### INTHESUPREMECOURTOFTHESTATE OFMONTANA No. 92-246 STATE ex rel. PARKCOUNTY,

Relator, ORDER -v- ; MONTANASIXTH JUDICIAL DISTRICT ) OPIyDIOVN TTE ;: $7 COURT, PARKCOUNTY,THEHONORABLE BYRONL. ROBB, Presiding Judge, jp ,ji,jj_,:,y i,:,, j iJi-1 F,~j 23'i.?J:!z, Respondent. ,~ ;., i&i _~i:,~: CiJfi;~.; ';i:$1 ., ;~';:ci-;~ ;& This Court onMay28, 1992, in response to anapplication for writs, ordered the respondent/plaintiff (Kenneys), to respond to the application within adetermined time period andfurther 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. Wedissolve the injunctions. Park County has filed herein an application for awrit of supervisory control and other appropriate writs of relief. However, wewill treat the application asanappeal. Under Rule 1(b)(2) 

### ,M.R.App.P., aparty may appeal from ajudgment or order granting or dissolving an injunction, or refusing to grant or dissolve aninjunction. Wewill not consider whether the facts set forth meet the criteria for our consideration and exercise of

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### jurisdiction over anapplication 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 hadsettled to the bottom of each pond. Inthe contract there wasabase amount for the removal of 60cubic yards of sludge based on anestimated 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 beremoved. Kenneys proceeded to

remove 

### the sludge from 

### the first of the two ponds. Thereafter it submitted aclaim 

### for $120,000, alleging that it hadremoved at the very least 2400 cubic yards of sludge based on apercentage of solid content. Kenneys further asserted aright to $240,000 for 4800cubic yards of sludge based onadifferent 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 onthe second aeration pond which it argued waspermissible under the construction contract. Previous to the deletion, onFebruary 25, 1992, Kenneys filed suit in the District Court of the Sixth Judicial District for breach of

2contract, 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 abreach 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

3enjoined 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 5165 (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

4of 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 acontractual 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. Acontractor 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 adetermination whether the County had abasis 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 5fixed 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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### June30,1992 CERTIFICATEOFSERVICE IherebycertifythatthefollowingorderwassentbyUnitedStatesmail,prepaid,tothe followingnamed:

L.B.CozzensandNeilG.Westesen Crowley,Haughey,Hanson,Toole&Dietrich P.0.Box2529 Billings,MT59103-2529 LawrenceR.MartinandRandallG.Nelson Felt,Martin,Frazier&Lovas P.0.Box2558 Billings,MT59103-2558 EDSMITH CLERKOFTHESUPREMECOURT