author: ROLAND L. BELSOME, Judge. LOBRANO, J.,

text:
    STATE of Louisiana v. Zuhair HAMED.
    No. 2013-KA-1655.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 13, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, J. Bryant Clark, Jr., Assistant District Attorney, New Orleans, LA, for State of Louisiana/Appellee.
    Robert E. Jones, IV, Jones & Williams, LLC, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge ROLAND L. BELSOME, Judge JOY COSSICH LOBRANO).
   ROLAND L. BELSOME, Judge.

_jjln this criminal appeal, the defendant challenges his conviction and sentence for issuing a worthless check in excess of fifteen hundred dollars. For the following reasons, we reverse.

STATEMENT OF THE CASE

The defendant, Zuhair Hamed, was charged by bill of information with one count of issuing a worthless check in the amount of five hundred dollars or more. The bill was later amended to indicate that the worthless check was in the amount of fifteen hundred dollars or more.

The defendant pled not guilty at arraignment. After a motions hearing, the trial court found no probable cause to substantiate the charges. The defendant subsequently waived his right to a jury trial, and elected to proceed with a bench trial. At the conclusion of trial, the trial court found the defendant guilty as charged. The trial court denied all post-verdict motions and the defendant was sentenced to four years in the Department of Corrections, suspended, with four years of active probation, as well as a $1,000.00 fine, court costs, and restitution |2costs. After a hearing, the magistrate court ordered Defendant to pay $13,626.08 in restitution. This appeal followed.

FACTS

On September 18, 2007, Little Castro, L.L.C. (doing business as Discount City) entered into a credit sales agreement with fuel supplier, Ballard Petroleum, Inc. Ballard Petroleum agreed to provide fuel and Discount City would pay the obligation within ten days from the date of the invoice or next load. Ameer Hamed, the defendant’s son, personally guaranteed payment on behalf of his establishment, Discount City. The defendant was listed as a contact on the credit application filed by his son.

During October of 2007, Ballard Petroleum made six fuel deliveries in a twelve-day period. However, the checks for those deliveries totaling approximately $126,000 were returned for nonsufficient funds (NSF). On November 1, 2007, the defendant rode with Mr. Jim Ballard, the owner of Ballard Petroleum, to the bank, where he issued him a cashier’s check in the amount of $126,061.30 to cover the returned checks. On the next day, another NSF check in the amount of $20,597.08 was returned to Ballard Petroleum. The check, dated October 26, 2007, was for a fuel delivery on October 16, 2007. The defendant was not a member of Silwady’s Group L.L.C., the listed account holder on the check. Also, he was not a member of Little Castro, L.L.C. (Discount City). Thus, he was acting as an agent for these businesses.

lain an effort to resolve the matter, Mr. Ballard made several attempts to contact the defendant, but he was unable to reach him. On November 6, 2007, pursuant to instruction from the Worthless Check Division of the District Attorney’s office, Ballard Petroleum sent a certified letter notifying Discount City of the dishonored check. In response to the letter, the defendant acknowledged the debt and advised Mr. Ballard that he would reimburse him. By April of 2009, after the District Attorney’s office became involved, the defendant paid $7,000.00 towards the bal-anee. There were no additional payments made, and charges were eventually filed against the defendant in October of 2011.

DISCUSSION

The defendant first argues that the evidence was insufficient for a rational trier of fact to find that the elements of the crime of issuing worthless checks were proven beyond a reasonable doubt.

When reviewing the sufficiency of the evidence to support a conviction, this court is controlled by the standard 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), which dictates that to affirm a conviction “the appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Captville, 448 So.2d 676, 678 (La.1984).

|4In addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372, 378 (La.1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. This is not a separate test from Jackson v. Virginia, supra, but rather an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198, 1201 (La.1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, 504 So.2d 817, 821 (La.1987).

The court in State v. Mosby, 42,519, pp. 1-2 (La.App. 2 Cir. 5/18/07), 956 So.2d 843, 845, recognized the elements required to convict a defendant for issuing a worthless check as follows:

Under La. R.S. 14:71, to obtain a conviction for issuing of a worthless check the state is required to prove beyond a reasonable doubt that: (1) defendant issued, in exchange for anything of value, whether the exchange is contemporaneous or not; (2) a check, draft or order for the payment of money upon any bank or other depository; (3) knowing at the time of the issuing that the account on which drawn has insufficient funds with the financial institution on which the check is drawn to have the instrument paid in full on presentation; and (4) the instrument was issued with intent to defraud.

The proper inquiry under La. R.S. 14:71 (A) is whether a defendant knew that he had not sufficient credit with the bank, not whether his actual monetary balance was sufficient to cover a check, draft or order for payment issued by him. State v. Davis, 48,777, p. 10 (La.App. 2 Cir. 2/26/14), 134 So.3d 1257,1264.

In this case, the knowledge element is lacking. The State points to two facts to support its argument that the knowledge element was met: 1) the multitude of LNSF checks written to the victim before and after the date of the check at issue; and 2) the defendant’s acknowledgment that he owed the debt and would reimburse Ballard Petroleum.

First, there is no evidence in the record that the defendant knew there were insufficient funds in the bank on August 26, 2007. While Mr. Ballard testified that he went to the bank with the defendant, who issued him a cashier’s check for the returned checks on November 1, 2007; this took place after the checks had already been written. Thus, it does not serve to establish that the defendant had knowledge of the insufficient funds at the time the checks were written. Likewise, the defendant’s acknowledgement of the debt after he received the certified letter does not prove the defendant’s knowledge at the time the check was issued.

In Davis, supra, the Second Circuit found that the State failed to prove that the defendant knew that he did not have sufficient credit with his banking institution to cover payment of markers he signed to obtain gambling credit at a casino. There the court focused on the State’s failure to establish there were insufficient funds in the defendant’s bank account, as well as, the defendant’s knowledge of the lack of funds on the day in question. Id., 48,777 at 12-13,134 So.3d at 1264-65.

Unlike in Davis, this was not the defendant’s personal (or business) account. Significantly, the account holder, here, was Silwady’s Group, a limited liability company that was not owned by the defendant. Thus, it is reasonable to conclude that the defendant was merely an agent, who was directed to write checks without knowledge of the status of the account. The fact that he continually attempted to reimburse Ballard Petroleum supports this conclusion. Under these circumstances, | ^presenting account records alone is insufficient to prove the defendant’s knowledge.

The record fails to provide sufficient evidence for a rational trier of fact to conclude that defendant had the knowledge that Silwady Group did not have sufficient funds with the bank for payment of the check when he signed it. Jackson v. Virginia, supra. Accordingly, we find that the evidence was legally insufficient to convict the defendant of issuing worthless checks. In light of this conclusion, we pretermit any discussion of the defendant’s remaining assignments of error.

For these reasons, we reverse the defendant’s conviction and sentence.

REVERSED.

LOBRANO, J., dissents with reasons.

LOBRANO, J.,

dissents with reasons.

hi respectfully dissent from the majority opinion reversing defendant Zuhair Hamed’s conviction and sentence for issuing a worthless check in the amount of one thousand five hundred dollars or more. I disagree with the majority’s conclusion that the evidence was insufficient for a rational trier of fact to conclude that defendant knew the bank account did not have sufficient funds for payment of the check when defendant issued it on October 26, 2007. For the reasons that follow, I would affirm defendant’s conviction and sentence.

Issuing a worthless check is a violation of La. R.S. 14:71, which provides, in pertinent part:

A. (l)(a) Issuing worthless checks is the issuing, in exchange for anything of value, whether the exchange is contemporaneous or not, with intent to defraud, of any check, draft, or order for the payment of money upon any bank or other depository, knowing at the time of the issuing that the offender has not sufficient credit with the bank, or other depository for the payment of such check, draft, or order in full upon its presentation.
(b) This Section shall apply to a check, draft, or order tendered for satisfaction, in whole or in part, of payments due on installment contracts, open accounts, or any other obligation for which the creditor has authorized periodic payments or the extension of time in which to pay.
2) The offender’s failure to pay a check, draft, or order, issued for value, within ten days after notice of its nonpayment upon presentation has been deposited by certified mail in the United States mail system addressed to the issuer thereof either at the address shown Lon the instrument or the last known address for such person shown on the records of the bank upon which such instrument is drawn or within ten days after delivery or personal tender of the written notice to said issuer by the payee or his agent, shall be presumptive evidence of his intent to defraud.

(Emphasis added).

The court in State v. Mosby, 42,519, pp. 1-2 (La.App. 2 Cir. 5/18/07), 956 So.2d 843, 845, recognized the elements required to convict a defendant for issuing a worthless check as follows:

Under La. R.S. 14:71, to obtain a conviction for issuing of a worthless check the state is required to prove beyond a reasonable doubt that: (1) defendant issued, in exchange for anything of value, whether the exchange is contemporaneous or not; (2) a check, draft or order for the payment of money upon any bank or other depository; (3) knowing at the time of the issuing that the account on which drawn has insufficient funds with the financial institution on which the check is drawn to have the instrument paid in full on presentation; and (4) the instrument was issued with intent to defraud.

The Louisiana Supreme Court has recognized that “[a]n essential element of the crime of issuing worthless checks is that defendant at the time of the issuing be possessed of intent to defraud.” State v. Jones, 400 So.2d 658, 661 (La.1981). “Moreover, the failure to pay a worthless check within ten days of constructive notice of its nonpayment is ‘presumptive evidence’ of intent to defraud.” :State v. Lindsey, 491 So.2d 371, 373 (La.1986). The Lindsey Court recognized that the presumption was a “permissive presumption” that “allows, but does not require, the finder of fact to infer the fact which is an element of the crime from the basic fact that has been proven.” Id. at 374. “A permissive presumption will generally be upheld unless there is no rational way that the finder of fact could make the connection permitted by the inference.” Id. Stated another way, “[b]ecause a permissive presumption leaves the trier of fact free to credit or reject the inference and does not shift the burden of proof, it affects the application of the ‘beyond a reasonable doubt’ standard only if, under the facts of the case, there is no rational |sway a trier could make the connection permitted by the inference.” Id. at 376. The permissible presumption in La. R.S. 14:71 has also been held to be a rebuttable presumption. See State v. Collins, 11-485 (La.App. 5 Cir. 12/13/11), 81 So.3d 135.

In this case, on October 26, 2007, defendant issued the $20,597.08 check to Ballard Petroleum in exchange for fuel, or something of value. With regard to whether the State is entitled to a permissive presumption regarding defendant’s intent to defraud, defendant maintains that the certified letter was addressed to “Little Castro” rather than to him. However, Jim Ballard, owner of Ballard Petroleum, testified that after he sent the certified letter, defendant’s response to the letter was an indication that he would pay and “[t]hat he was guilty of that, yes, he understood he owed me the NSF.”

The State also presented testimony that defendant contacted Nick Geraci at the District Attorney’s office in connection with the receipt of the certified letter, advised Geraci that he wrote the NSF check, signed a form acknowledging that he owed $20,597.08 for the NSF check, and paid $7,000.00 towards the debt. Thus, the testimony elicited at trial establishes that defendant acknowledged receipt of the certified letter, voluntarily came to the District Attorney’s office to discuss restitution, and admitted to writing the $20,597.08 NSF check. The testimony presented at trial also established that defendant made a partial payment on the NSF check pursuant to the receipt of the certified letter and his subsequent contact with the District Attorney’s office.

When considering whether a defendant issued a worthless check with the intent to defraud, the Second Circuit noted that “[tjhough intent is a question of fact to be decided by the trier of fact, it need not be proved as a fact, but may be inferred from the circumstances.” State v. Washington, 29,784, p. 4 (La.App. 2 Cir. 9/26/97), 700 So.2d 1068, 1073 (citing State v. Kahey, 436 So.2d 475 L(La.1983)). Here, the testimony and evidence at trial established that by the time defendant went with Ballard to the bank on November 1, 2007, Ballard already had five checks returned NSF from defendant’s company on October 9, 16, 18, 23 and 25, 2007. During the bank visit, Ballard specifically asked defendant if the $126,061.30 cashier’s check would cover all of the checks that had been returned NSF to Ballard to date, and defendant responded, “I guarantee you, Mr. Ballard, that covers everything we owed, all our NSF’s.” The following day, despite defendant’s assurance, the $20,597.08 check dated October 26, 2007, was returned to Ballard for insufficient funds. I believe that when presented with evidence of the five NSF checks and Ballard’s testimony, a fact finder could do nothing but infer that defendant knew there were insufficient funds in the account on October 26, 2007, when he issued the $20,597.08 check, and that he intended to defraud the company.

Furthermore, I find no merit to defendant’s argument that he was merely a representative of Discount City and, therefore, he could not be held liable for the check returned for nonsufficient funds, relying upon Winn Fuel Service, Inc. v. Booth, 45,207 (La.App. 2 Cir. 4/14/10), 34 So.3d 515. Defendant’s reliance upon Winn is misplaced. Winn is a civil case involving La. R.S. 9:2782 (Nonsufficient fund cheeks; damages; attorney fees), while defendant in this case has been charged with violating La. R.S. 14:71, a criminal statute. In addition, Geraci testified that defendant voluntarily came to the District Attorney’s office to discuss restitution on the NSF check, and he admitted that he owed Ballard the money for the NSF check.

Next, I address the defendant’s remaining assignments of error.

|fiIn the second assignment of error, defendant argues that the trial court erred when it determined that the Civil Code Article 1868 did not apply in the criminal prosecution. Defendant contends the trial court improperly imputed certain NSF checks as part of defendant’s $126,061.30 payment. Various times during the trial, defendant raised the issue of the applicability of Civil Code articles, at which times the trial court sustained the State’s objections to defense counsel’s attempts to apply the Civil Code to the criminal proceedings. The trial court instructed defense counsel that “this is not Loyola and Poy-dras, sir” and that the Civil Code “doesn’t have jurisdiction over the proceedings here.”

If the obligor had the same interest in paying all debts, payment must be imputed to the debt that became due first.

Title 14 of the Louisiana Revised Statutes, the Louisiana Criminal Code, and Louisiana jurisprudence, support the trial court’s ruling that the Civil Code was not applicable to this case. La. R.S. 14:3 provides the basis for the interpretation of criminal stating:

The articles of this Code cannot be extended by analogy so as to create crimes not provided for herein; however, in order to promote justice and to effect the objects of the law, all of its provisions shall be given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.

Of particular note, the Reporter’s Comments to La. R.S. 14:3 state the following:

A distinction between civil and criminal statutes with reference to interpretation is preserved. Article 3 expressly states that the analogical projection usually permitted in handling civil statutes is not available in interpreting this Code.

IfiThe distinction between the obligation imposed under the Louisiana Civil Code and the affirmative duty imposed under criminal statutes was addressed by the Louisiana Supreme Court in State v. Austin, 374 So.2d 1252, 1254 (La.1979). The issue in Austin was whether the prosecution of a defendant for criminal neglect of family under La. R.S. 14:74 constituted double jeopardy under the federal ■ and state constitutions where the defendant was found in contempt of court for failure to pay due child support in a prior civil proceeding. The Supreme Court, citing their prior case of State v. Galjour, 215 La. 553, 41 So.2d 215 (1949), stated:

In [Galjour ], this Court distinguished proceedings similar to those with which we are concerned, recognizing that “... the order of court awarding ... alimony (is) merely an incidental or ancillary proceeding flowing from the divorce action and (is) based on (the parent’s) obligation (under Civil Code Article 227) to support his children.... ” Galjour differentiated such a proceeding from proceedings under R.S. 14:74 which are “... criminal in their nature, based on the failure or past omissions of the father to fulfill the obligation to support his children [which the criminal statute itself creates].”

Austin, 874 So.2d at 1254 (emphasis added).

In support of his argument, defendant cites State v. Moran, 400 So.2d 1359 (La. 1981), which involved a defendant who was charged with criminal neglect of family under R.S. 14:74 for failing to provide support for his son. The trial court stated at the criminal trial that child support was a “civil obligation.” Id. at 1362. However, in a footnote, the Moran Court plainly indicated that the matter was not civil in nature:

Even if the civil law were applicable, the imputation is arguably incorrect. C.C. art. 2166 requires imputation of the debt which the debtor at the time of payment had most interest in discharging. Since a parent is subject to criminal sanctions for current failure to support his child, it must be presumed that defendant had most interest in discharging his current support obligation in order to. avoid criminal penalties.

Id. at 1362 n. 1 (emphasis added). The Moran Court later concluded:

We note first that the amount of support required by R.S. 14:74 is not necessarily coextensive with the amount of support which may be (or may have been) fixed under different standards applicable to |7the determination of a civil obligation for child support. Thus, while evidence of a parent’s partial or total failure to discharge his civil obligation is admissible, that evidence is not alone determinative of his guilt of criminal neglect of family. See State v. Guil-lot, 389 So.2d 68 (La.1980). But whatever defendant’s civil obligation is in this case under C.C. art. 227 or under the civil judgment ordering payment of $200 per month, the determination of defendant’s criminal liability depends upon proof of the elements of the crime listed in the criminal statutes.

Id. at 1363 (footnotes omitted).

Defendant’s reliance upon State v. Moran is misplaced, as the Court concluded that the determination of the defendant’s guilt would be determined by the elements of the alleged crime in the criminal statutes. This assignment of error lacks merit.

Defendant, in the third assignment of error, argues that the trial court erred when it denied his motions for post-verdict judgment of acquittal and motions for new trial based on insufficient evidence and the discovery of new material evidence that was not available at trial.

La.C.Cr.P. art. 851 governs grounds for a new criminal trial and provides:

The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
The court, on motion of the defendant, shall grant a new trial whenever:
(1) The verdict is contrary to the law and the evidence;
(2) The court’s ruling on a written motion, or an objection made during the proceedings, shows prejudicial error;
(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty;
(4) The defendant has discovered, since the verdict or judgment of guilty, a prejudicial error or defect in the proceedings that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before the verdict or judgment; or
(5) The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.

|s(Emphasis added). A trial court’s ruling regarding a motion for new trial will not be disturbed absent an abuse of discretion. State v. Lewis, 2012-0803, p. 13 (La.App. 4 Cir. 9/25/13), 125 So.3d 1252,1260-61.

With regard to motions for new trial based upon newly discovered evidence, this Court has acknowledged the following:

La.Code Crim. Proc. Art. 851 provides in pertinent part that a motion for a new trial shall be granted whenever

“[n]ew and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty.” La.Code Crim. Proc. art. 851(3). To obtain a new trial based on newly discovered evidence, the defendant must show: 1) the new evidence was discovered after trial; 2) the failure to discover the evidence at the time of trial was not due to the defendant’s lack of diligence; 3) the evidence is material to the issues at trial; and 4) the evidence is of such a nature that it would probably have changed the verdict of guilty. State v. Brisban, 2000-3437, p. 12 (La.2/26/02), 809 So.2d 923, 931.

State v. Nicholas, 2008-0867, p. 2 (La.App. 4 Cir. 6/17/09), 15 So.3d 1179, 1180 (emphasis added); see also La.C.Cr.P. art. 854.

In this case, defendant contended in his motion for new trial that new and material evidence had been discovered that was not available before or during the trial. Specifically, defendant argued that certain records requested on January 4, 2012 by the defense from Iberia Bank were not obtained before the March 2, 201219trial date because “Iberia had technical difficulty in locating the documents.” Thus, by defendant’s own admission, the evidence was discovered before trial. Furthermore, the records sought were the records of The Silwady’s Group, LLC, which is defendant’s own company.

Also, a review of Silwady’s Group’s Iberia bank records evidence that defendant issued a check (ultimately returned for nonsufficient funds) on October 26, 2007 for $20,597.08, yet only $586.29 was in the account on that date. On October 28, 2007, Silwady’s Group had a balance of only $15,844.12, also insufficient to cover the $20,597.08 check. On October 24, 2007, the bank statement contains the notation, “Oust Req Stmt Inq.” Additionally, on October 24, 25, and 26, defendant was charged with NSF check fees. Thus, the Iberia Bank statements actually support the finding that defendant was aware that the check was nonsufficient at the time of issuance, particularly in light of the notation that a statement inquiry was requested on October 24, 2007.

Defendant also relies upon State v. Knapper, 555 So.2d 1335 (La.1990), arguing that new evidence arose after the trial in that case which discredited the State’s witness and corroborated a defense witness, and the Louisiana Supreme Court held that the defendant therein should have been granted a new trial. Defendant argues that in this case, Ballard testified that no checks were paid through automatic drafts, but Discount City’s bank statements — not obtained from Iberia Bank until after the trial — established that payments were made to Ballard | invia automatic drafts, including one of the NSF payments, which discredits Ballard’s testimony.

However, as previously discussed herein, the existence of Silwady’s Group’s own Iberia Bank statements were known to defendant prior to trial and could not constitute newly discovered evidence pursuant to La.C.Cr.P. art. 851: Additionally, Knapper is distinguishable because that case involved an eyewitness to a murder who was not discovered until after trial and who undermined the testimony of the State’s only eyewitness.

The third assignment of error lacks merit, as the evidence was discovered before trial, and defendant failed to demonstrate that, even if the evidence was not discovered before trial, it was of such a nature that it would have changed the verdict to not guilty.

In the fourth assignment of error, defendant argues that the trial court erred by imposing .restitution as part of the sentence because he was never the owner or guarantor of Discount City’s Ballard debt. La. R.S. 14:71(G) provides in part that “[i]n addition to any other fine or penalty imposed under this Section, the court shall order as part of the sentence restitution in the amount of the check or checks, plus a fifteen dollar per check service charge payable to the person or entity that initially honored the worthless check or checks, an authorized collection agency, or justice of the peace.” (Emphasis added). This assignment of error lacks merit.

In the fifth assignment of error, defendant argues that the trial court erred when it based the restitution payment on

the testimony Geraci, an employee of the District Attorney’s office who was not familiar with the payment records of Ballard. Defendant did not specifically address this assignment of error. luHowever, nothing in the restitution hearing transcript evidences that the magistrate court gave Geraci’s testimony undue weight. Additionally, Geraci testified at trial and was qualified to testify at the restitution hearing. This assignment of error lacks merit.

Defendant argues in the sixth and final assignment of error that the trial court erred by failing to take into account the payments that were made to Ballard but were not properly reflected on their invoice. Again, defendant failed to address this assignment of error (see supra n. 6). Nonetheless, the magistrate court allowed defendant to introduce numerous exhibits at the restitution hearing, one of which purportedly demonstrated that defendant made payments to Ballard that were not properly reflected. A review of the restitution hearing transcript evidences that the magistrate court thoroughly reviewed and properly considered evidence submitted by defendant at the hearing before making its ruling. This assignment of error lacks merit.

Accordingly, for the reasons set forth above, I would affirm the defendant’s conviction and sentence.

      . The minute entry indicates that the $1,000.00 was to be paid to the judicial expense fund and that defendant was assessed with $191.50 in court costs.

      . A review of the restitution hearing transcript evidences that counsel for the defendant requested a stay, which the trial court indicated it would grant.

      .The check, dated October 26, 2007, was for a fuel delivery on October 16, 2007. The defendant was not a member of Silwady’s Group L.L.C., the listed account holder on the check. Also, he was not a member of Little Castro, L.L.C. (Discount City). Thus, he was acting as an agent for these businesses.

      . Mr. Ballard testified that the defendant avoided his phone calls and personal visits to Discount City.

      . In particular, Mr. Ballard testified that in response to the letter the defendant "said he would pay he would pay. That he was guilty of that, yes, he understood he owed me the NSF.”

      . La. C.C. art. 1868 provides, in pertinent part:

      . See State v. Daniels, 236 La. 998, 109 So.2d 896 (1958) (where the court noted that it is appropriate to take into consideration reporters' comments, which have legislative sanction, to Criminal Code, in interpretation and construction of articles therein).

      . La.C.Cr.P. art. 854 provides:
      A motion for a new trial based on ground (3) of Article 851 shall contain allegations of fact, sworn to by the defendant or his counsel, showing:
      (1) That notwithstanding the exercise of reasonable diligence by the defendant, the new evidence was not discovered before or during the trial;
      (2) The names of the witnesses who will testify and a concise statement of the newly discovered evidence;
      (3) The facts which the witnesses or evidence will establish; and
      (4) That the witnesses or evidence are not beyond the process of the court, or are otherwise available.
      The newly discovered whereabouts or residence of a witness do not constitute newly discovered evidence.

      . At the restitution hearing, defendant submitted correspondence from Iberia Bank indicating that the requested documentation was from a former Omni Bank account that had been closed and that there were technical difficulties in obtaining older documents from such accounts. The correspondence, dated March 20, 2012, indicated that Iberia Bank was "recently able to gain access” to the documents and provided a copy of the check in question on March 17, 2012.

      . The address listed for "The Silwady’s Group, LLC” with the Secretary of State at the time of trial was 2013 South Claiborne Avenue, New Orleans, Louisiana, 70125. The address listed for “Discount City" on the Ballard credit account agreement and credit application is also 2013 South Claiborne Avenue. The credit application also indicates that the company name is "Little Castro, LLC (Discount City).”

      . The State contends that the defendant failed to brief this assignment of error, and it is deemed waived. See State v. Edwards, 2013-0665, p. 2 (La.App. 4 Cir. 1/22/14), 133 So.3d 132, 134 ("All specifications or assignments of error must be briefed. The court may consider as abandoned any specification or assignment of error which has not been briefed.") (citing Uniform Rules, Courts of Appeal, Rule 2-12.4).


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Jackie MILLER, Appellant.
    No. 49,234-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 20, 2014.

      Carey J. Ellis, III, Louisiana Appellate Project, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Marcus R. Patillo, Charles A. Smith, Assistant District Attorneys, for Appellee.
    Before CARAWAY, LOLLEY and PITMAN, JJ.
   [jJackie Miller was charged by bill of information with resisting an officer with force or violence, in violation of La. R.S. 14:108.2, for acts occurring on December 26, 2012. Miller pled guilty as charged and was sentenced to 2-1/2 years at hard labor. She now appeals her sentence. We affirm.

Facts

On December 26, 2012, Miller was stopped for speeding by Sibley police officer Michael Williams. Upon speaking with Miller, Officer Williams noted the strong odor of alcohol on her breath. Due to Miller’s poor performance on and refusal to participate in field sobriety tests, Officer Williams placed Miller under arrest. Miller refused to be peacefully arrested and attempted to break one of the patrol unit’s windows with her head. During transport, she began kicking the partition in the police vehicle. After her arrival at Bayou Dorcheat Correctional Center, Miller became irate again and hit a deputy sergeant. She was pepper sprayed and placed in a restraint chair.

On July 8, 2013, Miller pled guilty as charged to resisting an officer with force or violence.

Miller’s sentencing hearing was held on September 9, 2013. She apologized for her actions and stated that she had been diagnosed with | ¡.bipolar disorder and schizophrenia. At sentencing, with reference to the presentence investigation report, the court stated:

Ms. Miller, you’re considered to be a fourth felony offender. You’re awaiting sentencing for the charge of resisting an officer with force. You are also to be sentenced in Webster Docket No. 86,-901, DWI first offense. The efforts to contact you regarding this report failed. You do have an extensive arrest record which includes convictions for forgery, cruelty to juveniles, attempted possession of schedule IV and the present offense. And in summary according to the report on considering your record, conduct regarding the present offense you do not seem to be a suitable candidate for any type of supervision^
Ma’am, taking into consideration Code of Criminal Procedure Article 894.1, taking into consideration all of the factors under 894.1, I do give you consideration because of your mental history. I do give you consideration as a mitigating factor from that. But Ma’am, you have a lengthy criminal history. You’re considered to be a fourth felony offender. You have had problems all along.

Miller was sentenced to 2-1/2 years at hard labor with credit for time served. The court also recommended mental or health treatment for Miller through the Department of Corrections.

Miller filed a motion to reconsider sentence on October 1, 2013, which alleged that her sentences were “merely punitive and will not achieve any goals of rehabilitating this defendant.” The trial court denied this motion on October 21, 2013. This appeal ensued.

Discussion

Miller argues that the trial court failed to give adequate weight to her mental health issues and need for treatment and that she does not qualify as the worst of offenders for which this upper range sentence is justified.

A reviewing court imposes a two-prong test in determining whether a sentence is excessive. First, the record must show that the trial court took | .¡cognizance of the criteria set forth in La.C.Cr.P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reveals that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dillard, 45,-633 (La.App.2d Cir.11/3/10), 55 So.3d 56, writ denied, 10-2853 (La.11/18/11), 75 So.3d 454. The important elements that should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal history, seriousness of the offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); Dillard, supra.

Second, a sentence violates La. Const, art. 1, § 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. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). As a general rule, maximum or near maximum sentences are reserved for the worst offenders and the worst offenses. State v. Cozzetto, 07-2031 (La.2/15/08), 974 So.2d 665; State v. McKinney, 43,061 (La.App.2d Cir.2/13/08), 976 So.2d 802. Absent a showing of manifest abuse of that discretion, an appellate court may not set aside a sentence as excessive. State v. Kidd, 45,638 (La.App.2d Cir.11/3/10), 55 So.3d 90. A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. Zeigler, 42,661 (La.App.2d Cir.10/24/07), 968 So.2d 875.

14For her crime of resisting an officer with force or violence conviction Miller faced a fine of not more than $2,000 dollars or imprisonment with or without hard labor for not less than one year, nor more than three years, or both. La. R.S. 14:108.2.

Considering the facts of this case, we cannot find the upper range sentence imposed to be unconstitutionally excessive. As shown above, the trial court appropriately and thoroughly took into account the La.C.Cr.P. art. 894.1 factors, specifically considering as a mitigating factor, Miller’s mental history. When balanced against her aggressive actions in the present matter as well as her lengthy criminal record, the court imposed the upper range sentence. These considerations provided sufficient justification for issuing the chosen sentence. Even with her mental issues, Miller has failed to benefit from prior leniency in sentencing and has persisted in years of criminal activity. Her previous offenses involved violence against persons, public intoxication, disturbing the peace and illegal drugs. Given these circumstances, Miller’s sentence for resisting an officer with force or violence is not grossly disproportionate to the severity of the crimes she committed and does not shock the sense of justice.

For these reasons, we find this assignment of error to be without merit and affirm Miller’s conviction and sentence.

AFFIRMED.

      . From the December events, Miller was also charged with speeding, an open container violation, DWI-lst Offense, attempted simple criminal damage to property, public intimidation and simple battery on a corrections officer.


author: CARAWAY, J.

text:
    In the Matter of the SUCCESSIONS OF Rosie Mae LAIN and Willie James Lain.
    No. 49,261-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 20, 2014.
    Rehearing Denied Sept. 25, 2014.

      Willie Hunter, Jr., for Appellant, Mary Lee Lain.
    Nelda Lawrence, Appellee, In Proper Person.
    Before BROWN, CARAWAY and DREW, JJ.
   CARAWAY, J.

|,In this succession proceeding, the trial court ordered the probate of the decedent’s 2006 notarial testament and the probate of a 2012 letter written by the decedent to the appellee, and determined by the court to serve as a codicil. The appel-lee is the daughter of a predeceased legatee named in the 2006 testament. The legatee was also purportedly adopted by the testator. The appellant asserts that the 2012 letter is not a valid olographic testament or codicil and was erroneously probated. Furthermore, the appellant asserts that the appellee failed to prove that the predeceased legatee was adopted by the testator, so that any claim by appellee to the lapsed legacy under Civil Code Article 1593 is unfounded. Finding that the 2012 letter was not a valid codicil and that the appellee failed to establish that the legatee had been adopted by the testator, we reverse the trial court’s judgment and remand for further proceedings.

Facts and Background

In 1981, Willie James Lain and Rosie Mae Lain each executed separate statutory wills in which each left his or her entire estate to the other. Willie Lain and Rosie Lain were husband and wife. In 2006, Rosie Lain died, but her will was not probated at that time. Following Rosie Lain’s death, Willie Lain obtained the services of a notary to help prepare and execute a notarial will. The will makes only one bequest. The will states, “I revoke all wills that I have previously made.... I leave my entire estate to be shared equally among my natural and adopted children who are Mary Lee Lain .. .• and John Simon.” This will was executed before a notary Land two witnesses, who signed an attestation clause, on July 26, 2006. Willie Lane died on June 7, 2012, but his legatee, John Simon, had previously died on July 16, 2011. That lapsed legacy is the focus of this controversy.

The family history of the parties is helpful to fully understand the underlying issues in this case. Willie and Rosie Lain were married on December 27, 1947. They never had any children of their own born during their marriage or prior to their marriage. Around 1958, Rosie’s mother, Ethel Levi, was on her deathbed and requested that Rosie, as her oldest child, raise Ethel’s youngest child, John Simon. Thus, John Simon is the natural brother of Rosie Lain. John Simon was still a child at that time, and sometime in the 1950s, Willie and Rosie Lain purportedly adopted John Simon.

The appellant in this dispute is Mary Lee Lain (“Mary”), the daughter of Willie Lain’s brother, Martel Lain, Sr. Thus, she is Willie Lain’s niece. However, appellant had a close relationship with Willie Lain growing up, and Willie Lain often referred to her as his “daughter.” Mary admits that she was never adopted by Willie Lain, contrary to the statement in his will.

The appellee, Nelda Lawrence (“Nelda”), was born in 1968 to Shirley Doyle, who was married at the time to Roosevelt Freeman. Thus, Nelda is the presumed child of Roosevelt Freeman. No evidence is in the record of any contestation or disavowal of paternity. Nevertheless, John Simon had a sexual relationship with Doyle around the time of Nelda’s birth. Allegedly from this relationship, Nelda was conceived. When Nelda was in high Lschool, she says she regularly visited with Willie Lain and Rosie Lain. Nelda is now a practicing attorney in Florida. When Rosie Lain died in 2006, Nelda attended the funeral with John Simon.

Willie Lain kept all his important documents, including both his 1981 and 2006 wills, as well as Rosie Lain’s 1981 will, in a safe-deposit box in Winnsboro State Bank. After Rosie Lain died, Willie Lain accessed the box on February 5, 2007. John Simon’s name was also on the box. After John Simon’s death, the ownership of the safe-deposit box was placed in the name of W.J. Lain or Mary Lee Lain or Nelda Lawrence on August 4, 2011. Records show that only Willie Lain had ever entered the safe-deposit box until October 17, 2011, at which time Willie Lain and Nelda did so. Willie Lain entered the box two more times before he died. Mary entered the box only twice, including the day after Willie Lain died, and on October 2, 2012, when she closed it.

After Willie Lain’s death on June 7, 2012, Mary immediately traveled to Louisiana, entered the safe-deposit box, and obtained the will because she claimed that Willie Lain had instructed her before his death to access the safe-deposit box as quickly as possible after he died.

Following the death of Willie Lain, Mary filed a pleading on July 27, 2012, styled, “Petition to File Dual Statutory Wills and for Possession.” In the petition, Mary prayed for the wills of Rosie and Willie Lain to be probated. She also prayed that she be put in possession of the entire estate of Willie Lain. The petition also raised the issue of whether the deceased legatee, John Simon, was survived by a daughter, Nelda. The petition | requested that Nelda be served with the pleadings and be required to show cause why Mary should not be named as the only “surviving heir” of Willie Lain.

At the time of these Louisiana succession proceedings, Nelda had been in the process of dealing with John Simon’s estate in Texas. She filed the petition on December 19, 2012. After hearing testimony, the court rendered judgment, which was filed on February 15, 2013. The Texas judgment for the estate proceedings was titled, “Judgment Declaring Heirship and Order of No Administration.” Mary was sent notice of the Texas proceedings to an address listed for Willie Lain. The address, however, was erroneous, so Mary never received notice. Notice was also made pursuant to Texas statutes for notice by publication. Pertinently, the Texas judgment states that the court found “[tjhat Roosevelt Freeman is not the father of Nelda Lawrence; and that Nelda Lawrence is the daughter and heir of John Simon.”

After an order naming Mary the succession representative for Willie Lain’s succession, Nelda finally made her first appearance in the proceedings on September 27, 2013, when she filed a petition to annul the 2006 testament. She also requested the court to determine whether Mary or John Simon was adopted by Willie Lain. Nelda alleged that she had obtained the Texas judgment and asked the court to give that judgment full faith and credit concerning her recognized filiation with John Simon. She asserted that Willie Lain’s 2006 testament was null because Willie Lain did not execute it before two witnesses. Nelda claimed that the notary |fiapproached the two witnesses at their place of business, where they signed the will while Willie Lain sat in a parked car waiting. She contended that Mary surreptitiously removed a judgment of adoption of John Simon from the safe-deposit box. In summary, Nelda made claims for the court to annul the 2006 will, determine that John Simon was lawfully adopted, determine that Mary was not adopted, grant the Texas judgment preclusive effect regarding the issue of her filiation to John Simon, and order that she be named the “sole forced heir” of Willie Lain.

A hearing on this dispute was set for October 7, 2012. However, on the Friday before this hearing, Willie Lain’s brother, Arthur Lain, had a petition for possession filed on the day the hearing began. Arthur Lain alleged that the 2006 will was null and that he was Willie Lain’s heir because Willie Lain had no children, adopted or otherwise. Arthur Lain’s attorney, on short notice, took part in the scheduled hearing on his behalf, cross-examining the witnesses who testified.

At the hearing, the court received and heard evidence regarding the execution of the 2006 testament. Other testimony taken at the hearing concerned whether John Simon was ever adopted by Willie Lain, as well as Nelda’s familial relationship with the decedent and John Simon. Mary’s brother-in-law, Athen Flournoy, her brother, Martel Lain, Jr., and Mary herself all testified to the effect that no one in the family had ever even heard of Nelda until around the time that Rosie Lain died. There had only Rbeen vague family references to a daughter of John Simon. Martel Lain, Jr., testified that he never saw any adoption documents for John Simon, and Mary testified there were none in the safe-deposit box.

On the other hand, Nelda’s mother, Shirley Doyle, testified that Nelda was John Simon’s biological daughter and that Nelda had a familial relationship with Willie Lain since high school. She also claimed that Willie Lain told her he adopted John Simon, but she never personally saw the adoption documents. Willie Lain’s longtime friend, Roy Hilliard, also testified that Willie Lain told him that Nelda was his granddaughter and that adoption papers for John Simon and for Mary were in the safe-deposit box. Hilli-ard testified initially that. Willie Lain told him that an adoption of John Simon occurred after Rosie died in 2006, but then on cross-examination, he stated that the adoptions must have been when they were minors in the 1950s. He admitted that he never saw adoption papers in the safe-deposit box, and he never read any purported adoption documentation. Nelda also testified that the one time she entered the safe-deposit box with Willie Lain, she saw a judgment of adoption of John Simon.

Documentary evidence consisting of obituaries of John Simon, Rosie Lain, and Willie Lain were introduced to show that John Simon was adopted by Willie and Rosie Lain. Each obituary stated that John Simon was their “adopted” child.

Finally, after the testimony was completed, just at the end of the hearing, Nelda submitted into evidence a letter purportedly written by Willie Lain (hereinafter the “Disputed Letter”) in which he refers to the | better’s recipient as “granddaughter.” Nelda stated that in 2012 she had been attempting to call Willie Lain to invite him to her daughter’s graduation in Florida, but was having trouble reaching him, so she sent him a letter instead. The Disputed Letter was Willie Lain’s response to Nelda.

The Disputed Letter was admitted into evidence as additional circumstantial proof of a familial relationship among Nelda, John Simon, and Willie Lain. The Disputed Letter is difficult to read, due to lack of punctuation and the poor handwriting, but it appears to state as follows:

hi grand daddy I receive your some time a go I sill having trouble with the phone Thank for give me in [illegible] But I cant come down there I am old I have to stay home I am get weak you say is almost get John [illegible] good luck Diona will grad June 1 2012 Tell her gran-pa say good luck this is a gift for her $300.00. I am sill having [illegible] over in [illegible] But if I walk or die you and Mary wont have get a law youal get to gether go in the bank, look in box all papper is in the box your daddy you are the only child he had so he die that make get if I get the phone in good I give you a call
hug my great daughter neck for me
All for now grand daddy
// W J Lain
P.O. Box 72
Chase La 71824

The Disputed Letter never listed the name of Nelda Lawrence. However, Nelda also introduced into evidence an envelope postmarked in May 2012 and addressed to Nelda. Nelda also submitted a check dated May 22, 2012, for $300 written on the Winnsboro bank account and signed by W.J. Lain to Nelda’s daughter as payee.

Nelda had also filed earlier with her petition to annul the 2006 testament a translation of the Disputed Letter that she prepared. It interprets the last lines of the Disputed Letter as follows:

|8[Y]ou al[l] get together, go in the bank, look in box. All paper is in the box. Your daddy, you are the only child he had, so he die that make [you] get [it]. I get the phone in good, I give you a call. Hug my great [granddaughter neck for me. All for now, Grand-Daddy-

This interpretation was not attempted to be introduced as evidence at the trial.

Following the hearing, the trial court rendered its written judgment, which decreed that the Texas judgment be given full faith and credit concerning the recognition of Nelda as the natural daughter of John Simon. Then, the judgment states:

[T]he Will of Willie James Lain and it’s [sic ] Codicil be probated and the Plaintiff, Mary Lee Lain and Defendant, Nelda Freeman Lawrence (through her deceased father, the late John Simon hereinabove) be recognized as legatees of the late Willie James Lain and as such, are entitled to one interest each of the entire estate.

The court had explained in its oral reasons for judgment that it was probating the Disputed Letter as an olographic testament, or codicil, to the 2006 testament. The court expressed that it felt Willie Lain’s intentions were clear that Willie Lain wished his estate to be evenly divided between Mary and Nelda. The trial court found that the “codicil” made the issue of whether John Simon was adopted moot. Although noting that the Disputed Letter “is technically deficient as a holographic [sic] will because there is not a clear date on it,” the court found that the letter “clearly states that [Nelda] takes John’s place.”

Applicable Law

A testament must be in the form of a notarial will or an olographic will. See La. C.C. arts. 1570 and 1574. Otherwise, the testament is null and unenforceable. See La. C.C. arts. 1570 and 1573. Any modification of a | fltestament must be in one of the forms prescribed for testaments. La. C.C. art. 1610. An olographic testament is a will entirely written, dated, and signed in the handwriting of the testator. La. C.C. art. 1575(A). The date may be anywhere in the testament. Id. The date is sufficiently indicated if the day, month, and year are reasonably ascertainable from information in the testament, as clarified by extrinsic evidence, if necessary. Id.

Furthermore, the document itself must evidence testamentary intent to be a valid testament. In re Succession of Rhodes, 39,364 (La.App.2d Cir.03/23/05), 899 So.2d 658, writs denied, 05-0936, 05-1044 (La.6/3/05), 903 So.2d 459, 460. In the absence of a testamentary intent, there cannot be a will. Id., citing Succession of Patterson, 188 La. 635, 177 So. 692 (1937); In re Succession of Plummer, 37,243 (La.App.2d Cir.5/14/03), 847 So.2d 185, writ denied, 03-1751 (La.10/10/03), 855 So.2d 323; Hendry v. Succession of Helms, 557 So.2d 427 (La.App. 3d Cir.1990), writ denied, 560 So.2d 8 (La.1990). Such intent must exist when the instrument is executed and must apply to the particular instrument produced as a will. Id. A paper is not established as a person’s will merely by proving that he intended to make a disposition of his property similar to or even identically the same as that contained in the paper. Id. It must satisfactorily appear that he intended the very paper to be his will. Id. It is well settled that extrinsic or parol evidence cannot be used to establish testamentary intent. In re Succession of Plummer, supra; In re Succession of Bemstine, 04-793 (La.App.3d Cir.12/22/04), 890 So.2d 776, writ denied, 05-0182 (La.4/22/05), 899 So.2d 555.

11flAlthough a letter per se is not invalid as an olographic testament, see Succession of Cordaro, 126 So.2d 809 (La.App. 2d Cir.1961); In re Succession of Bemstine, supra; see also In re Billis’ Will, 122 La. 539, 47 So. 884 (1908), the letter must evidence a testamentary intent to be probated as a will.

In Succession of Rhodes, supra, the decedent wrote a letter to his attorney with a “set of instructions regarding the future preparation of another will.” The decedent gave the attorney specific instructions regarding his estate, including a de facto disinherison of his son as well as specific bequests of each half of his estate. The court found that the decedent did not intend the letter to be his will.

In Succession of Plummer, supra, the decedent attempted to create an inter vi-vos trust in which he wrote handwritten instructions designating beneficiaries and division of the trust property upon his death. However, the court found that “[d]espite the fact that the document contains expressions which reflect Mr. Plum-mer’s intention to direct the division of his property upon his death, there are few words, if any, signifying bequests.” Thus, the court affirmed the trial court’s determination that there was no testamentary intent. Id.

In Succession of Carroll, 08-89 (La.App.5th Cir.06/19/08), 988 So.2d 778, writ denied, 08-1631 (La.10/24/08), 992 So.2d 1034, the decedent, just before traveling to Hawaii to get married, handwrote a letter to his attorney in which he instructed certain assets to be distributed to his wife should he die before he saw his attorney personally. The letter provided that _[_u certain assets were to go to his wife if he died before the marriage and for certain assets to go to her if he died after the marriage. Months later, the decedent gave the attorney another writing allocating various assets to different people. The decedent had a pre-existing notarial will. A new will was never prepared with the detailed asset allocations. The widow then probated these letters as a codicil, after which the legatees under the prior testament petitioned to annul. The court found that nothing in the document itself showed a testamentary intent, and thus the writing was not a valid codicil. Id. at 782.

A testament has no effect unless it is probated in accordance with the requisites of the Code of Civil Procedure. La. C.C. art. 1605. If a will is in the form of an olographic testament and is in the possession of the petitioner, he shall present it to the court and pray that it be probated and executed. See La. C.C.P. art. 2852(B). An olographic testament must be proved by the testimony of two credible witnesses that the testament was entirely written, dated, and signed in the testator’s handwriting. La. C.C.P. art. 2883(A).

A legacy is either universal, general, or particular. La. C.C. art. 1584. A universal legacy is a disposition of all of the estate, or the balance of the estate that remains after particular legacies. La. C.C. art. 1585. A universal legacy may be made jointly without changing its nature. Id. A general legacy is a disposition by which the testator bequeaths a fraction or a certain portion of his estate. La. C.C. art. 1586. A general legacy may also be a fraction or certain proportion of the balance of the estate that remains after hoparticular legacies. Id. In addition, a disposition of property expressly described by the testator as all, or a fraction or certain proportion of one of the following categories of property, is also a general legacy: separate or community property, movable or immovable property, or corporeal or incorporeal property. Id. A legacy that is neither general nor universal is a particular legacy. La. C.C. art. 1587.

Any of these types of legacies may be joint or separate. A legacy to more than one person is either joint or separate. La. C.C. art. 1588. It is separate when the testator assigns shares and joint when he does not. La. C.C. art. 1588. Nevertheless the testator may make a legacy joint or separate by expressly designating it as such. Id. The jurisprudential rule is that a legacy made to multiple people “to be shared and shared alike” or “shared equally” is a designation of shares and thus a separate legacy, unless the testator clearly had a contrary intent. See Succession of Lambert, 210 La. 686, 28 So.2d 1 (1946); see also Succession of McCarron, 247 La. 419,172 So.2d 68 (1965).

A legacy lapses when the legatee predeceases the testator. La. C.C. art. 1589(1). Accretion of a lapsed legacy takes place according to the testament, or in the absence of a governing testamentary provision, according to the following rules. La. C.C. art. 1590. When a particular or a general legacy lapses, accretion takes place in favor of the successor who, under the testament, would have received the thing if the legacy had not been made. La. C.C. art. 1591.

| ^Generally, when a legacy to a joint legatee lapses, accretion takes place rat-ably in favor of the other joint legatees. La. C.C. art. 1592. However, if a legatee, joint or otherwise, is a child or sibling of the testator, or a descendant of a child or sibling of the testator, then to the extent that the legatee’s interest in the legacy lapses, accretion takes place in favor of his descendant by roots who were in existence at the time of the decedent’s’ death. La. C.C. art. 1593.

All legacies that lapse, and are not disposed of under the preceding rules, accrete ratably to the universal legatees. La. C.C. art. 1595. When a general legacy is phrased as a residue or balance of the estate without specifying that the residue or balance is the remaining fraction or a certain portion of the estate after the other general legacies, even though that is its effect, it shall be treated as a universal legacy for purposes of accretion. Id.

Any portion of the estate not disposed of under the foregoing rules devolves by intestacy. La. C.C. art. 1596.

Filiation is established by proof of maternity or paternity or by adoption. La. C.C. art. 179. Upon adoption, the adopting parent becomes the parent of the child for all purposes. La. C.C. art. 199. Currently, the adoption of minors is governed by the Children’s Code. La. C.C. art. 200. The adoption of adults may be confected by authentic act. See La. C.C. art. 213. Adoption is a creature of statute, and all the statutory requirements must be strictly carried out; otherwise the adoption is an absolute nullity. In re Byrd, 226 La. 194,199, 75 So.2d 331, 332 (1954).

Adoptions of minors that occurred in the 1950s were governed by 114Louisiana Acts 1948, No. 228 (the “Act”), titled, “Providing full procedure for adoption of children under seventeen years of age; for keeping vital statistics; for safeguarding records; for appeals; for changing name; for repose; for costs; for protecting prior proceedings, divisibility, and repeal.” Much like the provisions for adoption under the Children’s Code, this Act required judicial approval of adoptions following detailed procedure. See Acts 1948, No. 228. The adopting parents were required to petition the court, and the petition was mandated to be sent to the State Department of Public Welfare. Id., §§ 2, 5. The court, after a hearing, could either enter a final decree of adoption or deny the adoption. Id., § 12. The clerk of court was required to forward a certified copy of the adoption decree to the Department of Public Welfare. Id. The clerks of the Juvenile Courts were required to keep separate indices of all suits filed in accordance with the Act, and they were required to index the suits in the name of the parties filing the petition and in the name of the child to be adopted. Id., § 17. All adoption records of agencies were to be retained in confidential files. Id.

Some courts have held that secondary or parol evidence can be offered to establish an adoption if the document is lost or destroyed. See Succession of Hilton, 175 So.2d 866 (La.App. 2d Cir.1965); Succession of Gussman, 288 So.2d 665 (La.App. 3d Cir.1974); Lyons v. Goodman, 78 So.2d 424 (La.App. 1st Cir.1955). Under those cases, the person alleging an adoption must prove (1) the adoption document in fact existed; (2) the contents of the document by a person with personal knowledge thereof; and 115(3) it was in fact lost or destroyed. Otherwise the adoption instrument must be submitted for proof of the adoption.

However, upon studying these cases, it is clear that this rule providing for parol evidence of adoptions applies only to adoptions that occurred at a time when minors could be adopted by a private notarial act. See Succession of Hilton, supra, at 368; Succession of Gussman, supra, at 667-68; Lyons v. Goodman, supra, at 427-28. Judgments of adoption were not required, and such private acts could be much more easily lost or destroyed. Now, as was the case under the Act, a decree of adoption must be rendered, and detailed records of the proceedings and judgment are kept. Therefore, the parol evidence rule for notarial acts of adoption do not apply to adoptions obtained under procedures requiring a judgment.

Discussion

The trial court in this case probated the 2006 testament. Additionally, the Disputed Letter Willie Lain wrote to Nelda was effectively probated as a modification, or codicil, of the 2006 testament. Pursuant to these rulings, the trial court ordered that Mary and Nelda be awarded “one interest” each. Mary appeals the judgment, arguing that the Disputed Letter should not have been probated because it was not in valid olographic form. She also disputes that the Texas judgment can be given full faith and credit and preclusive effect for the determination of filiation between John Simon and the testator. Further, she argues that the Texas judgment was not timely obtained, citing the peremptive period for a child’s action to establish paternity under La. C.C. art. 197.

|1fiMary also argues that Nelda failed to prove that John Simon was adopted by Willie Lain. As a result, she claims John Simon’s lapsed legacy in the 2006 testament accretes to her as universal legatee, rather than to Nelda as provided in La. C.C. art. 1593.

Nelda’s claim at the trial court level was that the 2006 testament was invalid because it was not properly executed. As a result, her position was that she was the sole descendant and intestate heir as the result of Willie Lain’s adoption of John Simon. Nevertheless, by recognizing Mary’s legacy and Nelda’s receipt of John Simon’s lapsed legacy, the judgment rejects Nelda’s and Arthur Lain’s claims that the 2006 testament is invalid. Arthur Lain did not appeal. Nelda did not answer the appeal or reassert in argument to this court the invalidity of the 2006 testament. Thus, no error is asserted concerning the probate of the 2006 testament.

Probate of Willie Lam’s Disputed Letter as a Codicil

In reviewing the trial court’s enforcement of the Disputed Letter as a will, we first note the arbitrary procedure employed. The letter was never submitted for probate under the procedures provided for under the Code of Civil Procedure as La. C.C. art. 1605 requires. The Disputed Letter, clearly not in notarial form, must be probated as an olographic will, which requires the testimony of two witnesses that the handwriting is that of the testator. La. C.C.P. art. 2883(A). Second, it is clear from the record that Nelda submitted the Disputed Letter into evidence not as a will, but as circumstantial evidence that she is John Simon’s daughter and that John Simon was adopted by Willie Lain. In fact, her position at trial was that |17she was an intestate heir of Willie Lain. She was arguing for the invalidity of the 2006 testament—not for its amendment to include her as a legatee. The arbitrary nature in which this Disputed Letter was “probated” is clear legal error.

Nevertheless, it is also clear from the record that the Disputed Letter is not in valid form as an olographic will or codicil. This document on its face has no date on it. Extrinsic evidence may be considered to clarify an ambiguous date, but extrinsic evidence may not be provided for an absent date. See Succession of Boyd, 306 So.2d 687, 692 (La.1975); La. C.C. art. 1575(A).

Furthermore, the Disputed Letter clearly and facially lacks testamentary intent. There is no evidence from the writing itself that Willie Lain intended this letter to be a testament to his last will. The Disputed Letter was written in response to a letter that Nelda had sent Willie Lain asking him to attend her daughter’s graduation. Most of the Disputed Letter’s contents are references to the graduation and how Willie Lain cannot attend because of his health. Willie Lain also used the opportunity to send a gift of $300 to Nelda’s daughter. The part of the letter that Nelda argues as a bequest is the phrase, “your daddy you are the only child he had so he die that make get if.” This completely vague statement in the overall context cannot be construed as an amendment to the 2006 testament. See In re Succession of Rhodes, supra; In re Succession of Plum-mer, supra; Succession of Carroll, supra; In re Succession of Bemstine, supra.

11sThus the Disputed Letter fails to meet the formal requirements of a valid olo-graphic will, and thus it also fails to meet the requirements of an olographic modification of the 2006 testament.

John Simon’s Lapsed Legacy

We find that the record does not establish that John Simon was the adopted child of Willie Lain. Thus, because John Simon was not a child of the testator, the lapsed legacy does not accrete in favor of his descendant under La. C.C. art. 1593.

Nelda was unable to provide any documents evidencing John Simon’s adoption at the trial court. Nelda and Mary requested from the Franklin Parish Clerk of Court any adoption records of John Simon, and no results were produced. Nelda alleges the adoption occurred sometime in the 1950s, when John Simon was a minor. The only person who testified concerning whether an adoption occurred was Hilli-ard, who stated the adoption must have occurred in the 1950s, as Nelda alleges. Because adoption is a legislative creation with which the requirements must be strictly complied, In re Byrd, supra, the absence of any adoption decree is fatal to Nelda’s claim that John Simon was adopted. The procedures in effect at the time required a judgment, rather than a mere notarial act, and the records were required to be maintained. Given that such records should be easily obtainable, simply alleging that an adoption occurred is insufficient.

Nelda asserts that the Texas judgment declaring heirship precludes the determination of John Simon’s adoption in this proceeding. We disagree.

119Under the Full Faith and Credit clause of the U.S. Constitution (U.S.C.A. Const. Art. IV § 1), a Louisiana court must give the judgment of another state the same conclusive effect between the parties that the judgment would be given in the state where it was obtained. Harrah’s Club v. Mijalis, 557 So.2d 1142 (La.App. 2d Cir.1990), writ denied, 559 So.2d 1387 (La.1990). Full Faith and Credit mandates that the court of each state give to the judgments of other states the same conclusive effect between the parties as is given such judgments in the states in which they were rendered. Brown v. Brown, 377 So.2d 438 (La.App. 2d Cir.1979), ajfd, 387 So.2d 565 (La.1980), cert. denied, 450 U.S. 966, 101 S.Ct. 1482, 67 L.Ed.2d 615 (1981), citing Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 64 S.Ct. 208, 88 L.Ed. 149 (1943). Under Texas law, a party seeking to assert the bar of collateral estoppel must establish that (1) the facts sought to be litigated in the second action were fully and fairly litigated in the first action; (2) those facts were essential to the judgment in the first action; and (3) the parties were cast as adversaries in the first action. Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 801 (Tex.1994).

The Texas judgment makes no determination of John Simon’s parentage. Although nearly all the documents titled “Proof of Heirship” that memorialize the testimony in the Texas proceeding contained phrases stating that John Simon was adopted by Willie Lain, that fact has no bearing on whether Nelda is John Simon’s biological daughter and entitled to inherit from the estate of John Simon in Texas. See Tex.Code Ann. §§ 201.002-003, 201.052, and 202.0025. Because no actual determination that John |2flSimon was adopted by Willie Lain was made or essential to the heirship determination in those proceedings, the Texas judgment does not preclude a determination, in Willie Lain’s Louisiana succession, of John Simon’s alleged filiation by Willie Lain.

Accordingly, we find that Nelda did not adequately establish that John Simon was a child legatee of Willie James Lain.

The Legal Effect of John Simon’s Lapsed Legacy

Finally, with Nelda’s claims for an interest in. the succession now dismissed, the issue: left unaddressed is the legal effect of John Simon’s lapsed legacy. That legacy as expressed by the decedent was of the entire estate to Mary Lain and John Simon “to be shared equally.” The will contained no provision for lapsed legacies.

Wé have set forth above the rulings of the Louisiana' Supreme Court in Succession of Lambert, swpra, and Succession of McCarron, supra. These early rulings appear to remain controlling after our more recent revisions of the law of inter vivos donations and successions. Thus, in light of this jurisprudence and the above cited article of the Civil Code, the intestate heirs of Willie Lain may assert rights in accordance with La. C.C. art. 1596 concerning the lapse of John Simon’s legacy. The record indicates that Willie Lain has other intestate heirs in addition to Arthur Lain and Mary. Their identities are not clear, and most importantly, they have not been made parties to this succession proceeding. We therefore pretermit any ruling concerning the disposition of that portion of the estate pertaining to the lapse of John Simon’s legacy. We remand the case to the trial court |2ifor the joinder of the intestate heirs of Willie Lain, and for further proceedings on this question.

Conclusion

Because we find the Disputed Letter to Nelda Lawrence invalid in form as well as lacking testamentary intent, Willie Lain did not specifically add Nelda as a legatee of his estate. Because Nelda did not show that John Simon was the adopted child of Willie Lain, she is not entitled to the lapsed legacy to John Simon in Willie Lain’s 2006 testament. The judgment of the trial court is therefore reversed insofar as it failed to dismiss all claims of Nelda Lawrence. The case is remanded for a determination of Willie Lain’s intestate heirs, their joinder in this proceeding, and a determination of the effect of the lapsed legacy of John Simon. Costs of this appeal are assessed to appellee.

REVERSED; REMANDED FOR FURTHER PROCEEDINGS.

APPLICATION FOR REHEARING

Before BROWN, CARAWAY, DREW, MOORE and LOLLEY, 33.

Rehearing denied.

      . A video was entered into evidence that Flournoy filmed. On this video, Willie Lain explains to everyone the contents of the 2006 testament and states that it was in the safe-deposit box.


author: MOORE, J. BROWN, Chief Judge,

text:
    Mary ODOM, Plaintiff-Appellee v. Tamika FAIR, Defendant-Appellant.
    No. 49,274-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 20, 2014.

      Kenneth R. Antee, Jr., for Appellant.
    Simmons, Morris & Carroll, Shreveport, by: Justin C. Dewett, Brandon T. Morris, Andrew C. Jacobs, for Appellee.
    Before BROWN, MOORE and GARRETT, JJ.
   MOORE, J.

liThe Housing Authority of the City of Shreveport appeals a judgment holding it hable for a dog bite inflicted by a dog belonging to one of its tenants, Tamika Fair, on another of its tenants, Mary Odom. Finding manifest error, we reverse and render.

Factual and Procedural Background

Mary and Cornell Odom lived in a rent house owned by the Authority at 1161 Dunbriar Dr., in the Cherokee Park area of Shreveport. Their next-door neighbor, Tamika Fair, also rented a house from the Authority. The Odoms testified that in late 2009, Ms. Fair brought a white pit bull to her house and kept it in the fenced backyard. They described the dog as aggressive and vicious, barking at them ferociously and jumping on the chainlink fence to snarl at anyone who happened by. However, Ms. Fair kept the dog in the fenced area, and the Odoms never confronted her about it. Animal Control records showed that on July 28, 2010, Mr. Odom called to report a dog “running loose,” but he did not report the dog was vicious.

On October 8, 2010, shortly after she got home from her job at Horseshoe Casino, Ms. Odom went to her front yard to water flowers when she saw the dog on the loose and coming at her in attack mode. She did not have time to run inside. It bit her upper leg and did not let go until she struck its head with her bucket. Mr. Odom took her to Willis-Knighton Quick Care in Bossier City, and later to other healthcare providers; her medical bills came to $1,933.28. She testified that she had a permanent scar on her thigh.

1 Jn December 2010, Ms. Odom filed this suit against Ms. Fair, alleging her liability as the owner of an animal under La. C.C. art. 2321. However, after the dog bite, Ms. Fair absconded; despite appointing two private process servers, Ms. Odom could never effect service on her. Ms. Fair did not participate in the proceedings.

Ms. Odom filed two amended petitions adding the Authority as a defendant. She alleged that the Authority failed to “monitor” its premises for risks and hazards, failed to require its tenant, Ms. Fair, to keep the dog in a secured area, and allowed its tenant to continue to maintain an animal “known to attack without provocation.”

The Authority denied liability and asserted that its dwelling lease prohibited residents from keeping animals in the dwelling unit, with certain exceptions not applicable to this case and, in all events, subject to approval by the Authority. The Authority alleged that Ms. Fair signed the lease but never got approval to keep a dog, she was in breach of her lease, and the Authority had no knowledge of her pit bull. The Authority also moved for summary judgment, showing that a landlord is liable for a dog bite caused by its tenant’s dog only if the landlord had actual knowledge of the dog’s | .¡vicious propensity. Turnbow v. Wye Electric Inc., 38,948 (La.App. 2 Cir. 9/22/04), 883 So.2d 469; Murillo v. Hernandez, 00-1065 (La.App. 5 Cir. 10/31/00), 772 So.2d 868. The district court denied the motion on grounds that knowledge is not suitable for disposition by summary judgment.

Action in the District Court

The matter came to trial in November 2013. Cornell Odom testified that the dog barked all the time and “acted like” it wanted to attack humans, but never actually did so until it bit his wife. He confirmed that he called Animal Control on July 28, 2010, and insisted he told them the dog was “vicious,” but admitted that the detailed report admitted in evidence said only that the dog was a stray. He admitted he never called the Authority about the dog, but he stated that on several occasions Authority personnel, wearing uniforms and riding in a marked truck, came to Ms. Fair’s house for maintenance work; they would never enter the backyard until she physically picked up the dog and carried it inside.

Mary Odom confirmed her husband’s testimony, admitting that she never called the Authority to report the dog, as she “assumed” somebody else would. In response to leading questions, she said she relied on her landlord to protect her.

The Odoms also called a Ms. Pickett, an employee of the Caddo Parish Animal Shelter, who verified Mr. Odom’s report of a stray dog in July 2010, and testified it was not the Shelter’s policy to notify a landlord of a complaint about an animal at his property.

|40n cross-examination, Travis Bogan, an executive at the Authority, confirmed that the lease prohibited Ms. Fair from having a pit bull on the property, and that she had'no exemption from the prohibition. Mr. Bogan admitted that the Authority could have evicted her for this violation had he known about it. He showed that the Authority sent Ms. Fair a notice on February 24, 2010, advising that it would inspect her premises on March 4, 2010, between 8 a.m. and noon; he agreed that the inspector, if he saw a dog, would be required to report this fact to the Authority. There was, however, no report of a dog, and Mr. Bogan insisted he had no knowledge of Ms. Fair’s pit bull until it bit Ms. Odom. On direct exam, Mr. Bogan clarified that his employees came to rent houses to perform maintenance, not to enforce pet policy, and they had no duty to report unless the animal was acting vicious or aggressive. The Authority called no maintenance workers to confirm or refute seeing Ms. Fair’s dog.

The court ruled from the bench that this “is not a 2321 article case,” and distinguished Tumbow and Murillo on grounds that Ms. Odom was not a guest on the property but a next-door neighbor. The court found that the Authority had a duty to protect her, and the dog had aggressive behavior. The court accepted Mr. Odom’s testimony that Authority employees had come to Ms. Fair’s house and seen the dog; ergo, the Authority had actual knowledge of its viciousness. The court found the Authority 100% at fault for the injury, declining to assess any comparative fault for the Odoms’ failure to report the dog earlier. The court totally omitted any mention of Ms. Fair’s liability as the owner of a vicious dog. The court awarded | .^general damages of $15,000 and the special damages of $1,933.28.

The Authority has appealed, raising four assignments of error.

Discussion

By its first two assignments of error, the Authority urges the court erred in finding that it had actual knowledge of a vicious animal being located on the property, or that its employees had knowledge that could be imputed to the Authority. It urges that to be liable for a tenant’s dog, a landlord must have actual knowledge of the dog’s aggressive nature, citing Tum-bow and Murillo, supra. It shows that the Odoms did not report the dog to the Authority; their report to Animal Control was only about a stray dog, not a vicious one; and they presented no evidence to corroborate their claim that this pit bull was aggressive. It also argues that in Tumbow, supra, the landlord’s employees knew there were several pit bulls and a bullmastiff on the premises, and the court found this evidence insufficient to impute knowledge to their employer. It concludes the court was plainly wrong to find actual or imputed knowledge. These interrelated arguments have merit.

Liability for damage caused by animals is regulated by La. C.C. art. 2321, which provides as follows:

The owner of an animal is answerable for the damage caused by the animal. However, he is answerable for the damage only upon a showing that he knew or, in the exercise pf reasonable care, should have known that his animal’s behavior would cause damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nonetheless, the owner of a dog is strictly liable for damages for injuries to persons or property caused by the dog and which the owner could have prevented and which did not result from the injured person’s | (¡provocation of the dog. Nothing in this Article shall preclude the court from the application of the doctrine 'of res ipsa loquitur in an appropriate case.

A plaintiff seeking damages for a dog bite must show that the dog posed an unreasonable risk of harm. Pepper v. Triplet, 2003-0619 (La.1/21/04), 864 So.2d 181; McBride v. XYZ Ins. Co., 41,129 (La.App. 2 Cir. 6/28/06), 935 So.2d 326. The dog owner’s liability arises solely from the legal relationship between the owner and the animal; the owner’s duty is nondelegable. Rozell v. Louisiana Animal Breeders Coop. Inc., 434 So.2d 404 (La.1983); McBride v. XYZ Ins., supra. A lessor or landowner may also be found liable, on a theory of general negligence, for injuries caused by a tenant’s dog, but only on a showing that the lessor or landlord had actual knowledge of the animal’s vicious propensities. Tumbow v. Wye Elec., supra; Murillo v. Hernandez, supra; Smith v. Kopynec, 2012-1472 (La.App. 1 Cir. 6/7/13), 119 So.3d 835.

The appellate court will not set aside the district court’s factual finding unless it is manifestly erroneous or clearly ■wrong. Broussard v. State, 2012-1238 (La.4/5/13), 113 So.3d 175, and citations therein. The appellate court’s duty is not to review the findings for absolute correctness but to determine whether they are reasonable on the record as a whole. Id.; Stobart v. State, 617 So.2d 880 (La.1993).

On close review, this record does not support the district court’s finding of actual knowledge on the part of the Authority. Although the Odoms established that the dog barked a lot and clawed at the fence with its paws, there is no evidence that it ever bit or attacked anyone prior to this |7incident. There is also no evidence that the Odoms ever reported the dog to the Authority; the one time Mr. Odom notified Animal Control, he called it a stray, not a vicious animal. Admittedly, they testified that Ms. Fair carried the dog inside when the Authority’s maintenance men called; however, Mr. Bogan testified without contradiction that his employees were not tasked with enforcing pet policy or inspecting for technical violations of the lease. Simply put, this evidence does not approach the threshold showing of actual knowledge required to impose landlord liability under Tumbow, Kopynec and Murillo, supra. In fact, this showing is considerably weaker than that made in Tumbow, in which this court affirmed a finding that the landlord did not have sufficient actual notice to be liable for injuries caused by its tenant’s dog. The court’s finding is manifestly erroneous and must be reversed.

With this finding, we pretermit any consideration of the Authority’s remaining arguments. We would only reiterate that under La. C.C. art. 2321, the dog owner’s liability is a form of strict liability premised on the relationship between the owner and the dog, and is nondelegable. Rozell v. Louisiana Animal Breeders Coop., supra; McBride v. XYZ Ins., supra. Hence, if the district court found that the dog posed an unreasonable risk of harm, it was legal error to assign no liability to the owner, Ms. Fair; however, this determination is unnecessary, as the claim against the Authority fails for lack of actual knowledge. We would also note that the award, while on the high side, is subject to the “much discretion” of the judge or jury. La. C.C. art. 2324.1; Howard v. Union Carbide Corp., 2009_£7508 (La.10/19/10), 50 So.3d 1251; Guillory v. Lee, 2009-0075 (La.6/26/09), 16 So.3d 1104.

Conclusion

For the reasons expressed, the judgment is reversed insofar as it found the Housing Authority of the City of Shreveport liable for the dog bite and awarded damages. Judgment is rendered herein dismissing all claims against the Authority. Trial and appellate costs are assessed to Ms. Odom.

REVERSED AND RENDERED.

BROWN, C.J., concurs.

BROWN, Chief Judge,

concurs.

|/With this finding, we pretermit any consideration of the Authority’s remaining arguments.” At this point the opinion should have ended but it did not. Instead, in a single sentence the writer decided issues no longer in play, as follows: “Hence, if the district court found that the dog posed an unreasonable risk of harm, it was legal error to assign no liability to the owner, Ms. Fair; however, this determination is unnecessary, as the claim against the Authority fails for lack of actual knowledge. We would also note that the award, while on the high side, is subject to the much discretion of the judge or jury.”

21 C.J.S. Courts § 227:

Dictum is a statement on a matter not necessarily involved in the case, and is not binding as authority. Dictum is an opinion expressed by a court, but which, not being necessarily involved in the case, is not the court’s decision. It is an opinion expressed by a judge on a point not necessarily arising in the case, or a statement in an opinion not responsive to any issue and not necessary to the decision of the case ... Dictum, as a general rule, is not binding as authority or precedent. For purposes of stare decisis, dictum is not a holding. In federal Courts of Appeals, dicta are not binding on future panels.

The Supreme Court of the United States has said that dictum settles nothing. Jama v. Immigration and Customs Enforcement, 543 U.S. 335, 125 S.Ct. 694, 160 L.Ed.2d 708, 2 A.L.R. Fed. 2d 675 (2005). See also, Avants v. Kennedy, 00-0046 (La.02/02/00), 752 So.2d 150.

I disagree with the dicta gratuitously offered by the writer. The majority offers no methodology by which trial judges in future cases are to be guided.

| ¡(Under La. C.C. Art. 2321, the owner of the dog is strictly liable. The Louisiana Supreme Court observed in Veazey v. Elmwood Plantation Associates, Ltd., 93-2818 (La.11/30/94), 650 So.2d 712, 714:

Given the fact that we have held herein that the concept of comparative fault as it exists in Louisiana is broad enough to encompass the comparison of intentional acts and negligence in appropriate factual circumstances, we see no reason why the same sort of case-by-case analysis as that employed by the courts in a strict liability setting should not be employed by the courts in determining whether to apply comparative fault principles in cases where it is alleged that comparative fault exists among intentional tortfeasors (in this case a rapist) and negligent tortfeasors (landlord). That being said, public policy considerations inherent in the question of whether such a comparison should be made compel us to find, as did the trial court, that such a comparison should not be made in this particular case. (Emphasis added).
First, and foremost, the scope of South-mark’s duty to the plaintiff in this case clearly encompassed the exact risk of the occurrence which caused damage to plaintiff. As a general rule, we find that negligent tortfeasors should not be allowed to reduce their fault by the intentional fault of another that they had a duty to prevent. See Kansas State Bank & Trust Co. v. Specialized Transportation Services, Inc., 249 Kan. 348, 819 P.2d 587, 606 (1991).
Second, Southmark, who by definition acted unreasonably under the circumstances in breaching their duty to plaintiff, should not be allowed to benefit at the innocent plaintiffs expense by an allocation of fault to the intentional tortfeasor under comparative fault principles. Given the fact that any rational juror will apportion the lion’s share of the fault to the intentional tortfeasor when instructed to compare the fault of a negligent tortfeasor and an intentional tortfeasor, application of comparative fault principles in the circumstances presented in this particular case would operate to reduce the incentive of the lessor to protect against the same type of situation occurring again in the future. Such a result is clearly contrary to public policy. (Emphasis added).

In Turner v. Massiah, 94-2548 (La.06/16/95), 656 So.2d 636, 639, the Louisiana Supreme Court stated:

laThe damage here, Stage 2 breast cancer, cannot be apportioned between the two tortfeasors because the damage is not severable; it is indivisible.

In Turner, supra, the court also noted that:

Apportioning or separating the injuries caused by one of the doctors from the injuries caused by the other simply cannot be done. “No ingenuity can suggest anything more than a purely arbitrary apportionment of such harm.” Id.

      . The dwelling lease, HVII(M), states that the resident shall be obligated: "To keep no animals in the dwelling unit, with the exception of birds, fish, hamsters and other miniature pets (only one pet may be kept in any one dwelling unit) which are customarily kept in interior cages and containers; however, this does not preclude the Resident from keeping an animal which has special training to help the Resident or a member of the Resident’s household to cope with a physical impairment, subject to the condition that the Resident has satisfactorily provided documented evidence to the Authority regarding the training of the animal and the physical impairment. This Lease must be amended to allow the Resident to keep pets other than those mentioned within this paragraph. The keeping of a pet by a Resident who is sixty-two (62) or older, is disabled, or is handicapped (as defined by the Authority and HUD), or by a member of the Resident's household who is age sixty-two (62) or older, is disabled, or is handicapped (as defined by the Authority and HUD) must be approved first by the Authority and be in accordance with the Pet Rules established by the Authority and approved by HUD."