United States Court of Appeals
Fifth Circuit
IN THE UNITED STATES COURT OF APPEALS FILED
FOR THE FIFTH CIRCUIT October 17, 2006
_____________________
Charles R. Fulbruge III
Nos. 05-31140 Clerk
(Summary Calendar)
_____________________
VP BUILDINGS, INC.
Plaintiff
v.
NORCO CONSTRUCTION, INC.: ET AL.
Defendants
v.
ST. BERNARD PORT, HARBOR & TERMINAL DISTRICT
Third-Party Plaintiff-Appellant
v.
RICHARD P. ALBERT; WOODWARD DESIGNS, L.L.C.; PAUL FLOWER
Third-Party Defendants-Appellees
----------------------
Appeals from the United States District Court
for the Eastern District of Louisiana
(2:04-CV-121)
----------------------
Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM*:
This appeal arises out of the efforts of many parties to
*
Pursuant to 5TH CIR. R. 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this opinion should not be published and is not precedent except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 5TH CIR. R. 47.5.4.
1
construct and renovate a facility on the land of Third-Party
Plaintiff-Appellant St. Bernard Port, Harbor & Terminal (“the
Port”). Specifically, this appeal concerns only the claims of
the Port against each of the Third-Party Defendants-Appellees
Richard P. Albert (“Albert”), Woodward Designs, L.L.C.
(“Woodward”), and, Woodward’s employee, Paul Flower (“Flower”).
On August 1, 2005, the district court entered an Order and
Reasons granting Albert’s motion for summary judgment, having
concluded that the Port was not a third-party beneficiary of an
architectural services contract (“the Contract”) entered into
between Boasso America (“Boasso”) and Mouton/Albert Architects,
Albert’s predecessor company. On August 5, 2005, the district
court entered a separate final judgment in favor of Albert
pursuant to Rule 54(b) of the Federal Rules of Civil Procedure,
having expressly found “no just cause for delay.”
Similarly, on November 10, 2005, the district court entered
an Order granting Woodward and Flower’s joint motion for summary
judgment, having concluded that the Port was not a third-party
beneficiary of a construction design contract entered into
between Boasso and Woodward. The district court did not,
however, enter a separate final judgment as to Woodward or
Flower. These two Orders disposed of all the claims against
Albert, Woodward, and Flower; however, there remain numerous
2
other parties and claims to be dealt with by the district court
in this action.
The Port now appeals both of the district court’s rulings,
asserting that the district court committed reversible error in
holding that the Port was not a third-party beneficiary of either
contract. Before reaching the merits of the Port’s appeal,
however, we must first determine whether we have appellate
jurisdiction to hear either or both of these appeals.
As we have stated before, we are a court of limited
jurisdiction. We are authorized to hear appeals only from
specified dispositions: decisions that are final under 28 U.S.C.
§ 1291; interlocutory decisions under 28 U.S.C. § 1292; non-final
judgments certified as final under Federal Rule of Civil
Procedure 54(b); and other non-final orders or judgments to which
an exception expressly applies.1 The only possibility of
jurisdiction to entertain the appeals of the summary judgments at
issue here before the entire case is disposed of by the district
court lies under Rule 54(b).
Rule 54(b) requires a trial court to make two findings
before certifying an otherwise non-final judgment for appeal.2
1
Briargrove Shopping Center Joint Venture v. Pilgrim
Enters., Inc., 170 F.3d 536, 538 (5th Cir. 1999).
2
Curtiss-Wright Corp. V. Gen. Elec. Co., 446 U.S. 1, 7-8
(1980).
3
First, that court must determine that the judgment is “final” ——
“an ultimate disposition of an individual claim entered in the
course of a multiple claims action.”3 Second, it must determine
that there is no just reason for delay.4 Although Rule 54(b)
requires “an express determination that there is no just reason
for delay,” a judgment will be appealable under this rule if we
can determine that the district court unmistakably intended to
make the order appealable.5 In determining this intent, however,
we may examine only the order appealed from and other documents
referenced therein.6
Regarding Albert’s summary judgment, the district court
entered a separate judgment, expressly titled a “Final Judgment
under Rule 54(b)” and made an express determination in that there
was no just reason for delay. Accordingly, the district court
made both the necessary Rule 54(b) findings. We therefore have
jurisdiction over this appeal.
Regarding Woodward and Flower’s summary judgment, though,
the district court neither entered a separate judgment nor, in
3
Id. at 7.
4
Id. at 8.
5
Kelly v. Lee’s Old Fashioned Hamburgers, Inc., 908 F.2d
1218, 1220 (5th Cir. 1990).
6
Id.
4
the order granting summary judgment, expressed or otherwise
indicated that the judgment was final or that there was no just
reason for delay. Moreover, the district court’s order did not
reference any other documents. As the district court did not
make the two requisite findings, we lack jurisdiction to hear
this appeal. Therefore, the Port’s appeal of the summary
judgment dismissing its claims against Woodward and Flower is
dismissed.
Having determined that we do have appellate jurisdiction
over the appeal of the summary judgment dismissing the Port’s
claim against Albert, we turn to its substance. Summary judgment
is appropriately granted when there is no genuine issue of
material fact and the moving party is entitled to judgment as a
matter of law.7 To avoid summary judgment, a nonmoving party who
bears the burden of proof at trial must sufficiently establish
every essential element of its cause of action.8 We review a
grant of summary judgment de novo.9
The Port claims that Albert is contractually obligated to it
under a third-party beneficiary theory. Under Louisiana law, the
7
Fed. R. Civ. Proc. 56(c); Lockart v. Kobe Steel Ltd.
Constr. Mach. Div., 989 F.2d 864, 865 (5th Cir. 1993).
8
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
9
Thomas v. Price, 975 F.2d 231, 235 (5th Cir. 1992).
5
existence of a third-party beneficiary relationship must be
clearly intended by the contracting parties.10
Based on the applicable law and our extensive review of the
parties’ briefs and the record on appeal, we conclude that the
district court did not commit any error. There was no evidence
that either Boasso or Albert intended, expressly or otherwise,
that the Contract be for the benefit of the Port. In fact, in
article 9.7 of the Contract, both parties expressed their mutual
intent that the Contract not form the basis for a contractual
relationship between either of them and any third-party, such as
the Port. Accordingly, we affirm the summary judgment of the
district court in favor of Albert.
AFFIRMED IN PART AND DISMISSED IN PART.
10
Kane Enters. v. MacGregor (USA), Inc., 322 F.3d 371, 375
(5th Cir. 2003).
6