Aucoin v. CNI Girdler Inc

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 26, 1996
• Docket: 95-30531
• Status: Unpublished

Opinion

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,

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* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. 1 The plaintiffs initially contend that the characterization of a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.