No. 13215 

'IN THE SUPREME COURT OF THE STATE OF MONTANA 

1976 

ORVIS C. LOVELY and DONALD R. LAUBACH, 

Plaintiffs and Appellants, 

-vs - 

RURROUGHS CORPORATION, a corporation, 

Defendant and Respondent. 

Appeal from: District Court of the Sixth Judicial District, 

Honorable Charles B.Sande, Judge presiding. 

Counsel of Record: 

For Appellants : 

Josephson and Fredricks, Big Timber, Montana 

Conrad B. Fredricks argued, Big Timber, Montana 

For Respondent: 

Henson and Tully, Minneapolis, Minnesota 

Robert Henson argued, Minneapolis, Minnesota 

Landoe and Gary, Bozeman, Montana 

Joseph B . Gary appeared, Bozeman, Montana 

Submitted: March 1, 1976 

~ec ided : ~PH 4 1976 

Filed : APK 3 - '91b 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

This is an appeal by plaintiffs from the action taken 

by the district, Park County, pursuant to our earlier opinion 

and remand in Lovely and Laubach v. Burroughs Corporation, 165 

Mont. 209, 527 P.2d 557, 31 St.Rep. 824. 

Following remand the district court held a further hearing and received additional evidence concerning one item of 

damages, viz. plaintiffs' loss on the sale of their Livingston 

accounting practice. Thereafter the district court entered the 

following: 

"ADDITIONAL FINDINGS OF FACT AND JUDGMENT 

"This cause was remanded by the Montana Supreme 

Court on October 21, 1974, with directions to 

reconsider Finding of Fact No. 13 and the item of 

'Loss of sale of Livingston business' contained in 

paragraph 4 of the Conclusions of Law, and also to 

consider the Motion to Re-tax Costs. 

"On April 4, 1975, the Court heard further testimony 

on the item of damages. Evidence upon the part of 

the plaintiff reaches a high of $48,966.00, and 

evidence on the part of the defendant reaches a low 

of $17,398.00. No convincing reasons appear to the 

Court that the particular sale was a forced sale 

and furthermore the Court is not overly convinced 

with the testimony of either side considering this 

item of damages, therefore, 

"IT IS ORDERED the original Amended Findings of 

Fact and Conclusions of Law should stand as originally 

filed. 

"IT IS FURTHER ORDERED that the item in plaintiffs' 

Memorandum of Costs totalinq $603.28 be reduced and 

allowed in the amount of $117.18. 

"Each party to bear their own costs on this appeal. 

"Dated this 4th day of Aug.ust, 1975." 

Plaintiffs now appeal from this determination and from 

the district court's refusal to amend it in conformity with 

plaintiffs' request. 

Plaintiffs list the following issues for review in their 

appeal which we will summarize as follows: 
(1) Did the district court err in receiving additional 

evidence following remand? 

(2) Did the district court err in fixing the amount 

of damages for the loss on the sale of the Livingston accounting 

business of plaintiffs? 

(3) Did the district court err in taxing the costs of 

the transcript of the hearing following remand against plaintiffs? 

We hold the district court did not commit error in holding a further hearing and receiving additional evidence over the 

objections of plaintiffs concerning the loss on the sale of 

plaintiffs' Livingston accounting practice. This matter was left 

to the discretion of the trial court in our opinion ordering 

remand. We simply remanded " * * * for a redetermination of the 

amount of damages arising from the loss on the sale of the Livingston business" without direction or restriction on the method to 

be utilized by the district court. Where a case is remanded under 

such circumstances, it is for the trial court to determine in its 

discretion whether the record before it is sufficient for this 

purpose or whether additional evidence should be taken to supplement the record. S Creek Ranch, Inc., a corporation v. Monier 

& Company, Wyo . , 518 P.2d 930; Sokel v. Nickoli, 356 Mich. 

460, 97 N.W.2d 1; Fullerton Lumber Co. v. Torborg, 274 Wisc. 478, 

80 N.W.2d 461. 

We further hold that the district court erred a second 

time in fixing the amount of plaintiffs' damages for their loss 

on the sale of their accounting business in Livingston. At the 

original trial the only testimony on this item of damages was 

that of Mr. Pyfer who fixed the range of damages between $28,801 

and $48,960. The district court fixed the damages on this item 

at $3,268. We remanded to the district court for redetermination 

of this item of damages. Lovely & Laubach v. Burroughs Corporation, supra. 
Upon remand the district court held another hearing to 

determine this item of damages. At this hearing three expert 

witnesses on the valuation of an accounting practice testified. 

Mr. Pyfer's testimony was substantially the same as he 

gave at the trial. Mr. Broeker's testimony, in essence, was 

that the buyer of plaintiffs' Livingston accounting practice 

paid $1,352 more than its value so plaintiffs' suffered no damage on the sale. Mr. Anderson's testimony was that the sale 

price was about right so plaintiffs suffered no damage on the 

sale of their accounting practice. 

The district court thereupon held that its original 

determination of this item of damages at $3,268 should stand. 

This is incredible! The district court fixed the damages 

in an identical amount down to the last dollar on the basis of 

two different records. The amount of damages was outside the 

range of any testimony or evidence. There is simply nothing in 

the record either at the trial or in the subsequent hearing that 

supports an award of $3,268 for plaintiffs' loss on the sale of 

their Livingston accounting practice. 

Accordingly we vacate the "ADDITIONAL FINDINGS OF FACT 

AND JUDGMENT" of the district court dated August 4, 1975. We 

remand again to the district court for prompt determination of 

damages for plaintiffs' loss on the sale of their Livingston 

accounting practice. The district court is directed to make 

this determination on the basis of the record presently before 

it without additional hearing or reception of further evidence. 

The district court is further directed that after determining this 

item of damages within the range of the evidence, to retax costs 

accordingly, and enter judgment in conformity with this opinion 

and our previous opinion in this cause. 

Justice 

-4- 
sitting in place of Mr. Chief 

Justice James T. Harrison.