Following our remand of this case to the district court, it held a telephone conference with counsel and discussed resolving in 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 plaintiffs witnesses, will be required.” Also, in defendant’s memorandum in opposition to plaintiffs 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 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.