                       IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                            No.     92-246

STATE ex rel.                  PARK COUNTY,

                               Relator,
                                                                                                                  ORDER
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BYRON L. ROBB, Presiding   Judge,
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          This        Court     on May 28,                1992,          in    response             to    an application                    for

writs,          ordered         the          respondent/plaintiff                         (Kenneys),               to         respond        to
the      application            within           a determined                  time     period           and further              ordered

that       the        preliminary                 and      permanent                  injunctions                 enjoining              Park

County          from      interfering                    with       Kenneys'              removal            and         disposal            of

sludge          and      debris          temporarily                 be        vacated           and        stayed.               Kenneys
having          now filed              its       response           and         brief         the        matter          is     ripe        for

decision.               We dissolve               the      injunctions.

           Park       County          has       filed           herein          an application                     for         a writ        of

supervisory               control               and        other              appropriate                 writs           of      relief.

However,          we will             treat        the      application                 as an appeal.                         Under      Rule

1 (b) (2) , M.R.App.P.,                        a party           may appeal               from           a judgment              or     order
granting           or     dissolving                an         injunction,               or      refusing                to     grant        or

dissolve          an injunction.                    We will          not        consider            whether          the        facts       set
forth        meet        the      criteria               for       our         consideration                 and         exercise            of




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jurisdiction                     over        an application                             for      writ         of      supervisory                      control.

           In        1991         Park         County              (County)                   entered              into              a contract                   with

Kenneys,                 which         called              for        repairs                 and        renovations                       to        the       Waste

Water              Treatment                  Plant              in           Gardiner,                      Montana,                  including                   the

installation                      of     an         impermeable                         liner           under              two         large           settling

ponds.               As part            of         the     repair              process,                 Kenneys              was to              remove            and

dispose              of the         sludge           which            had settled                     to the           bottom               of each pond.

In the          contract               there         was a base                     amount             for      the        removal              of      60 cubic

yards           of       sludge         based             on an estimated                               quantity                 of        sludge           in     the
ponds.                    This           estimate                     was           prepared                    by         H.K.M.                Associates

Engineers/Planners,                                 the      engineering                        firm          retained                 by the              County.
Also          in         the      contract                 was         a       requirement                      that             a     unit            price         be

submitted                 for       each           additional                    cubic            yard          over          and           above           the      60

cubic         yards            of sludge             which            might             be removed.                    Kenneys               proceeded               to

remove             the     sludge             from         the        first             of      the      two ponds.                        Thereafter                it
submitted                 a claim            for         $120,000,               alleging                that         it     had removed                    at the

very          least            2400      cubic             yards           of        sludge              based             on a percentage                           of

solid           content.                Kenneys              further                asserted                  a right                 to     $240,000               for

4800 cubic                 yards        of         sludge          based            on a different                         percentage                   of solid

content.                  The      County                objected              to        this         claim           and has                not       paid        the

same.

           On March                    19,         1992,           the          County                ordered               deletion                   from        the

contract                 the     sludge             removal              on the               second            aeration                   pond        which         it

argued             was permissible                         under           the          construction                       contract.                    Previous

to      the        deletion,                 on February                      25,        1992,          Kenneys              filed              suit        in      the
District                  Court         of          the          Sixth           Judicial                    District                  for         breach            of


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contract,                   claiming                   nearly               $200,000                    in         damages                 for       payment                 allegedly

due       for        work           on         the       first              pond.                As          part          of         that           lawsuit,                  on         April

29,       1992,             the          District                    Court           granted                       a preliminary                          injunction                          and

ordered              that           the         County               was         enjoined                     from          interfering                         with           Kenneys'

performance                       of      the          sludge              removal                  work            on the                 second          aeration                       pond.

            Subsequently,                              both          parties                   filed               motions,                  including                  motions                   to

dissolve,                    and          motions                    for          contempt.                            A        hearing                 was            set          on        the

motions              for           May          11,          1992.               On May                 6,         1992,              Kenneys             filed                a motion

for       summary                  judgment                    contending                        that               the         County's                  deletion                        order

constituted                        a breach                   of         contract.                      On May                  7,      1992,            Kenneys                    filed              a

second           motion                  for          summary               judgment                     asking                 the          court         to      convert                    the

preliminary                        injunction                        into            a    final                injunction.                              On May                 8,         1992,

the       County                telefaxed                     to      Kenneys'                    counsel                   a formal                   objection                     to       the

hearing              on      the          motions                  for       summary                   judgment                      and         especially                    declined

to      waive             the           County's                   right           to         the            ten      day             notice            period                 on         these

motions.                     The          County's                       formal               objection                       to        the           early            hearing                    on

Kenneys'                   motion                for          summary                    judgment                     was             hand           delivered                       to       the

court           on        May           11,          1992.               The       District                        Court              overruled                  the           County's

objections                         to          the           hearing                     on            the           summary                      judgment                     motions.

Following                   oral              argument,                    the       District                       Court             denied             Kenneys'                    motion

for       contempt,                       and          denied               Kenneys'                     motion                 for             summary            judgment                       on

the       contract.                             Further,                    the          District                      Court                 denied             the            County's

motion               to         dissolve                      or           modify                the               injunction,                          and            denied                 the

County's                  motion               for       summary                  judgment                    relative                     to      Kenneys'                  claim            for

injunctive                      relief.                      However,                    the           District                      Court            granted                  Kenneys'

motion            for           summary                  judgment                    requesting                           the          County             be       permanently


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enjoined                from                interfering                          with        Kenneys'                      performance                             of      the          sludge

removal                contract.                             The         oral           ruling               was          reduced                     to      writing                   on       May

12,        1992         and            this             application                         followed.

             Our        scope                 of         review                 relative                to          the          issue                of      whether                   or       not

injunctive                         relief                     was         improper,                       is          to          determine                             whether                  the

District                  Court's                       determination                             as         to       the             law             is       correct.                          See

Steer,             Inc.             v.         Dept.                of     Revenue                     (1990),                  245         Mont.                  470,          803           P.2d

601.

             Section                   27-19-103(5),                                 MCA      (1991),                 provides                        as      follows:

                              An       injunction                         cannot             be        granted:
             .     .      .
                      (5)                     to         prevent                   the             breach               of        a               contract         the
             performance                           of      which                would            not be              specifically                        enforced:
             . . .

Generally                     construction                               contracts                     cannot               be         specifically                              enforced

because                       performance                                would               constitute                                a          personal                         service

approximating                                 involuntary                             servitude.                                Further,                      money                damages

provide                 an          adequate                         legal                 remedy.                         One             of          the              most            common

applications                           of      this             rule            is      found           in          cases             involving                         building                 and

construction                           contracts.                            These           contracts                      will                not        be           specifically

enforced,                     partly               because                 damages                at      law         are         an        adequate                      remedy,                and

partly             because                    of        the         incapacity                    of         the          court             to         superintend                           their

performance.                             See            71 Am.Jur.2d,                            Specific                   Performance                             5 165           (1973).

             Here,              Kenneys                  have            an adequate                     remedy                  at        law         for         damages                   under

the        contract.                          As        to      this             contract,                     it         can         be        readily                   envisioned,

that         questions                         will             arise                and     be         presented                          to       both             the         District

Court            and          to       this             Court,               as       they            have           in         the         past,             which              will            put

the        court              system               in         the        position                 of      superintending                                     the          performance


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of      a contract.                              As       stated                   above,               this           is         one         of         the        major              reasons

why       the             performance                            of         this              contract                  should                 not             be     specifically

enforced.

            Kenneys                      argue             that                  injunctive                    relief                is          appropriate                           because

section                   6.29             of      the            contract                       creates                    an       obligation                         of            specific

performance                           on         the        part                  of      the          contractor.                                 If      the          contract                     is

found           to        require                  specific                       performance,                          then            the             remedy             of         specific

performance                         is          made         reciprocal                           by       operation                       of           law.               See         § 27-1-

414,        MCA.                 Section                  6.29               of         the       contract                    provides                    as        follows:

                     CONTRACTOR        shall      carry       on the work            and adhere        to the
            progress        scheduled        during       all      disputes           or disagreements
            with      owner.          No work         shall        be      delayed          or   postponed
            pending        resolution          of     any      disputes           or    disagreements,
            except      as permitted         by paragraph              15.5     [termination]            or as
            CONTRACTOR          and OWNER may otherwise                      agree       in writing.

However,                  section                  6.29           is         a contractual                            obligation                         which               informs              the

contractor                       that             he        is          expected                   to          continue                    his            work             even          though

there           might             be        disputes                        or         disagreements                          with         the            owner.                 This            does

not       mandate                 specific                   performance.                                 A contractor                              would            still              be       free

to      breach                  the             contract                     and          then           be          liable                for           money               damages                 by

reason               of      that               breach.

            The             District                       Court                   granted                 summary                      judgment                      in          favor              of

Kenneys.                         By         granting                        Kenneys'                   motion                 for          summary                   judgment                      and

permanently                           enjoining                        the              County,                the          court               determined                        that             any

deletion                   of         the         sludge                    removal               portion                    of      the            project                  would            be          a

breach               of     the          contract,                      and             made       a determination                                      whether                 the       County

had       a basis                 to            delete                the          work.            However,                      the         County                was          not         given

the       ten         days            notice               required                       under           Rule          56(c),                M.R.Civ.P.,                             from         the

time         of           service                  of       the              motion                for          summary                    judgment                    to         the            time

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fixed         for         the        hearing.                  The        County           made          proper             objections                as

required            by      Rule              56(c),      M.R.Civ.P.,                   and      the       County           did       not     waive

the     requirement                      of      ten    days         notice        under            Rule         56(c).              Therefore,

the     District                 Court           was    without           authority              to      grant            Kenneys'          motion

for     summary             judgment.                   The         injunctions               are        vacated             and       dissolved

and     the         order          of         summary          judgment            is      set         aside        and       the        cause        is

remanded             to     the          Distri$t           Court         for      further              proceedings.

           DATED          this            sO'%ay               of     June,        1992.




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                                     June 30, 1992

                             CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:


L. B. Cozzensand Neil G. Westesen
Crowley, Haughey, Hanson, Toole & Dietrich
P. 0. Box 2529
Billings, MT 59103-2529

Lawrence R. Martin and Randall G. Nelson
Felt, Martin, Frazier & Lovas
P. 0. Box 2558
Billings, MT 59103-2558

                                               ED SMITH
                                               CLERK OF THE SUPREME COURT
