United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit February 13, 2007
Charles R. Fulbruge III
Clerk
No. 06-30011
UNITED STATES OF AMERICA
Plaintiff - Appellee
VERSUS
MARVIN BEAULIEU; ET AL
Defendants
WILLIAM HARRISON; SYLVIA MOUTON
Defendants - Appellants
Appeal from the United States District Court
For the Western District of Louisiana, Lafayette
6:01-CV-1164
Before DAVIS and STEWART, Circuit Judges, and CRONE*, District Judge.
PER CURIAM:**
Following our remand of this case to the district court, it
held a telephone conference with counsel and discussed resolving in
*
District Judge of the Eastern District of Texas, sitting by
designation.
**
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opinion should not be published and is not precedent except under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.
a "paper trial" the remaining issues of whether damages were caused
by the acts of the defendant and, if so, the measure of those
damages. The court then proceeded to resolve these two issues
without an evidentiary hearing.
We find no clear indication from the record that the defendants
agreed to a resolution of these issues without a traditional trial.
In fact, the record indicates to the contrary. Defense counsel, in
a memorandum responding to the court’s minute entry regarding the
telephone conference, stated that “clearly some testimony,
especially cross-examination of the plaintiff’s witnesses, will be
required.” Also, in defendant’s memorandum in opposition to
plaintiff’s motion for determination of damages, counsel asserted
that issues of fact and law were presented as to “whether or not the
newly alleged damages were the natural consequences of said
offending acts.” In that same memorandum, counsel challenged
whether the government had established that defendants could have
foreseen the bankruptcy and the ultimate damages claimed under the
Small Business Administration’s(SBA) damage model, presented for the
first time after remand.
In sum, the record does not reflect the defendants' consent to
the procedure followed by the district court in resolving these
issues without a trial. We, therefore, vacate the judgment of the
district court and remand this case so that the SBA can amend its
complaint to allege the nature of the damages it now claims, allow
the defendants to respond and after opportunity for pre-trial
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discovery - and in the absence of a stipulation to the contrary -
to resolve these issues by established summary judgment procedures
or trial.
VACATED AND REMANDED.
3