BROWN, Chief Judge.

Plaintiffs, Carolyn Scranton, Christine Odom and Rachelle Jones, appeal a trial court decision dismissing their reconventional demand alleging acts of legal malpractice as being perempted against their former attorney, defendant in reconvention, H.F. Sockrider Jr. For the reasons set forth herein, we reverse.

Facts and Procedural History

Plaintiffs, Carolyn Scranton, Christine Odom and Rachelle Jones, residents of California, each inherited, inter alia, an undivided one-fourth of an undivided one-third interest in 206.33 acres, more or less, of land in Bossier Parish, Louisiana from the estate of Henry Jefferson.1

In 2008, Chesapeake Operating, Inc. ("Chesapeake"), hired Ashley Ann Energy L.L.C. ("Ashley Ann"), a lease broker, to obtain mineral leases for Chesapeake covering acreage believed to be productive from the Haynesville Shale. Lydia Gunn, a landman employed by Ashley Ann, negotiated mineral leases from defendant, H.F. Sockrider, covering his personal property as well as several of his neighbors. During this time, defendant attempted to bring together the largest number of lessors possible in order to obtain more favorable terms for the landowners. One of his neighbors involved, Dorothy Butler, had inherited from the estate of Henry Jefferson and assisted defendant in locating other heirs with mineral interests, including plaintiffs. Butler sent plaintiffs a letter dated August 18, 2008, advising that she had retained defendant to represent her in securing a lease for her interest in the property from the Jefferson estate and that plaintiffs should do the same. Sockrider provided Butler with retainer contracts to include with her letter.

On August 25, 2008, defendant had Gunn prepare and sign a letter to plaintiffs outlining the agreement he had negotiated prior to being retained by plaintiffs. Ashley Ann, on behalf of Chesapeake, agreed to make a bonus payment of $20,000 per mineral acre as well as one-fourth royalty rate for a three-year lease with a two-year option. The letter also noted that Ashley Ann had agreed to pay each lessor "95% percent of your interest and Mr. Sockrider 5% of your interest" in the bonus payment. Defendant mailed the letters to plaintiffs, who then signed and returned his retainer contracts.

Defendant felt it necessary to obtain a judgment of possession from the succession in order to lease plaintiffs' mineral interests. Plaintiffs obtained the judgment of possession on October 1, 2008, but the following day Gunn informed defendant that Chesapeake had instructed Ashley Ann to cease making further leases. On October 6, 2008, Sockrider met with Calvin Beasley, owner of Ashley Ann. Beasley agreed that he would honor the original agreement and would have Gunn complete the leases and payments to the heirs. Gunn later confirmed to defendant the terms of the agreement, with the modification that the bonus payments to plaintiffs would be deferred until January 15, 2009. On October 8, 2008, Beasley signed and sent each plaintiff a lease agreement. In an October 9, 2008, letter to plaintiffs, Gunn explained "this agreement commits you to lease your mineral interests with Ashley Ann Energy, and it commits Ashley Ann Energy to execute the lease and make your bonus payment."

Before plaintiffs received the lease agreements to sign and return, Gunn telephoned each on October 13 and 14, 2008, instructing them to "tear up the agreement" when it arrived and "that Chesapeake would not be able honor the 01/15/09 commitment." Defendant advised plaintiffs that their agreements with Ashley Ann were binding and any attempts to revoke the agreements orally were ineffective. He further instructed plaintiffs to sign the agreements and have their signatures notarized. Plaintiffs complied with these instructions, and on October 28, 2008, defendant recorded the agreements in the conveyance records of Bossier Parish. On October 30, 2008, defendant delivered the agreements to Ashley Ann.

Sockrider wrote to Beasley on October 30, 2008, and December 3, 2008, making amicable demand that Ashley Ann and Chesapeake honor their commitments to plaintiffs. Beasley made no response to these demands, and no payment was made to plaintiffs or defendant on January 15, 2009. Defendant then wrote to plaintiffs on January 30, 2009, asking whether they wished to pursue legal action to enforce the agreements "which were orally revoked, but not revoked in writing." On February 4, 2009, plaintiffs wrote to Sockrider agreeing to sue Chesapeake and Ashley Ann and requesting that he recommend two attorneys with oil and gas experience to handle the suit. While plaintiffs dispute whether defendant made a timely recommendation, in July 2009, they hired attorneys Peirce Hammond and Guy Wall to represent them in the lawsuit.2

On October 1, 2009, plaintiffs filed suit against Ashley Ann, Chesapeake, Beasley and Gunn alleging a breach of the August 25, 2008, letter and the agreements to lease, as well as intentional and negligent misrepresentation. On November 13, 2009, Sockrider filed a petition of intervention in the suit seeking recovery of the 5% payment due to him under the agreement to lease.3 On February 4, 2010, plaintiffs filed their self-styled "Plaintiff's Exception, Answer, Affirmative Defenses and Reconventional Demand to Petition of Intervention." Therein, plaintiffs claimed that defendant had committed multiple acts of legal malpractice. Specifically, they alleged that:

They also alleged that defendant was negligent in recording plaintiffs' agreements to lease in the conveyance records of Bossier Parish, thereby clouding their title and hampering their ability to obtain a new mineral lease.4 On February 3, 2011, defendant filed a peremptory exception of peremption and/or prescription arguing that plaintiffs' claims were untimely.

The trial court held a hearing on defendant's exception on May 2, 2011, and on May 10, 2011, the court sustained the exception and dismissed with prejudice all of plaintiffs' claims against Sockrider. Holding that plaintiffs' claims had perempted, the court reasoned that:

The court also rejected plaintiffs' argument that La. C.C.P. art. 1067 served to extend the prescriptive or peremptive period under La. R.S. 9:5605 for their claim.5 Thereafter, plaintiffs filed this timely appeal.

Discussion

Plaintiffs make several assignments of error on appeal. The primary issue we must address is not the merits of plaintiffs' malpractice claims, but rather whether those claims have perempted under law.6 Therefore, we must first examine the trial court's finding that the peremptive period for plaintiffs' claims began in "mid-October 2008 or January 15, 2009, at the latest."

Peremption of Legal Malpractice Claims

The party raising an exception of prescription or peremption ordinarily bears the burden of proof at the trial of a peremptory exception. McKinley v. Scott, 44,414 (La.App.Cir.2d 07/15/09), 17 So.3d 81, 83. However, when prescription is evident from the face of the pleadings, the plaintiff bears the burden of showing the action has not prescribed. Id. When evidence is introduced at the hearing on the peremptory exception, the factual conclusions of the district court are reviewed under the manifest error-clearly wrong standard of review.7 McGuire v. Mosley Rogers Title Co. L.L.C., 43,554 (La.App.2d Cir.09/17/08), 997 So.2d 23, 28, writ denied, 08-2728 (La.01/30/09), 999 So.2d 757. La. R.S. 9:5605 governs claims for legal malpractice in Louisiana.8 A straightforward reading of the statute provides that an action for legal malpractice must be brought within one year of the date of the act, omission, or neglect, or within one year of discovering the act, omission, or neglect and within three years of the date of the act, omission, or neglect. La. R.S. 9:5605; Jenkins v. Starns, 11-1170 (La.01/24/12), 85 So.3d 612. The date of discovery from which prescription or peremption begins to run is the date on which a reasonable person in the position of the plaintiff has, or should have, either actual or constructive knowledge of the damage, the delict, and the relationship between them sufficient to indicate to a reasonable person he or she is the victim of a tort and to state a cause of actions against the defendant. Teague v. St. Paul Fire and Marine Ins. Co., 07-1384 (La.02/01/08), 974 So.2d 1266; Campo v. Correa, 01-2707 (La.06/21/02), 828 So.2d 502.

The trial court held that plaintiffs had constructive knowledge of their claims against defendant either when Gunn telephoned to tell them to tear up the lease agreements or after no payment was made on January 15, 2009. Constructive knowledge is whatever notice is enough to excite attention and put the injured party on guard and call for inquiry. Teague, supra at 1276. However, a plaintiffs mere apprehension that something may be wrong is insufficient to commence the running of prescription unless the plaintiff knew or should have known through the exercise of reasonable diligence that his problem may have been caused by acts of malpractice. Id. at 1275; Beach v. Continental Casualty Co., 09-108 (La.App. 3d Cir.06/03/09), 11 So.3d 715. Further, the supreme court in Teague, 974 So.2d at 1278 cautioned:

In the case sub judice, plaintiffs had neither actual nor constructive knowledge of the existence of any substandard legal practice and had no evidence to connect the adverse outcome, failure by Chesapeake to make bonus payments, with acts of alleged legal malpractice by their attorney. Defendant never suggested that his actions may have had some effect on plaintiffs' ability to obtain a bonus payment.9 Instead, defendant advised plaintiffs that Chesapeake and Ashley Ann were in breach of the August 25, 2008, agreement as well as the agreements to lease. The record reveals that the only communication plaintiffs received from Ashley Ann and Chesapeake was on October 13 and 14, 2008, when they were telephoned by Gunn who told them that Chesapeake would not be able honor its agreement. This occurred, according to a February 13, 2009, letter from defendant to plaintiffs, not because of any mistake on his part but rather because Chesapeake was "financially broke" and "simply telling their attorneys to drag everything out as long as they can" in an attempt to eventually renegotiate their contracts.

Defendant further instructed plaintiffs to complete the agreements to lease following Gunn's phone call, because, as he explained to plaintiffs, under Louisiana law such an offer must be revoked expressly rather than orally. Plaintiffs followed his counsel, and defendant made amicable demand upon Ashley Ann in October 2008 to honor the lease agreements, which denoted January 15, 2009, as the date bonus payments would be made. A thorough review of the record discloses that there was no evidence of malpractice made available to plaintiffs from either Ashley Ann and Chesapeake or defendant.10 Plaintiffs did not discover any acts of malpractice until they were revealed by virtue of an investigation into the matter by other counsel who had mineral law experience. Plaintiffs had no knowledge of Louisiana mineral law.11 The only issue of which plaintiffs had evidence was that a bad result occurred, that Chesapeake did not honor its agreement.

Therefore, the record lacks sufficient evidence to hold that plaintiffs had knowledge of the cause or reason for the undesirable result of not receiving their bonus payment. Plaintiffs reasonably relied on the alleged erroneous advice of their attorney, Sockrider, and did not gain constructive knowledge of the damage, delict and the relationship between the two until July 2009 when they retained new counsel to pursue the breach of contract claim.

Plaintiffs also claim that they were damaged by defendant's recordation of the agreements to lease on October 28, 2008, which placed a cloud on the title, stymieing their ability to obtain a new lease. The trial court held that recordation of the leases was "a matter of public record and constituted notice to the plaintiffs, their lawyers, all landmen, mineral companies, and the world." This is clear error. Whether the world knew of the recordation is not relevant as to plaintiffs' knowledge that this was an act of malpractice. There is no evidence in the record that plaintiffs were even aware that leases had been recorded in October 2008. More importantly, they did not discover the damage, the delay in being able to secure a new lease, until their new counsel attempted to secure a new lease and informed them of the impediment. Plaintiffs, therefore, had no reason to call for inquiry while being represented by Sockrider. The date of discovery for this separate cause of action occurred, at the earliest, when plaintiffs retained new counsel in July 2009.

Because the bad result was not self-evident of the malpractice involved, we find peremption did not begin to run until July 2009 when plaintiffs hired new attorneys. Their claims for legal malpractice were therefore not perempted as of February 4, 2010, when the reconventional demand was filed and would not have perempted until July 2010.

Finally, there is an issue of plaintiffs' claims for so-called "pre-hiring acts of negligence" by defendant. Specifically, they argue that Sockrider dictated the terms of the August 25, 2008, letter from Gunn to plaintiffs and that he mailed it anonymously to plaintiffs. They claim this was a misrepresentation and fraudulent inducement to sign retainer contracts. Defendant did not reveal that he had asked Gunn to write, sign and hand over the letter for him to mail to plaintiffs on August, 25, 2008, until his December 2, 2010, deposition.

Defendant argues that all of his actions prior to plaintiffs signing their retainer contracts on September 9, 2008, were done on behalf of his clients and potential clients. He notes that his "actions in negotiating the agreement with Gunn arose out of an engagement, by Dorothy Butler, to provide legal services in the interest not only Dorothy Butler, but also the plaintiffs." The record reveals that Butler sent plaintiffs letters on August 18, 2008, suggesting they retain Sockrider. There is no evidence that Butler hired defendant to represent plaintiffs. Notwithstanding the validity of these claims, plaintiffs did not discover that it was defendant who had sent the letter until his December 2, 2010, deposition. Further, as there was no attorney-client relationship at the time the letter was prepared and sent, La. R.S. 9:5605 does not govern the cause of action.12 Therefore, these claims were not perempted or prescribed as of the February 4, 2010, pleading.

Status of Plaintiffs' Reconventional Demand

Addressing whether defendant's intervention triggered a suspension of peremption or whether the intervention served to extend or revive a perempted claim, the trial court ruled that plaintiffs' claim against defendant was in the nature of a cross-claim rather than a reconventional demand.13 We note that every pleading shall be so construed as to do substantial justice. La. C.C.P. art. 865. The caption of the pleading does not control; the court is obligated to determine the substance of the pleading. Smith v. Cajun Insulation Inc., 392 So.2d 398 (La. 1980); Steed v. St. Paul's United Methodist Church, 31,521 (La.App.2d Cir.02/24/99), 728 So.2d 931, writ denied, 99-0877 (La.05/07/99), 740 So.2d 1290. Having already found that peremption would not occur in this case until July 2010, we need not address the trial court's ruling on this issue. A cross-claim, likewise a reconventional demand, was not perempted at the time plaintiffs filed their pleading.

Plaintiffs urge also that the trial court erred in ruling that under the circumstances of this case, an incidental demand does serve "to extend the 90-day period envisioned by La. C.C.P. art. 1067; further, the exception of prescription and peremption set forth in article 1067 [sic] does not revive a perempted claim." For the same reasons as above, we need not address the effect of La. C.C.P. art. 1067 on plaintiffs' demand as plaintiffs' claims had not yet perempted.

Admissibility of Defendant's Pretrial Deposition

Finally, plaintiffs argue that the trial court erred in not allowing the December 2, 2010, deposition of defendant into evidence at the trial on the peremptory exception. Plaintiffs' counsel attempted to introduce the deposition into evidence following his examination of defendant at the hearing on the exception. He wished to introduce the deposition because it would give "a complete overview of the case." The trial court denied the request to admit the deposition, reasoning that there was no impeachment purpose for admitting the deposition. The trial court opined that "Mr. Sockider was called to the stand, he was examined by Mr. Richard on direct examination and then was cross examined in some detail by Mr. Wall as to the issues that are relevant to the peremptory exception."

The trial court is granted broad discretion in its evidentiary rulings, which will not be disturbed on appeal absent a clear abuse of that discretion. Wimberly v. Giglio, 46,000 (La.App.2d Cir.01/26/11), 57 So.3d 389; Graves v. Riverwood Intern. Corp., 41,810 (La.App.2d Cir.01/31/07), 949 So.2d 576, writ denied, 07-0630 (La.05/04/07), 956 So.2d 621. On appeal, the court must consider whether the complained of ruling was erroneous and whether the error affected a substantial right of the party. If not, reversal is not warranted. Id.

La. C.C.P. art. 1450 which governs the use of depositions under these circumstances provides, in pertinent part:

While some circuits have construed this statute to allow a party to admit the deposition of an adverse party for any purpose, this court has traditionally construed this provision more strictly. Orea v. Scallan, 32,622 (La.App.2d Cir.01/26/00), 750 So.2d 483. The provision creates discretion in the trial court to refuse to admit into evidence the discovery deposition of an adverse part when it is repetitious of matters contained in the record. Simms v. Progressive Ins. Co., 38,804 (La.App.2d Cir.09/29/04), 883 So.2d 473, writ denied, 04-2871 (La.01/28/05), 893 So.2d 78; Orea, supra.

Here, the trial court denied admitting the December 2, 2010, deposition into evidence because there was no impeachment purpose, rejecting plaintiffs' general overview purpose. The record reveals that plaintiffs' counsel was given ample opportunity to examine defendant. Further, defendant testified generally to all the issues contained within the deposition. Therefore, we find no error in the trial court's decision to exclude the deposition testimony.

Peremptory Exception — No Cause of Action

On appeal, defendant for the first time raises a peremptory exception of no cause of action, asking that plaintiffs' claims of alleged pre-hiring acts of negligence against him be dismissed with prejudice.14 Defendant argues that plaintiffs failed to plead facts alleging acts of negligence prior to his being retained by them. Defendant also argues, in the alternative, that if plaintiffs were not clients when they allege he made a misrepresentation, namely the August 25, 2008, letter from Gunn, and fraudulently induced them to sign retainer agreements, then he owed no duty to plaintiffs. Therefore, he avers, plaintiffs fail to establish a cause of action against him under tort principles. Plaintiffs argue that sufficient facts were pled and that the pleadings have been expanded by other evidence. They request that should this court find in favor of defendant, they should be allowed to amend their pleading to state a cause of action for general negligence.

The function of the peremptory exception of no cause of action is to test the legal sufficiency of the petition, which is done by determining whether the law affords a remedy on the facts alleged in the pleading. Ramey v. DeCaire, 03-1299 (La.03/19/04), 869 So.2d 114; Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234 (La.1993). A cause of action, in the context of a peremptory exception, is defined as the operative facts that give rise to the plaintiffs' right to judicially assert an action against a defendant. Id. The issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Ramey, supra.

The record reveals that nowhere in the February 4, 2009, pleading reconvening against defendant did plaintiffs allege that he made a misrepresentation by anonymously sending the letter. They failed to allege facts of any acts of pre-hiring negligence but rather only alleged acts of legal malpractice.15 These negligent pre-hiring acts were not alleged until plaintiffs filed their memorandum in opposition to defendant's original peremptory exception of prescription and/or peremption. Defendant correctly notes that they responded to these claims as being "far beyond the scope of the pleadings" in their reply to plaintiffs' memorandum in opposition.

However, the Supreme Court has held "[i]f there are two or more items of damages or theories of recovery which arise out of the operative facts of a single transaction or occurrence, a partial judgment on an exception of no cause of action should not be rendered to dismiss one item of damages or theory of recovery." Everything on Wheels Subaru, Inc., 616 So.2d at 1239. Here, plaintiffs argue that they offer multiple theories of recovery, namely, one being in legal malpractice and the other in general negligence which both concern the August 25, 2008, letter.

When it is reasonably possible, the court should maintain the petition against the peremptory exception no cause of action so that the litigant is afforded the opportunity to have his or her day in court to present evidence.16 Arledge v. Hendricks, 30,588 (La.App.2d Cir.06/26/98), 715 So.2d 135, writ denied, 98-2015 (La.11/20/98), 728 So.2d 1287. Further, La. C.C.P. art. 934 provides that when the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court.

The trial court made no specific ruling regarding the substantial nature of any pre-hiring acts of negligence, but instead focused only on whether the claims had perempted and the procedural status of plaintiffs' demand. Plaintiffs failed to allege sufficient facts in their reconventional demand to support a cause of action for general negligence against defendant in their February 4, 2010 pleading. The peremptory exception of no cause of action is sustained. However, as defendant only now for the first time raises a peremptory exception of no cause of action regarding these claims, we grant plaintiffs' request to amend their pleading, pursuant to La. C.C.P. art. 934, to allege sufficient facts to state a cause of action for general negligence against defendant.

Conclusion

For the reasons set forth above, the judgment of the trial court is reversed. Defendant's peremptory exception of no cause of action is sustained, but plaintiffs are granted leave to amend their original petition. This case is remanded for further proceedings not inconsistent with this opinion. Costs of appeal are assessed against appellee, H.F. Sockrider Jr.

REVERSED AND REMANDED.

APPLICATION FOR REHEARING

Before BROWN, STEWART, CARAWAY, DREW, and LOLLEY, JJ.

Rehearing denied.