* Pursuant to 5 TH C IR

. R. 47.5, the court has determined that this opinion should not be

published and is not precedent except under the limit ed circumstances set forth in 5 TH C IR

. R. 47.5.4. UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 97-20418

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In The Matter Of: DAVID J FELT,

Debtor

OFFICE OF THRIFT SUPERVISION,

Plaintiff-Appellee,

versus

DAVID J FELT,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

(H-94-CV-3979)

March 1, 1999

Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges. *

EMILIO M. GARZA, Circuit Judge:

David J. Felt appeals the summary judgment entered against him sua sponte on the question

of whether or not his violation of fiduciary duties under 11 U.S.C. § 523(a)(4) was willful. He argues

that the district court erred because it did not give him ten days’ notice before entering summary

judgment sua sponte.

A district court possesses the powe r t o ent er summary judgment s ua sponte. S ee Celotex1 We find harmless error based on an evaluation of the additional evidence only when the losing

party has chosen to submit all of his additional evidence to the district court or to us. S ee Nowlin v.

Resolution Trust Corp., 33 F.3d 498, 505 (5th Ci r. 1994) (finding harmless error when the losing

party’s additional evidence was insufficient to preclude summary judgment); Resolution Trust Corp.

v. Sharif-Munir-Davidson Dev. Corp., 992 F.2d 1398, 1403 (5th Cir. 1993) (finding harmless error

whe n t he lo sing party had submitted evidence to the district court after summary judgment was

granted sua sponte ); Norman v. McCotter, 765 F.2d 504, 508 (5th Cir. 1985) (finding harmless error

where the losing party’s affidavit, which “fully informed us of the factual issues he desired to raise,”

was insufficient to preclude summary judgment); see also Pow ell v. United States, 849 F.2d 1576,

1580, 1582 (5th Cir. 1988) (not finding harmless error when the losing party claimed that there was

a genuine issue of material fact and had not submitted the addition al evidence supporting his

contention).

-2- Corp. v. Catrett, 477 U.S. 317, 326, 106 S. Ct. 2548, 2554, 91 L. Ed. 2d 265,

___ (1986). However,

it must give notice to the party against whom it intends to ente r summary judgment s ua sponte at

least ten days before doing so. S ee Nowlin v. Resolution Tr ust Corp., 33 F.3d 498, 504 (5th Cir.

1994); see also Powell v. United States, 849 F.2d 1576, 1579 (5th Cir. 1988) (“Since a sum mary

judgment forecloses any future litigation of a case the district court must give proper notice to insure

that the nonmoving party had the opportuni ty to make every possible legal and factual argument.”).

Any reasonable doubt about whether or not the district court gave proper notice must be resolved

in favor of the losing party. S ee NL Indus., Inc. v. GHR Energy Corp., 940 F.2d 957, 965 (5th Cir.

1991). “[W]e have vacated summary judgments and remanded for further pro ceedings where the

district court provided no notice prior to granting summary judgment sua sponte, even where

‘summary judgment may have been proper on the merits.’” Leatherman v. Tarrant County Narcotics

Intelligence and Coordinat ion Unit, 28 F.3d 1388, 1398 (5th Cir. 1994) (citing Judwin v. United

States Fire Ins. Co., 973 F.2d 432, 437 (5th Cir. 1992)).

We excuse non-compliance with the ten-day notice requirement when it amounts to harmless

error. S ee Powell, 849 F.2d at 1580-82. We find harmless error if the losing party admits that he has

no additional evidence, or if we evaluate all of the losi ng party’s additional evidence and find no

genuine issue of material fact. 1 See id. at 1582.

After reviewing the record, we hold that the district court failed to give Felt ten days notice

before entering summary judgment against him sua sponte. We further hold that this error was not-3-

harmless. Felt reports having additional evidence that is sufficient for a reasonable fact-finder to find

that he was not willful. He has not had a chance to submit all of his additional evidence; he says that

only some of it is in the record. Accordingly, we reverse the summary judgment entered against Felt

on the question of his willfulness, vacate the porti on of the district court’s final judgment declaring

$1,492.410.00 of the $4,271,120.00 judgment en t ered against Felt in Federal Home Loan Bank

Board v. Felt

, Civil Action No. H-88-1204 (S.D. Tex. Jan. 9, 1991), nondischargeable in bankruptcy

pursuant to § 523(a)(4), and remand for further proceedings consistent with this opinion.

Reversed in part, Vacated in part, and Remanded in part.