          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                        December 22, 2008

                                       No. 07-30351                   Charles R. Fulbruge III
                                                                              Clerk

J M TULL METALS COMPANY INC

                                                  Plaintiff-Appellee
v.

ROBERT T. CLINE

                                                  Defendant-Appellant



ROBERT T. CLINE

                                                  Plaintiff-Appellant

v.

J M TULL METALS CO INC; RYERSON TULL INC.

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                           USDC Nos. 6:05-CV-329 and
                                      6:05-CV-440


Before JONES, Chief Judge, JOLLY, Circuit Judge, and CARDONE, District
Judge.*


     *
         United States District Judge, Western District of Texas, sitting by designation.
                                       No. 07-30351

PER CURIAM:**
       The court, having heard arguments of counsel and considered the briefs
and pertinent portions of the record, vacates the district court judgment and
remands for further factual development as to whether Body Masters owed a
debt to Ryerson Tull or J M Tull Metals, Inc. at the date of bankruptcy.
       The summary judgment evidence does not eliminate any genuine issue of
material fact concerning the identity of the entity to which Body Masters owed
money at the date of bankruptcy. The invoices bear both companies’ names, and
the conclusory affidavit of a lower level corporate agent fails to establish that the
sales to and receipts from Body Masters were for the sole account of J M Tull
Metals, Inc.
       Contrary to appellee’s argument, the ambiguous stipulation entered in the
bankruptcy court effected no issue preclusion against Robert T. Cline (“Cline”)
because the issue of the corporate identity of the creditor, whether Ryerson Tull,
Inc. or J M Tull Metals, Inc., was not actually litigated and decided in that claim
determination proceeding.
       We also see no merit, from the vantage point of summary judgment
appellate review, in Cline’s arguments that his 1984 letter guaranty to J M Tull
Metals, Inc. is unenforceable.
       Based on the foregoing conclusions, we also vacate the court’s 60(b) ruling
on evidence offered untimely by Cline, because the court should reconsider its
admissibility in connection with further proceedings.
       Accordingly, the judgment of the district court is VACATED and
REMANDED.




       **
         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.

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