Aucoin v. CNI Girdler Inc ( 1996 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 95-30531
____________________
HERBERT J. AUCOIN;
PENNY ST. GERMAIN AUCOIN, Wife,
Plaintiffs-Appellants,
and
AMER PLANT SERVICES, INC., and
LANDMARK INSURANCE COMPANY;
Intervenors-Plaintiffs-Appellants,
versus
CNI GIRDLER INC., a/k/a Bartlett-Snow, Inc.;
SKF BEARINGS, INC.; BARTLETT-SNOW, A Division
of Combustion Engineering, Inc.; MIETHER
BEARING PRODUCTS, INC., A Division of Alco
Industries, Inc., successor in interest to
Miether Machine Works, inc; KENNEDY VAN SAUN
CORP., A subsidiary of McNally Pittsburg
SEQUOIA VENTURES, INC., Successor in interest
to C&I Girdler, Inc.,
Defendants,
and
SVEDALA INDUSTRIES, INC., incorrectly
named as Kennedy Van Saun Corp.,
Defendant-Appellee.
_______________________________________________________________
Appeal from the United States District Court for the
Eastern District of Louisiana
(CA-93-2565-N)
_______________________________________________________________
February 14, 1996
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
The central issue in this diversity case is whether the
contract between Sveldala Industries, Inc., and Sequoia Ventures,
Inc., for a granulator constitutes a contract of sale or a
construction contract under Louisiana law.1 The district court
determined that it was a construction contract and thus applied the
ten-year peremptive period provided by section 9:2772 of the
Louisiana Revised Statutes to bar the claims of the plaintiffs.
Having reviewed the thoughtful opinion of the district court, the
briefs of the parties, and the record, we find no error in the
analysis of the district court, and therefore AFFIRM.2
A F F I R M E D.
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
1
The plaintiffs initially contend that the characterization of
a transaction as a contract of sale or a construction contract is
necessarily an issue of fact for which summary judgment is
improper. This argument is without merit. See, e.g., Smith v.
Arcadian Corp., 657 So.2d 464 (La.App. 3d Cir. 1995).
2
We also affirm the district court's denial of the plaintiffs'
motion for new trial, properly construed by the district court as
a third motion for reconsideration, on the basis that it raised an
entirely new theory of liability.