No. 90-083 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

FAY LARSON, 

Plaintiff and Respondent, 

-vJACK UNDEM and LYDIA UNDEM, 

Defendants and Appellants. 

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APPEAL FROM: District Court of the Fourth Judicial ~istricE 

In and for the County of Missoula, .I. 

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The Honorable Jack L. Green, Judge presifing. 

COUNSEL OF RECORD: 

For Appellant: 

Raymond P. Tipp; Tipp, Frizzell & Buley; Missoula, 

Montana 

For Respondent: 

Noel K. Larrivee; Larrivee Law Off ices; Missoula, 

Montana 

Filed: 

Submitted on Briefs: August 23, 1990 

Decided: November 8, 1990 
Justice Fred J. Weber delivered the Opinion of the Court. 

This is an action for breach of contract covering the sale of 

real estate. Defendants appeal from the judgment entered by the 

District Court for the Fourth Judicial District, Missoula County, 

granting plaintiff specific performance of the contract, surveying 

costs and attorney fees and emotional distress damages. We reverse 

the award of emotional distress damages and otherwise affirm the 

District Court. 

The issues for our consideration are: 

1. Whether Larsongs claim is barred by the statute of 

limitations or laches? 

2. Whether the District Court erred in awarding Larson 

emotional distress damages? 

3. Whether the District Court erred in granting Larson 

specific performance of the contract? 

In a bench trial, the District Court found the following facts 

which are supported by substantial evidence in the record: In June 

of 1972, plaintiff (Larson) entered into a written contract with 

defendants (Undems) whereby Larson sold Undems a parcel of land 

reserving seven acres of the parcel for Larsong s personal use. The 

contract for deed and other necessary documents were prepared by 

Larsongs attorney. Although Mr. Undem is not a licensed surveyor, 

the parties agreed that Mr. Undem would prepare the property 

description including the description of the seven acres reserved 

by Larson. 
The parties together examined the land to be sold including 

the boundaries of the tract which Larson desired to reserve for 

herself. Mr. Undem then prepared the first description which was 

used in the preparation of the contract and deed. The first 

description was inaccurate. The description of the seven acre 

reservation contained land which was a part of the Burlington 

Northern Railroad (BN) right-of-way, and the metes and bounds 

description did not close. The District Court specifically found: 

"The legal description contained in the real property transfer 

documents . . . was supplied by Defendant Jack Undeml1 and I1Larson 

relied upon the legal description provided by Undem when she 

executed the contract documents and Warranty Deed1'. 

After the execution of the contract and deed, Larson 

discovered that the legal description was incorrect, and requested 

that Mr. Undem prepare a proper description. Mr. Undem 

acknowledged that the first description was incorrect. Mr. Undem 

obtained the help of an engineer to prepare the second description 

of the land. They referred to public records, Montana Highway 

plats and BN plats. They prepared a second description and made 

a diagram of that description, and delivered the same to Larson and 

her attorney. At that time none of the parties realized that the 

second description was incorrect because it still included a 

portion of the BN right-of-way and failed to accurately describe 

the reserved seven acre parcel. 

In April or May of 1973, Larson and her sons measured the land 

and discovered that the second description was inaccurate and did 
not encompass the property she reserved. Larson so informed Mr. 

Undem. Mr. Undem failed to prepare a third description. The 

District Court concluded: I1Larson had at all times relied upon 

Undem to pr'ovide a valid legal description for the seven acre 

parcel of land which was reserved by her. Undems failure to 

provide such a legal descripton . . . constitutes a breach of said 

contract." 

The contract also provided that Undems were not to sell or 

convey the property purchased from Larson without Larsonls written 

consent. Nonetheless, on October 29, 1984, approximately 26 months 

before the last payment was made to Larson, Undems sold and 

conveyed the property purchased from Larson to a third party 

purchaser (Olsons). Undems did not obtain the required consent 

from Larson. In the Olson contract Mr. Undem used the second 

description which he knew to be incorrect. The District Court 

found that Mr. I1Undem knew that the legal description contained in 

[the] contract was inaccurate and invalid and entered into the 

third-party contract with [such] knowledge.I1 

The last payment on the Larson-Undems contract was made in 

December of 1986. The deed was obtained from escrow and recorded 

in January, 1987. Several months after receiving the last payment, 

Larson hired a surveyor to provide a legal description for the 

reserved land, at a cost of $700. In October 1987, Larson filed 

suit against Undems requesting specific performance of the 

contract; emotional distress damages; and sought to quiet title 

against the Olsons for her seven acres. She also requested her 
costs and attorney's fees. 

The District Court concluded that Undems breached the contract 

when they sold the property on October 29, 1984, without first 

obtaining the written consent of Larson. The court further found 

that the Undems breached the contract when they failed to provide 

an accurate legal description of the reserved seven acre tract. 

Undems appeal. 

I 

Whether Larsonrs claim is barred by the statute of limitations 

or laches? 

Undems maintain that Larsonrs claims are barred by the statute 

of limitations. They raised this issue before the District Court 

in a motion for summary judgment. The District Court denied their 

motion. They argue that the statute of limitations started to run 

in 1973 when Larson discovered that the second legal description 

prepared by Mr. Undem was erroneous. They urge that by not 

immediately acting upon that discovery she waived any right to 

raise the claim later. 

An action for breach of a written contract must be brought 

within eight years under 5 27-2-202, MCA. A contract for deed has 

been construed as a contract in writing to which the eight year 

statute applies. Neils v. Deist (1979), 180 Mont. 542, 591 P.2d 

652. The eight year statute of limitations begins to run when the 

cause of action accrues. McWilliams v. Clem (1987) , 228 Mont. 297, 

743 P.2d 577. We conclude that the first cause of action accrued 

on October 29, 1984, when the Undems contracted with the Olsons to 
sell the property purchased from Larson using the second property 

description known by the Undems to be inaccurate, and also without 

first obtaining the written consent of Larson. We conclude that 

the action was brought by Larson within the eight year statute of 

limitations. 

Undems also argue that Larsonts cause of action was barred by 

laches. Laches exists where there has been an unexplainable delay 

of such duration or character as to render the enforcement of an 

asserted right inequitable, and is appropriate when a party is 

actually or presumptively aware of his rights but fails to act. 

Sperry v. Montana State Univ. (1989), 239 Mont. 25, 778 P.2d 895; 

Smithers v. Hagerman (Mont. 1990), - P.2d1 47 St.Rep. 1483. 

Undems sold the property without Larsonts consent in October of 

1984. The last payment on the contract was tendered in December 

of 1986 and Larson filed suit in October of 1987. We agree with 

the District Court conclusion that the facts do not demonstrate an 

inequitable delay on the part of Larson. 

We affirm the District Court's holding that Larson's claim 

was not barred by either the statute of limitations or laches. 

I1 

Whether the District Court erred in awarding Larson emotional 

distress damages? 

The District Court awarded Larson $10,000 in emotional 

distress damages. Undems maintain that emotional distress damages 

are not recoverable in a contract action. They argue that contract 

damages allow the injured to receive the benefit of the bargain, 
no more, no less. They urge that emotional distress damages are 

not damages within the reasonable contemplation of the parties at 

the time the contract was entered, and are therefore unrecoverable. 

Undems urge that there is not sufficient evidence to support a 

claim for emotional distress. They contend the only evidence was 

Larsonls testimony that she lost sleep on some nights and was very 

upset. 

Larson maintains that her repeated attempts to obtain the 

correct legal description of the reserved property, and the 

subsequent discovery that the property had been sold without her 

consent, caused her stress, anxiety and frustration. She contends 

that the amount of damages awarded her was reasonable under the 

circumstances. 

It is important that we distinguish the present emotional 

distress claim in a breach of contract action from emotional 

distress damage claims in tort actions. Section 27-1-303, MCA, 

contains a limitation on damages for breach of obligation. It 

states: 

27-1-303. Limitation of damages for breach of 

obligation. No person can recover a greater amount in 

damages for the breach of an obligation than he could 

have gained by the full performance thereof on both sides 

unless a greater recovery is specified by statute. 

By its wording this statute limits the recovery to the amount the 

plaintiff could have gained by full performance of the contract. 

That rule applies unless there is a greater recovery specified in 

some other statute. 

section 27-1-311, MCA, sets forth the key provisions with 
regard to breach of contract: 

27-1-311. Breach of contract. For the breach of 

an obligation arising from contract, the measure of 

damages, except when otherwise expressly provided by this 

code, is the amount which will compensate the party 

aggrieved for all the detriment which was proximately 

caused thereby or in the ordinary course of things would 

be likely to result therefrom. Damages which are not 

clearly ascertainable in both their nature and origin 

cannot be recovered for a breach of contract. 

It is important that we also look at the same time at the damage 

section applying to obligations not arising from contract, which 

states: 

27-1-317. Breach of obligation other than contract. 

For the breach of an obligation not arising from contact, 

the measure of damages, except where otherwise expressly 

provided by this code, is the amount which will 

compensate for all the detriment proximately caused 

thereby, whether it could have been anticipated or not. 

We note that under 5 27-1-317, MCA, for breach of an obligation not 

arising from contract, the measure is the amount which will 

compensate for all the detriment proximately caused, whether it 

could have been anticipated or not. This is the measure of damages 

to be used in a tort action. That tort measure of damages is to 

be distinguished from the measure under 5 27-1-311, MCA, which 

provides that for a breach of contract a party may collect damages 

for all the detriment proximately caused thereby (which is similar 

to the wording in 5 27-1-317) but contains the additional 

limitation that the detriment must in the ordinary course of things 

be likely to result therefrom and the damages must be clearly 

ascertainable in nature and origin. These code sections were not 

discussed in the lower court opinion. We have carefully reviewed 

the transcript to determine if there was a basis for emotional 
distress damages. 

We conclude that the evidence does not show that in the 

ordinary course of things, emotional distress damages were likely 

to result from the defendant's breach of contract. We further 

conclude that the evidence presented fails to establish that the 

emotional distress damages were clearly ascertainable in origin. 

We hold that the District Court erred in awarding Larson emotional 

distress damages. 

I11 

Whether the District Court erred in granting Larson specific 

performance of the contract? 

Undems sold their land to Olsons in 1984. Larson did not file 

her complaint until 1987. Undems maintain that the District Court 

erred in granting specific performance because they cannot transfer 

title they no longer have. 

Larson maintains that in a contract for deed legal title to 

the property remains vested in the sellers. Therefore, Larson 

contends that specific performance was proper. We agree. 

Specific performance is an equitable remedy and is a matter 

of discretion for the District Court. Seifert v. Seifert (1977), 

173 Mont. 501, 568 P.2d 155; Myhre v. Myhre (1976), 170 Mont. 410, 

554 P.2d 276. Upon reviewing the record, we conclude the District 

Court did not abuse its discretion in granting specific 

performance. Therefore, we hold that the District Court correctly 

granted Larson specific performance. 

We reverse the portion of the judgment granting emotional 
distress damages to the plaintiff and affirm the balance of the 

judgment . 

We Concur: 

/ 

i Justices l 
IN THE SUPREME COURT OF THE STATE OF MONTANA 

No. 90-083 

FAY LARSON, 

Plaintiff and Respondent, 

-vJACK UNDEM and LYDIA UNDEM, 

Defendants and Appellants. 

ORDE 

The defendants/appellants have filed a petition for rehearing 

and plaintiff/respondent has filed a response. After considering 

the same, we order that the following change be made in our opinion 

in this matter. 

Delete the last paragraph on page 4 which reads as follows: 

The last payment on the Larson-Undems contract was 

made in December of 1986. The deed was obtained from 

escrow and recorded in January, 1987. Several months 

after receiving the last payment, Larson hired a surveyor 

to provide a legal description for the reserved land, at 

a cost of $700. In October 1987, Larson filed suit 

against Undems requesting specific performance of the 

contract; emotional distress damages; and sought to quiet 

title against the Olsons for her seven acres. She also 

requested her costs and attorney's fees. 

The name NUndemsll should have been used rather than "Olsons." 

Replace the last paragraph on page 4 with the following: 

The last payment on the Larson-Undems contract was 

made in December of 1986. The deed was obtained from 

escrow and recorded in January 1987. Several months 

after receiving the last payment, Larson hired a surveyor 

to provide a legal description for the reserved land, at 

a cost of $700. In October 1987, Larson filed suit 

against Undems requesting specific performance of the 

contract; emotional distress damages; and sought to quiet 

title against the Undems for her seven acres. She also 
requested her costs and attorney's fees. 

In all other respects, our opinion shall remain unchanged. 

Petition for is denied. 

DATED this