inside the house sleeping, while the gun was located outside and underneath the dwelling, we find that he held constructive possession over the gun. He obviously maintained knowledge of its whereabouts, as he was able to direct Officer Freeman directly to it. His general intent to possess the weapon is evident from his and Litisha’s statements made at the time of the incident, acknowledging that Turner had possession of a gun.

After reviewing the record, we conclude that the physical evidence and the testimony, which was believed by the trier of fact, was sufficient to 11T support the defendant’s conviction of illegal possession of a firearm by a convicted felon. Thus, the assignment of error lacks merit.

II.

The defendant next contends that the trial court erred when it allowed the assistant district attorney personally to publish the subject gun and ammunition to jurors, rather than the bailiff. During the trial, the assistant district attorney asked permission to- “drop one shell .in the magazine” while publishing State’s Exhibit No. 1, the .38 Taurus revolver, to the jury. Defense made an objection which was sustained by the trial court. The jury was then permitted to examine the evidence. One of the jurors then took one of the rounds, also in evidence, and dropped it into the gun’s magazine. The district attorney then described the actions of the juror, as he “examine[d] the gun personally, popped one shell ... in the rotating magazine.” No objection was made by the defense. However, defendant now argues that through the juror’s actions, evidence was developed that was not adduced through trial testimony and such actions violated his constitutional right to a fair trial.

Louisiana’s contemporaneous objection rule provides “[a]n irregularity or error cannot be availed of after a verdict unless it was objected to at the time of occurrence.” La.C.Cr.P. art. 841(A); State v. Ruiz, 06-1755 (La.4/11/07), 955 So.2d 81; State v. Knott, 05-2252 (La.5/5/06), 928 So.2d 534.

A defendant’s constitutional due process right of a fair trial by an impartial jury may be violated if the trial jurors are subjected to influences | iawhich cause their verdict to be influenced by circumstances other than evidence adduced at trial. Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965); State v. Marchand, 362 So.2d 1090 (La.1978). In the constitutional sense, trial by jury in a criminal case necessarily implies at the very least that the “evidence developed” against a defendant come from the witness stand in a public courtroom where there is full judicial protection of the defendant’s right of confrontation, of cross-examination and of counsel. Turner, supra.

The actions of the juror and the subsequent recitation of his actions by the assistant district attorney took place during open court in the presence of defendant and his trial counsel. Although defense counsel objected to the assistant district attorney’s placing of the shell into the magazine, no objection was made to the subsequent actions of the juror or the statements by the assistant district attorney made thereafter. Because no contemporaneous objection was made, defendant is now barred from raising this claim on appeal. La. C.Cr.P. art. 841; State v. Ruiz, supra.

Notwithstanding the defendant’s failure to object, the juror’s actions and the prosecutor’s recital of such were harmless in the instant case. Officer Hodge testified earlier in the trial that the ammunition discovered was the proper ammunition for the subject .38 caliber Taurus revolver. Moreover, defendant’s father testified that he took the ammunition out of the .38 revolver and gave it to Litisha. Defendant has thus failed to demonstrate how the alleged extrinsic evidence tainted the jury’s deliberations. See, State v. Bibb, 626 So.2d 913 (La.App. 5th Cir.1993), writ denied, 93-3127 (La.9/16/94), 642 So.2d 188.

III.

Defendant argues that his 13-year sentence is excessive. He points to the fact that despite several misdemeanor arrests, he has had no “major convictions” over the last ten years. He argues that the goals of punishment and rehabilitation can be accomplished with a less harsh sentence.

La. C.Cr.P. art. 881.1 precludes the defendant from presenting sentencing arguments to the court of appeal that were not presented to the trial court. Here, the defendant did not file a motion to reconsider sentence. In such a circumstance, the defendant is simply relegated to having the appellate court consider the bare claim of constitutional excessiveness. State v. Mims, 619 So.2d 1059 (La.1993); State v. Richie, 44,783 (La.App.2d Cir.10/28/09), 25 So.3d 879, writ denied, 09-2492 (La.4/30/10), 34 So.3d 280.

Whether a sentence imposed is too severe turns on the circumstances of the case and the background of the defendant. A sentence violates La. Const, art. I, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 01-0467 (La.1/15/02), 805 So.2d 166; 114 State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App.2d Cir.1/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

The trial judge is given wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Williams, 03-3514 (La.12/13/04), 893 So.2d 7; State v. Thompson, 02-0333 (La.4/9/03), 842 So.2d 330; State v. Hardy, 39,233 (La.App.2d Cir.1/26/05), 892 So.2d 710.

In sentencing the defendant, the trial court ordered and reviewed a presentence investigation report, as well as consulted relevant provisions of La. C.Cr.P. art. 894.1. The court noted two prior felony convictions, in addition to numerous other arrests and misdemeanor convictions. The court found no mitigating factors and found that the defendant’s threats of violence against his pregnant girlfriend was an aggravating factor. The trial court found there to be an undue risk that the defendant will commit another crime during a period of suspended sentence or probation and that any lesser sentence would deprecate the seriousness of the crime.

Here, the trial judge clearly did not abuse his discretion. The sentencing range, at the time of the offense, for possession of a firearm by a convicted felon was imprisonment at hard labor for not less than 10 years nor more than 15 years without benefit of probation, parole or suspension of sentence, and a fine of not less than $1,000 nor more than $5,000. La. R.S. 11fil4:95.l(B). The defendant received 13 years, a midrange sentence. The sentence imposed does not “shock the sense of justice.”

For the foregoing reasons, Turner’s conviction and sentence are affirmed.

AFFIRMED.

      . On March 2, 2010, the bill was amended in open court to correct a typographical error as to the date of the plea to Turner's prior conviction of aggravated battery. The amended bill reflects the accurate date of Turner's prior guilty plea, December 17, 1998.

      . During the trial, the state introduced into evidence the bill of information leading to Turner's prior conviction. Corresponding court minutes were also introduced, which evidence Turner’s plea of guilty to aggravated battery, a violation of La. R.S. 14:34. The minutes also indicate that Turner’s initial five-year sentence at hard labor was suspended and he was placed on five years supervised probation. Fingerprints were taken in open court, introduced into evidence and compared to prints located on the bill of information charging Turner with the aggravated battery. This comparison indicated that Turner was the same person convicted of the 1998 crime.


author: COOKS, Judge.

text:
    James MERCER v. NABORS DRILLING USA, L.P.
    No. 10-1092.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 23, 2011.

      Broussard, Halcomb & Vizzier, Roy S. Halcomb, Jr. Alexandria, LA, for Plain-tifi/Appellant, James Mercer.
    Galloway, Johnson, Tompkins, Burr & Smith, Kevin A. Marks, Jessie Schott Haynes, New Orleans, LA, for Defendant/Appellee, Nabors Drilling, USA, LP.
    Court composed of SYLVIA R. COOKS, BILLY H. EZELL, and SHANNON J. GREMILLION, Judges.
   COOKS, Judge.

hFACTS AND PROCEDURAL HISTORY

James Mercer (Mercex') sued a third-party tort feasor for injuries allegedly sustained in a job-related accident. His employer, Nabors Drilling USA, LP, (Na-bors) intervened in the suit. Mercer reached a settlement with the third-party tort feasor for an amount which exceeded the sum owed as reimbursement to Na-bors. It is undisputed that Nabors did not provide express written approval of the settlement. However, Nabors agreed to the amount it was to be paid as reimbursement for compensation payments and medical payments, and agreed to deduct from that amount a share of the attorney fees and costs incurred by Mercer. Mercer reimbursed Nabors the full amount of compensation and medical benefits which Nabors paid, less its proportionate share of attorney fees and costs as agreed. By virtue of the full payment to Nabors, Mercer sought to reserve his statutory right to future benefits owed in accordance with the provisions of La.R.S. 23:1101 et seq.

After full reimbursement to Nabors, Mercer made demand on Nabors to pay medical benefits for medical costs incurred after the settlement. Nabors refused and terminated all benefits until such time as an amount equivalent to Mercer’s total recovery is used up, dollar for dollar. Mercer filed a claim with the Office of Workers’ Compensation (OWC). Nabors filed a motion for summary judgment maintaining that the previous decisions of this court on the issue of continued payment of medical benefits in these circumstances are not controlling and that the OWC should apply La.R.S. 23:1103(A)1 as though the word “compensation” in that statute includes medical benefits. The OWC granted Nabors’ motion and dismissed Mercer’s complaint. Mercer appeals maintaining that the prior decisions of this court in Breaux v. Dauterive Hosp. Corp., 02-1072 (La.App. 3 Cir. 2/5/2003), 838 So.2d 1 109, and DeQuincy v. Henry, 09-636 (La.App. 3 Cir. 12/9/2009), 25 So.3d 237, writ granted, 10-70 (La.4/30/10), 34 So.3d 296, are controlling and that the OWC erred in refusing to follow the clear holding in those cases. The OWC held that because Nabors did not give express written approval of the settlement, the matter is distinguishable from these decisions, and under its reading of La.R.S. 23:1102 and 1103 granted Nabors’ motion for summary judgment dismissing Mercer’s claims for compensation including future medical benefits.

ANALYSIS

“[W]here one or more legal errors are present” we do not apply the manifest error standard of review but instead conduct a de novo review of the record. Breaux, 838 So.2d at 109. The facts of this case are not in dispute. Mercer settled with a third-party tort feasor without obtaining an express written approval of the intervenor/employer, Nabors. Mercer thereafter reimbursed Nabors in full for all compensation paid and medical benefits paid prior to the settlement in accord with Nabors’ agreement as to the amount to be reimbursed less a share of the attorney fees and costs it agreed to credit against that sum. Louisiana Revised Statutes 23:1102 provides in pertinent part (emphasis added):

A. (1) If the employee or his dependent or the employer or insurer brings suit against a third person as provided in R.S. 23:1101, he shall forthwith notify the other in writing of such fact and of the name of the court in which the suit is filed, and such other may intervene as party plaintiff in the suit.
[(2)]
B. If a compromise with such third person is made by the employee or his dependents, the employer or insurer shall be liable to the employee or his dependents for any benefits under this Chapter which are in excess of the full amount paid by such third person, only after the employer or the insurer receives a dollar for dollar credit against the full amount paid in compromise less attorney fees and costs Rpaid by the employee in prosecution of the third party claim and only if written approval of such compromise is obtained from the employer or insurer by the employee or his dependent, at the time of or prior to such compromise. Written approval of the compromise must be obtained from the employer if the employer is self-insured, either in whole or in part. If the employee or his dependent fails to notify the employer or insurer of the suit against the third person or fails to obtain written approval of the compromise from the employer and insurer at the time of or prior to such compromise, the employee or his dependent shall forfeit the right to future compensation, including medical expenses. Notwithstanding the failure of the employer to approve such compromise, the employee’s or dependent’s right to future compensation in excess of the amount recovered from the compromise shall be reserved upon payment to the employer or insurer of the total amount of compensation benefits, and medical benefits, previously paid to or ón behalf of the employee, exclusive of attorney fees arising out of the compromise; except in no event shall the amount paid to the employer or insurer exceed fifty percent of the total amount recovered from the compromise. Such reservation shall only apply after the employer or insurer receives ' a dollar for dollar credit against the full amount paid in compromise, less attorney fees and costs paid by the employee in prosecution of the third party claim.

In a recent decision by this court, we expressly stated that our decision in Breaux “is a correct statement of the law”:

The workers’ compensation insurer is not entitled to a credit for future medical benefits, even when the amount, which the third party tort feasor paid in settlement, exceeds that sufficient to reimburse the compensation carrier.

DeQuincy, 25 So.3d at 240. (Citing Breaux, 838 So.2d at 112).

In Breaux, this court relied on the Louisiana Supreme Court’s decisions in Fontenot v. Hanover Ins. Co., 385 So.2d 238 (La.1980), and Brooks v. Chicola, 514 So.2d 7 (La.1987). We find it instructive in the Fontenot case that the Louisiana Supreme Court expressed the view that:

The. underlying policy of the workers’ compensation statute provisions for apportionment of damages between employer and employee in suits against third persons merely prevents an employee’s double recovery for |4his injuries; it does not require an employee to reimburse out of his award for pain and suffering medical expenses which he failed to recover from a third party tort feasor.

Breaux, 838 So.2d at 111, quoting Fonte-not. Further, our decision in Breaux also relied on the Louisiana Supreme Court’s decision in Brooks, which held that:

[R]eimbursement to the compensation insurer in this case must necessarily be limited only to the damage awards for loss of earnings and medical expenses. An injured worker, as any other tort victim, is entitled to his full recovery for non-economic losses.
There should be no reduction in his award for the pain and suffering element simply to give a compensation insurer full reimbursement. As we stressed in Fontenot, the Louisiana Workers’ Compensation Law only requires reimbursement to the extent that damages for lost wages and medical expenses are recovered from a third party tort feasor. No preference is granted to the compensation interve-nor over the employee’s award for pain and suffering. In this way, the true purpose of the compensation law will be fulfilled. As we have frequently stated, the law must be given a liberal interpretation to effect its beneficial purpose of relieving workers of the economic burden of work-connected injuries by diffusing the cost in the channels of commerce. The above interpretative analysis of La.R.S. 23:1103 fulfills this methodology and purpose and is reflective of what we construe to be the legislative intent.
(emphasis added, citations omitted.) It continued:
It necessarily follows that credit for future compensation likewise must be limited to the award for future loss of earnings. To allow reimbursement and credit beyond this would reduce the injured worker’s recovery for non-economic losses. It would also be contrary to the liberal intex-pretation afforded the compensation act and the humanitarian spirit within which it was enacted.
Although Brooks has been legislatively overruled x-egarding another principle, it continues to stand for the premise that the workers’ compensation insurer is not entitled to a credit for future medical benefits, even when the amount, which the third-party tort feasor paid in settlement, exceeds that sufficient to reimburse the compensation carrier.

Breaux, 838 So.2d at 112. (alteration in original)

Nabors argues that the punitive provisions of La.R.S. 2S:1102(B) should be read to mean that, as punishment for failing to obtain the employer’s or insurer’s approval of a compromise settlement, the employee who avails himself of the buy-|back5 provision in the statute loses the protection accorded him in the Brooks and Breaux decisions and leaves him liable to use up all of the monies he recovered from the third party tort feasor before the employer has to resume paying compensation and medical payments. We reject this argument as contrary to the holdings in Fontenot, Brooks, and Breaux and as contrary to Louisiana’s workers’ compensation law. First, we note, the statute provides that “in no event shall the amount paid to the employer or insurer exceed fifty percent of the total amount recovered from the compromise.” La. R.S. 23:1102(B) (emphasis added). Thus Nabors’ argument seeking entitlement to one hundred percent of Mercer’s recovery, and the OWC’s holding allowing such reimbursement, clearly contravene this express prohibition. More importantly, Nabors’ argument, and the OWC’s holding, ignore the express statutory provision which clearly states:

Notwithstanding the failure of the employer to approve such compromise, the employee’s or dependent’s right to future compensation in excess of the amount recovered from the compromise shall be reserved upon payment to the employer or insurer of the total amount of compensation benefits, and medical benefits, previously paid to or on behalf of the employee ...

La.R.S. 23:1102(B) (emphasis added). “Notwithstanding” means what it says.

Because of the quasi-penal nature of the provision of La.R.S. 23:1002(B) regarding forfeiture of benefits when the employee compromises without the employer’s consent, it must be strictly construed. See Darbonne v. M & M Right of Way Contractors, 96-1730 (La.App. 3 Cir. 4/30/97), 693 So.2d 299. Additionally, the Louisiana Civil Code instructs us to interpret the meaning of statutes with reference to each other. La. Civ.Code art. 13. Thus we must apply the provisions of La.R.S. 23:1103 and 1102 to gain a full understanding of the statutory scheme of our workers’ compensation laws so that, in accordance with the Louisiana Supreme Court’s instruction in Brooks, we give full effect to the “beneficent purpose” of the | ¿workers’ compensation statutes which s.eek to relieve injured workers from the economic burden of a work-related injury by “diffusing the cost in the channels of commerce.” Brooks, 514 So.2d at 14. La.R.S. 23:1103 provides:

A. (1) In the event the employer or the employee or his dependent becomes party plaintiff in a suit against a third person, as provided in R.S. 23:1102, and damages are recovered, such damages shall be so apportioned in the judgment that the claim of the employer for the compensation actually paid shall take precedence over that of the injured employee or his dependent; and if the damages are not sufficient or are sufficient only to reimburse the employer for the compensation which he has actually paid, such damages shall be assessed solely in his favor; but if the damages are more than sufficient to so reimburse the employer, the excess shall be assessed in favor of the injured employee or his dependent, and upon payment thereof to the employee or his dependent, the liability of the employer for compensation shall cease for such part of the compensation due, computed at six percent per annum, and shall be satisfied by such payment. The employer’s credit against its future compensation obligation shall be reduced by the • amount of attorney fees and court costs paid by the employee in the third party .suit.
(2) No. compromise with such third person by either the employer or the injured employee or his dependent shall be binding upon or affect the rights of the others unless assented to by him.

We have already recited and discussed the application of the provisions of La.R.S. 23:1103(B) above in this matter.

It is important to note in this case that although Nabors "did not give its express written consent to the compromise settlement made on behalf of Mercer, his wife and children as claimants in the third-party suit, Nabors did participate in the resolution of the third-party matter by agreeing to an amount it was to be repaid for its compensation and medical payments made to Mercer and agreeing to an amount to be deducted for attorney fees and costs. We note, under the workers’ compensation statutory scheme, Nabors did not have to agree to a reduction in the form of a proportionate share of the attorney fees and costs where it did not agree to a compromise. And yet, Nabors agreed to such resolution of its claims, and now asserts that we should interpret the workers’ compensation statutes so as to penalize Mercer |7for not obtaining Nabors’ written approval of the compromise settlement, through which they got paid what they asked to be paid, and we should ignore the express provisions of the statutory scheme intended to protect Mercer from this very threat. We find that such a ruling would be unfair to Mercer and not in keeping with the beneficent purposes of the workers’ compensation statutes, and would run afoul of the Louisiana Supreme Court’s decisions in Fontenot and Brooks as well as our previous decisions in Breaux and Dauterive. Nabors received what it asked to be paid, and even agreed to be paid less than it would have been entitled to receive under the workers’ compensation statutes. Mercer fulfilled the requirement of the buy-back provisions of the statute, in accordance with Nabors’ demand, which are meant to protect him as an injured worker and to limit the amount he must pay out of his third-party tort recovery before his employer must resume compensation payments, to an amount not to exceed, in any event, “fifty percent of the total amount recovered from the compromise.” La.R.S. 23:1102(B). Under our prior decision, in Breaux, and consistent with the Louisiana Supreme Court’s holdings in Fontenot and Brooks, Nabors is not entitled to a credit for future medical benefits “even when the amount, which the third-party tort feasor paid in settlement, exceeds that sufficient to reimburse” the amounts paid prior to the settlement by Nabors. Breaux, 838 So.2d at 112. The summary judgment of the OWC is reversed and vacated. The case is remanded to the OWC for further proceedings consistent with this opinion.

REVERSED, JUDGMENT VACATED; REMANDED FOR FURTHER PROCEEDINGS.