IN THE SUPREME COURT OF THE STATE OF MONTANA 

No. 92-246 

STATE ex rel. PARK COUNTY, 

Relator, 

ORDER 

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MONTANA SIXTH JUDICIAL DISTRICT 

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COURT, PARK COUNTY, THE HONORABLE 

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 

1 
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 

2 
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 

3 
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 

4 
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 

5 
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. 

6 
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. Cozzens and 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