author: SANDRA CABRINA JENKINS, Judge.

text:
    727 TOULOUSE, L.L.C. v. The BISTRO AT THE MAISON DE VILLE, L.L.C.
    No. 2012-CA-1014.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 21, 2013.
    Rehearing Denied Sept. 11, 2013.

      Ryan 0. Luminais, Martha Y. Curtis, Mary Beth Akin, Sher Garner Cahill Richter Klein & Hilbert, L.L.C., New Orleans, LA, for Plaintiff/Appellee.
    Al J. Robert, Jr., Law Office of Al J. Robert, Jr., L.L.C., New Orleans, LA, and Stuart H. Smith, Smith Stag, L.L.C., New Orleans, LA, for Defendant/Appellant.
    Court composed of Judge PAUL A. BONIN, Judge MADELEINE M. LANDRIEU, and Judge SANDRA CABRINA JENKINS.
   SANDRA CABRINA JENKINS, Judge.

| ¶ This case arises out of a landlord-tenant dispute over the obligations of each party under the terms of a Sublease agreement. The plaintiffdandlord, 727 Toulouse, L.L.C. (“Toulouse”), filed a petition for eviction against the defendanfytenant, The Bistro at the Maison De Ville, L.L.C. (“Bistro”), for failure to pay rent. Bistro contends that it did not have an obligation to pay rent because Toulouse breached the terms of the Sublease by removing two heating, venting, and air conditioning units (“HVAC units”) that serviced the tenant’s premises. Bistro filed a declinatory exception of lis pendens in this case, and the district court ruled that the exception had been waived because Bistro failed to timely plead the exception. Toulouse then filed a motion for summary judgment in the district court, which was granted, thereby evicting Bistro. In the same proceeding, the district court heard Toulouse’s motion to strike the amended affidavit of Mr. Gerald Tharp, which was also granted. Bistro appeals the district court judgments ]2denying the exception of lis pendens, granting summary judgment in favor of Toulouse, and striking the amended affidavit of Mr. Gerald Tharp. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Toulouse owns the property located at 727 Toulouse Street in the French Quarter, and leases the property located at 733 Toulouse Street from Mon-Tay Enterprises (“Mon-Tay”). Pursuant to the terms of an Act of Sale of Property and Assignment of Ground Lease dated October 29, 2010, Toulouse assumed a sublease to Bistro of the first floor and the courtyard area of 733 Toulouse Street. The sublease agreement (“Sublease”) was originally entered into by Hertz New Orleans One, L.L.C. and Bistro on May 7, 2007, for the express use of the premises by tenant, Bistro, as a fine dining restaurant. The term of the Sublease was set from the effective date, May 7, 2007, until July 31, 2014, unless terminated prior to that expiration as provided for within the Sublease.

In 2011, Toulouse began performing renovations to the property it owned at 727 Toulouse Street. During the renovations, Toulouse discovered that two HVAC units that served Bistro’s restaurant, at 733 Toulouse, were on an equipment platform in the alley between the two properties, and that the platform was attached to 727 Toulouse. Toulouse and Bistro communicated, in meetings and emails, about the need to relocate the HVAC units in order for Toulouse to perform necessary renovations. Toulouse also consulted and sought approval from the |sVieux Carre Commission and the Louisiana State Fire Marshall regarding the renovations.

On August 5, 2011, Toulouse sent written notice via email to Bistro and Mon-Tay (the owner of 733 Toulouse Street) that Toulouse would remove the HVAC units on August 22, 2011 in order to proceed with the planned renovations to 727 Toulouse that included removing the platform in the alley. Toulouse notified Bistro and Mon-Tay that the HVAC units were located on Toulouse’s property and needed to be moved before August 22, 2011 or Toulouse would remove the HVAC units. Neither Bistro nor Mon-Tay took any action to remove or relocate the HVAC units. On August 22, 2011, Toulouse removed the HVAC units, which resulted in the loss of air conditioning for Bistro. Bistro closed the restaurant the same day and never re-opened for business.

Bistro did not pay Toulouse rent for the month of September, which was due on or before the first day of the month according to the terms of the Sublease. On September 13, 2011, Toulouse sent written notification (“Notice”) to Bistro that, under the express terms of the Sublease, Bistro was in default for failure to pay the monthly rent within 10 calendar days after rent was due. Toulouse further stated in the Notice that it was exercising its right to terminate and cancel the Sublease effective immediately.

Prior to receiving the Notice from Toulouse, on September 9, 2011, Bistro filed a petition in district court for preliminary injunction and mandatory injunction (“Injunction” suit) to enjoin Toulouse from evicting Bistro and to direct Toulouse Uto restore the HVAC units that serviced Bistro’s leased premises. Although Bistro did not reopen the restaurant after August 22, 2011, Bistro claimed a legal right to occupy the premises and to a total abatement of rent payments based on the provisions of Louisiana Civil Code article 2715. (Bistro also raises this argument in opposition to summary judgment in this case.)

When Bistro did not deliver possession of the leased premises to Toulouse following the written notification sent on September 13, 2011, Toulouse filed a petition for eviction in a separate suit (“Eviction”) in the district court on October 19, 2011. Both eases were assigned to the same section of the district court.

On November 4, 2011, Bistro filed in this Eviction case declinatory exceptions of insufficiency of citation and insufficiency of service of process, and peremptory exception of no cause of action.

Then on January 25, 2012, Bistro filed in this Eviction case declinatory exceptions of insufficiency of citation and insufficiency of service of process, and lis pendens, with a request for expedited hearing. On the same day, Bistro also filed a motion for leave to amend and correct the captions on two memoranda and two notices filed in the Eviction suit that were directed to and intended for the Injunction suit filed by Bistro. The incorrectly captioned filings did not include the declinatory exceptions filed on November 4, 2011.

Ijn its opposition to the declinatory exceptions filed on January 25, 2012, Toulouse argued.that Bistro had made several appearances before the court in both proceedings, had participated in a scheduling order for both proceedings, had been served through counsel and by other accepted methods of service, and had waived the exception of lis pendens by failing to include that exception with its first pleading of exceptions in the Eviction case. On February 17, 2012, at the hearing on the exceptions, the district court denied each of the exceptions filed by Bistro and ruled that lis pendens had been waived.

On March 15, 2012, Toulouse moved for summary judgment in the Eviction ease. Attached to its motion, Toulouse submitted a transcript of the motion for summary judgment hearing in the Injunction suit on March 9, 2012, and noted the district court had granted summary judgment in favor of Toulouse on the basis that Bistro had not availed itself of a proper legal remedy by ceasing to pay rent when Toulouse removed the HVAC units. The district court had denied any injunctive relief to Bistro and found it was in default of the Sublease.

In opposition to Toulouse’s motion for summary judgment on the Eviction, Bistro reasserted its argument that Bistro had a right to complete diminution of rent after Toulouse removed the HVAC units based on the provisions of La. C.C. art. 2715 (which we will discuss later in this opinion), and contended that the amended affidavit of Mr. Gerald Tharp, submitted with the opposition memorandum, | ñdemonstrated genuine issues of material fact in this case and thereby precluded summary judgment.

On March 29, 2012, the district court heard arguments on the motion for summary judgment on the Eviction and the motion to strike the amended affidavit of Mr. Gerald Tharp. Referencing the district court’s previous summary judgment in the Injunction case, Toulouse stated that the district court had already found that Bistro was in default because it had not paid any rent since August 2011 and that Toulouse was entitled to summary judgment for eviction. As to the affidavit, Toulouse argued that the amended affidavit submitted by Bistro still contained inconsistent statements compared to the first affidavit Mr. Tharp had completed on behalf of Toulouse and that, except for a few extracted sentences referencing Toulouse’s counsel, it was the same affidavit that had been struck by the district court in the Injunction hearing on March 9, 2012. Bistro stated that the amended affidavit should be admissible because it had removed the “objectionable error” regarding Toulouse’s counsel and had reviewed the other statements with the affiant. As to the eviction, Bistro asked the court to take the matter under advisement and review La. C.C. art. 2715, which Bistro argued would allow for the total diminution of rent by operation of law in this case. The district court granted the motion to strike the amended affidavit, stating only that the district court had |7“huge problems with it,” and granted the summary judgment in favor of Toulouse without stating any reasons.

Bistro timely filed this devolutive appeal and asserts three assignments of error with respect to the district court’s rulings on the exception of lis pendens, on the motion for summary judgment in favor of Toulouse, and on the motion to strike the amended affidavit of Mr. Gerald Tharp in favor of Toulouse. We will discuss each assignment of error in the order presented and under the applicable standard of review.

DISCUSSION

Exception of Lis Pendens

In its first assignment of error, Bistro contends that the district court erred in ruling that Bistro’s declinatory exception of lis pendens was waived. Bistro contends that the district court should have dismissed the Eviction action in accordance with the provisions of La. C.C.P. art. 1061, which mandates that defendants assert through compulsory reconventional demand all causes of action against the plaintiff arising out of the same transaction or occurrence that is the basis for plaintiffs action.

The district court’s ruling on Bistro’s exception of lis pendens is a question of law, and the standard of review of the appellate court in reviewing a question of law is whether the court’s interpretive decision is legally correct. Glass v. Alton Ocshner Med. Found., 02-0412, p. 3 (La.App. 4 Cir. 11/6/02), 832 So.2d 403, 405 (citing Phoenix Assur. Co. v. Shell Oil Co., 611 So.2d 709, 712 (La.App. 4 Cir.1992)). If the decision of the district court is based upon an erroneous application of the law rather than on a valid exercise of discretion, then the decision is not due deference by the reviewing court. Duhon v. Briley, 2012-1137, p. 4 (La.App. 4 Cir. 5/23/13), 117 So.3d 253, 258 (citing Pelleteri v. Caspian Grp. Inc. 02-2141, 02-2142, p. 7 (La.App. 4 Cir. 7/2/03), 851 So.2d 1230, 1235; Ohm Lounge, L.L.C. v. Royal St. Charles Hotel, L.L.C, 10-1303, p. 4 (La.App. 4 Cir. 9/21/11), 75 So.3d 471, 474.).

La. C.C.P. art. 531 explains the procedural device of lis pendens as follows:

When two or more suits are pending in a Louisiana court or courts on the same transaction or occurrence, between the same parties in the same capacities, the defendant may have all but the first suit dismissed by excepting thereto as provided in Article 925. When the defendant does not so except, the plaintiff may continue the prosecution of any of the suits, but the first final judgment rendered shall be conclusive of all.

La. C.C.P. art. 925(A)(3) provides that an exception of lis pendens is properly raised by declinatory exception, and paragraph (C) provides, “[a]ll objections which may be raised through the declinatory exception ... are waived unless pleaded therein.” Finally, La. C.C.P. art. 928 requires that declinatory exceptions “shall be pleaded prior to or in the answer and, prior to or along with the filing of any pleading seeking relief ... and in any event, prior to the confirmation of a default judgment.”

The record in this case reflects that Bistro filed declinatory exceptions of insufficiency of citation and insufficiency of service of process and peremptory exception of no cause of action on November 4, 2011. Bistro did not raise the | declinatory exception of lis pendens in that first set of exceptions. On January 25, 2012, Bistro filed a second set of declinatory exceptions that included the exception of lis pendens. At the hearing on the exceptions on February 17, 2012, Bistro contended that it did not intend to file any pleadings in the Eviction case prior to the exceptions filed on January 25, 2012, and that the previous filings were incorrectly captioned and meant to be filed in the Injunction suit. A simple reading of the declinatory exceptions filed in this Eviction on November 4, 2011, belies Bistro’s contention. The district court ruled that the exception of lis pendens had been waived based on the fact that it was not plead along with the other declinatory exceptions filed on November 4, 2011. We find no error in this ruling.

Bistro attempts to overcome its failure to timely plead the exception of lis pendens by arguing that the provisions of La. C.C.P. article 1061 regarding compulsory reconventional demand trump the procedural requirements of La. C.C.P. arts. 925 and 928. We find this argument to be without merit, and we will briefly address how these procedural devices work together to promote judicial efficiency and fairness.

La. C.C.P. art. 1061(B) provides in pertinent part, “[t]he defendant in the principal action ... shall assert in a reconventional demand all causes of action that he may have against the plaintiff that arise out of the transaction or occurrence that is the subject matter of the principal action.”

| inThe Third Circuit appropriately addressed the interplay of compulsory recon-ventional demand, lis pendens, and res ju-dicata in Long v. Minton, 01-1361, p. 2 (La.App. 3 Cir. 3/6/02), 809 So.2d 1242, 1243, by stating:

In Hy-Octane Investments v. G & B Oil Prod., 97-28 (La.App. 3 Cir. 10/29/97), 702 So.2d 1057, this court discussed an exception of lis pendens that was premised on the compulsory reeon-ventional demand theory. We held that the doctrine of res judicata requires a party to assert all rights and causes of action that arise out of the same transaction or occurrence that is the foundation of the plaintiffs action. This requirement promotes judicial efficiency and fairness in the resolution of intrinsically related claims in the same forum. We reversed the trial court’s decision to overrule the defendant’s lis pendens exception, explaining that the claim for breach of contract should have been brought as a reconventional demand in the original action for wrongful termination of the same contract. As in the instant case, the proper exception was lis pendens, not res judicata, because there was no final judgment in the original action at the time the second suit was filed.

Without discussing whether Bistro would have been successful in arguing a timely plead exception of lis pendens, we find that the filing of such an exception was the proper method to object to a second suit being filed by Toulouse involving the same parties in the same capacities and ostensibly the same transaction or occurrence as the first suit. See Sauer v. Johnson, 12-0197, pp. 6-7 (La.App. 4 Cir. 12/13/12), 106 So.3d 724, 728. The procedural device of lis pendens serves as an alternate guard against a multiplicity of suits and provides for judicial efficiency in the same manner as compulsory reconven-tional demand. When each device should be used depends on the status of pending actions between the parties, the standing of the parties, and the facts and circumstances particular to the actions. In any event, the procedural requirements for pleading the exception must be followed. Appellant’s argument is without merit.

| nMotion for Summary Judgment

In its second assignment of error, Bistro contends that the district court erred in granting Toulouse’s motion for summary judgment on the basis that Bistro was entitled to complete diminution of rent while continuing to occupy the premises under the provisions of La. C.C. art. 2715. Bistro maintains that the district court misapplied Louisiana law and that La. C.C. art. 2715 allows for the complete diminution of rent by operation of law when the use of the leased premises becomes substantially impaired by no fault of the lessee. Bistro contends that it was entitled to rely on that codal provision after Toulouse removed the HVAC units leaving the premises substantially impaired and unusable as a restaurant.

Appellate courts review a trial court’s grant of summary judgment de novo using the same standard applied by the trial court in deciding the motion for'summary judgment. St. Bernard I, L.L.C. v. Williams, 12-0372, p. 5 (La.App. 4 Cir. 3/13/13) 112 So.3d 922, 926; Foundation Materials, Inc. v. Carrollton Mid-City Investors, L.L.C., 10-0542, p. 4 (La.App. 4 Cir. 5/25/11), 66 So.3d 1230, 1233. “An appellate court thus asks the same questions- as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover-ap-pellee] is entitled to judgment as a matter of law.” St. Bernard, 112 So.3d at 926 (quoting Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 26 (La.7/5/94), 639 So.2d 730, 750).

Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that _jjgthere is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B)(2). If the moving party has made a prima facie case that the motion should be granted, then the burden shifts to the non-moving party to establish that a material factual issue remains. “[T]he nonmoving party may not rest on the mere allegations or denials of his pleadings, but the non-moving party’s response, by affidavits or with other competent evidence as provided by law, must set forth specific facts showing that a genuine issue of material fact exists for trial. La. C.C.P. art. 967B.” Foundation Materials, 66 So.3d at 1233.

In its motion for summary judgment, Toulouse stated, “[gjiven this Court’s order granting 727 Toulouse’s summary judgment motion on the basis that Bistro failed to pay monthly rent, of which this Court can take judicial notice, there are no genuine issues of material fact precluding this Court from granting summary judgment now ... 727 Toulouse terminated the sublease on the basis of Bistro’s failure to pay rent which the Court agreed was a default and/or breach by Bistro under the sublease.” In support of its motion, Toulouse attached the Sublease agreement, the Notice of default sent to Bistro on September 13, 2011, an affidavit of Richard Poe, III (owner of 727 Toulouse), and a transcript of the hearing on the motion for summary judgment on March 9, 2012 in the Injunction case. The 11sattached Notice references the specific sections of the Sublease governing the tenant’s default with which Bistro failed to comply (failure to pay any installment of rent within 10 calendar days of the due date; failure to open for business at the premises for 14 consecutive days without advance notice and approval) and which allow for cancellation of the Sublease effective immediately, without the necessity of putting tenant in default. The affidavit of Richard Poe, III, the sole member of 727 Toulouse, L.L.C., also attests to the fact that Bistro did not pay rent for the month of September, 2011.

Toulouse further argued that it was entitled to summary judgment as a matter of law even without regard for the district court’s findings and judgment in the Injunction case. Toulouse acknowledged that it had removed the HVAC units (on the grounds that the units were improperly located on Toulouse’s property at 727 Toulouse Street and needed to be removed/relocated for Toulouse to perform renovations), but argued that, under the explicit terms of the Sublease, Toulouse was not responsible to furnish, maintain, repair, or replace any HVAC equipment serving Bistro’s premises. Toulouse maintained that, even if there is a dispute over the obligations of each party under the terms of the Sublease, Bistro was still not entitled to withhold or abate the payment of rent on the basis that Louisiana law only allows a lessee who is aggrieved by a lessor’s failure to remedy an alleged defect in the premises to seek certain remedies: (1) terminate the lease and surrender the premises to the lessor, while reserving a right for damages; (2) make the necessary repairs and deduct the reasonable costs from the rent; or [ ^alternatively, (3) continue to fulfill the ongoing obligation of rent payments but sue to judicially obtain a diminution in rent.

Toulouse cited Keever v. Knighten, 532 So.2d 826 (La.App. 4 Cir.1988), as a case directly on point, in which the lessee abandoned the leased premises and failed to pay rent for the remainder of the lease term claiming that the lessor’s failure to repair the inoperative air conditioning unit had caused the premises to become unusable and thus had justified the abatement of rent. Toulouse pointed out that, in Keever, regardless of the parties’ dispute over the designation of responsibility to provide air-conditioning, the district and appellate court held in favor of the lessor due to the lessee’s failure to pay rent and abandonment of the property.

In its opposition motion to the district court and in its appeal to this Court, Bistro argues that, by removing the HVAC units, Toulouse breached its implied warranty of maintaining a habitable climate for Bistro and violated Bistro’s right to peaceful possession in the leased premises. Bistro cites a case from 1930, Purnell v. Dugue, 14 La.App. 137, 129 So. 178 (1930), to support its argument that a lessor’s obligation to furnish sufficient air-conditioning and heating systems to make the leased premises habitable is well-established under Louisiana law. Bistro then argues that the removal of the HVAC units resulted in the substantial impairment of the uses of the premises as a restaurant, at which point Bistro was entitled to complete diminution of rent in accordance with the provisions of La. C.C. 2715.

| ^Louisiana Civil Code article 2715 provides in pertinent part,

If, without the fault of the lessee, the thing is partially destroyed, lost, or expropriated, or its use is otherwise substantially impaired, the lessee may, according to the circumstances of both parties, obtain a diminution of the rent or dissolution of the lease, whichever is more appropriate under the circumstances. If the lessor was at fault, the lessee may also demand damages.

Bistro argues that art. 2715 must be interpreted to allow for complete diminution of rent by operation of law without any requirement that the lessee take judicial action to obtain that diminution. We do not find merit in this argument.

First, we are not persuaded by Bistro’s contention that a lessor has an obligation to provide air conditioning as part of the lessor’s warranty to maintain the premises in a suitable condition. See La. C.C. art. 2682. In Louisiana, contracts have the force of law between the parties, and the parties may choose to define their obligations by their own terms. Good v. Saia, 08-0682, p. 5 (La.App. 4 Cir. 4/8/09), 9 So.3d 1070, 1074; see also, La. C.C. art. 1983. “The Civil Code ... while defining and governing the relationship of the parties to a lease, still leaves the parties free to contractually agree to alter or deviate from all but the most fundamental provisions of the Code which govern their lease relationship.” Carriere v. Bank of Louisiana, 95-3058 (La.10/31/97), 702 So.2d 648, 666 (on reh’g).

In the case before us, the parties were bound together by a Sublease agreement that outlined the rights and obligations of each in various respects, including the responsibility for utility services, alterations to the premises, maintenance of the condition of the premises, and the maintenance, repair and/or | ^replacement of heating, ventilating and air conditioning. We find, however, in this case as we did in Keever, “no need for us to unravel the apparently inconsistently intertwined provisions of this lease.” 532 So.2d at 827. Regardless of the obligation to provide, maintain, repair, or replace the HVAC units, it is undisputed that Bistro failed to pay rent in September 2011, or anytime thereafter, and failed to reopen the restaurant after closing on August 22, 2011. Both of these obligations are clearly stated in the Sublease as grounds for default and cancellation of the lease.

Where a lessee finds that the leased thing requires repairs or has been destroyed, lost, or expropriated, Louisiana law provides specific remedies to the lessee. If during the lease the thing requires repair, and the lessor fails to perform his obligation to make necessary repairs within a reasonable time, the lessee has the option to make the repairs and deduct the reasonable cost of repair from the rent due, or else, to terminate the lease and surrender the premises to the lessor. La. C.C. art. 2694; Keever, 532 So.2d 826; Lassen v. Otalvaro, 391 So.2d 1378 (La. App. 4 Cir.1980); Degrey v. Fox, 205 So.2d 849, 851 (La.App. 4 Cir.1968) (citing Mulhaupt v. Enders, 38 La.Ann. 744 (La.1886).) If the leased premises is lost or totally destroyed, or wholly, expropriated by no fault of either party, then the lease terminates by operation of law. La. C.C. art. 2714; Haddad v. Elkhateeb, 10-0214, 10-0308, p. 14 (La.App. 4 Cir. 8/11/10), 46 So.3d 244, 255. Whereas, if the |17Ieased premises is only partially lost or destroyed, or its use is substantially impaired, then the lessee may obtain a diminution of rent or dissolution of the lease, whichever is more appropriate under the circumstances. La. C.C. art. 2715.

Bistro did not seek any of the available remedies under Louisiana law, but rather Bistro claimed a remedy that the law (both statutory and as between the parties) does not provide by refusing to pay rent and refusing to surrender possession of the premises. Bistro’s interpretation of La. C.C. art. 2715 would allow a lessee to unilaterally diminish rent payments in any amount the lessee sees fit, including complete diminution. This has no basis in reason or jurisprudence. We find that the provision in La. C.C. art. 2715 stating that “the lessee may, according to the circumstances of both parties, obtain a diminution of the rent or dissolution of the lease” could be interpreted to allow the lessee to obtain the diminution or dissolution by agreement of both parties or to seek and obtain the appropriate remedy by suit, but the lessee’s unilateral decision to refuse to pay rent and remain in occupancy of the premises was an improper “self-help” remedy.

| ^Accordingly, we find that the district court properly applied the applicable Louisiana law in determining that Toulouse was entitled to the eviction as a matter of law.

Before we conclude that the district court properly granted the Motion for Summary Judgment in favor of Toulouse, we must address the district court’s ruling to strike the amended affidavit of Mr. Gerald Tharp that Bistro submitted in opposition to the motion for summary judgment. Motion to Strike the Amended Affidavit of Mr. Gerald Tharp

In the final assignment of error, Bistro maintains that the district court erred in striking the amended affidavit of Mr. Gerald Tharp because the affidavit was based on the personal knowledge of the affiant, and it created genuine issues of material fact that precluded summary judgment in favor of Toulouse.

As stated previously in this opinion, the adverse party to a motion for summary judgment may not rest on the allegations or denials of his pleadings but must set forth specific material facts showing that there is a genuine issue for trial. La. C.C.P. art. 967(B). “[A] ‘fact is material when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery.’ ” Jones v. Estate of Santiago, 03-1424, p. 6 (La.App. 4 Cir. 4/14/04), 870 So.2d 1002, 1006 (quoting Smith, 639 So.2d at 750.). Affidavits supporting or opposing motions for summary judgment must be made on personal knowledge, must set forth such facts as would be admissible in evidence, and must show affirmatively that the affiant is competent to testify to the matters stated therein. [ lflLa. C.C.P. art. 967; Daret v. Halmar Constr. Co., 505 So.2d 69, 71 (La.App. 4 Cir.1987); Barnes v. Sun Oil Co., 362 So.2d 761 (La.1978). “Portions of affidavits not based on personal knowledge of the affiant should not be considered by the trial court in deciding a motion for summary judgment.” Foundation Materials, 10-0542, p. 7, 66 So.3d at 1235 (citing Hibernia Nat. Bank v. Rivera, 07-962, p. 9 (La.App. 5 Cir. 9/30/08), 996 So.2d 534, 540). Evidentiary rulings by the trial court are reviewed under an abuse of discretion standard. In re Succession of Holzenthal, 12-0211, p. 8 (La.App. 4 Cir. 9/26/12), 101 So.3d 81, 87.

The record reflects that the affidavit Bistro submitted in opposition to Toulouse’s motion for summary judgment in this Eviction case was an amended version of the affidavit Bistro submitted in opposition to the summary judgment in the Injunction case. Having reviewed the transcript of the hearing in the Injunction case on March 9, 2012, we note that the district court ruled to strike the first affidavit of Mr. Gerald Tharp on the basis that it contained statements regarding representations made to the district court that the court knew to be false. At the hearing on the motion for summary judgment in the instant case, Toulouse pointed out that the amended affidavit was almost identical to the affidavit Bistro previously submitted to the district court. Toulouse further argued that the statements within either of the affidavits submitted by Bistro contained contradictory statements to the affidavit of Mr. Tharp submitted by Toulouse in October, 2011 in opposition to Bistro’s Injunction case. Bistro argued that it had |2nremoved the “objectionable error,” but in ruling to strike the amended affidavit, the district court stated that it still found “huge problems” with the affidavit.

All three affidavits of Mr. Gerald Tharp are in the record before this Court, and we note that there are contradictory statements from Mr. Tharp in the second and third affidavits compared to the original affidavit submitted by Toulouse regarding the parties’ dispute over the responsibility for the HVAC units. Based on our review of the record, we do not find that the district court abused its discretion by striking the amended affidavit submitted by Bistro in opposition to the motion for summary judgment.

We further find that Bistro did not present any genuine issues of material fact beyond the allegations contained in its pleadings and arguments to the district court in opposition to the motion for summary judgment. Thus, we find that the district court properly granted the motion for summary judgment in favor of Toulouse as a matter of law.

CONCLUSION

For all the foregoing reasons, we affirm the judgment of the district court in this case.

AFFIRMED

      . This case is one of three cases brought in the district court by the same parties arising out of the same set of facts, but the cases were not consolidated in the district court. We will reference the separate suits only in so far as is necessary to set forth the factual and procedural history of the case before this Court.

      . Bistro also sought damages for breach of contract and declaratory judgment that Toulouse breached the Sublease and Bistro was not obligated to pay rent.

      . On November 4, 2011, the parties were present in the district court for rule hearing proceedings in which the case numbers for both the Injunction suit filed by Bistro and this Eviction suit were called out by the clerk. Counsel for Bistro stated that he had filed the exceptions only in the Eviction case. The district court did not hear argument or rule on the exceptions on that day because the court and Toulouse had just received them.

      . Toulouse also attached to the motion for summary judgment a copy of the Sublease, a copy of the Notice sent to Bistro on September 13, 2011, and the affidavit of Richard C. Poe II (the sole member of 727 Toulouse, L.L.C.).

      . Bistro had asserted four causes of action in its original petition in the Injunction case. The March 9, 2012 judgment was a partial summary judgment that did not dispose of all the causes of action.

      . Bistro submitted an affidavit of Mr. Gerald Tharp in the summary judgment proceedings in the Injunction suit on March 9, 2012. Toulouse, the defendant in the Injunction case, moved to strike that affidavit. According to the transcript of the March 9 proceedings in the Injunction which was made part of the record before this Court, the district judge granted the motion to strike the entire affidavit of Mr. Gerald Tharp based on the finding that the affidavit was in conflict with a previous affidavit of Mr. Tharp submitted on behalf of Toulouse and the finding that the affidavit contained false and inappropriate statements.

      . See supra note 3.

      . We note that the district court and this Court may take judicial notice of the ruling in the Injunction case because it is generally known within the territorial jurisdiction of the trial court or capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. La. C.E. art. 201(B); Perez v. Evenstar, 12-0941, p. 10 (La.App. 4 Cir. 1/30/13), 108 So.3d 898, 905. Here, both cases were before the same district court judge. Thus, the adjudicative facts in the Injunction case are within the general and specific knowledge of the district court and the attached transcript of the hearing and ruling in that case cannot reasonably be questioned as accurate.

      . In its memorandum in support of the motion, Toulouse reminded the district court that it had relied on Keever for granting summary judgment in favor of Toulouse in the Injunction case.

      . Section 22(A) of the Sublease provides for default, "(a) If Tenant fails to pay any installment of rent within ten (10) calendar days after the date on which it is due; ... (e) Tenant fails to open for business at the Premises for fourteen (14) consecutive days, unless Tenant gives Landlord at least thirty (30) days advance notice that the business will not be open for a period less than sixty (60) days for maintenance, repair, or alteration.” Section 22(B) allows for the landlord to put tenant in default without further notice if any of the above occur, and shall have the right to proceed for all past due rent and cancelling and terminating the lease immediately.

      . In Degrey, the lease contained the following provision:
      'If through no fault, neglect, or design of Lessee, the premises are destroyed by fire or other casualty or damaged to such an extent as to render them wholly unfit for occupancy, then this lease shall be can-celled. If, however, the premises can be repaired within 120 days from date of fire or casualty, then this lease shall not be cancelled, and Lessor shall notify Lessee within 30 days from the date of fire or casualty that Lessor will repair the damage, and Lessee shall be entitled only to such a reduction or remission of rent as shall be just and proportionate.’ (emphasis added)
      205 So.2d at 850. This Court found that neither the jurisprudence nor codal articles allowed for the lessee's unilateral reduction of rent according to what he thought was appropriate until the repairs were made. This Court held that, outside of seeking an appropriate and available remedy under the law, the lessee did not have the right to retain the use and occupancy of the leased premises without full payment of the stipulated rent. Id. at 852.

      . As this Court stated in Keever, "If lessees bore the responsibility, then their failure to pay rent and their abandonment of the premises was improper. And if lessor bore the responsibility, lessee’s 'self-help' remedy of failing to pay rent and abandoning the property was improper.” 532 So.2d at 827.


source: Caselaw Access Project

author: MAX N. TOBIAS, JR., Judge.

license: Public Domain

text:
    STATE of Louisiana v. Torrey HACKETT.
    No. 2013-KA-0178.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 21, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Donald G. Cassels, III, Assistant District Attorney, New Orleans, LA, for Ap-pellee, State of Louisiana.

      Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant, Torrey Hackett.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge MADELEINE M. LANDRIEU).
   MAX N. TOBIAS, JR., Judge.

LThe defendant, Torrey Hackett (“Hackett”), was charged by bill of information with distribution of cocaine, a violation of La. R.S. 40:967. On 10 May 2006, his counsel filed a motion to suppress evidence and a motion for a preliminary examination, which were both heard on 25 May 2007. The trial court denied the motion to suppress and found probable cause. At the commencement of trial on 16 June 2008, Hackett waived his right to a trial by jury, electing a judge trial. He was found guilty as charged. A multiple bill of information was filed. A motion to quash the multiple bill was filed on 9 December 2009. Also, a motion for a new trial and a motion for post-verdict judgment of acquittal were filed and both denied by the trial court. On 30 July 2010, Hackett was sentenced to serve twenty years at hard labor with credit for time served. Under La. R.S. 15:529.1 (the Habitual Offender Law), based on prior convictions for possession of heroin and possession of marijuana (second offense), Hackett was found guilty of being a triple offender, citing his pleas of guilty in case number 392-870 and 430-834. Written requests for a Dorthey hearing and a presentence investigation were denied. The trial court then vacated Hackett’s prior sentence and resentenced him as a triple offender to twenty years at hard labor with credit for time served.

| gHackett appealed, alleging (1) insufficient evidence existed to support his con-vietion as a triple offender, and (2) that his twenty-year sentence as a triple offender violated the U.S. Constitution Eighth Amendment’s proscription of cruel and unusual punishment. We affirmed his conviction, but vacated his sentence, finding that his sentencing immediately following the denial of his motion for new trial, without an express waiver of delays, violated La.C.Cr.P. art. 873; we remanded for resentencing. State v. Hackett, 10-1626, unpub. (La.App. 4 Cir. 8/24/11), 68 So.3d 1238 (table).

On 27 September 2012, Hackett appeared before the trial court with counsel for resentencing. A motion for new trial was denied. The trial court also denied Hackett’s pro se motion to amend or modify the sentence. The trial court explained that it could not consider a sentence below the statutory minimum. Defense counsel waived all sentencing delays, and the trial court once again sentenced Hackett to serve twenty years in the Department of Corrections with credit for time served. (The sentence is the mandatory minimum sentence under La. R.S. 15:529.1.) Hack-ett objected to the sentence and orally moved for an appeal. This appeal followed.

I.

The facts of this case are derived from this court’s prior opinion:

On May 10, 2006, at approximately 2:20 p.m., Sergeant Frank Young, Detective Jeff Sislo, Officer Robert Hurst and Officer Francis Jarod of the New Orleans Police Department Major Case Narcotics Unit were investigating drug trafficking in the Pigeon Town area of the city of New Orleans. While Sgt. Young drove an unmarked police unit, Det. Sislo acted as a spotter and monitored any wired conversations between Sgt. Young and potential suspects.
13As Sgt. Young drove towards the Mississippi River on Leonidas Street, he was flagged down by Larry Mason at the corner of Leonidas and Hickory Streets. Sgt. Young pulled his vehicle onto the side of the street. Mr. Mason asked Sgt. Young if he was the police; Young answered that he was not. Sgt. Young asked Mr. Mason if he had any crack cocaine. Mr. Mason responded that he could get some crack and told Sgt. Young to wait. Mr. Mason walked across Hickory Street, where he met with Defendant Hackett and engaged in a conversation. Mr. Mason returned to Sgt. Young’s vehicle and informed Sgt. Young that he could only get $20.00 pieces of crack cocaine. Sgt. Young responded that he would purchase the crack. Mr. Mason walked back to Defendant Hackett. Defendant Hack-ett removed something from his right front pants pocket and gave it to Mr. Mason. Mr. Mason walked back to Sgt. Young’s vehicle and gave Sgt. Young three pieces of crack cocaine; Sgt. Young gave Mr. Mason a marked twenty-dollar bill in exchange for the cocaine.
As Sgt. Young drove away, he observed Mr. Mason and Defendant Hackett enter the Hickory Food Store. Sgt. Young signaled to Det. Sislo and the other officers that the drug transaction had been completed. Sgt. Young gave a description of Mr. Mason and Defendant Hackett and told the back-up team of police officers that they went into the Hickory Food Store. Officers Hurst and Jar-od entered the store and arrested Mr. Mason and Defendant Hackett. During a search incident to the arrests, the officers found a ten-dollar bill in the possession of each man. Det. Sis-lo entered the store, and, after a conversation with the store clerk, requested that the clerk produce all of the twenty-dollar bills that were in the cash register. Det. Sislo examined the bills and found the marked bill that Sgt. Young had given to Mr. Mason in exchange for the crack cocaine.
Mr. Mason testified that Defendant Hackett was not involved in the drug transaction, but was a victim of circumstance. Mr. Mason stated that he was not flagging Sgt. Young down, but was waving to a friend, who was at the corner of Leonidas and Green Streets. Mr. Mason also denied entering the Hickory Food Store; he claimed that he got the crack cocaine from Greg Brant, who is now deceased. Mr. Mason testified that Mr. Brant was the person who exchanged the twenty-dollar bill for two ten-dollar bills. He opined that because the police saw 14him and Defendant Hack-ett talking, they assumed that the defendant was involved in the drug transaction.
Ahmed Almaklani, manager of the Hickory Food Store, testified that Defendant Hackett was in the back of the store waiting for the lunch that he ordered and was never at the cash register. Mr. Almaklani denied exchanging the twenty-dollar bill for two ten-dollar bills. He stated that Det. Sislo looked through six twenty-dollar bills before finding the marked bill. Det. Sislo confiscated the marked bill and gave Mr. Almaklani an unmarked bill.

Hackett, 10-1626, pp. 3-5.

II.

In his assignments of error, Hackett asserts that the trial court erred in finding him to be a triple offender because the state’s evidence is insufficient and the proceeding denied him due process of law; further, he asserts that sentencing him to twenty years at hard labor under the circumstances of this offense and for this offender violates the Eighth Amendment prohibition against cruel and unusual punishment or the Louisiana Constitution’s prohibition against excessive punishment. We discuss these assignments of error together.

Hackett first argues that he was never adjudicated a third felony offender because this court, in State v. Hackett, 10-1626, unpub. (La.App. 4 Cir. 8/24/11), vacated the trial court’s 10 July 2010 multiple offender adjudication and sentence and pretermitted the assignment as to the sufficiency of the multiple bill. However, his claim is incorrect. Only Hackett’s sentence was vacated by this court; the adjudication remained. Therefore, his argument lacks merit.

Next, Hackett asserts that the state’s first multiple bill filed against him alleged that he was only a second offender, but then abruptly and unfairly, the state changed the multiple bill to that of a third offender during the 10 July 20101 .¡multiple bill trial. This change, he asserts, placed his counsel at a disadvantage in his preparation for the trial. Furthermore, Hackett argues that the evidence presented at that trial was insufficient to support the judge’s finding that he was a third felony offender.

Specifically, Hackett asserts that the state failed to prove that he is the same person (identity) convicted in the prior felony convictions used in the multiple bill because no fingerprint evidence was present on the bills of information in the predicate convictions used to identify him. Further, he argues that the state’s evidence was deficient because: (1) the identification evidence on the 1997 and 2002 convictions did not include bills of information with certified fingerprints, and/or (2) the proper procedures under R.S. 15:529.1 were not followed, all in violation of due process of law. That is to say, Hackett argues that the trial court’s finding that he was a triple offender was a denial of his right to due process because the issue of whether he is a multiple offender should have been tried before a jury, citing Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and asserting that there are other elements of La. R.S. 15:529.1 that require a jury determination. Under the statute, the state is required to prove his identity, the nonexistence of a ten-year lapse, and the other conviction(s) were knowingly and voluntarily entered. (La. R.S. 15:529.1 requires the state prove these each of these | .¡elements beyond a reasonable doubt.) He asserts that because each of the bills of information does not bear his fingerprints, the state has failed to meet its burden of proof.

Hackett cites Shepard v. U.S., 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) in further support of his jury trial argument. He asserts Shepard stands for the proposition that “any external materials or issues required by the statute that do not appear on the face of certified court documents must be decided by a jury and proven beyond a reasonable doubt.” Thusly, he contends his Sixth Amendment right to a jury has been violated. Further, he argues that the trial court erred when it admitted fingerprint cards created at the time of his arrests, rather than proof of his identity from fingerprints upon conviction documents; thus, he asserts the court should have insisted that the state produce bills of information bearing his fingerprints, citing La. R.S. 15:529.1 F, because fingerprints on arrest registers do not prove that a conviction occurred. Therefore, he asserts that evidence of his 1997 second offense marijuana conviction and his 2002 possession of heroin conviction were insufficient to sustain a finding that he was a triple offender.

|7The state responds by arguing that the trial court’s finding was supported by sufficient evidence because when he was convicted in this case on 16 June 2008, he had two prior felony convictions; the multiple bill lists a 1997 plea of guilty to possession of marijuana (second offense) in case number 392-870 and a 2003 plea of guilty to heroin possession in case number 430-834. The state submits that this court has considered and rejected similar defense arguments in the past, citing State v. Anderson, 99-1407, p. 7 (La.App. 4 Cir. 1/26/00), 753 So.2d 321, 326, in which an appellant argued that fingerprints found on the bill of information were unusable for purposes of identification; and State v. Langlois, 96-0084, p. 6 (La.App. 4 Cir. 5/21/97), 695 So.2d 540, 544, where the evidence consisting of an arrestee’s fingerprint card from a prior arrest and information on the arrest disposition report regarding prior arrests was deemed sufficient to establish identity.

|sThe state submits that, in the instant ease, it has introduced from each of Hack-ett’s predicate convictions in his 1997 plea of guilty to marijuana possession in case number 392-870 and his 2003 plea of guilty to heroin possession in case number 430-834: the bills of information, the plea of guilty forms executed by Hackett (containing a waiver of constitutional rights), the minute entries reflecting that Hackett, who was represented by counsel, waived his constitutional rights and entered pleas of guilty, the docket masters, the screening action forms, and the arrest registers. The state notes also that Officer Pollard, who was qualified as an expert in the taking and analysis of fingerprints, fingerprinted Hackett in court for purposes of comparison, and testified that the fingerprints contained in the arrest registry relating to the prior convictions matched the fingerprints he took from Hackett in court. Therefore, the state asserts, the assignment of error is without merit.

Finally, the state asserts that under State v. Cossee, 95-2218 (La.App. 4 Cir. 7/24/96), 678 So.2d 72, La. R.S. 15:529.1 D(l)(b) places the burden of challenging a predicate conviction in a multiple bill proceeding upon the defendant, not upon the state. Also, the state argues that, with regard to Apprendi, no jury is required to establish the existence of an appellant’s status as a habitual criminal or to prove that he has prior convictions; thusly, Hackett is not entitled to a jury.

In the amended multiple bill of information, the state charged that Hackett was convicted on 10 November 1997 in case number 392-870 “H” for possession |3of marijuana, second offense, and for possession of heroin on 27 March 2003 in case number 430-834 “A.”

In State v. Henry, 96-1280, p. 7 (La.App. 4 Cir. 3/11/98), 709 So.2d 322, 325-26, this court stated:

To obtain a multiple offender conviction, the State is required to establish both the prior felony conviction and that the Appellant is the same person convicted of that felony. State v. Hawthorne, 580 So.2d 1131 (La.App. 4th Cir. 1991). Various methods are available to prove that the Appellant on trial is the same person convicted of the prior felony offense, such as by testimony of witnesses, by expert opinion as to the fingerprints of the accused when compared with those of the person previously convicted, by photographs contained in a duly authenticated record, or by evidence of identical driver’s license number, sex, race and date of birth. State v. Westbrook, 392 So.2d 1043 (La.1980); State v. Curtis, 338 So.2d 662 (La.1976); State v. Pitre, 532 So.2d 424 (La.App. 1st Cir.1988), writ den. 538 So.2d 590(La.1989); State v. Savoy, 487 So.2d 485 (La.App. 3rd Cir.1986). The mere fact that the Appellant on trial and the person previously convicted have the same name does not constitute sufficient evidence of identity. Curtis, 338 So.2d at 664. In State v. Westbrook, 392 So.2d 1043 (1980), the supreme court found that along with Appellant’s name, his driver’s license number, sex, race, and date of birth were sufficient evidence for the State to carry its burden of proving that this Appellant was the same person previously convicted of another felony.

In the instant case, the state produced the bills of information charging Hackett with the predicate felonies, the guilty plea forms signed by him, the minute entries (reflecting that he was represented by counsel, waived his constitutional rights, and pleaded guilty), the docket masters (showing his name and date of birth), the screening action forms (reflecting his name and date of birth) and the arrest registers (reflecting his name, date of birth, and fingerprints). The | ^information on the arrest registers matched the documents in each case. In addition, Officer Joseph Pollard testified that he compared Hackett’s fingerprints taken on the morning of trial with the fingerprints on both arrest registers and found that the prints matched Hackett’s prints that were taken in court. He concluded that Hackett was the same person convicted in the predicate offenses.

In State v. Cosey, 04-2220 (La.App. 4 Cir. 7/13/05), 913 So.2d 150, this court noted that matching an appellant’s fingerprints to an arrest register which then were matched to other documents concerning the prior offense was sufficient to establish identity. Applying the standard of proof enunciated in Henry, the evidence is sufficient to support Hackett’s adjudication as a third felony offender.

Finally, regarding the Hackett’s claim that that he was deprived of his due process right to a jury trial on the multiple bill, this court in State v. Vincent, 10-0764, pp. 10-11 (La.App. 4 Cir. 1/19/11), 56 So.3d 408, 415, addressed the issue of jury access in multiple bill hearings as follows:

Next, Vincent argues that he was entitled to a jury trial on the issue of his multiple offender status. He suggests that the multiple offender statute violates the Fourteenth and the Sixth Amendments to the U.S. Constitution. He relies upon the United States Supreme Court cases Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999); Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
| nThis court has determined that no constitutional right to a jury trial exists in multiple bill proceedings because all of the elements necessary to enhance the sentence “can be determined by reviewing the documents submitted in support of the multiple bill of information.” State v. Smith, 05-0375 pp. 3-5, (La.App. 4 Cir. 7/20/05), 913 So.2d 836, 839, citing Apprendi, supra. We find no merit to this claim.

The issue of identification was addressed by this court in State v. Anderson, 99-1407, p. 7, 753 So.2d at 326, citing State v. Henry, 96-1280, p. 7 (La.App. 4 Cir. 3/11/98), 709 So.2d 322, in which we determined that:

... the state showed the person convicted in the prior offense had the same bureau of identification number, the same date of birth, and the same social security number as the Appellant. This court concluded that the State produced sufficient proof of the Appellant’s identity as the person convicted in the prior offense.

Hackett’s assertions are without merit.

Hackett argues that his sentence is excessive in light of his actual offense (distribution of three pieces of cocaine valued at $20). Generally and ideally, a trial judge must comply -with the guidelines set forth in La.C.Cr.P. art. 894.1, and show that the sentence imposed is warranted in light of the particular circumstances of the case. At resentencing, the trial court denied Hackett’s request for a presentence investigation and gave no reason for the sentence beyond that it was the minimum. Hackett argues that he is a drug addict and not a violent criminal. He cites State v. Burns, 97-1553 (La.App. 4 Cir. 11/10/98), 723 So.2d 1013, (which cites State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, 676, arguing that this court has recognized that “the classification of a defendant’s instant or prior offenses as nonviolent should not be discounted ...).”

| ^The state asserts that a sentence of twenty years at hard labor under the circumstances of this offense and for this offender does not violate the Eighth Amendment prohibition against cruel and unusual punishment or the Louisiana constitutional prohibition against excessive punishment, and that the trial court’s finding Hackett guilty of being a triple offender did not deny him due process. The state avers that while the imposition of cruel, unusual, and excessive punishment is prohibited by both the state and federal constitutions, for a sentence to be set aside as excessive, the penalty must “shock our sense of justice.”

Under State v. Square, 433 So.2d 104 (La.1983) and State v. Bostick, 406 So.2d 150 (La.1981), absent a showing of manifest abuse of the trial court’s wide discretion, a sentence within statutory limits will not'be set aside by this court. The state asserts that mandatory minimum sentences are constitutional under the Habitual Offender Law. The state argues that Hackett has failed in his responsibility to demonstrate that his case is “exceptional” in a manner justifying a downward departure in sentencing; furthermore, the sentence handed down by the trial court is comparable with sentences imposed in similar cases. See State v. Bentley, 02-1564 (La.App. 4 Cir. 3/12/03), 844 So.2d 149, 157 (the defendant, 11swho had two prior felony convictions for narcotics, received a twenty-year sentence as a third felony offender).

In State v. Rogers, 555 So.2d 500, 503 (La.App. 4th Cir.1989), we said:

A similar argument was rejected by this Court in State v. Whittaker, 496 So.2d 1103, 1104 (La.App. 4th Cir.1986), and State v. King, 490 So.2d 1139 (La.App. 4th Cir.1986), writ denied, 494 So.2d 326 (La.1986). The Appellants claimed that the theft convictions at issue had already been enhanced from misdemeanors to felonies under LSA-R.S. 14:67 and therefore could not be enhanced again under LSA-R.S. 15:529.1. This Court observed in each case that the predicate offense was a felony by virtue of the fact that it was a second offense, not because the Appellant already stands adjudicated a felon. In the instant case, the Appellant’s prior conviction under LSA-R.S. 14:67 was not an enhancement of a prior felony conviction but it was itself a felony conviction by virtue of its status as a repeated offense. Thus, there is no impediment to the State’s use of the felony convictions in a multiple bill proceeding. State v. Whittaker, supra, 496 So.2d at 1104; State v. Harris, 511 So.2d 803 (La.App. 4th Cir.1987), writ den., 514 So.2d 127 (1987). The trial court properly used the theft convictions derived from misdemeanors to enhance the Appellant’s sentence.
La. R.S. art. 40:966 E(2)(a) states:
Except as provided in Subsection F or G of this Section, on a second conviction for violation of Subsection C of this Section with regard to marijuana, tetrahy-drocannabinol or chemical derivatives thereof, or synthetic cannabinoids, the offender shall be fined not less than two hundred fifty dollars, nor more than two thousand dollars, imprisoned with or without hard labor for not more than five years, or both. [Emphasis added].

Hackett argues that his sentence of twenty years at hard labor, under the circumstances of this offense and considering his record, violates the Eighth Amendment prohibition against cruel and unusual punishment and/or the Louisiana’s constitutional prohibition against excessive punishment.

In State v. Smith, 01-2574, pp. 6-7 (La.1/14/03), 839 So.2d 1, 4, the Court set forth the standard for evaluating a claim of excessive sentence:

Louisiana Constitution of 1974, art. I, § 20 provides, in pertinent part, that “[n]o law shall subject any person to ... excessive ... punishment.” (Emphasis added.).. Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. State v. Sepulvado, 367 So.2d 762, 767 (La.1979). A sentence is unconstitutionally excessive when it imposes punishment grossly disproportionate to the severity of the offense or constitutes nothing more than needless infliction of pain and suffering. State v. Bonanno, 384 So.2d 355, 357 (La.1980). A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. State v. Cann, 471 So.2d 701, 703 (La.1985). On appellate review of a sentence, the relevant question is not whether another sentence might have been more appropriate but whether the trial court abused its broad sentencing discretion. State v. Walker, 00-3200, p. 2 (La.10/12/01), 799 So.2d 461, 462; cf. State v. Phillips, 02-0737, p. 1 (La.11/15/02), 831 So.2d 905, 906.

In Johnson, 97-1906, pp. 7-9, 709 So.2d at 676-77, the Court held that a sentencing judge must always start with the presumption that a mandatory minimum sentence under the Habitual Offender Law is constitutional, and a court may only depart from the minimum sentence if it finds that clear and convincing evidence exists in the particular case before it that would rebut this presumption of constitutionality. To rebut the presumption of constitutionality, the defendant must clearly and convincingly show that he is exceptional, which means that because of unusual circumstances he is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. Further, when determining whether the defendant has met his burden of proof by rebutting the presumption that the | ^mandatory minimum sentence is constitutional, the trial judge must also keep in mind the goals of the Habitual Offender Law.

Obviously, the major reason the Legislature passed the Habitual Offender Law was to deter and punish recidivism. A defendant with multiple felony convictions is treated as a recidivist who is to be punished for his instant crime in light of his continuing disregard for the láw. He is subjected to a longer sentence because he continues to break the law. It is not the role of the sentencing court to question the wisdom of the Legislature in requiring enhanced punishments for multiple offenders. Instead, a sentencing court is only allowed to determine whether the particular defendant has proven that the mandatory minimum sentence is so excessive in his individual case that it violates the constitution. See also State v. Young, 94-1636 (La.App. 4 Cir. 10/26/95), 663 So.2d 525.

La. R.S. 40:967 B(4)(b) requires that a person convicted of distribution of cocaine be sentenced to a term of imprisonment at hard labor for not less than two years nor more than thirty years, with the first two years of the sentence being without benefit of parole, probation, or suspension of sentence; the defendant may, in addition, be ordered to pay a fine of not more than $50,000. Under the Habitual Offender Law, the penalty for a triple offender is imprisonment “for a determinate term not less than two-thirds of the longest possible sentence for the conviction and not more than twice the longest possible sentence prescribed for a first conviction.” La. R.S. 15: 529.1 A(3)(a). Accordingly, Hackett faced a sentencing range of twenty to sixty years at hard labor. In imposing the twenty-year sentence, the trial court stated that it did not “... find that the facts of this case give rise to a sentence reduction pursuant to Dorthey [, 623 So.2d 1276 (La. 1993) ].”

l1fiIn State v. Williams, 05-0176 (La.App. 4 Cir. 5/3/06), 932 So.2d 693, this court affirmed the imposition of a life sentence on a defendant convicted of distribution of cocaine and adjudicated a third felony offender. In State v. Bentley, 02-1564 (La.App. 4 Cir. 3/12/03), 844 So.2d 149, we affirmed the mandatory minimum sentence imposed bn a defendant convicted of distribution of cocaine and adjudicated a third felony offender.

Hackett has presented no evidence to rebut the presumption that the mandatory minimum twenty-year sentence in his case is unconstitutional. His argument lacks merit.

According, the multiple offender adjudication and sentence of Torrey Hackett is affirmed.

AFFIRMED.

      . Hackett faced a possible maximum sentence of sixty years.

      . La. R.S. 15:529 C states:
      The current offense shall not be counted as, respectively, a second, third, fourth, or higher offense if more than ten years have elapsed between the date of the commission of the current offense or offenses and the expiration of the maximum sentence or sentences of the previous conviction or convictions, or between the expiration of the maximum sentence or sentences of each preceding conviction or convictions alleged in the multiple offender bill and the date of the commission of the following offense or offenses. In computing the intervals of time as provided herein, any period of parole, probation, or incarceration by a person in a penal institution, within or without the state, shall not be included in the computation of any of said ten-year periods between the expiration of the maximum sentence or sentences and the next succeeding offense or offenses.

      .La. R.S. 15:529.1 F states:
      The certificates of the warden or other chief officer of any state prison, or of the superintendent or other chief officer of any penitentiary of this state or any other state of the United States, or of any foreign country, or of any chief officer of any parish or county jail in this state or any other state of the United States, or of the clerk of court of the place of conviction in the state of Louisiana, under the seal of his office, if he has a seal, containing the name of the person imprisoned, the photograph, and the fingerprints of the person as they appear in the records of his office, a statement of the court in which a conviction was had, the date and time of sentence, length of time imprisoned, and date of discharge from prison or penitentiary, shall be prima facie evidence of the imprisonment and of the discharge of the person, either by a pardon or expiration of his sentence as the case may be under the conviction stated and set forth in the certificate.

      . This court referenced therein State v. Henry, 96-1280, p. 7 (La.App. 4 Cir. 3/11/98), 709 So.2d 322, 325, where this court stated that:
      ... the state was unable to produce the fingerprints for one of the predicate offenses listed in the multiple bill of information. However, the State showed the person convicted in the prior offense had the same bureau of identification number, the same date of birth, and the same social security number as the Appellant. This court concluded that the State produced sufficient proof of the Appellant's identity as the person convicted in the prior offense.

      . The state also cites State v. Armstead, 542 So.2d 28 (La.App. 4th Cir.1989); State v. Bell, 97-1134 (La.App. 5 Cir. 2/25/98), 709 So.2d 921 (1998); and State v. Jackson, 362 So.2d 522 (La.1978).

      . Information about the facts of the prior crime were missing from the fingerprint card, but the card did bear the appellant's name, signature, personal information and date the prints were taken. The prints on the card matched the prints taken from the appellant in open court. The court concluded that:
      In order to prove that [an] Appellant is a multiple offender, the State need only present competent evidence that there is a prior felony conviction and that the Appellant is the same person who was convicted of the prior felony. State v. Chaney, 423 So.2d 1092 (La.1982).

      . In support, the state also cites to State v. Dunbar, 06-1030 (La.App. 4 Cir. 3/19/08), 981 So.2d 51; State v. Washington, 05-1006 (La. App. 4 Cir. 5/10/06), 931 So.2d 1120; and State v. Smith, 05-0375 (La.App. 4 Cir. 7/20/05), 913 So.2d 836.

      . As previously noted, Hackett complains that he was originally charged as a double offender and therefore, he should not have been adjudicated as a third offender. However, evidence that he was a triple offender was taken at the multiple bill hearing of 3 December 2009. The trial court subsequently allowed the state to amend the multiple bill of information to reflect his status as a triple offender.

      . The defense stipulated to Officer Pollard’s expertise in the taking, examination, and comparison of fingerprints.

      . In State v. Breaux, 05-0065, unpub. (La.App. 4 Cir. 5/3/06), this court reversed the trial court's ruling that the state failed to prove that the appellant was a fourth felony offender because no fingerprints were found on the bills of information for the predicate offenses, but the fingerprints on the predicate arrest registers were sufficient to prove the appellant’s status as a fourth offender.

      . In Burns, 97-1553, pp. 7-8, 723 So.2d at 1018-19, we said:
      The penalties provided by La. R.S. 15:529.1 are not unconstitutional on their face. The trial court has the authority to reduce the mandatory minimum sentence provided by the statute for a particular offense and offender when such a term would violate the Appellant's constitutional protection against excessive punishment. Id. Because the minimum sentence is presumed constitutional, a trial court, in considering whether the minimum sentence for a particular crime would be unconstitutional if applied to a particular Appellant, may do so only if there is clear and convincing evidence to rebut the presumption of constitutionality. [Internal citations omitted.]

      . See State v. Lindsey, 99-3302 (La. 10/17/00), 770 So.2d 339; State v. Johnson, supra; State v. Dorthey, 623 So.2d 1276 (La.1993).

      . In State v. Wilson, 04-1156, unpub. (La.App. 4 Cir. 11/23/04), this court affirmed a forty-year sentence for a conviction of distribution of cocaine coupled with an adjudication of third felony offender status. In State v. Harvey, 08-0217 (La.App. 4 Cir. 5/13/09), 12 So.3d 496, this court affirmed a sixty-year sentence imposed on a defendant convicted of distribution of cocaine and adjudicated a second felony offense.

      . As a final matter and notation, the record on appeal also indicates that trial court did not impose Hackett’s multiple offender sentence without the benefit of parole, probation, or suspension of sentence for the first two years, as required by the La. R.S. 40:967(B)(4)(b). When a defendant is sentenced as a habitual offender, the penalty increase is computed by reference to the sentencing provisions of the underlying offense. State v. Bruins, 407 So.2d 685, 687 (La.1981); State v. Victor, 11-45, p. 25 (La.App. 5 Cir. 11/15/11), 82 So.3d 301, 318. (We do not read the law as requiring a multiplication of the period of time that the "without-benefits” period applies.) Similarly, the conditions imposed on the sentence are those called for in the referenced statute. Id. However, this error does not require corrective action, because the "without-benefits” provision of a statute is self-activating. La. R.S. 15:301.1 A; State v. Williams, 00-1725, p. 10 (La.11/28/01), 800 So.2d 790, 799.


text:
    Melba Margaret Schwegmann BROWN v. SCHONEKAS, WINSBERG, EVANS & MCGOEY, L.L.C., et al.
    No. 2013-CA-0314.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 21, 2013.
    Richard E. Anderson, Metairie, LA, for Plaintiff/Appellant.

      Gustave A. Fritehie, III, Leila A. D’Aquin, Christopher H. Irwin, Irwin Frit-chie Urquhart & Moore LLC, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge MADELEINE M. LANDRIEU).
   MAX N. TOBIAS, JR., Judge.

LThe plaintiff, Melba Margaret Sehweg-mann Brown, appeals the trial court’s judgment granting an exception of per-emption in favor of the defendants, Schonekas, Winsberg, Evans & McGoey, L.L.C., Kyle Schonekas, Mark D. Wins-berg, and Elisa Mills (collectively, “Defendant Attorneys”), finding that her claim for malpractice had been perempted. For the following reasons, we affirm the trial court’s judgment.

Ms. Brown, along with several of her family members, co-owned commercial immovable property located at 2222 Saint Claude Avenue in New Orleans (the “property”). In 1999, they leased the property to Marketfare St. Claude, LLC (“Market-fare”), who began operating a Robért Fresh Market grocery store on the property. The property sustained significant damage in 2005 during Hurricane Katrina. In August 2006, Marketfare instituted suit against its insurer, United Fire & Casualty Company (“United Fire”) in the Civil District Court for the Parish of Orleans (“CDC”), seeking to recover insurance proceeds for hurricane-related damages to the property. United Fire removed the case to the United States |2Pistrict Court for the Eastern District of Louisiana (“USDC, EDLA”), Section “J” (“the court”) on the basis of diversity of citizenship in the matter entitled, Marketfare Annunciation, LLC v. United Fire & Casualty Company, bearing civil action number 06-7232 c/w 06-7639, 06-7641, 06-7643, 06-7644 (hereinafter, “federal court action”).

In March 2007, prior to the trial of Marketfare’s insurance claims against United Fire, Ms. Brown’s co-owners intervened in the federal court action, asserting that they had an interest in the insurance proceeds at issue as owners/lessors of the property and additional insureds under the United Fire policy. In response, Market-fare filed a counterclaim against Ms. Brown’s co-owners, alleging they had breached their obligation as lessors to repair the property following the hurricane. On 10 July 2007, a partial summáry judgment was granted in favor of Ms. Brown’s co-owners deeming all owners of the property included in the policy designation “Estate of John Schwegmann” to be additional insuredsfioss payees under the United Fire policy.

The federal court bifurcated the claim for the insurance proceeds from the breach of lease claim; the claims for the insurance proceeds were set for trial. On 28 August 2007, the Defendant Attorneys filed a motion to intervene in the federal court action on behalf of Ms. Brown, which was denied on the basis that the addition of another party prior to trial of the insurance issues could delay or complicate that proceeding and Ms. Brown’s interests were sufficiently aligned with those of her co-owners, who had already intervened, to ensure protection of any interests she had in the proceeds at that trial. The insurance portion of the case proceeded to trial with Ms. Brown’s co-owners participating in the trial; a jury verdict was rendered in favor of Marketfare and others, resulting in a judgment in | ^accordance with the jury verdict entered on 4 June 2008. Because her motion to intervene had been denied, Ms. Brown did not participate in the proceedings.

Following resolution of the insurance claim, the Defendant Attorneys filed a second motion to intervene in the federal court action on 15 August 2008 on behalf of Ms. Brown, which was granted. On 1 October 2008, in granting Ms. Brown’s second motion, the court ordered that “Melba Margaret Sehwegmann Brown and Guy G. Schwegmann ... are to intervene as plaintiffs versus United Fire & Casualty Insurance Co., and as intervening defendants in regards to the counterclaim by Market-fare” against the co-owners for failure to restore the property.

Following discovery and motion practice, Marketfare obtained a partial summary judgment on 4 February 2009 against Ms. Brown on its counterclaim thereby establishing Ms. Brown’s liability for breaching the lease by failing to timely repair the property. A trial to determine the amount of damages owed Marketfare for breach of the lease was set for 5 October 2009.

After the partial summary judgment was rendered, Ms. Brown expressed concern to the Defendant Attorneys regarding the legal advice they had given to her during the course of their representation in the federal court action. In response, the Defendant Attorneys recommended to Ms. Brown that she seek other legal counsel. As suggested, Ms. Brown then consulted with an Atlanta-based law firm, Kil-patrick Stockton, who was representing her on an unrelated matter. After reviewing the federal court action, the Kilpatrick Stockton attorneys advised Ms. Brown that it appeared the federal court lacked subject matter jurisdiction over Market-fare’s claims against her. Accordingly, the Kilpatrick Stockton attorneys |4drafted a motion to dismiss for lack of subject matter jurisdiction pursuant to 28 U.S.C. § 1367(b), which provides that when a case is originally in federal court based on diversity jurisdiction, if diversity of the parties ceases, the federal court lacks supplemental jurisdiction over any claims remaining amongst those parties. At the request of Ms. Brown, after consulting with her Kilpatrick Stockton attorneys, on 17 August 2009, the Defendant Attorneys filed the motion to dismiss, seeking dismissal of Marketfare’s counterclaim for lack of jurisdiction. Marketfare filed an opposition to Ms. Brown’s motion to dismiss, ultimately seeking to have the court exercise its discretionary authority under 28 U.S.C. § 1367(c) to remand the remaining claims to state court for final resolution.

On 2 September 2009, the court granted Ms. Brown’s motion to dismiss for lack of subject matter jurisdiction, remanded the federal court action to Civil District Court, and vacated her intervention and the summary judgment rendered against her stating the following, in pertinent part:

ORDERED GRANTED without prejudice, to the extent the court lacks subject matter jurisdiction over Interve-nor’s claims and counter claims of Marketfare, those claims only are ORDERED REMANDED to state court. Alternatively, intervenor’s claims and counterclaims of Marketfare against the Brown and Schwegmann interve-nors are ORDERED dismissed without prejudice.
The court’s rulings of 10-1-08 ... and 2-4-09 ... are ORDERED vacated.

|fiOne year later on 2 September 2010, Ms. Brown filed the instant suit against the Defendant Attorneys alleging seven claims for legal malpractice associated with their alleged negligent representation and handling of her interests in the federal court action. In response, the Defendant Attorneys raised exceptions of peremption as to all seven malpractice claims and, alternatively, moved for summary judgment. Prior to the hearing on the Defendant Attorneys’ exception, Ms. Brown conceded that six of her seven claims were time-barred by La. R.S. 9:5605 A.

The sole remaining claim concerned Ms. Brown’s contention that the Defendant Attorneys caused her to intervene into the federal court action when the federal district court lacked subject matter jurisdiction, thereby exposing her to needless attorney’s fees and costs. A hearing on the peremptory exception, alternatively, motion for summary judgment, as to this claim was held on 26 October 2012. The issues presented at the hearing included: (1) whether the Defendant Attorneys’ gave negligent advice to Ms. Brown (recommending that she intervene in the federal court action) more than three years prior to the filing of her malpractice action, and (2) whether that advice was or should have been discovered more than one year prior to the filing of the instant suit. Following oral argument, the trial court ruled from the bench maintaining the Defendant Attorneys’ exception and dismissing Ms. Brown’s remaining claim with prejudice. Judgment was signed on 16 November 2012 and this timely devolutive appeal ensued.

In rendering judgment, the trial court gave the following oral reasons:

The court has two reasons for granting this motion for summary judgment or exception of peremption. The first reason is the court finds that Ms. Brown had within 16one year of July 2009, to file her petition for damages to fall within the one-prescriptive period as provided by Revised Statute 9:5605.
In regards to the peremptive period set forth in Louisiana Revised statute 9:5605(A), the court finds that it is not subject to [the] continuing tort doctrine such that it cannot be suspended, interrupted, or renounced. Here a review of the record reveals that the act of the alleged error upon which plaintiff asserts her claim occurred in 2007 when the defendants attempted to intervene in the federal court case. Subsequently, on September 2, 2010, plaintiff filed the instant legal malpractice suit in state court against the defendants. The court views her allegations from 2007 and 2008 as a single tort with a single peremptive period. Accordingly, the defendants’ exception of peremption is hereby sustained.

La. R.S. 9:5605 A 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 the date of discovering the act, omission, or neglect and within three years of the date of the act, omission, or neglect. Jenkins v. Starns, 11-1170, p. 13 (La.1/24/12), 85 So.3d 612, 620. Because the one and three-year periods are per-emptive, they cannot be renounced, interrupted, or suspended. La. C.C. art. 3461. Boykin v. Coregis Ins. Co., 01-301, p. 3 (La.App. 5 Cir. 10/17/01), 800 So.2d 926, 928. Thus, a legal malpractice action must be filed within one year from the date of the discovery, but no later than three years from the date of alleged act of malpractice, whichever occurs first. Otherwise, the right to bring the malpractice action is extinguished and thus lost. Id., pp. 3-4, 800 So.2d at 928.

|7In the instant case, the alleged malpractice is the Defendant Attorneys’ filing of the intervention on behalf of Ms. Brown in the federal court action when no federal subject matter jurisdiction existed over Marketfare’s counterclaim. In determining that Ms. Brown’s malpractice claim had perempted, the trial court found that Ms. Brown discovered or should have discovered in July 2009, when, after consulting with the Kilpatrick Stockton attorneys, she was advised that she should seek dismissal of Marketfare’s counterclaim against her because the federal court lacked subject matter jurisdiction over the counterclaim once the claim against United Fire was resolved. Accordingly, the trial court held that Ms. Brown had one year from July 2009, the date of the discovery of the act of malpractice, to file the instant suit against the Defendant Attorneys for legal malpractice. We agree.

It is well-settled that “notice to a client’s attorney, actual or otherwise, is imputed to the client.” Lirette v. Roe, 93-0441, p. 2 (La.App. 4 Cir. 1/13/94), 631 So.2d 503, 505. The parties do not dispute that Ms. Brown was alerted by the Kilpa-trick Stockton attorneys in July 2009 of the jurisdictional issue and that with their help, the Defendant Attorneys filed a motion to dismiss Marketfare’s counterclaim on 17 August 2009 for lack of subject matter jurisdiction, which was granted on 2 September 2009. Clearly, both the Kil-patrick Stockton attorneys and the Defendant Attorneys had notice of the federal court’s lack of subject matter jurisdiction in July 2009 when they consulted on the matter or, at the very latest, on 17 August 2009, when the motion to dismiss for lack of jurisdiction was filed. Ms. Brown argues, however, that merely knowing that a jurisdictional problem existed, coupled with the filing of a motion to dismiss, was insufficient to commence the time running on her malpractice claim. Rather, she contends that it was not until |sthe judge actually issued judgment granting the motion to dismiss on 2 September 2009 that she had sufficient knowledge of facts upon which to state a cause of action against the Defendant Attorneys for legal malpractice.

In Lirette, supra, we held that peremption on a legal malpractice claim for failure to timely file suit began to run when the exception of peremption was filed into court, rather than when the exception was granted and, therefore, the plaintiffs argument that she had no cause of action for legal malpractice prior to the issuance of the judgment maintaining the exception was clearly wrong. Id., p. 2, 631 So.2d at 505. It follows therefrom that, in the case sub judice, peremption on Ms. Brown’s malpractice action for filing an intervention on her behalf into a claim over which the federal court lacked jurisdiction began to run — at the latest — when the motion to dismiss for lack of jurisdiction was filed and not when the judgment granting the motion was rendered. Accordingly, we find the trial judge correctly determined that Ms. Brown’s malpractice action was already perempted at the time she filed suit on 2 September 2010.

Having determined that Ms. Brown’s malpractice action was perempted one year from the date she knew or should have known of the act of malpractice, we pretermit the issue of whether the act of malpractice occurred in 2007, when the Defendant Attorneys first attempted to intervene on her behalf in the federal court action, or in 2008, when the second intervention on her behalf was filed.

For the foregoing reasons, we affirm the judgment of the trial court dismissing the plaintiffs legal malpractice action on the basis of peremption.

AFFIRMED.

      . Persons frequently refer to peremption as prescription in the context of a claim for legal malpractice. However, under La. R.S. 9:5605, the correct concept is that of peremption, not prescription. Therefore, in this case, we understand counsel's references to prescription to mean peremption. See Reeder v. North, 97-0239 (La.10/21/97), 701 So.2d 1291.

      . The judgment contained in the record is erroneously dated 4 June 2006 instead of 4 June 2008.

      . The law firm of Kilpatrick Stockton is now Kilpatrick Townsend.

      . The motion to dismiss noted that pursuant to 28 U.S.C. § 1367(b), where original jurisdiction is founded solely upon diversity of citizenship, "[djistrict courts shall not have supplemental jurisdiction under subsection (a) over claims by plaintiffs against persons made parties under Rule ... 24 of the Federal Rules of Civil Procedure ... where exercising supplemental jurisdiction would be inconsistent with die jurisdictional requirements of § 1332.” Because Ms. Brown and her co-owners had been made parties under Rule 24, the motion prayed that the court dismiss Mar-ketfare’s counterclaim and vacate the 2 February 2009 order granting partial summary judgment.

      . In Jenkins the Louisiana Supreme Court held that peremption commences to run in a legal malpractice case when a claimant knew or should have known of the existence of facts that would have enabled him or her to state a cause of action for legal malpractice. Jenkins, p. 13, 85 So.3d at 620-622. A claimant’s mere apprehension that something may be wrong is insufficient to commence the running of peremption unless the claimant knew or should have known through the exercise of reasonable diligence that a problem may have been caused by acts of malpractice. Id.