Russell Maricle and Mary Francis Maricle v. Axis Medical & Fitness Equipment, LLC

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-109

RUSSELL MARICLE, ET UX.

VERSUS

AXIS MEDICAL & FITNESS EQUIPMENT, LLC, ET AL.

**********

SUPERVISORY WRIT APPLICATION FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 247,765
HONORABLE W. GREGORY BEARD, DISTRICT JUDGE

**********

JOHN D. SAUNDERS

JUDGE

**********

Court composed of John D. Saunders, Elizabeth A. Pickett, and Shannon J.
Gremillion, Judges.

WRIT GRANTED AND MADE PEREMPTORY.

Andrew P. Texada
Stafford, Stewart & Potter
P. O. Box 1711
Alexandria, LA 71309
(318) 487-4910
COUNSEL FOR DEFENDANT/RESPONDENT:
Axis Medical & Fitness Equipment, LLC

Charles D. Elliott
Charles Elliott & Assoc., LLC
720 Murray Street
Alexandria, LA 71301
(318) 704-6511
COUNSEL FOR PLAINTIFF/APPLICANT:
Russell Maricle
Mary Francis Maricle

SAUNDERS, Judge.
This case has been before this court in two prior appeals: Maricle v. Axis

Med. & Fitness Equip., 14-1249 (La.App. 3 Cir. 5/6/15) (unpublished opinion),

and Maricle, 15-1063 (La.App. 3 Cir. 5/4/16), 191 So.3d 697, writ denied, 16-1016

(La. 9/16/16). This court set forth the pertinent background its published decision

as follows:

This products liability matter arose after Mr. Maricle sustained
injuries from a defective wheelchair that he was using during his
recovery for injuries sustained in an automobile collision. The
wheelchair was provided by Axis who delivered it to him on January
8, 2013. On April 27, 2013, Mrs. Maricle was pushing him in his
wheelchair up a ramp when the back of his wheelchair ripped, causing
Mr. Maricle to fall backwards, hit his head on the pavement, and
reinjure his neck.

As a result, Plaintiffs filed suit on June 26, 2013, which was
amended and supplemented, against Axis, Dalton Medical
Corporation, and Dalton Instrument Corporation (hereinafter the two
Dalton entities will be referred to as “Dalton”), alleging that the
wheelchair was defective in design and/or manufacture by Dalton and
that Axis “knew or should have known of the defects in the
[w]heelchair, because it should have inspected the [w]heelchair before
delivery[.]” Plaintiffs also alleged that Axis was “in the business of
renting medical equipment.” On May 9, 2014, Plaintiffs filed their
second supplemental and amending petition for damages and asserted
a redhibitory claim against Axis and Dalton. On that same day, Axis
filed a cross claim against Dalton, seeking tort indemnification for
redhibitory and/or manufacturing defects. Also on that same day, Axis
filed a motion for summary judgment seeking dismissal of Plaintiffs’
claims, alleging that it was not negligent under La.Civ.Code art.
2317.1, which governs a custodian’s liability for damages caused by
defective things. In opposition, Plaintiffs argued that Axis was strictly
liable as a lessor pursuant to La.Civ.Code arts. 2696–97, which
govern a lessor’s warranties against vices or defects. The foregoing
pleadings were timely filed in accordance with the trial court’s May 9,
2014 deadline for amendment of pleadings.

After the deadline passed, Plaintiffs and Dalton participated in a
mediation, which resulted in them settling their products liability
claim against Dalton while reserving their rights against Axis. Axis
did not participate in the mediation, and on June 5, 2014, it filed a
supplemental cross claim against Dalton, asserting a products liability
claim and alleging comparative fault. Plaintiffs and Dalton each filed
motions to strike Axis’s supplemental cross claim as untimely in light
of the May 9, 2014 deadline. Dalton also filed an exception of

prescription and argued that Axis’s redhibition claims asserted in its
original cross claim had prescribed.

After the June 30, 2014 hearing on the pending motions, the
trial court orally denied Axis’s motion for summary judgment,
holding that Plaintiffs’ pleadings contained “sufficient allegations”
that made it “clear that the wheelchair was leased to Mr. Maricle[ ]”
and that “Axis has understood from the beginning that that’s the basis
of the claim here.” This was reduced to writing in the trial court’s
September 16, 2014 judgment. Approximately one month prior, on
August 13, 2014, the trial court signed another written judgment
granting Plaintiffs’ and Dalton’s motions to strike and dismissing
Axis’s cross claim and amended cross claim. The trial court also
granted Dalton’s exception of prescription.

Axis appealed the August 13, 2014 judgment prior to the
scheduled trial on the merits. Axis also filed a motion to stay the
judgment pending an appeal on September 2, 2014, which Plaintiffs
opposed. Following a hearing on September 8, 2014, the trial court
denied Axis’s motion to stay the judgment pending an appeal and
bifurcated the trial between liability and damages, with the trial on the
damages to begin on September 10, 2014. This was memorialized in
the trial court’s written Order signed on September 10, 2014.
According to the December 31, 2014 written reasons for judgment
and its January 27, 2015 written judgment on damages, the trial court
fixed Plaintiffs’ general damages at $150,000 plus medical special
damages.

In the meantime, Axis’s pending appeal was heard by another
panel of this court, and on May 6, 2015, it affirmed the trial court’s
August 13, 2014 judgment. Maricle v. Axis Med. & Fitness Equip.,
LLC, 14–1249 (La.App. 3 Cir. 5/6/15), 2015 WL 2125950
(unpublished opinion). This court held that “[t]he only remaining
issue concerns the Maricles’ claims against Axis for its alleged
negligent failure to inspect.” Id. at 4.

Plaintiffs subsequently filed a motion for summary judgment on
May 20, 2015, alleging that Axis was strictly liable as a lessor under
La.Civ.Code arts. 2696–97. Axis filed a cross motion for summary
judgment on June 11, 2015, arguing that the only allegations against
Axis arose from its alleged negligent failure to inspect the wheelchair
prior to delivery. Axis asserted that it was not liable since there were
no visible defects in the wheelchair prior to or at the time of its
delivery to Mr. Maricle. After the July 13, 2015 hearing on the
pending motions, the trial court granted Axis’s cross motion for
summary judgment and dismissed Plaintiffs’ claims with prejudice,
which was reduced to writing in the August 26, 2015 judgment. In its
written reasons for judgment rendered on July 23, 2015, the trial court
referenced our previous holding in Maricle, 14–1249, and stated that
the only remaining issue was whether Axis negligently inspected the

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wheelchair. Plaintiffs appealed the trial court’s granting of Axis’s
cross motion for summary judgment.

On appeal, Plaintiffs assert the following four
assignments of error:

1. The trial court committed legal error when it
granted summary judgment in favor of Axis Medical &
Fitness Equipment, LLC based on Louisiana Civil Code
[A]rticle 2317.1, as that Civil Code article does not apply
in this case.

2. The trial court committed legal error when it
denied Russell and Mary Maricle’s motion for
summary judgment, as the Court was presented with
proof that Axis leased a defective wheelchair to
Russell Maricle, and that Russell Maricle was injured
due to the defect, as provided in Louisiana Civil Code
[A]rticles 2696[,] et seq.

3. The trial court erred, and this Court erred, in
holding that the only issue for trial was active negligence
on the part of Axis, as that issue was not properly before
the Third Circuit Court of Appeal in the prior appeal in
this case, and it[,] therefor[,] had no value as “law of the
case.”

4. The trial court erred in casting plaintiffs with all
of Axis’[s] court costs, as a previous Judgment of the
trial court dated August 13, 2014 cast Axis with certain
court costs, and that Judgment was appealed and affirmed
and is[,] therefore[,] final.

191 So.3d at 699-701 (emphasis added).

In the second opinion quoted above, this court concluded that the trial court

erred in granting summary judgment to Axis and clearly reversed that judgment in

the decree at the conclusion of the opinion, wherein this court stated, “The trial

court’s granting of a cross motion for summary judgment in favor of

Defendant/Appellee, Axis Medical & Fitness Equipment, LLC, is reversed.” 191

So.3d at 706.

After reviewing Plaintiffs’ second assignment of error that the trial court had

erred in failing to grant Plaintiffs’ cross motion for summary judgment against

3

Axis, this court found that the trial court erred. Although this court’s decree was

silent as to Plaintiffs’ motion for summary judgment, in the body of the opinion,

this court also stated,

Accordingly, the trial court legally erred in denying Plaintiffs’
motion for summary judgment and granting Axis’s cross motion for
summary judgment since it had proof that Axis leased a defective
wheelchair to Mr. Maricle and that he was injured due to the defect as
provided in La.Civ.Code arts. 2696–97. The trial court’s judgment is,
therefore, reversed in this regard.

191 So.3d at 704.
Upon returning to the trial court, Plaintiffs filed the subject Motion for Entry

of Judgment. Plaintiffs asserted that this court’s second opinion in Maricle had

ordered that the trial court’s judgment denying Plaintiffs’ motion for summary

judgment on liability had been reversed and thereby ordered the trial court to grant

Plaintiffs’ motion. Axis filed an opposition to Plaintiffs’ motion, arguing that Axis

was still entitled to challenge whether it should be held 100% liable to Plaintiffs or

whether Dalton could be assigned a percentage of the fault, up to 100%. The trial

court agreed with Axis and denied Plaintiffs’ motion for Entry of Judgment.

Plaintiffs have filed the instant writ application, asking “that this Court grant this

writ application, and that this Court give them the ruling on their motion for

summary judgment, which has already been ordered by this Court, and end this

litigation, and for any other legal or equitable relief proper in the premises.” Axis

has filed an opposition to Plaintiffs’ writ application, and Plaintiffs’ have filed a

reply brief to that opposition.

SUPERVISORY RELIEF

“The proper procedural vehicle to contest an interlocutory judgment that

does not cause irreparable harm is an application for supervisory writs. See La.

C.C.P. arts. 2087 and 2201.” Brown v. Sanders, 06-1171, p. 2 (La.App. 1 Cir.

4

3/23/07), 960 So.2d 931, 933. But see La.Code Civ.P. art. 2083, comment (b),

“Irreparable injury continues to be an important (but not exclusive) ingredient in an

application for supervisory writs.”

ON THE MERITS

In opposing Plaintiffs’ motion for Entry of Judgment, Axis argues that this

court’s first opinion in this case held that neither Plaintiffs nor Axis had made a

claim based on the Louisiana Products Liability Act (LPLA) and that Plaintiffs had

no claim based on strict liability against Axis. Yet, in the second opinion issued by

this court, this court held that the trial court erred in denying Plaintiffs’ motion for

summary judgment based on the application of strict liability and La.Civ.Code arts.

2696-97. Therefore, Axis contends that these two opinions are contradictory and

that, as a result, Axis should be permitted to challenge this court’s finding in the

second opinion that it is 100% liable in causing Plaintiffs’ injuries. Axis asserts

that, pursuant to the first opinion by this court, Plaintiffs’ claims sound purely in

negligence, i.e., that Axis negligently inspected the wheelchair it rented for Mr.

Maricle to use. Therefore, Axis posits that it should be permitted to raise any fault

on the part of Dalton in defense of Plaintiffs’ claims.

Given the nature of the issue presented, it is necessary to quote extensively

from this court’s prior opinion in Maricle, 191 So.3d at 701-06 (emphasis in

original)1:

I. First Assignment of Error

In their first assignment of error, Plaintiffs contend that the trial
court legally erred by granting Axis’s cross motion for summary
judgment based on negligence under La.Civ.Code art. 2317.1, which
provides:
1
Since this court’s opinion in docket number 15-1063 quotes and paraphrases the
necessary portions of this court’s opinion in docket number 14-1249, quoting from the latter
opinion would result in unnecessary redundancy.
5

The owner or custodian of a thing is answerable
for damage occasioned by its ruin, vice, or defect, only
upon a showing that he knew or, in the exercise of
reasonable care, should have known of the ruin, vice, or
defect which caused the damage, that the damage could
have been prevented by the exercise of reasonable care,
and that he failed to exercise such reasonable care.
Nothing in this Article shall preclude the court from the
application of the doctrine of res ipsa loquitur in an
appropriate case.

Plaintiffs argue that the trial court should have used
La.Civ.Code arts. 2696–97 and determined that Axis was strictly
liable as the wheelchair’s lessor. A lessor’s warranty against vices or
defects is codified at La.Civ.Code art. 2696 and provides:

The lessor warrants the lessee that the thing is
suitable for the purpose for which it was leased and that it
is free of vices or defects that prevent its use for that
purpose.
This warranty also extends to vices or defects that
arise after the delivery of the thing and are not
attributable to the fault of the lessee.

This warranty “also encompasses vices or defects that are not known
to the lessor. However, if the lessee knows of such vices or defects
and fails to notify the lessor, the lessee’s recovery for breach of
warranty may be reduced accordingly.” La.Civ.Code art. 2697.

With respect to the instant matter, the trial court referenced the
Maricle, 14–1249, opinion in its July 23, 2015 written reasons for
judgment and stated that “the only remaining issue before this court is
whether or not Axis negligently inspected the wheelchair.” The trial
court noted that “Mr. Maricle has alleged that he was injured by a
defective thing, a wheelchair, owned or leased by Axis. As such, La.
C.C. art. 2317.1 is the applicable substantive law[.]” We find that the
trial court’s reliance on La.Civ.Code art. 2317.1 was erroneous as it
was not the law of the case, which argument was advanced by Axis’s
counsel at the hearing on the cross motions for summary judgment
and is discussed in more detail in the following section.

Additionally, liability under La.Civ.Code art. 2317.1 requires
proof that “‘the thing was in the defendant’s custody and control[.]’”
Davis v. Am. Legion Hosp., 06–608, p. 3 (La.App. 3 Cir. 11/2/06), 941
So.2d 712, 714 (quoting Roberson v. Lafayette Oilman’s Sporting
Clays Shoot, Inc., 05–1285, p. 5 (La.App. 3 Cir. 4/12/06), 928 So.2d
703, 705–06). “Custody and control is largely a question of fact, not
law [.]” Hesse v. Champ Serv. Line, 05–1565, p. 3 (La.App. 3 Cir.
6/7/06), 933 So.2d 247, 250, writs denied, 06–2156, 06–2176
(La.11/22/06), 942 So.2d 555, 556. “‘[C]ustody’ or ‘garde’ of a thing
6

cannot lie in both an owner and a lessee simultaneously.” Pamplin v.
Bossier Parish Cmty. Coll., 38,533, p. 7 (La.App. 2 Cir. 7/14/04), 878
So.2d 889, 893, writ denied, 04–2310 (La.1/14/05), 889 So.2d 266
(quoting Guillory v. Foster, 93–996 (La.App. 3 Cir. 3/2/94), 634
So.2d 1372, 1375). In this case, the facts show that Axis did not have
garde of the wheelchair after delivering it to Mr. Maricle on January
8, 2013. The trial court, therefore, erred by using La.Civ.Code art.
2317.1 in its analysis.

Moreover, Axis never cited La.Civ.Code art. 2317.1 as a basis
for liability in its cross motion for summary judgment. The use of
La.Civ.Code art. 2317.1 was also rejected by the trial court at the June
30, 2014 hearing, wherein it denied Axis’s original motion for
summary judgment by stating the following with respect to Plaintiffs’
pleadings:

I don’t know that the pleadings are as artfully drafted as
his pleadings normally are or that he would have liked.
But I think that there is sufficient allegations that it’s
clear that the wheelchair was leased to Mr. Maricle. I
think pleadings are clear enough—it’s clear to me that
Axis has understood from the beginning that that’s the
basis of the claim here. And so for those reasons I’m
going to deny your motion for summary judgment.

Since this matter involves the granting of a motion for summary
judgment, we will perform a de novo review. In this case, Plaintiffs
attempted to show the existence of a lease by attaching the following
exhibits in support of their motion for summary judgment and in
opposition of Axis’s cross motion for summary judgment:

• The transcript from the June 30, 2014 hearing
wherein Axis’s counsel stated that “Axis leased the
wheelchair to the Maricles” and “it was technically
a lease at this time[;]”
• The Acceptance of Service and Policies and the
Medicare Capped Rental Notification executed
between Mr. Maricle’s daughter on his behalf and
Axis which shows that they chose the “Rental
Option” “For Capped Rental Items,” which
includes equipment such as wheelchairs;
• A billing statement from Axis to Mr. Maricle
showing the monthly rental price for the
wheelchair;
• The Sales Agreement executed between Dalton, as
the manufacturer of the wheelchair, and Axis
which shows that Dalton’s warranty “does not
cover” commercial use of its products;
• The transcript of the September 8, 2014 hearing on
Axis’s motion to stay pending an appeal wherein
Axis’s counsel stated that the matter involved a
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wheelchair that was “rented [to] plaintiffs[ ]” and
that “If that wheelchair was defective, then my
client could be held liable as lessor of the
wheelchair.”
• Axis’s memorandum in support of its motion for
summary judgment which was filed on May 20,
2015 and stated that Axis “delivered a wheelchair”
to Plaintiffs’ home and based on Mr. Maricle’s
height, “Axis rented a 20–inch lightweight
wheelchair which was rated for 250 pounds.”

The foregoing shows that the trial court ignored the evidence
indicating that Axis leased the wheelchair to Plaintiffs. The trial court
should have used La.Civ.Code arts. 2696–97 in its analysis, which is
discussed in more detail below. Accordingly, the trial court committed
legal error by granting Axis’s cross motion for summary judgment
based on negligence under La.Civ.Code art. 2317.1, and its judgment
is reversed in this regard.

II. Second Assignment of Error

In their second assignment of error, Plaintiffs contend that the
trial court legally erred in denying their motion for summary judgment
and granting Axis’s cross motion for summary judgment since it had
proof that Axis leased a defective wheelchair to Mr. Maricle and that
he was injured due to the defect as provided in La.Civ.Code arts.
2696–97. In support, Plaintiffs contend that Louisiana’s lease articles
apply to moveables, which encompasses a lessor’s warranty against
hidden defects. Plaintiffs contend that they are not required to prove
the cause of the defect in light of Marien v. General Insurance Co. of
America, 02–545 (La.App. 3 Cir. 12/11/02), 836 So.2d 239.

In Marien, the plaintiff pilot was injured in an airplane crash
and brought suit for damages against the defendant, Barham Bros.,
Inc., the plane’s owner and lessor. The defendant argued on appeal
that the trial court erred in finding it liable without proof of a defect.
We noted that the trial court found that a defect existed, according to
its reasons for judgment, because “it accepted as fact that the control
stick jammed causing the accident[,]” which led to the trial court’s
finding that “Barham Bros., as lessor of the aircraft, was strictly liable
for the defective condition of the aircraft.” Id. at 243. The defendant
further argued that the trial court erred by holding that the plaintiff did
not need to prove the defect’s cause. We indicated that it was
undisputed that the plaintiff leased the plane from the defendant such
that the trial court correctly applied La.Civ.Code art. 2695, which
stated:

The lessor guarantees the lessee against all the
vices and defects of the thing, which may prevent its
being used even in case it should appear he knew nothing
of the existence of such vices and defects, at the time the
8

lease was made, and even if they have arisen since,
provided they do not arise from the fault of the lessee;
and if any loss should result to the lessee from the vices
and defects, the lessor shall be bound to indemnify him
for the same.

Id. at 243. We noted that “‘[t]his provision applies to the lease of both
immovables and movables.’” Id. (quoting Walnut Equip. Leasing Co.,
Inc. v. Moreno, 26,004 (La.App. 2 Cir. 9/21/94), 643 So.2d 327, 331).
We stated that in order to recover under La.Civ.Code art. 2695, “it is
not necessary to prove the cause of the defect[ ]” and “[a] lessee must
prove only the existence of the defect.” Id. We held that in light of the
trial testimony and circumstantial evidence, it was “sufficient to show
that it is more probable than not that a defect in the plane existed and
caused the accident.” Id. at 245.

Even though Marien references La.Civ.Code art. 2695, which
was revised in 2005, its principles are codified in La.Civ.Code arts.
2696–97. Shubert v. Tonti Dev. Corp., 09–348 (La.App. 5 Cir.
12/29/09), 30 So.3d 977, writ denied, 10–241 (La.4/9/10), 31 So.3d
393. We, therefore, use Marien as guidance in this case. In that
regard, this case is similar to Marien in that the evidence and
testimony show that Mr. Maricle leased the wheelchair from Axis.
Marien, therefore, warrants application of La.Civ.Code arts. 2696–97
in this matter, and we must determine whether Plaintiffs proved the
existence of a defect by direct and/or circumstantial evidence.

In addition to the evidence discussed in the section above,
Plaintiffs attempted to prove the existence of a defect by attaching the
June 30, 2014 hearing transcript wherein Axis’s counsel stated that
approximately three months following its delivery of the wheelchair
to Mr. Maricle, “the back of the wheelchair ripped out and Mr.
Maricle fell and re-injured himself[.]” Therein, Axis’s counsel
admitted that there was “no evidence that Axis knew or could have
known about whatever defect was in the fabric of the wheelchair upon
delivery.” Plaintiffs attached the deposition testimony of Dalton’s
corporate representative, Jim Lein, who testified that he was unsure as
to how the wheelchair came apart. Plaintiffs also attached Mr.
Maricle’s deposition testimony wherein he indicated that the
wheelchair back came apart during its ordinary use causing him to fall
onto the pavement and sustain injuries. In [their] motion for summary
judgment, Plaintiffs pointed to Axis’s First Supplemental and
Amending Cross Claim wherein it confessed that the wheelchair it
rented was defective as follows:

2.

[Axis] affirmatively shows that the wheelchair
manufactured by Dalton Medical and/or Dalton
Instrument was unreasonably dangerous in construction
or composition in that at the time the product left
9

Dalton’s control, the product deviated in a material way
from Dalton’s specifications or performance standards
for the wheelchair which were specified for use by
persons weighing less than 220 pounds.

3.

[Axis] affirmatively shows that the wheelchair in
question was unreasonably dangerous because of
inadequate warning that the back of the wheelchair was
susceptible to wearing and that the tip bars in the
wheelchair should be used at all times was not provided
by Dalton Medical and/or Dalton Instrument.

4.

[Axis] affirmatively shows that the wheelchair in
question was unreasonably dangerous because it did not
conform to the expressed warranty of Dalton in that it
failed after less than six months use.

Plaintiffs attached Axis’s Designation of Record for Appeal
requesting that the following portions of the record be designated: the
transcripts of all hearings prior to September 9, 2014, and all exhibits
and pleadings filed prior to September 9, 2014. In its opposition to
Axis’s cross motion for summary judgment, Plaintiffs attached Axis’s
discovery responses wherein it stated that Jeff Johnson and Devereaux
MaNeaux “[w]ill testify about the wheelchair at issue, rental of the
wheelchair to plaintiff.”

Accordingly, the trial court legally erred in denying Plaintiffs’
motion for summary judgment and granting Axis’s cross motion for
summary judgment since it had proof that Axis leased a defective
wheelchair to Mr. Maricle and that he was injured due to the defect as
provided in La.Civ.Code arts. 2696–97. The trial court’s judgment is,
therefore, reversed in this regard.

III. Third Assignment of Error

In their third assignment of error, Plaintiffs contend that the
trial court erred and this court erred in its previous decision in
Maricle, 14–1249, in holding that the only issue was for Axis’s active
negligence. That issue, according to Plaintiffs, was not properly
before this court in Maricle because the trial court’s September 16,
2014 denial of Axis’s original motion for summary judgment was not
appealed and had no value as the “law of the case.”

The “law of the the case” doctrine provides that:

10

[A]n appellate court will generally refuse to
reconsider its own rulings of law on a subsequent appeal
in the same case. The law of the case doctrine is
discretionary. Reconsideration of a prior ruling is
warranted when, in light of a subsequent trial record, it is
apparent that the determination was patently erroneous
and produced unjust results.

Hernandez v. Louisiana Workers’ Comp. Corp., 15–118, p. 5
(La.App. 3 Cir. 6/3/15), 166 So.3d 456, 459 (citations omitted). Since
the doctrine is discretionary, a prior appellate court ruling “does not
preclude reconsideration of an issue on appeal, nor does it prevent the
appellate court from reaching a different conclusion.” Id. at 458. The
doctrine also recognizes “the binding force of trial court rulings
during later stages of the trial[.]” Kaleel v. Div. Transp., 00–803, p. 1
(La.App. 3 Cir. 8/23/00), 769 So.2d 110, 111, writ denied, 00–2976
(La.12/15/00), 777 So.2d 1232 (quoting Petition of Sewerage & Water
Bd. of New Orleans, 278 So.2d 81, 83 (La.1973)).

Axis argues in opposition that the law of the case doctrine is
applicable and points to this court’s holding in Maricle, 14–1249, p. 3
(emphasis added), wherein we held:

The Maricles did not assert claims against Axis for
products liability but for failure to properly inspect the
wheelchair before renting it to them. These facts, as
alleged, do not show the mere constructive or derivative
fault of Axis but rather, assert that Axis was actively
negligent in its actions. This recovery is not sought on a
technical, constructive, or vicarious theory, and
accordingly, Axis could not be cast in judgment for mere
technical or passive fault and would not be entitled to
indemnity from Dalton. See Threlkeld v. Haskins Law
Firm, 922 F.2d 265 (5th Cir.1991). This is bolstered by
the settlement and dismissal of the Maricles’ claims
against Dalton, whereby the products liability claims
with regard to the wheelchair have been resolved. The
only remaining issue concerns the Maricles’ claims
against Axis for its alleged negligent failure to inspect.
See Hesse v. Champ Serv. Line, 02–284 (La.App. 3 Cir.
10/2/02), 828 So.2d 687. Since Axis was not entitled to
indemnity for its own alleged negligence, we cannot find
error in the trial court’s determination that the original
cross-claim sounded in redhibition only.

Axis argues that the foregoing holding means that the trial court
found that Plaintiffs’ petition failed to assert a strict liability claim
under La.Civ.Code arts. 2696–97, meaning that La.Civ.Code art.
2317.1 was the applicable law of the case which the trial court in this
matter was required to follow. We disagree with Axis as to the
applicability of the law of the case doctrine for the following reasons.
11

Pending motions were heard in this matter on June 30, 2014,
including Axis’s original motion for summary judgment which it filed
on May 9, 2014 wherein it denied any liability for its alleged
negligence pursuant to La.Civ.Code art. 2317.1. In opposition,
Plaintiffs argued that Axis was strictly liable as a lessor pursuant to
La.Civ.Code arts. 2696–97. At the June 30, 2014 hearing, the trial
court orally denied Axis’s original motion for summary judgment,
stating that Plaintiffs’ pleadings contained “sufficient allegations” that
made it “clear that the wheelchair was leased to Mr. Maricle[ ]” and
that “Axis has understood from the beginning that that’s the basis of
the claim here.” This was reduced to writing in the trial court’s
September 16, 2014 judgment. Prior to that written judgment, the trial
court rendered a different written judgment on August 13, 2014,
regarding other motions that were also argued at the June 30, 2014
hearing. Therein, the trial court granted Plaintiffs’ and Dalton’s
motions to strike, dismissed Axis’s cross claim and amended cross
claim, and granted Dalton’s exception of prescription. Axis then filed
its motion to appeal the August 13, 2014 judgment and sought
designation of all pleadings, exhibits, and transcripts of hearings “in
this matter prior to September 9, 2014[ ]” for appeal. The September
16, 2014 judgment denying Axis’s original motion for summary
judgment, therefore, was not the subject of Axis’s appeal in Maricle,
14–1249.

The only issues on appeal in our previous case as asserted by
Axis in its assignments of error were as follows: “the trial court erred
in holding that [Axis’s] original cross-claims prescribed[ ] and that the
trial court erred in striking [Axis’s] supplemental cross-claims as
untimely.” Maricle, 14–1249, p. 2. Axis, however, never specified as
an assignment of error that its motion for summary judgment had been
denied. Its specified errors only dealt with Axis’s claims against
Dalton. Moreover, Axis never asked this court to limit Plaintiffs’
remedies based on the allegations in the pleadings. Axis’s reliance on
the Maricle, 14–1249, holding with respect to Plaintiffs’ claims,
therefore, is inapplicable considering Uniform Rules—Courts of
Appeal, Rule 1–3, which provides, in pertinent part: “The Courts of
Appeal will review only issues which were submitted to the trial court
and which are contained in specifications or assignments of error,
unless the interest of justice clearly requires otherwise.” Since a
lessor’s liability pursuant to La.Civ.Code arts. 2696–97 was not
presented as an issue in an assignment of error in Maricle, 14–1249,
the law of the case doctrine is inapplicable in this matter.

Accordingly, the trial court erred in finding that the only
remaining issue was for Axis’s active negligence, and its judgment is
reversed in this regard.

From the foregoing extensive quotation taken from this court’s second

opinion in this matter, it is readily apparent that the second panel was well aware
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of the statements made by this court’s first opinion in this case. Despite this

knowledge, the second opinion found that the trial court erred in denying

Plaintiffs’ motion for summary judgment on liability against Axis based on strict

liability. As pointed out by Plaintiffs in their writ application, Axis submitted no

evidence to support a finding that Plaintiffs bear any portion of fault in this

accident. Rather, Axis focuses its intent to reduce its potential liability by

contending that the manufacturer’s fault should be considered. This court found

this argument to be without merit in the second opinion rendered in this case.2

Plaintiffs’ motion for summary judgment that was subject to review in this

court’s second opinion began with the statement, “NOW INTO COURT, through

undersigned counsel, come plaintiffs, Russell Maricle and Mary Francis Maricle,

who move that the Court grant summary judgment on the issue of liability against

defendant, Axis Medical & Fitness Equipment, LLC. (“Axis”).” This court’s

opinion held that the trial court erred in denying this motion for summary judgment

and ordered that the trial court’s ruling be reversed. This issue was properly before

this court, even though the judgment denying Plaintiffs’ motion for summary

judgment was interlocutory, because it was assigned as error in the appeal of the

final judgment granting Axis’s cross motion for summary judgment. See Wagner

v. Inn of Lake Charles, 10-17 (La.App. 3 Cir. 11/3/10), 49 So.3d 592, writ denied,

11-181 (La. 3/25/11), 61 So.3d 669. Therefore, this court has already ruled that

Plaintiffs’ motion for summary judgment on liability should be granted.

The decree in this court’s second opinion reads, “The trial court’s granting

of a cross motion for summary judgment in favor of Defendant/Appellee, Axis

2
As noted by the Plaintiffs, Axis filed a writ application with the supreme court
challenging this court’s second opinion in which application Axis asserted that the supreme court
should reverse the second opinion insofar as it contradicted the holding from the first opinion.
However, despite this argument, the supreme court denied Axis’s writ application without
additional language other than “[d]enied” and without any concurring or dissenting opinion by
any of the justices.
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Medical & Fitness Equipment, LLC, is reversed. All costs associated with this

appeal shall be assessed to Defendant/Appellee, Axis Medical & Fitness

Equipment, LLC.” Axis cites this court to Blanchard v. Arkansas Louisiana Gas

Co., 51 So.2d 850, 852 (La.App. 2 Cir. 1951), wherein that court concluded, “the

decree of the Court of Appeal was an outright affirmance of the judgment of the

District Court, and even if it be granted that certain language of the opinion was

inconsistent with the decree, the decree is controlling.” Thus, according to Axis,

even if language in this court’s second opinion indicated that the trial court’s ruling

denying Plaintiffs’ motion for summary judgment was reversed, the decree is

controlling since it did not mention Plaintiffs’ motion, and Plaintiffs’ motion was

not granted by this court.

We find that Axis’s argument regarding the decree language is irrelevant.

Plaintiffs’ filed their Motion for Entry of Judgment because they recognized the

need for a judgment which could be made executory. This court’s opinion in the

second appeal clearly held that the trial court erred in denying Plaintiffs’ motion

for summary judgment and that Plaintiffs were entitled to summary judgment.

Therefore, the trial court erred in denying the Motion for Entry of Judgment, and

we grant the writ and enter judgment for Plaintiffs accordingly.3

DISPOSITION

We find that the trial court erred in denying the Motion for Entry of

Judgment filed by Plaintiffs-Relators, Russell Maricle and Mary Francis Maricle.

We reverse and set aside the trial court’s ruling denying the Motion for Entry of

Judgment. We hereby render judgment granting Plaintiffs’ Motion for Summary

Judgment against the Defendant-Respondent, Axis Medical & Fitness Equipment,
3
This writ challenges the trial court’s denial of the Plaintiffs’ Motion for Entry of
Judgment on the Plaintiffs’ Motion for Summary Judgment which was filed in May of 2015.
Accordingly, this writ is not subject to the revisions of La.Code Civ.P. art. 966 which were made
during the 2015 session of the legislature.
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LLC (Axis), assessing Axis with one hundred percent of the liability in this

incident in accordance with this court’s opinion in Maricle v. Axis Med. & Fitness

Equip., 15-1063 (La.App. 3 Cir. 5/4/16), 191 So.3d 697, writ denied, 16-1016 (La.

9/16/16). All costs of these proceedings are assessed to Axis.

WRIT GRANTED AND MADE PEREMPTORY.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules– Courts of Appeal, Rule 2–16.3.

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