### No. 

### 13215 

### 'INTHE 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 SixthJudicial 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: 

### APK3 - 

### '91b

### Mr. Justice Frank I. Haswell delivered the Opinion of the Court.

This 

### isan appeal by plaintiffs from the action taken by the district, Park County, pursuant toour earlier opinion and remand inLovely and Laubach v. Burroughs Corporation, 165 Mont. 209, 527 P.2d 557, 31 St.Rep. 824. Following remand the districtcourt held a further hearing and received additional evidence concerning one 

### itemof damages, viz. plaintiffs' loss on the 

### sale of their Livingston accounting practice. Thereafter the districtcourt 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 

### itemof 'Loss of saleof Livingston business' contained in paragraph 4 of the Conclusions of Law, and also to consider theMotion toRe-tax Costs. "On April 

### 4, 1975, the Court heard further testimony on the 

### itemof 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 tothe Court that the particular 

### sale was 

### a forced 

### sale and furthermore the Court is not overly convinced with the testimony of either sideconsidering this 

### itemof damages, therefore, "IT IS ORDERED the originalAmended Findings of Fact and Conclusions of Law should stand asoriginally filed. "IT IS FURTHER ORDERED that the 

### iteminplaintiffs' Memorandum of Costs totalinq $603.28 be reduced and allowed inthe amount of $117.18. "Each party tobear their own costs on this appeal. "Dated this 4th day of Aug.ust, 1975." Plaintiffsnow appeal from thisdetermination and from the districtcourt's refusal toamend 

### it inconformity with plaintiffs' request. Plaintiffs 

### list the following issues for review in their appeal which 

### wewill summarize as follows:(1)Did the district court err inreceiving additional evidence following remand? (2) Did the districtcourt 

### 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 districtcourt did not commit error inholding a further hearing and receiving additional evidence over the objections of plaintiffs concerning the losson the 

### sale of plaintiffs' Livingston accounting practice. This matter 

### was left to the discretion of the trial court inour opinion ordering remand. We simply remanded 

### " 

## * * * for a redetermination of the amount of damages arising from the losson the sale of the Livingston business" without direction or restrictionon themethod to be utilized by the districtcourt. Where a case 

### isremanded under such circumstances, it is for the trial court todetermine in its discretionwhether the record before 

### it 

### is sufficient for this purpose orwhether 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 inLivingston. Atthe original trial the only testimony on this 

### itemof 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. Weremanded to the districtcourt for redetermination of this 

### itemof damages. Lovely & Laubach v. Burroughs Corporation, supra.Upon remand the district court held another hearing to determine this item of damages. Atthis hearing three expert witnesses on the valuation of an accounting practice testified. Mr. Pyfer's testimony was substantially the same ashe gave atthe trial. Mr. Broeker's testimony, inessence, 

### was that the buyer of plaintiffs' Livingston accounting practice paid $1,352 more than 

### itsvalue so plaintiffs' suffered no damage on the 

### sale. Mr. Anderson's testimony 

### was that the sale pricewas about right soplaintiffs suffered no damage on the 

### sale of their accounting practice. The districtcourt 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 tothe 

### 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 atthe trialor inthe subsequent hearing that supports an award of $3,268 for plaintiffs' losson the 

### sale of their Livingston accounting practice. Accordingly 

### we vacate the "ADDITIONAL FINDINGS OF FACT AND JUDGMENT" of the districtcourt dated August 

### 4, 1975. We remand again tothe districtcourt for prompt determination of damages for plaintiffs' loss on the saleof their Livingston accounting practice. The districtcourt 

### isdirected tomake thisdetermination on the basis of the record presently before it without additional hearing orreception of further evidence. The districtcourt 

### is further directed that after determining this 

### itemof damages within the range of the evidence, toretax costs accordingly, and enter judgment inconformity with this opinion and our previous opinion inthiscause.

Justice -4-

### sitting inplace of Mr. 

### Chief JusticeJames T. 

### Harrison.