STATE EX REL PARK COUNTY v MONTAN
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IN THE SUPREME COURT OF THE STATE OF MONTANA No. STATE ex rel. 92-246 PARK COUNTY, Relator, ORDER -v- ; ) OPIyDIOVN MONTANA SIXTH JUDICIAL DISTRICT COURT, PARK COUNTY, THE HONORABLE BYRON L. ROBB, Presiding Judge, writs, the Court ordered the application that the sludge and having and now filed its County supervisory has control we will treat 1 (b) (2) , M.R.App.P., granting dissolve forth or dissolving an injunction. meet the criteria time with the an application to period vacated and brief and and the to ordered enjoining removal be for respond and further injunctions Kenneys' response to (Kenneys), permanent temporarily We dissolve Park However, interfering debris decision. response a determined preliminary from in respondent/plaintiff within County 1992, on May 28, Park disposal stayed. matter of Kenneys is ripe for injunctions. filed herein and other the an application appropriate application a party an injunction, for not our 1 for a writ writs of as an appeal. may appeal We will i ,:,, j iJi-1 2 3 'i.?J:!z, F,~j ,~ ;., i&i _~ i :, ~: CiJfi;~.;';i: $1., ;~';:ci-;~ ;& Respondent. This $7 TTE ;: jp ,ji, jj _,:, y from or consider consideration refusing relief. Under a judgment of or Rule order to whether and grant or the facts set exercise of jurisdiction over In 1991 Kenneys, an application Park which County called Treatment Water installation ponds. dispose of the of of the the the submitted cubic for yards the remove submitted very each sludge 2400 content. for $120,000, cubic yards Kenneys 4800 cubic yards content. The of of County alleging of sludge further sludge this by the unit based price be the 60 proceeded to Thereafter it had removed at the on a percentage a right to of $240,000 percentage claim the County. above Kenneys it in Associates and that and 60 cubic sludge H.K.M. on a different to of two ponds. asserted based objected the of over first settling remove removal a be removed. the of each pond. that might the large retained yard the including bottom by firm cubic which Waste was to the requirement additional from a claim for prepared a to quantity engineering was of sludge least solid contract with two to the control. a contract Kenneys on an estimated Engineers/Planners, in under amount was into Montana, had settled estimate supervisory renovations process, was a base This Also and liner repair based of Gardiner, which there sludge ponds. repairs in writ entered impermeable sludge contract yards for an As part In the (County) Plant of for and has for of solid not paid the from the same. On March contract the 19, 1992, sludge argued deletion, removal was permissible to the District Court the County on the under the on February 25, of the Sixth ordered second aeration construction 1992, Judicial 2 deletion pond which contract. Kenneys District filed Previous suit for it in the breach of contract, claiming due for work 29, 1992, on the ordered nearly the first the of Court County the dissolve, and motions for for summary second a breach of motion for hearing to summary telefaxed on waive the the to The Kenneys' motion court on May 11, objections oral for contempt, the to County's motion dissolve motion injunctive for summary District modify However, judgment relative the requesting 3 the summary motion judgment the and to Kenneys' granted County be the motions. Court District on County's Kenneys' injunction, these to judgment denied the hearing the denied Court the early overruled for 1992, on delivered summary motion 8, declined period hand a the to especially the Court Kenneys' summary judgment the convert objection notice Court order filed On May to District the or relief. for the Further, day was District on denied ten judgment hearing argument, contract. motion The to the a motion Kenneys court and objection summary the and the formal 1992. to Following to 1992, to on deletion a formal judgment pond. set filed injunction. summary right for the counsel Kenneys' motions was County's 7, final for County's the and aeration Kenneys asking Kenneys' motions County's motions. a with hearing 1992, April injunction second On May judgment on including A 6, allegedly lawsuit, interfering on the that into payment that motions, contract. injunction County work contending preliminary the from On May judgment constituted of contempt. 1992. for a preliminary filed for 11, part enjoined parties motions May As removal both damages granted was sludge Subsequently, in pond. District that performance $200,000 on County's denied claim Kenneys' permanently the for enjoined from removal contract. 1992 12, interfering and Our The this scope injunctive of Inc. ruling was relative was to improper, Dept. of of reduced the the sludge to writing on May of issue is determination v. performance whether or not followed. review Court's Steer, oral Kenneys' application relief District with to to the as Revenue determine law (1990), 245 whether is the correct. Mont. 470, See 803 P.2d 601. Section 27-19-103(5), An . . MCA injunction cannot (1991), be to prevent which of the would Generally construction because performance breach not be would approximating legal of construction contracts. because of that Court the contract. and court to to will this system in One contracts at law are the court an adequate and the as position it be at can be presented they have of 4 in law be the superintending past, and specifically remedy, superintend 5 165 for and their (1973). damages readily to common building adequate to damages most Performance remedy contract, the not an service money involving will Specific arise enforced personal of cases of this Court, specifically a in incapacity contract the enforced: Further, found damages have As questions is 71 Am.Jur.2d, Kenneys be remedy. These the See Here, rule because performance. the this partly cannot servitude. adequate applications of a specifically constitute involuntary an partly follows: granted: contracts enforced, as . (5) performance . . . provide provides under envisioned, both the which the District will performance put of a contract. why the As stated performance above, of this this is contract one of should the not major be reasons specifically enforced. Kenneys section argue 6.29 of performance found part made Section relief creates of specific is MCA. injunctive contract the require performance 414, the on to that the an reciprocal the obligation the operation the specific contract remedy of law. See as of contract because of If then by of appropriate contractor. performance, 6.29 is is follows: provides specific ยง 27-1- 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 contractor that he be disputes there might not mandate to breach of The expected or permanently of had Court ten even owner. A contractor the Kenneys' days the sludge delete notice service would liable for summary the though This still for the court portion and the work. the However, under motion of summary does be free Rule for 5 the in 56(c), of and any would the was M.R.Civ.P., judgment favor that project County by judgment whether the summary damages determined a determination made money judgment motion County, required of be removal contract, to then granted granting the a basis the work the with informs his continue disagreements and enjoining of to which breach. District deletion obligation performance. that By of is a contractual contract Kenneys. breach is specific the reason time 6.29 be County not from to the given the time a fixed for required the by the District for summary and the Rule 56(c), requirement the remanded of ten days without judgment. order DATED of the this County Distri$t sO'%ay and notice The summary made M.R.Civ.P., was Court to The hearing. to Court are is for June, further 1992. 6 set objections County Rule authority injunctions of the under judgment proper did 56(c). Kenneys' vacated and and proceedings. not waive Therefore, grant aside as the motion dissolved cause is 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
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