              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this opinion should not be published and is not precedent except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.
