author: 19.GAIDRY, J. | FITZSIMMONS, Judge,

text:
    Daniel SAFFORD v. BAYOU LAFOURCHE FRESH WATER DISTRICT.
    No. 2003 CA 0700.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 23, 2004.
    Writ Denied May 7, 2004.

      Marvin Gros, Donaldsonville, Counsel for Plaintiff/Appellant Daniel Safford.
    Ricky Babin, Gonzales, Counsel for Defendant/Appellee and Cross-Appellant Bayou Lafourche Fresh Water District.
    Before: FOIL, FITZSIMMONS, and GAIDRY, JJ.
   19.GAIDRY, J.

This appeal is taken by the plaintiff-appellant, Daniel Safford, from a judgment in his favor, awarding him damages against the defendant-appellee, the Bayou Lafourche Fresh Water District. Mr. Saf-ford seeks additional damages denied by the trial court. The District has answered the appeal, seeking reversal of the judgment against it or alternate relief reducing the damages awarded. For the reasons expressed, we reverse.

FACTUAL BACKGROUND AND PRIOR PROCEEDINGS

Bayou Lafourche is a tributary of the Mississippi River, and flows through Ascension, Assumption, and Lafourche Parishes. It was originally a natural free-flowing, navigable bayou, but beginning in 1903, levees, locks, and other flood control structures were constructed that artificially reduced the volume of water entering the bayou from the Mississippi River.

The Bayou Lafourche Fresh Water District (the District), a political corporation, was created by Acts 1950, No. 113 for the purpose of “furnishing fresh water from the Mississippi River to the incorporated villages, towns and cities along Bayou La-fourche and within or adjacent to [the District’s] boundaries.” The act also charges the District with the duty “to provide and maintain in Bayou Lafourche a source of fresh water supply out of the Mississippi River from Donaldsonville to the Gulf of Mexico.” (Our emphasis.) By Acts 1952, No. 192, the District was authorized to construct, maintain, and operate a pumping facility at the head of Bayou Lafourche in Donaldsonville. The District operates the Donaldsonville pumping facility, constructed in 1955, and other pumping stations along the bayou’s 110-mile course, providing water for the consumption of approximately 800,000 residents. In addition to the Donaldsonville pumping | afacility, there are three other obstructions to the flow of the bayou before it reaches the Gulf of Mexico.

Mr. Safford owns immovable property situated on Bayou Lafourche within Don-aldsonville’s corporate limits. After purchasing the property in 1983, he constructed a bulkhead, a dog pen, and a boat shed on riparian land near the bayou. According to Mr. Safford, after he constructed those buildings, they began to experience flooding around December 1994 from the bayou’s continuously rising level. He further claimed that the works he constructed were damaged by the bayou’s elevated water level in October 1996 and in September 1998. As a result of the elevated water level, he claimed to have sustained damages to his bulkhead, including “erosion,” the loss of a septic tank for his dog pen, lost profits from personal businesses conducted on the property, and loss or damage to other items of movable property.

In its judgment, the trial court incorporated its findings of fact. It awarded Mr. Safford the sum of $8,270.00, representing the amount of the initial estimate of repair for his bulkhead. The trial court denied any further relief, finding that Mr. Safford failed to prove that any additional damages claimed were caused by the District. From that judgment, Mr. Safford instituted the present appeal, which has been answered by the District.

ASSIGNMENTS OF ERROR

Mr. Safford assigns as error the trial court’s failure to award him any damages other than those relating to the initial damage to his bulkhead.

In its answer to Mr. Safford’s appeal, the District assigns as error the trial court’s finding of negligence on its part, challenging the existence of a duty on its part, the finding of a breach, and the finding of causation. The District initially contended that it is also entitled to statutory immunity for its | ¿discretionary acts under La. R.S. 9:2798.1. By brief, however, it now abandons its assignment of error relating to statutory immunity. Accordingly, we must decide the issue of the District’s liability by undertaking the duty-risk analysis required by our delictual law. Finally, the District assigns as error the trial court’s finding that Mr. Safford could assert a cause of action for.works constructed on state-owned land, and the trial court’s failure to find contributory negligence on the part of Mr. Safford.

ANALYSIS

Negligence is that conduct falling below the standard of care established by law for the protection of others against an unreasonable risk of harm. It is the breach of a duty owed to another to protect that person from the particular harm that ensued. Deleo v. Bayou Lafourche Fresh Water District, 02-0513 p. 6 (La. App. 1st Cir.2/14/03), 846 So.2d 17, 21, writ denied, 03-0695 (La.5/16/03), 843 So.2d 1132.

In the cited case, numerous owners and residents of land along Bayou Lafourche sued the District for its alleged negligence in shutting off the pumps of the Donald-sonville pumping facility for over a week in response to a benzene spill in the Mississippi River. As a result of the fluctuating water levels in the bayou, the plaintiffs claimed damages to their properties, including damages to bulkheads and cave-ins of the banks. Although we agreed with the District that the plaintiffs failed to prove that they, rather than the state, owned the subject properties, we chose to resolve the case on pother grounds. We also pretermitted consideration of the District’s claim of immunity under La. R.S. 9:2798.1, and instead expeditiously resolved the controversy by addressing the issue of negligence. In doing so, we did not directly address the existence and nature of any duty owed by the district, but instead premised our decision on the reasonableness of the District’s emergency handling of a "unique situation” involving a potential health hazard. Here, however, we will address the issue of the duty, if any, owed by the District to Mr. Safford under the facts presented.

Under the duty-risk analysis, the' plaintiff must prove that the conduct in question was the cause-in-fact of the resulting harm, the defendant owed a duty of care to the plaintiff, the requisite duty was breached by the defendant, and the risk of harm was within the scope of protection afforded by the duty breached. Lazard v. Foti, 02-2888 p. 3 (La.10/21/03), 859 So.2d 656, 659. A threshold issue in any negligence action is whether the defendant owed the plaintiff a duty founded upon statutory or jurisprudential law. Lazard, 02-2888 at pp. 3-4, 859 So.2d at 659.

In reviewing the question of whether the District’s actions constituted negligence, we conclude it owed no duty toward Mr. Safford with regard to the property at issue. The police power of the state encompasses the exercise of its sovereign right to promote the general welfare of society, including the inherent right to protect citizens from damage by flood. Board of Commissioners of Orleans Levee District v. Department of Natural Resources, 496 So.2d 281, 289 (La.1986). The legislature may delegate, either expressly or implicitly, the exercise of the police power to subordinate boards, commissions, or political corporations. Id. The legislature has delegated the task of ensuring an adequate supply of fresh water in Bayou Lafourche to the District; it has not delegated any duty or responsibility of | ¿flood control to the District. In Board of Com missioners of Lafourche Basin Levee District v. Board of Commissioners of Atchafalaya Basin Levee District, 340 So.2d 600, 602 (La.App. 1st Cir.1976), this court confirmed the limited function and duties of the District by observing that “the purpose of [Acts 1950, No. 113] was to provide fresh water for drinking purposes rather than for the maintenance of a channel for navigation in Bayou Lafourche.”

The undisputed evidence at trial demonstrates that Mr. Safford constructed his bulkhead, dog pen, and boat shed on land within the ordinary low stage of Bayou Lafourche, that is, below the bank that he owned. Mr. David Cloud, a registered surveyor, was accepted by the trial court as an expert in the field of land surveying. This field is defined by statute as including “the measuring of areas, land surfaces, streams, bodies of water, and swamps for correct determination and description, for the establishment, reestablishment, ascertainment, or description of land boundaries .La. R.S. 37:682 (our emphasis). Mr. Cloud testified that he surveyed the property at issue and undertook to establish the historic ordinary or “mean” high and low water stages of the bayou on the property, describing in detail the methodology required, given Bayou Lafourche’s unique features. The mean high water mark shown in Mr. Cloud’s survey in fact corresponded well with the “top bank” boundary set out in a 1986 survey plat of the property performed for Mr. Safford by another surveyor. Mr. Cloud 17determined that Mr. Safford’s bulkhead, boat shed, and dog pen were all situated within the ordinary or “mean” low water stage, and thus were situated on state-owned land. This testimony and supporting evidence were uncontradicted.

As Mr. Cloud observed, the land upon which Mr. Safford’s works were constructed belongs to the state, as it forms part of the bottom of a natural navigable body of water. La. C.C. arts. 450, 456; La. R.S. 9:1101. Additionally, as Mr. Safford’s property is on the shore of a navigable bayou, it is subject to any predial servitude imposed for the public utility. La. C.C. art. 665. As the District’s full name connotes, its mission is to ensure the provision of fresh water for the benefit of residents within its boundaries. The evidence shows that its present mission does not relate solely to fresh water intended for human or livestock consumption, but also that needed for industrial, agricultural, and environmental purposes. Clearly, Mr. Saf-ford’s individual interests in his property constructed on state land, even with the tacit or express consent of the state, must yield to the public’s common interest. In short, we conclude that the District did not owe Mr. Safford any duty to maintain a certain water level within the boundaries of the water bottom owned by the state, who delegated to the District its duties pertaining to the supply of fresh water.

Further, being charged with knowledge of the law, Mr. Safford must be deemed to have assumed the foreseeable risk that any works constructed on state land, within the bayou’s ordinary low water stage, might become | Ssubmerged through natural mechanisms or governmental intervention. Finally, the evidence put forth by Mr. Safford simply failed to demonstrate that the District’s actions caused the flooding, or that the District breached any duty or acted negligently even if it did.

The essence of Mr. Safford’s complaint against the District is that it failed to respond to his complaints about flooding on his property (or what he perceived to be his property) by shutting off its Don-aldsonville pumps. Both his argument in that regard and the District’s response to it take for granted the fact that the District would evaluate the water level in the bayou in light of the need for fresh water at that time, weighed against the possible threat of flooding in some areas by pumping operations, and respond in a considered fashion. The overwhelming weight of the evidence presented at trial demonstrated that the administrative decisions relating to pump volume were of necessity discretionary in nature. Both the water volume and water level of Bayou La-fourche are dependent upon a number of disparate factors, resulting in a dynamic rather than a static situation in terms of both supply and demand of fresh water. In effect, Mr. Safford complains that the District failed to exercise its discretion for his benefit by shutting off or reducing the volume of water being pumped into the bayou. But its discretionary decisions to maintain the water levels of which he complains were clearly founded upon the public purpose and policy of its inherent mission, and the preponderance of the evidence fails to show that those actions were unreasonable.

The evidence plainly showed that the volume of water pumped into the bayou by the District in fact decreased over the years Mr. Safford claimed it increased, and that the water level in the bayou was subject to a number of factors not directly under the!(control of the District, such as | ¿rainfall, siltation of sediment, and the growth of water hydrilla and other aquatic vegetation. Additionally, the method by which Mr. Safford assessed the alleged increased water volume in the bayou was actually only a measure of the water depth to the bottom near his property, a measurement affected by increased siltation deposited on the bottom, rather than by only total water volume.

The record before us fails to establish a specific duty, any breach of such a duty, or that any such breach was either a cause-in-fact or legal cause of the damages claimed. In summary, Mr. Safford has not proven that the District negligently breached any duty to him in the fulfillment of its mission imposed by the legislature, and it is not liable to him for damages.

DECREE

The judgment of the trial court in favor of the plaintiff-appellant, Daniel Safford, and against the defendant-appellee-appel-lant, the Bayou Lafourche Freshwater District, is reversed. All costs of this appeal are assessed to the plaintiff-appellant, Daniel Safford.

REVERSED.

FITZSIMMONS, J., concurs in the result and assigns reasons.

| FITZSIMMONS, Judge,

concurring with reasons.

I respectfully concur in the result. I do not feel comfortable with the inclusion of footnote 2 in the report, which addresses entitlement to immunity per La. R.S. 9:2798.1. Were the facts different, such that the District had caused damage to owners’ property by causing the water to flood over the bank, it is questionable whether the immunity provision would apply-

      . Acts 1950, No. 113 is a local or special act of the legislature, not forming part of the published Louisiana Revised Statutes.

      . Generally, any immunity claim must properly be addressed first, as a finding that the defendant is immune would obviate a detailed duty-risk analysis. See Hardy v. Bowie, 98-2821 p. 11 (La.9/8/99), 744 So.2d 606, 613; Mayhom v. McKinney, 34,789 p. 6 (La.App. 2nd Cir.6/20/01), 793 So.2d 225, 229. The trial court ruled that the District was not entitled to immunity under La. R.S. 9:2798.1 because its employees’ decisions relating to the bayou’s water level were not "policy based,” which the court interpreted as meaning that they were not based upon any policy regarding water level established by the District for its employees to follow. We might appropriately question the validity of such interpretation, since the record of this matter suggests that the District’s claim of immunity probably had merit. But as that issue has been removed from our consideration, we may only decide this matter based upon the remaining issues presented.

      . Cf. Saden v. Kirby, 94-0854 (La.9/5/95), 660 So.2d 423. The duty of flood control in the geographic area served by the Bayou La-fourche Fresh Water District was delegated by the legislature to the Atchafalaya Basin Levee District and the Lafourche Basin Levee District. La. R.S. 38:291(A), (F); La. R.S. 38:306. Until 1952, these levee districts had the responsibility of maintaining the supply of fresh water in Bayou Lafourche. See Acts 1952, No. 191.

      . Louisiana Civil Code article 456 provides that, except where levees exist, "[t]he bank of a navigable river or stream is the land lying between the ordinary low and the ordinary high stage of the water.”

      . As part of its mission to furnish fresh water, the District is expressly empowered to "protect from pollution the water so furnished.” Acts 1950, No. 192. The trial testimony established that salinity is considered a pollutant to potable water under federal Environmental Protection Agency regulations. This court further takes judicial notice of the urgent efforts to mitigate the ongoing loss of Louisiana’s coast, caused in part by saltwater intrusion, one of the factors weighed by the District in determining the amount of water pumped into Bayou Lafourche.


source: Caselaw Access Project

author: PARRO, J.

license: Public Domain

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Millette Mackey v. Brad M. NOYES and Safeway Insurance Company.
    No. 2002 CA 1876.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 23, 2004.

      Carla S. Courtney, Matthew W. Pryor, Timothy E. Pujol, Percy, Pujol & Wall, Gonzales, for Plaintiffs-Appellees State Farm Mutual Automobile Ins. Co. and Mil-lette Mackey.
    Brad M. Noyes, Prairieville, Pro Se Defendant-Appellee.
    Keith M. Borne, Borne & Wilkes, L.L.P., Lafayette, for Defendant-Appellant Safeway Insurance Company of Louisiana.
    Before: PARRO, MCDONALD, and CLAIBORNE, JJ.

      . Judge Ian W. Claiborne, retired from the Eighteenth Judicial District Court, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   PARRO, J.

The insurer of the named insured/defendant in a personal injury action appeals a judgment holding that the 2001 amendment to LSA-R.S. 32:900(L), which authorized the exclusion of a named insured from coverage, was not retroactive. For the following reasons, the judgment is affirmed.

Factual and Procedural History

On November 25, 1998, an automobile accident occurred when an intoxicated Brad M. Noyes (Noyes) rear-ended a vehicle driven by Millette Mackey (Mackey). The vehicle driven by Noyes was insured by Safeway Insurance Company of Louisiana (Safeway), and Mackey’s vehicle was insured by State Farm Mutual Automobile Insurance Company (State Farm). On August 27, 1998, Safeway had issued a policy of automobile liability insurance to Noyes. However, Noyes had signed a named driver exclusion endorsement, which purported to exclude him from coverage under the Safeway policy covering his vehicle, because his driver’s license had previously been suspended for driving while intoxicated.

State Farm paid Mackey for the property damage and bodily injuries she sustained in the accident. Subsequently, State Farm and Mackey filed suit against Safeway and Noyes, seeking to recover the amounts paid by State Farm, as well as Mackey’s deductible. In light of the named driver exclusion endorsement executed by Noyes, Safeway filed a motion for summary judgment on the issue of coverage. The trial court denied Safeway’s motion, finding that the 2001 amendment to LSA-R.S. 32:900(L), which allowed a named insured to exclude himself from coverage, was not retroactive. Eventually, a consent judgment for $17,438.62 was entered in favor of State Farm and Mackey, reserving Safeway’s right to challenge the trial court’s ruling on the retroactivity of the amendment to LSA-R.S. 32:900(L). The consent judgment was designated as a final judgment. Safeway’s appeal followed.

Discussion

The sole issue on appeal is the retroac-tivity of the 2001 amendment to LSA-R.S. 32:900(L), which allowed a named insured to exclude himself from coverage under an automobile liability policy. In making this determination, we find it helpful to review theLstatutory and jurisprudential development relative to Louisiana automobile liability insurance law.

At the time of the accident in this case, LSA-R.S. 32:900(L) provided:

Notwithstanding the provisions of Paragraph B(2) of this Section, an insurer and an insured may by written agreement exclude from coverage any named person who is a resident of the same household as the named insured. (Emphasis added).

The fifth and second circuit courts of appeal were called on to determine whether the underscored language authorized a named insured to exclude himself from liability coverage under his policy by listing himself as an excluded driver. In Smyre v. Progressive Sec. Ins. Co., 98-518 (La.App. 5th Cir.12/16/98), 726 So.2d 984, 986, writ denied, 99-0139 (La.6/4/99), 745 So.2d 14, the fifth circuit concluded that the insurance statutes neither provided for or against a named insured excluding himself from coverage and held that the named insured on a liability policy could exclude himself from liability coverage. However, in Williams v. U.S. Agencies Cas. Ins. Co., Inc., 33,200 (La.App. 2nd Cir.5/15/00), 758 So.2d 1010, 1014, the second circuit determined that the provision excluding the named insured was contrary to public policy. The supreme court granted certiorari to resolve the conflict between the circuits on this issue. Williams v. U.S. Agencies Cas. Ins. Co., Inc., 00-1693 (La.9/29/00), 769 So.2d 1217.

The supreme court ultimately decided to abrogate Smyre and affirm Williams. Williams v. U.S. Agencies Cas. Ins. Co., Inc., 00-1693 (La.2/21/01), 779 So.2d 729. In reaching its decision, the court reviewed the statutory scheme and jurisprudential history. Pursuant to LSA-R.S. 32:861 and 862, every owner of a motor vehicle registered in Louisiana is required to obtain proof of security prior to registration and/or the issuance of a driver’s license. LSA-R.S. 32:861(A)(1) allows an owner of a motor vehicle to comply with this requirement by obtaining an automobile liability policy that contains liability limits as defined by LSA-R.S. 32:900(B)(2). Although insurance companies are generally free to limit coverage in any manner they so desire, an insurer is not at liberty to limit its liability and impose conditions on its obligations that conflict with statutory law or public policy. Williams, 779 So.2d at 731. Furthermore, ^exclusionary provisions are to be strictly construed in favor of coverage. Ledbetter v. Concord Gen. Corp., 95-0809 (La. 1/6/96), 665 So.2d 1166, 1169, amended on other grounds, 95-0809 (La.4/18/96), 671 So.2d 915.

Louisiana’s automobile insurance law requires that the named insured/vehicle owner be covered by liability insurance, and further requires omnibus coverage in favor of any person using an insured vehicle with the permission or consent of the named insured. See LSA-R.S. 32:900(B)(2). Accordingly, Louisiana courts had historically held that the exclusion of a named driver who was a member of the insured’s household was considered unenforceable on public policy grounds. Williams, 779 So.2d at 731. However, in 1992, the Louisiana legislature added subsection L to section 900, as an exception to the general rules of liability coverage. The 1992 amendment expressly “overruled” the jurisprudence and thereafter validated an agreement between the insurer and the insured which excluded coverage of a particular named person who is a member of the insured’s household. Williams, 779 So.2d at 731. After the | Renactment of subsection L, the supreme court upheld named driver exclusions that excluded members of the named insured’s household, such as the named insured’s spouse or child, from coverage under the policy. See Bellard v. Johnson, 97-0909 (La.5/30/97), 694 So.2d 225. In Williams, 779 So.2d at 731, the issue before the supreme court was whether, by enacting the 1992 amendment to LSA-R.S. 32:900, the legislature intended to permit a named insured to exclude from coverage, not only members of his household, but also the person who owned the policy and the insured vehicle.

After reviewing the legislative discussions and comments surrounding the 1992 enactment of subsection L, the court observed that the purpose for the enactment was simply to make it clear that if someone was to be excluded in a .household, it must be done by written agreement. Williams, 779 So.2d at 732. No support was found in the legislative comments or discussion for the proposition that the legislature intended that the named insured on the policy could be listed as an excluded driver under that same policy. ■ Williams, 779 So.2d at 732.

The Williams analysis further noted that the Louisiana Motor Vehicle Safety Responsibility Law, LSA-R.S. 32:851-1043, provides a mandatory, comprehensive scheme designed to protect the public from damage caused by motor vehicles. Marcus v. Hanover Ins. Co., Inc., 98-2040 (La.6/4/99), 740 So.2d 603, 605. The supreme court stated that its interest in protecting the driving public far outweighed an insured’s desire to exclude himself from coverage in order to avail himself of a lower premium, stating that, “[t]o allow an insured to exclude himself from coverage and drive as an uninsured motorist, runs afoul of the overall purpose and intent of Louisiana’s compulsory insurance law.” Williams, 779 So.2d at 732. By its addition of LSA-R.S. 32:900(L), the legislature clearly did not intend that a tortfeasor could exclude for himself the mandatory liability coverage, at the expense of the injured person whom the state’s insurance law is designed to protect. Accordingly, the court held that an automobile liability insurance policy could not exclude the named insured of a vehicle from coverage for the negligent operation of the insured vehicle. Williams, 779 So.2d at 732.

| KAs a matter of statutory construction, the court further noted that LSA-R.S. 32:900(B)(2) clearly required that a policy provide coverage for “the person named therein,” i.e., the named insured. In referring specifically to the exclusion of coverage “for any named person” who is a “resident of the same household as the named insured,” subsection L clearly contemplated that the excluded person be distinct from the “named insured,” yet still be a resident of his household, as distinguished from a permissive user who would be covered under LSA-R.S. 32:900(B)(2). The court recognized that a reading of LSA-R.S. 32:900 in its entirety revealed that a named insured is not in the same category as “any named person,” whom subsection L authorized to be listed as an excluded driver under the policy. Williams, 779 So.2d at 733. Accordingly, the purported exclusion provision was held to be invalid as against public policy. Id.

Shortly after the Williams case was decided, the legislature passed 2001 La. Acts, No. 368. Section 2 of Act 368 expressly stated that its passage was intended to overrule Williams, 779 So.2d 729. Act 368 amended LSA-R.S. 32:900(L) to provide:

Notwithstanding the provisions of Paragraph B(2) of this Section, an insurer and an insured may by written agreement exclude from coverage the named insured and the spouse of the named insured. The insurer and an insured may also exclude from coverage any other named person who is a resident of the same household as the named insured. ... (Emphasis added).

This revision to subsection L of section 900 clearly states that an automobile liability insurance policy may exclude the named insured of a vehicle and the spouse of the named insured from coverage.

Since the relevant event in this case occurred before the effective date of Act 368, the parties argue as to the retroactive application of the 2001 amendment to LSA-R.S. 32:900(L). Safeway takes the position that the amendment is merely interpretive of existing law, based on the legislature’s express overruling of the incorrect Interpretation in the Williams case; therefore, it maintains that the amendment applies retroactively to give effect to the endorsement to exclude Noyes from coverage. On the other hand, State Farm urges that the trial court was correct in refusing to apply the amendment retroactively, since the amendment is substantive in nature and, therefore, |7can only be applied prospectively. With this background in mind, we must determine whether the additional language in LSA-R.S. 32:900(L) is to be given retroactive effect.

The legislature is free, within constitutional confines, to give its enactments retroactive effect. LSA-R.S. 1:2 provides that “[n]o Section of the Revised Statutes is retroactive unless it is expressly so stated.” LSA-R.S. 1:2, however, has been construed as co-extensive with LSA-C.C. art. 6. St. Paul Fire & Marine Ins. Co. v. Smith, 609 So.2d 809, 816 (La.1992). Article 6 codifies the general rule against retroactive application of legislative enactments and the exceptions jurisprudentially engrafted onto it, providing:

In the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretive laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary.

The jurisprudence has construed the general proscription against retroactive effect of laws as applying only to substantive, as opposed to procedural or interpretive, laws. St. Paul, 609 So.2d at 816.

In determining whether a newly-enacted provision is to be applied prospectively only, or may also be retroactive, LSA-C.C. art. 6 requires a two-fold inquiry. First, the court must determine whether the amendment to the statute expresses legislative intent regarding retrospective or prospective application. Keith v. U.S. Fid. & Guar., Co., 96-2075 (La.5/9/97), 694 So.2d 180, 183. If no such intent is expressed, the enactment must be classified as either substantive, procedural, or interpretive. Keith, 694 So.2d at 183. Furthermore, even where the legislature has expressed its intent to give a law retroactive effect, the law may not be applied retroactively if doing so would impair contractual obligations or disturb vested rights. If it does so, then in spite of legislative pronouncements to the contrary, the law is substantive, rather than procedural or interpretive. Crooks v. Metropolitan Life Ins. Co., 00-0947 (La.App. 3rd Cir.1/17/01), 779 So.2d 966, 970, vacated on other grounds, 01-0466 (La.5/25/01), 785 So.2d 810.

Act 368 does not expressly provide for retroactive application, nor has the legislature expressly declared that the act is interpretive or provided for an effective date that would be indicative of retroactive application of the amendment. Cf. Cole v. Celotex Corp., 599 So.2d 1058, 1064-1065 (La.1992); Peak v. Tuscaloosa Commerce Bank, 96-1258 (La.App. 1st Cir.12/29/97), 707 So.2d 59, 62-63; see also Pierce v. Hobart Corp., 939 F.2d 1305, 1310 (5th Cir.1991). Therefore, this court must classify the enactment as either substantive, procedural, or interpretive. Neither party in this case contends that the amendment at issue is merely procedural; hence, the narrow inquiry before us is whether the amendment is interpretive and thus retroactive, or substantive and thus prospective.

Substantive laws either establish new rules, rights, and duties or change existing ones. Interpretive laws, on the other hand, do not create new rules, but merely establish the meaning that the interpretive statute had from the time of its initial enactment. It is the original statute, not the interpretive one, that establishes the rights and duties. St. Paul, 609 So.2d at 817; Ardoin v. Hartford Accident and Indem. Co., 360 So.2d 1331, 1338 (La.1978). When an existing law is not clear, a subsequent statute clarifying or explaining the law may be regarded as interpretive, and the interpretive statute may be given retrospective effect because it does not change, but merely clarifies, pre-existing law. St. Paul, 609 So.2d at 817.

In determining whether the amendment is substantive or interpretive, we are mindful that in section 2 of Act 368, the legislature indicated its intent to overrule the Williams decision. The rationale underlying retroactive application of such an enactment is that a legislative overruling of a judicial decision does not change the law, but corrects a particular judicial interpretation of it and re-establishes or clarifies what |flwas supposed to be the true meaning of the interpreted law. St. Paul, 609 So.2d at 818-819, quoting Symeon Symeonides, Property, 46 La. L.Rev. 655, 691 (1986). However, as noted by the supreme court, the suggested distinction between interpretive legislation “clarifying,” and substantive legislation “amending” or “changing,” existing law is an obscure one. St. Paul, 609 So.2d at 819. There is no bright line between substantive laws which change existing standards and interpretive laws which change existing standards by redefining and returning to their ostensible “original” meaning. Id.

It must be noted, however, that statutory interpretation and the construction to be given to legislative acts is a matter of law and rests with the judicial branch of government. Bourgeois v. AP. Green Industries, Inc., 00-1528 (La.4/3/01), 783 So.2d 1251, 1260. As pointed out by Justice Lemmon in his assignment of additional reasons to the majority opinion in Bourgeois,

True interpretive legislation occurs when the Legislature, upon realizing that a previously enacted law contains an ambiguity or an error, amends the prior law to correct the ambiguity or error before the law has been judicially interpreted. However, after the judicial branch performs its constitutional function of interpreting a law, and the Legislature disagrees with that interpretation, a new legislative enactment is a substantive change in the law and is not an interpretive law, because the original law as interpreted by the judicial branch, no longer applies. (Footnotes omitted; emphasis in original).

Bourgeois, 783 So.2d at 1261 (Lemmon, J., assigning additional reasons).

Ultimately, the supreme court has defined interpretive legislation as that which “determine[s] the meaning of existing laws.” St Paul, 609 So.2d at 820, citing Ardoin, 360 So.2d at 1338. It may be that the legislature intended that the 1992 amendment create an exception to the general rule of coverage found in LSA-R.S. 32:900(B)(2) that was broad enough to allow an exclusion of coverage as to the named insured, as well as to other named persons residing in his household. However, it did not do so and the supreme court determined that the exception could not be interpreted to do so. Until the 2001 amendment to LSA-R.S. 32:900(L), an insurer was not at liberty to limit its liability with respect to the named insured, under the clear wording of LSA-R.S. 32:900(B)(2), which required the vehicle owner’s policy of liability insurance to insure the person named in the policy. Any attempt to exclude the vehicle owner and named |ininsured from liability coverage prior to the enactment of the 2001 amendment was contrary to statutory law and public policy. Hence, the amendment is substantive, in that it represents a distinct change in the rights and obligations of the parties. Under LSA-C.C. art. 6 and LSA-R.S. 1:2, such a substantive change in the law cannot be applied retroactively, and the trial court was correct in so finding.

Decree

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Safeway Insurance Company of Louisiana.

AFFIRMED.

      .LSA-R.S. 32:900(B)(2) reads, in pertinent part:
      B. Such, owner’s policy of liability insurance:

      (2) Shall insure the person named therein and any other person, as insured, using any such vehicle or motor vehicles with the express or implied permission of such named insured against loss from the liability imposed by law for damages arising out of the ownership, maintenance, or use of such motor vehicle or motor vehicles within the United States of America or the Dominion of Canada, subject to limits exclusive of interest and costs with respect to each such motor vehicle as follows:
      (a) Ten thousand dollars because of bodily injury to or death of one person in any one accident, and,
      (b) Subject to said limit for one person, twenty thousand dollars because of bodily injury to or death of two or more persons in any one accident, and
      (c) Ten thousand dollars because of bodily injury to or destruction of property of others in any one accident.
      (d) An owner may exclude a named person as an insured under a commercial policy if the owner obtains and maintains in force another policy of motor vehicle insurance which provides coverage for the person so excluded which is equal to that coverage provided in the policy for which the person was excluded. The alternative coverage is required for both primary and excess insurance. (Emphasis added).

      . This amendment was in effect at the time of the accident in this case.

      . The purpose of this provision is to allow the named insured the option of paying a reduced premium in exchange for insurance that affords no coverage while a covered vehicle is operated by the excluded driver. Joseph v. Dickerson, 99-1046, 99-1188 (La. 1/19/00), 754 So.2d 912, 917.

      . LSA-Const. art. I, § 23 prohibits ex post facto laws and laws impairing the obligations of contracts. Also, no law can be retroactively applied so as to divest a party of a vested right, as this would violate the due process clause of the state and federal constitutions. These constitutional issues, however, arise only when retroactive effect is given to a new law. St. Paul Fire & Marine Ins. Co. v. Smith, 609 So.2d 809, 816 n. 11 (La.1992).

      . While the jurisprudence had also recognized a fourth category, remedial laws, the legislature intentionally left this category out of LSA-C.C. art. 6 because of the multiplicity of meanings it had been given: “[a] remedial law may be procedural, interpretive or substantive." LSA-C.C. art. 6, Official Comment (d); St. Paul, 609 So.2d at 817 n. 16.

      . The use of the expression "legislatively overrule” perhaps clouds the issue. To say that a judicial decision was "legislatively overruled” is a descriptive expression for the legislature changing the law as previously interpreted by the court. St. Paul, 609 So.2d at 819.


author: | JARRO, J.

text:
    Jerry Kenneth SCHWEHM v. G. Brice JONES and Marion B. Farmer.
    No. 2003 CA 0109.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 23, 2004.

      Lloyd R. Walters, Slidell, for Plaintiff-Appellant Jerry Kenneth Schwehm.
    Gus A. Fritchie, III, Jeanette M. Enger-on, Irwin, Fritchie, Urquhart & Moore, LLC, New Orleans, for Defendant-Appel-lee G. Brice Jones.
    James G. Wyly, III, Thear J. Lemoine, Phelps Dunbar LLP, Gulfport, MS, for Defendant-Appellee Marion B. Farmer.
    Before: CARTER, C.J., PARRO, and GUIDRY, JJ.
   | JARRO, J.

In this legal malpractice case, Jerry K. Schwehm appeals a summary judgment in favor of his former attorneys, G. Brice Jones and Marion B. Farmer, dismissing with prejudice his claims against them. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

While serving as a justice of the peace in St. Tammany Parish, Schwehm was charged with malfeasance in offiee, including one count of failing to remit litter fees to the police jury and one count of collecting fees for the lodging and filing of peace bonds. Jones and Farmer defended him on the criminal charges. After a trial by jury, he was convicted on both counts. He retained new counsel and filed a motion for new trial, based in part on ineffective assistance of counsel. After a hearing, the motion for new trial was denied, and he appealed his convictions to this court. On appeal, his conviction on the peace bond issue was upheld, but this court reversed his conviction on the litter fee count. The supreme court granted the state’s writ and reversed this court on the litter fee count, reinstating Schwehm’s conviction and sentence on both counts. On remand to this court for consideration of his remaining assignments of error previously pretermit-ted on appeal, several of which addressed the assistance of counsel, this court found no error in the trial court’s decision. Schwehm applied for habeas corpus relief based on ineffective assistance of counsel and insufficient evidence to support his convictions; his applications were denied by the federal district court for the Eastern District of Louisiana. His application for a certificate of appealability to the 1¡¡United States Fifth Circuit Court of Appeals was denied on the grounds that he had not made a substantial showing of the denial of a constitutional right; a motion for reconsideration was also denied. Schwehm has since served his sentence and completed the conditions of his probation.

Shortly after being sentenced, Schwehm filed this legal malpractice action against Jones and Farmer, claiming their failure to properly investigate, prepare, and present his defense in the criminal proceedings injured him. He sought damages for mental anguish, loss of freedom during incarceration and probation, lost income and wages, potential loss of his license to practice law, legal fees paid to Farmer and Jones, court costs in the criminal proceedings, and legal fees required for post-conviction motions in state and federal courts. After some discovery, both defendants filed motions for summary judgment. Farmer’s motion was supported with copies of documents and decisions from the criminal proceedings in state and federal court, along with copies of decisions from other jurisdictions addressing the issues raised in the motion. Schwehm opposed the motions with his own affidavit, in which he reiterated the allegations of his petition. After a hearing, both motions were granted by the trial court, dismissing Schwehm’s claims against Farmer and Jones with prejudice.

In oral reasons, the trial court stated:
I think in this case that to rule in favor of the plaintiff ... would require me almost to reject the reason[s] of the District Court and the Court of Appeal and the Supreme Court to rule in favor of the plaintiff.
We have already provided for the ineffective remedy, the ineffective assistance of counsel. And I don’t see why we should revisit that question. And if it means that the state of Louisiana now has the exoneration rule, so be it. But I think to fulfill the requirements of justice in Louisiana that we put an end to these proceedings as quickly as we possibly can. In this case I think that it’s clear. In all of the remedies that the plaintiff has gone through to satisfy his request to file a malpractice suit against these two attorneys, clearly the courts in all of those cases have rejected his contentions that he was ineffectively assisted in his criminal proceedings.

Schwehm appealed, claiming the trial court erred in concluding that his case against his former criminal defense counsel “should be dismissed for the sole reason |4that he was not exonerated after his conviction in the trial court.” He argues that in ruling on the motions, the court should have relied on Louisiana law, which does not recognize the “exoneration rule,” which is that in order for a plaintiff to claim legal- malpractice based on representation in a criminal case, he must prove that he was exonerated after being convicted. Schwehm contends the issue is not whether he was convicted, but whether or not he was wrongly convicted as a result of the legal malpractice.

Jones and Farmer urge this court to establish new legal precedent in Louisiana by recognizing the exoneration rule. They argue that this is the position taken in seventeen other states, and that only four states have rejected the exoneration rule in legal malpractice cases arising out of representation in a criminal matter. They urge that under this jurisprudence, an essential element of Schwehm’s claim is proof of innocence or exoneration in post-conviction proceedings; failing either, he cannot prove that his damages were caused by his former attorneys, rather than by his own criminal acts. They further contend that every fact raised by Schwehm in this case to establish legal malpractice was also raised by him in pleading ineffective assistance of counsel to the trial court in his criminal case, to this court on appeal of his convictions, and to the federal court, and that all of his claims were thoroughly addressed and rejected in those proceedings. Finally, Jones and Farmer claim the decisions made in presenting his defense in the criminal case were" carefully considered, judgment calls and trial strategies, which cannot form the basis of a malpractice claim against them simply because the intended result was not achieved.

APPLICABLE LAW

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there .is no genuine issue of material fact. Jarrell v. Carter, 632 So.2d 321, 323 (La.App. 1st Cir.1993), writ denied, 94-0700 (La.4/29/94), 637 So.2d 467. The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. LSA-C.C.P. art. 966(A)(2); Rambo v. Walker, 96-2538 (La.App. 1st Cir.11/7/97), 704 So.2d 30, 32. Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories and 1 Badmissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B); Collins v. Randall, 02-0209 (La.App. 1st Cir.12/20/02), 836 So.2d 352, 354. In determining whether summary judgment is appropriate, appellate courts conduct a de novo review of the evidence, employing the same criteria that govern the district court’s determination of whether summary judgment is appropriate. Sanders v. Ashland Oil, Inc., 96-1751 (La.App. 1st Cir.6/20/97), 696 So.2d 1031, 1035, writ denied, 97-1911 (La.10/31/97), 703 So.2d 29.

The initial burden of proof is on the moving party. However, on issues for which the moving party will not bear the burden of proof at trial, the moving party’s burden of proof on the motion is satisfied by pointing out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, the nonmoving party must produce factual support sufficient to establish that it will be able to satisfy its evidentiary burden of proof at trial; failure to do so shows that there is no genuine issue of material fact. LSA-C.C.P. art. 966(C)(2); Clark v. Favalora, 98-1802 (La.App. 1st Cir.9/24/99), 745 So.2d 666, 673. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Zeringue v. Karl Ott Poles & Pilings, 00-0522 (La.App. 1st Cir.5/11/01), 808 So.2d 628, 631.

To establish a prima facie case for legal malpractice, a plaintiff must prove there was an attorney-client relationship, the attorney was guilty of negligence in his handling of the client’s case or professional impropriety in his relationship with the client, and the attorney’s misconduct caused the client some loss or damage. See Prestage v. Clark, 97-0524 (La. App. 1st Cir.12/28/98), 723 So.2d 1086, 1091, writ denied, 99-0234 (La.3/26/99), 739 So.2d 800. When the attorney’s performance falls below the standard of competence and expertise usually exercised by other attorneys in handling such matters, the attorney is liable for any damage to the client caused by his substandard performance. The proper method of determining whether an attorney’s malpractice is a cause in fact of damage to his client is whether the proper performance of that act | ¿would have prevented the damage. Ault v. Bradley, 564 So.2d 374, 379 (La. App. 1st Cir.), writ denied, 569 So.2d 967 (La.1990).

In order to reverse a conviction on the grounds of ineffective assistance of counsel, the defendant must show that counsel made errors so serious that the defense was prejudiced, such that the defendant was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). The defendant must show there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Id. at 694, 104 S.Ct. 2052.

DISCUSSION

At the outset, we note that the factual premise underlying Schwehm’s assignment of error to this court is somewhat misleading; it is clear from the trial court’s oral reasons that reliance on the exoneration rule was not the “sole reason” for the dismissal of his claims against his former attorneys. The trial court’s offhand remark, “so be it,” suggests merely that the court would have no objection if its judgment on the motions were interpreted as an application of the exoneration rule. The oral reasons show the more persuasive factor underlying the trial court’s judgment on the motions was that all of Schwehm’s claims against his former attorneys had already been thoroughly considered, analyzed, and rejected by the trial court on his motion for new trial in the criminal case, by this court on appeal of his convictions, and by the federal district court on his application for a writ of habe-as corpus. Therefore, it was not just the exoneration rule that influenced the trial court when it granted the motions for summary judgment.

Be that as it may, when reviewing a judgment on a motion for summary judgment, this court is not bound by whatever influenced or did not influence the trial court, but conducts a de novo review to determine whether the mover is entitled to judgment as a matter of law. Schwehm’s petition alleges that the defendants failed to exercise the degree of care, skill, and diligence possessed and exercised by practicing attorneys in this jurisdiction and, but for the negligence of the defendants, he would not have been convicted of the criminal charges. All the damage claimed by Schwehm was 17ultimately attributable to his conviction in the criminal case. Essentially, what the defendants argued on the motions for summary judgment was that unless Schwehm could prove his innocence or show that he was exonerated in post-conviction proceedings, he could not establish an essential element of his claim against them, namely, that their actions or inactions caused his conviction and thereby caused his damage. The issue of causation is not one that the defendants would bear at trial. Therefore, this court must examine the evidence submitted by the defendants on the motion for summary judgment to determine whether it showed there was an absence of factual support for this essential element of Schwehm’s claim. If we conclude that such a showing was made, we must then determine whether Schwehm produced factual support sufficient to establish that he would be able to satisfy his evidentiary burden of proof at trial on the causation issue. If he did not, his failure to do so would show that there was no genuine issue of material fact and that the trial court’s judgment on the motions was correct.

When we examine the information submitted in support of the motions, we learn that after Schwehm was convicted, he filed a motion for new trial alleging ineffective assistance of counsel. In that motion, he raised virtually all of the same claims that form the basis of his petition in this case. According to the trial court’s reasons for judgment on the motion for new trial, there was a two-day trial on the motion, at which Schwehm “produced numerous witnesses and vigorously argued the claim of ineffective assistance of counsel.” At the hearing on the motion, the trial court heard from persons Schwehm claimed should have been called to testify in his defense. After hearing everything these persons had to say, the trial court concluded their testimony would not necessarily have been helpful to Schwehm and that his defense attorneys were justified in not calling them. Both Farmer and Jones testified at that hearing, indicating they felt that Schwehm was too talkative and would not have made a good witness on his own behalf and that his other proposed witnesses would offer mixed messages to the jury. They also said that Schwehm, himself an attorney, was very involved in the defense of his case and had agreed with their trial strategy not to call any witnesses and not to put him on the stand. The trial court’s written reasons stated, in summary:

|sThe Court finds that trial counsel spent many hours working on the defense of this case and vigorously argued pretrial motions. Though they may not have questioned all possible witnesses before trial, they were fully aware of their possible testimony. Counsel did not feel there were any material fact witnesses who would be helpful to the defense including the defendant himself. The defendant did not bring any witnesses to the motion hearing who could have offered evidence at trial to exonerate him. Without material fact witnesses to support defendant, the decision not to call character witnesses or the defendant is a trial strategy which cannot be questioned in hindsight. The failure of a trial strategy does not necessarily mean that counsel was ineffective.
After review of the evidence and testimony produced at the motion hearing, the Court finds defendant has failed to prove his trial counsels’ performances were deficient or that he was prejudiced by these deficiencies. The defendant has failed to prove either part of the two prong test for ineffective counsel set forth in Strickland ....

On appeal, this court again reviewed the same allegations of negligence on the part of Schwehm’s criminal defense attorneys, noting that his main complaints concerned their failure to put him or any other witnesses on the stand. After reviewing Schwehm’s testimony from the hearing on the motion for new trial, as well as the testimony of the witnesses he called at that hearing, this court concluded that his evidence was not sufficient to demonstrate, that his attorneys were ineffective in not calling any of these witnesses. See Schwehm, 713 So.2d at 706. With reference to the lack of testimony concerning his belated attempt to pay part of the litter fees to the police jury in 1994, this court found little probability that evidence of that remittance would have affected the outcome of the trial, particularly when considered with substantial other evidence’ at his criminal trial showing Schwehm had intentionally used that money for his own benefit. This court also noted that the decision to call or not call a certain witness is a matter of trial strategy and, even if that trial strategy is unsuccessful, such a decision is not evidence of ineffective counsel. See Schwehm, 754 So.2d at 268.

The report and recommendations of the federal magistrate who reviewed Schwehm’s habeas corpus application shows that every one of his claims concerning ineffective assistance of counsel was thoroughly researched, analyzed, and rejected. In addition to the issues concerning his attorneys’ failure to call him or other witnesses in his defense, the magistrate examined the issues of failure to file a motion for a bill of particulars, failure to file a motion to quash or object to the admission of certain of |9Schwehm’s files labeled as “peace bond files,” and failure to present evidence of an escrow account he purportedly maintained for the purpose of reimbursing the police jury for the litter fines. The magistrate found none of these claims satisfied the Strickland requirements.

Every time Schwehm’s claims were reviewed, the reviewing court determined that even if his allegations were true, the facts presented did not amount to unprofessional or negligent conduct on the part of his attorneys, much less that some different course of action would have led the jury to conclude he was innocent. We conclude, therefore, that the evidence submitted in support of the motions for summary judgment showed there was an absence of factual support for two essential elements of Schwehm’s claim: (1) that his attorneys were negligent in presenting his defense; and (2) that their negligence caused him to be convicted. Schwehm’s affidavit merely restates the allegations in his petition, all of which have previously been addressed and rejected by this court and others. Accordingly, it does not provide factual support sufficient to establish that he would be able to satisfy his eviden-tiary burden of proof at trial on either the negligence or the causation issue. Therefore, there was no genuine issue of material fact, and the motions for summary judgment were properly granted.

CONCLUSION

Based on the foregoing, the judgment is affirmed. All costs of this appeal are assessed against Schwehm.

AFFIRMED.

      . Both counts were alleged to be violations of LSA-R.S. 14:134, which proscribes malfeasance in office. These were the only two counts that were prosecuted; there were other counts that were severed, but not dismissed.

      . State v. Schwehm, 97-1544 (La.App. 1st Cir.5/15/98), 713 So.2d 697, writ granted, 98-1599 (La. 11/13/98), 728 So.2d 872, and writ denied, 98-1942 (La. 11/13/98), 730 So.2d 933. The opinion of this court also considered and disposed of several assignments of error dealing with ineffective assistance of counsel that applied to both of the criminal counts; additional assignments of error were pretermitted, because they applied to the litter fee count only.

      . State v. Schwehm, 98-1599 (La.3/19/99), 729 So.2d 548.

      . State v. Schwehm, 97-1544 (La.App. 1st Cir.9/24/99), 754 So.2d 264, writ denied, 99-2964 (La.3/31/00), 759 So.2d 68.

      . Schwehm v. State, 99-2622 c/w 00-2263 (E.D.La.12/8/00)(unpublished). A copy of the magistrate's written recommendation, explaining why issuance of a writ of habeas corpus should be denied with prejudice, was attached to Farmer’s motion for summary judgment.

      . Schwehm v. State, 01-30273 (5th Cir. 5/21/01 & 7/ll/01)(unpublished). Copies of the orders denying Schwehm’s application and motion were attached to Farmer's motion for summary judgment.

      . In so concluding, we decline the defendants' invitation to adopt the "exoneration rule,” as it is unnecessary to do so in order to affirm the judgment in this case.


author: J^FITZSIMMONS, J.

text:
    HOLLY & SMITH ARCHITECTS, INC. v. ST. HELENA CONGREGATE FACILITY and St. Helena Parish Hospital.
    No. 2003 CA 0481.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 23, 2004.

      Ron S. Macaluso, Hammond, Counsel for Plaintiff/Appellee Holly & Smith Architects, Inc.
    Craig L. Kaster, Zachary, Counsel for Defendant/Appellant St. Helena Parish Hospital.
    Before: FOIL, FITZSIMMONS, and GAIDRY, JJ.
   J^FITZSIMMONS, J.

Holly and Smith Architects, Inc. (Architects) filed a petition for (1) confirmation of an arbitration award against defendant, St. Helena Congregate Facility, Inc. (Congregate), and (2) declaratory judgment against defendant, St. Helena Parish Hospital (Hospital). In the action for declaratory judgment, Architects alleged that Congregate was the alter ego of the Hospital, and thus, the Hospital was liable for the arbitration award of $38,000.00 to Architects. Over the course of the proceedings, the Hospital filed several peremptory exceptions raising the objection of res judi-cata to the issues raised by Architects. The Hospital asserted that the claims between Architects and the Hospital, including the alter ego claim, had been settled in arbitration. The trial court found that the Hospital was not a party to the arbitration and denied the exceptions of res judicata.

Once the arbitration award was confirmed, the issue of alter ego proceeded to trial. After a trial on the merits, the trial court found that Congregate was incorporated solely to benefit the Hospital and to obtain

financing for the construction of the congregate facility. All meetings were conducted at the [Hospital] Board’s office and were between the plaintiff and the [Hospital] Board or its chairman, Mr. Lombardo. There was never any intention that the corporation would be anything but ... an extension of the Board. “The legal fiction of a distinct corporate entity may be disregarded when a corporation is so organized and controlled as to make it a mere instrumentality or adjunct of another corporation.” Grayson v. R.B. Ammon and Associates, Inc., 99-2597 (La.App. 1 Cir. 11/3/00), 778 So.2d 1.

Having found those particular facts, the trial court authorized a “piercing of the corporate veil,” which allowed liability to be imposed on the Hospital. By judgment dated May 16, 2002, the trial court held Congregate and the Hospital liable, and ordered them to pay Architects $38,000.00, plus cost, expenses, and interest. The Hospital appealed. We affirm.

\ ¿FACTS

After years of negotiations with the Hospital, Architects entered into a written contract with Congregate to develop and build 24 congregate living units for the elderly on land owned by, and adjacent to, the Hospital. In the contract, the two parties, Architects and Congregate, agreed to an arbitration clause. The clause provided, in pertinent part, as follows:

7.1 Claims, disputes or other matters in question between the parties to this Agreement arising out of or relating to this Agreement or breach thereof shall be subject to and decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association currently in effect unless the parties mutually agree otherwise.
7.3 No arbitration arising out of or relating to this Agreement shall include, by consolidation, joinder or in any other manner, an additional person or entity not a party to this Agreement, except by written consent containing a specific reference to this Agreement signed by the Oimer, Architect, and any other person or entity sought to be joined. Consent to arbitration involving an additional person or entity shall not constitute consent to arbitration of any claim, dispute or other matter in question not described in the written consent or with a person or entity not named or described therein. The foregoing agreement to arbitrate and other agreements to arbitrate with an additional person or entity duly consented to by the parties to this Agreement shall be specifically enforceable in accordance with applicable law in a court having jurisdiction thereof. (Emphasis added.)

When the contract between Architects and Congregate was terminated by the Hospital, Architects filed a demand for arbitration against Congregate and the Hospital. The arbitrator found in favor of Architects and against Congregate. The Hospital asked the arbitrator for a clarification of its position in the award. By a document dated April 2, 1996, the arbitrator found that the reviewed contract between the parties, Congregate and Architects, assigned no obligations to the Hospital. The suit by Architects ensued.

In this appeal, the Hospital essentially argues that the trial court erred in its denial of the exception of res judicata, the admittance of hearsay documents, and the finding that Congregate was the alter ego of the Hospital. The Hospital asserts l4that the record contains no evidence that Congregate was formed solely for the benefit of the Hospital.

RES JUDICATA

The Civil Code provisions governing arbitration are contained in articles 3099, et seq. The addenda to those codal articles are found in the Civil Code ancillaries, La. R.S. 9:4201, et seq. In addition, reference should be made to the doctrine of res judicata as enunciated in La.C.C.P. art. 425 and La.R.S. 13:4231-32. The pertinent legal precepts applicable to this particular case are found in the following:

C.C. Art. 3099. Submission to arbitrate

A submission is a covenant by which persons who have a lawsuit or difference with one another, name arbitrators to decide the matter and bind themselves reciprocally to perform what shall be arbitrated.

C.C. Art. 3100. Writing Necessary

A submission must be reduced to writing. (Emphasis added.)

C.C. Art. 3102. Scope of submission

Parties may submit either all their differences, or only some of them in particular; and likewise they may submit to arbitration a law suit already instituted or only in contemplation, and generally every thing which they are concerned in, or which they may dispose of. (Emphasis added.)

C.C. Art. 3104. Power of arbitrators

The power of arbitrators is limited to what is explained in the submission.

C.C. Art. 3121. Arbitrators acting in excess of power, effect

Arbitrators can not exceed the power which is given to them; and if they exceed it, their award is null for so much.

C.C. Art. 3122. Scope of arbitrators’ authority

The authority of arbitrators [extends] only to the things contained in the submission, unless it has been stated that they shall have power to decide all disputes which may arise between the parties in the course of the arbitration.

La. R.S. 9:4201. Validity of arbitration agreements

A provision in any written contract to settle by arbitration a controversy thereafter arising out of the contract, or out of the refusal to perform the whole or any part thereof, or an agreement in writing between two or more persons to submit to arbitration any controversy | Bexisting between them at the time of the agreement to submit, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. (Emphasis added.)

La. C.C.P. Art. 425. Preclusion by judgment

A. A party shall assert all causes of action arising out of the transaction or occurrence that is the subject matter of the litigation. (Emphasis added.)

La. R.S. 13:4231. Res judicata

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment. (Emphasis added.)

The same general rule applies when the judgment is in favor of the defendant. Whether a cause of action arises out of the same transaction or occurrence is determined by an examination of the facts underlying the event in dispute. See Leon v. Moore, 98-1792, p. 5 (La.App. 1 Cir. 4/1/99), 731 So.2d 502, 505, writ denied, 99-1294 (La.7/2/99), 747 So.2d 20 (same factual transaction underlying motion to exclude and petition for damages).

Initially, we note that the issue of alter ego did not arise under the development contract between Congregate and Architects. Rather, that issue arose via a claim concerning the liability of a third party, the Hospital. Secondly, based on the clear wording of the arbitration clause in the contract between Congregate and Architects, the arbitrator’s clarification of the determinations made, and the applicable law, we find that the Hospital was not a named party to the arbitration proceeding. In addition, the issue of alter ego was not properly submitted to arbitration or ruled on by the arbitrator. Our review of the record found no evidence of a written submission, by Architects, Congregate, and the Hospital, of a new party or the issue of alter ego. The arbitrator ruled based only on the contractual obligations assumed by Congregate and Architects, and found that the .Hospital owed no obligations under the written contract. Contrary to the | sHospital’s assertions, the clarification cannot be reasonably interpreted as a consideration and rejection of the alter ego claim that arose outside of the contract provisions. Even if the arbitrator had chosen to decide the issue, the decision on an un-submitted issue would be “null.” La. C.C. art. 3121; see La. C.C. arts. 3104; 3122. As with the written contract between Architects and Congregate, the civil code and ancillaries would also require a written submission for the addition of either a non-contracting party or a new issue. La. C.C. art. 3099, 3100 & 3102; La. R.S. 9:4201.

Unlike litigation, which is subject to general principles of the doctrine of res judicata, the rules of arbitration allow, and indeed require, the arbitration parties to identify the specific issues for submission. Rather than an automatic blanket inclusion of all claims arising from the same facts comprising the subject matter of the litigation, arbitration issue selection is exclusive. Only specifically selected issues are subject to arbitration. La. C.C. arts. 3102 & 3104 (arbitration is limited to the issues properly submitted by the parties). The arbitrator’s very authority is limited by the submission. La. C.C. arts. 3104, 3121-22. Only submitted issues may be decided, and a party cannot be required to submit an issue that he has not previously agreed to arbitrate. Woodrow Wilson Construction Company, Inc. v. MMR-Radon Constructors, Inc., 93-2346, pp. 3-4 (La.App. 1 Cir. 4/8/94), 635 So.2d 758, 759, writ denied, 94-1206 (La.7/1/94), 639 So.2d 1167. Thus, issues not specifically selected are reserved for other means of resolution, and are not subject to the bar of res judicata. See Glod v. Baker, 99-0872 (La.App. 3 Cir. 12/8/99), 755 So.2d 910, writ denied, 00-0039 (La.1/26/00), 753 So.2d 223; La. C.C.P. art. 425 (referring to litigation, not arbitration); La. R.S. 13:4231 (referring to exceptions provided by law). To hold otherwise would effectively overrule the legislative decision to allow parties who elect arbitration to pick and choose their issues.

|7Here, unlike the cases relied on by the Hospital, there was a non-contracting party who was not properly submitted as a party to the arbitration. Similarly, the issue of alter ego was not before the arbitrator. Therefore, we find no error in the trial court’s denial of the exception of res judicata.

EVIDENCE

The Hospital specifically asserts that plaintiffs exhibits 2, 4-13, and 17 are hearsay and were not properly authenticated. Plaintiffs exhibit 16 is challenged for relevancy only.

Hearsay is “a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted.” La. C.E. art. 801 C. “A statement is not hearsay if ... offered against a party and is ... [h]is own statement, in either his individual or a representative capacity,” a statement the party adopted, a statement by a person that was authorized by the party, or-one by an agent or employee made within the scope and course of his employment. La. C.E. art. 801 D(2) & (3)(a). If the statement is hearsay, it is not admissible, unless a specific exception can be found. La. C.E. art. 802; see La. C.E. arts. 803-04.

In addition, the evidence code requires authentication and identification. La. C.E. art. 901 A. However, the requirement is generally “satisfied, by evidence sufficient to support a finding that the matter in question is what its proponent claims.” La. C.E. art. 901 A. For example, authentication may be made by the testimony of a knowledgeable witness and by a nonexpert’s opinion on handwriting based on familiarity. La. C.E. art. 901 B(l) & (2). “A trial court’s determinations regarding what evidence is admissible for the trier of fact to consider and whether a plaintiff has sufficiently proven its case will not be overturned absent clear error.” Folse v. Folse, 98-1976, p. 11 (La.6/29/99), 738 So.2d 1040, 1046; see La. C.E. art. 103 A; Grayson v. R.B. Ammon and Associates, Inc., 99-2597, p. 8 (La.App. 1 Cir. 11/3/00), 778 So.2d 1, 10, writs denied, 00-3270, 00-3311 (La.1/26/01), 782 So.2d 1026, 1027.

Plaintiffs exhibit 2 purports to be a copy of the by-laws, rules, and regulations for the Hospital. However, we can find no authentication by an appropriate party. See La. C.E. art. 901.

Exhibits 4-7, 9, and 11 are letters written by the Hospital, a party to the suit. Similarly, exhibit 12 is an application generated by the Hospital, and made to the Farmer’s Home Administration (FHA), a division of the U.S. Department of Agriculture. The Hospital sought federal financial assistance on the housing project. The letters and application from the Hospital are admissions by a party, or its representative or agent, used against that party, and, therefore, not hearsay. See La. C.E. art. 801 D(2) & (3)(a); State v. Strickland, 94-0025, p. 22 (La.11/1/96), 683 So.2d 218, 229; State v. Lutcher, 96-2378, p. 11 (La.App. 1 Cir. 9/19/97), 700 So.2d 961, 970, writ denied, 97-2537 (La.2/6/98), 709 So.2d 731; State v. Glynn, 94-0332, p. 21 (La.App. 1 Cir. 4/7/95), 653 So.2d 1288, 1304, writ denied, 95-1153 (La.10/6/95), 661 So.2d 464. As for authenticity, trial testimony from Architects and a Hospital representative was sufficient to identify the exhibits and reasonably showed that they were what they claimed to be. See La. C.E. art. 901 A & B.

Exhibits 8 and 10 are letters written, and authenticated at trial, by Architects. The letters from Architects to the Hospital were primarily introduced to show that project negotiations were always with the Hospital, not Congregate. Thus, their primary purpose was not to prove the truth of each statement asserted in the letters, but to prove that Congregate was the alter ego of the Hospital. For such a purpose, the letters could have reasonably been found not to meet the definition of hearsay. See La. C.E. art. 801 C.

| {¡Exhibit 13, a letter from the Bank of Greensburg to the FHA, was sufficiently authenticated by a witness, albeit one who was not a representative of the Bank or the FHA. However, neither the Bank nor the FHA is a party to the suit.

Exhibit 16, a letter from the Louisiana Legislative Auditor’s office to the attorney for Architects, was challenged only as to relevancy. To be admissible, evidence must be relevant, that is, the evidence must tend to make a material fact “more probable or less probable than it would be without the evidence.” La. C.E. arts. 401 & 402. Congregate was a party to the suit whose financial independence and corporate identity were issues at trial. In the letter, the auditor notes that he has no audit for Congregate. Therefore, we find that the record supports a finding that exhibit 16 was sufficiently relevant to the question of Congregated corporateness.

Exhibit 17 originates from a non-party. It contains a letter and documents from the FHA to the Hospital, subsequently faxed by the Hospital to Architects. We also note that the Hospital cross-examined Architects’ representative on exhibit 17. However, the Hospital did not merely attack the documents as unreliable or unauthentic. It used the exhibit to show that the funding had never been approved. Although not a point before the court, it was a fact necessary to prove the Hospital’s recurring allegation that it did not owe anything to Architects.

After our thorough review of the record, and consideration of the applicable law, we find that the trial court erred in allowing exhibits 2 and 13. Exhibit 2 was not authenticated and number 13, from a non-party, was hearsay. Exhibit 17 may also have been disallowed as hearsay. However, the Hospital used the exhibit to make a point on its own behalf. By choosing to use the plaintiffs exhibit in an affirmative sense, we find that the Hospital waived its prior objection. See Combs v. Hartford Insurance Company, 544 So.2d 583, 585-86 (La.App. 1 Cir.), writ denied, 550 So.2d 630 (La.1989); Pryor v. United Services Automobile Association, 98-1371, p. 6 (La.App. 4 Cir. 2/10/99), 729 So.2d 658, 661, writ denied, 99-0686, 99-0701 (La.4/30/99), 741 So.2d 16, 17; see generally State v. Page, 95-2401, p. 19 (La.App. 4 Cir. 8/12/96), 680 So.2d 700, 713, writ denied, 96-2352 (La.2/21/97), 688 So.2d 522. Alternatively, exhibit 17 was faxed by the Hospital to Architects and its use by plaintiff was primarily to establish the alter ego claim. It was not offered to prove the truth of the matters asserted in the letter and attached documents. See La. C.E. art. 801 C. In that pursuit, the exhibit was also cumulative of many other exhibits and testimony.

ALTER EGO-SINGLE BUSINESS ENTERPRISE

In Louisiana, corporations are generally recognized as separate legal entities. However, the legal fiction of a distinct corporate entity may be disregarded when a corporation is so organized and controlled as to make it merely an instrumentality or adjunct of another corporation. If one corporation is wholly under the control of another, the fact that it is a separate entity does not relieve the dominant corporation from liability. In such an instance, the former corporation is merely an alter ego or business conduit of the dominant corporation. Thus, when supposedly separate corporations are operated as the same single business enterprise, courts may pierce the corporate veil to reach the dominant corporation. Grayson, 99-2597 at pp. 16-17, 778 So.2d at 14. Some of the factors that may be considered are:

(1) identity of stock ownership;
(2) common directors and officers;
(3) unified administrative control;
(4) directors and officers of one entity operate independently in the interest of the other;
(5) one corporation financing another;
In(6) inadequate capitalization;
(7) corporation causing the incorporation of another;
(8) one corporation paying the salaries and expenses of another;
(9) Corporation receives no business except from the other corporation;
(10) corporation using the property of the other as its own;
(11) noncompliance with corporate formalities;
(12) common employees;
(13) common offices;
(14) central accounting;
(15) undocumented transfer of funds;
(16) unclear allocation of profit and loss between the two corporate entities; and,
(17) excessive fragmentation of a single business enterprise into separate corporations.

No one factor is dispositive, and the totality of the circumstances should be considered. Grayson, 99-2597 at pp. 19-20, 778 So.2d at 15.

The alter ego question is one of fact, and the plaintiffs burden of proof is clear and convincing evidence. Grayson, 99-2597 at pp. 18 & 20, 778 So.2d at 14-15. On review, the appellate court may not reverse the factfinder’s factual determinations unless the record does not provide a reasonable factual basis for the finding; and, the finding is manifestly or clearly -wrong. Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993).

The trial court found that Congregate was created solely for the benefit of the Hospital in an effort to obtain federal financing for the Hospital’s housing project. Thus, Congregate was merely “an extension” of the Hospital. The court li¡>also determined that “[a]ll meetings were conducted” with the Hospital, not Congregate.

After a thorough review of the record, excluding plaintiffs exhibits 2 and 13, we find no manifest error or erroneous application of law by the trial court. The record provides the requisite support for the following:

1. Congregate had no bank account;
2. Congregate had no assets;
3. Congregate and the Hospital had generally the same board;
4. Congregate was incorporated by the Hospital to receive the federal funding for the housing project;
5. Architects’ negotiations for the housing project were with the Hospital, not Congregate, and initially contemplated the use, by Congregate, of Hospital land without remuneration;
6. the Hospital negotiated for the federal approval and funding, not Congregate;
7. the Hospital agreed that it was responsible for any cost overruns on the project; and
8. Architects’ contract with Congregate was terminated by the Hospital, not Congregate.

In addition to the above facts, the transcript reveals that during the trial the Hospital continued to exhibit a proprietary view of Congregate and the | ^development and negotiations surrounding the housing project. The Hospital did not treat Congregate as an independently involved entity. Thus, we cannot say that the trial court was clearly wrong in finding that Congregate was a mere “extension” of the Hospital and that the Hospital was liable.

For these reasons, we affirm the judgment of the trial court. The costs of the appeal, $2,530.00, are assessed to appellant, the Hospital.

AFFIRMED.

      . Although plaintiff's exhibits 2 and 13 were improperly allowed as evidence, we find that the admissions do not rise to the level of reversible error. The Hospital failed to show that a substantial right was affected or that the erroneous evidentiary rulings prejudiced its defense. See La. C.E. art. 103 A; Emery v. Owens-Corporation, 2000-2144, pp. 7-8 (La. App. 1 Cir. 11/9/01), 813 So.2d 441, 448-49, writ denied, 02-0635 (La.5/10/02), 815 So.2d 842. The by-laws were not particularly relevant to the issue of alter ego, and the names of the Hospital's board members were proven through other exhibits. Any effect the Bank of Greensburg's letter may have had was also cumulative. The Hospital's level of participation in the project was established by other exhibits. See State Farm Mutual Automobile Insurance Company v. Little, 34,760, pp. 4-5 (La.App. 2 Cir. 6/20/01), 794 So.2d 927, 930-31 (Hearsay evidence was harmless error when non-hearsay evidence found to support judge's finding.).

      . In its brief, the Hospital argued that the boards were different. However, when Mr. Lombardo's testimony is read in toto, the reference relied on by the Hospital is to another project and corporation, not Congregate. Earlier in his testimony, in response to a question, Mr. Lombardo admitted that the boards of Congregate and the Hospital were the same. This is affirmed by a comparison of the Hospital’s letterhead, listing its board members, and Congregate's incorporation papers from the Louisiana Secretary of State.