                                                        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opinion should not be published and is not precedent except under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

                                     2
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.




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