DA 12-0157

IN THE SUPREME COURT OF THE STATE OF MONTANA

2012 MT 238N

DANIEL K. O’CONNELL (a Director of the 

Glastonbury Landowners Association 

Incorporated) and VALERY A. O’CONNELL

& for and on behalf of the landowners) & the 

many members of the GLASTONBURY 

LANDOWNERS ASSOCIATION,

 Plaintiffs and Appellants,

 v.

RICHARD BOLEN, LAURA BOISE, JANET

NACLERIO, SHERIDAN STENBERG, ALYSSA

ALLEN, GERALD DUBIEL, RICH SPALLONE,

& WILLIAM SMITH (all directors of GLA) & 

“the GLASTONBURY LANDOWNERS BOARD 

OF DIRECTORS” & the GLA GLASTONBURY 

LANDOWNERS ASSOC.,

 Defendants and Appellees.

APPEAL FROM: District Court of the Sixth Judicial District,

In and For the County of Park, Cause No. DV 11-114

Honorable David Cybulski, Presiding Judge

COUNSEL OF RECORD:

For Appellants:

Daniel K. O’Connell and Valery O’Connell, Self-Represented, Emigrant, 

Montana

For Appellees:

Alanah Griffith, Pape & Griffith, PLLC, Bozeman, Montana

Frederick Landers, Attorney at Law, Bozeman, Montana

Submitted on Briefs: August 29, 2012

October 23 2012
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 Decided: October 23, 2012 

Filed:

__________________________________________

Clerk
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Justice Michael E Wheat delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating 

Rules, this case is decided by memorandum opinion and shall not be cited and does not serve 

as precedent. Its case title, cause number, and disposition shall be included in this Court’s 

quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. 

¶2 Daniel and Valery O’Connell (collectively the “O’Connells”), appearing pro se,

appeal from several different orders entered by the Sixth Judicial District Court, Park 

County, and raise six issues for our review. We consolidate and restate the dispositive issues 

as follows: 

¶3 Issue One: Whether the District Court erred in dismissing Appellants’ complaint with 

prejudice for failing to state a claim.

¶4 Issue Two: Whether the District Court erred in granting Appellees their attorneys’ 

fees and costs.

¶5 We reverse and remand. 

¶6 The O’Connells are homeowners within the Glastonbury Landowner’s Association, 

Inc. (GLA), a Montana non-profit homeowners association. Daniel O’Connell was 

appointed to the GLA’s board of directors in 2009, which he served on until 2011. On June 

22, 2011, the O’Connells filed a complaint against eight individual board members, which 

included an application for a temporary restraining order and temporary injunction. They 

later amended their complaint to include the GLA as a defendant. On November 23, 2011, 

Appellees filed a motion to dismiss for failure to state a claim pursuant to M. R. Civ. P. 

12(b)(6) or, in the alternative, a motion for more definite statement pursuant to M. R. Civ. P. 
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12(e). Appellees argued the O’Connells’ complaint contained “rambling statement[s] mixed 

with law, conjectures and references to un-authenticated documents,” making it “impossible” 

to tell how the facts applied to the claims made. On December 8, 2011, the District Court 

dismissed the O’Connells’ case with prejudice and awarded Appellees their attorneys’ fees 

and costs. 

¶7 We review de novo a district court’s ruling on an M. R. Civ. P. 12(b)(6) motion to 

dismiss. Pederson v. Rocky Mt. Bank, 2012 MT 48, ¶ 8, 364 Mont. 258, 272 P.3d 663. In 

our review, we look only at the allegations in the complaint. Pederson, ¶ 8. We will only 

affirm a district court’s dismissal of a complaint for failure to state a claim if it appears 

beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would 

entitle him to relief. Pederson, ¶ 8. A motion to dismiss must be construed in the light most 

favorable to the plaintiff, and all allegations of fact are taken as true. Pederson, ¶ 8. 

Additionally, we review a district court’s decision to grant or deny attorney fees for abuse of 

discretion. Wagner v. Woodward, 2012 MT 19, ¶ 18, 363 Mont. 403, 270 P.3d 21. Finally, 

we generally afford pro se litigants a certain amount of latitude. Greenup v. Russell, 2000 

MT 154, ¶ 15, 300 Mont. 136, 3 P.3d 124.

¶8 Although we agree with the District Court’s finding that the O’Connells’ complaint 

was not well-pled, we determine it was sufficient to survive a motion to dismiss. The 

allegations of the O’Connells’ complaint, which at this stage are presumed to be true, put 

Appellees on notice that the O’Connells were asserting substantive and procedural violations 

of the GLA Covenants as well as fraud. Further, since the O’Connells should be afforded 

some leniency due to the fact that they are pro se, and because the Appellees moved in the 
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alternative for a more definite statement, we conclude the District Court erred in granting the 

Appellees’ motion to dismiss for failure to state a claim with prejudice. 

¶9 Where a pleading is “so vague or ambiguous” that a party cannot reasonably 

formulate a response, the Court can order a more definite statement. M. R. Civ. P. 12(e). 

Because the complaint was confusing and unclear, the District Court should have granted the 

Appellees’ motion for a more definite statement so Appellees knew exactly what was alleged 

and what relief was sought. On remand, we instruct the District Court to order the 

O’Connells to amend their complaint to make a more definite statement showing they are 

entitled to relief from the Appellees and re-file with the District Court consistent with the 

time requirements set forth in M. R. Civ. P. 12(e). We would also encourage the O’Connells 

to consult an attorney to ensure their amended complaint is in compliance with our Rules of 

Civil Procedure so that it is not defeated by another motion to dismiss. 

¶10 The O’Connells also argue that the District Court erred in awarding attorneys’ fees 

and costs to Appellees. The District Court’s award of attorneys’ fees and costs was based on 

the GLA Covenants, which provided that the prevailing party in any action must receive its 

attorneys’ fees and costs. Because we reverse the District Court’s order granting Appellees’

motion to dismiss and require the court give the O’Connells the opportunity to re-file their 

complaint, we also reverse the award of attorneys’ fees. 

¶11 We have determined to decide this case pursuant to Section I, Paragraph 3(d), of our 

Internal Operating Rules, which provides for noncitable memorandum opinions. 

¶12 Reversed and remanded to the District Court for further proceedings consistent with 

this Opinion.
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/S/ MICHAEL E WHEAT

We Concur:

/S/ MIKE McGRATH

/S/ BRIAN MORRIS

/S/ BETH BAKER

Justice Jim Rice, dissenting. 

¶13 I agree with the District Court that the complaint was “incomprehensible” and that the 

only actionable claim stated by the complaint was for an injunction, which had been mooted. 

 A claim “must give notice to the other party of the facts which the pleader expects to prove, 

and the facts must disclose the presence of all the elements necessary to make out a claim.” 

Mysse v. Martens, 279 Mont. 253, 266, 926 P.2d 765, 773 (1996). “[A] complaint must state 

something more than facts which, at most, would breed only a suspicion that plaintiffs have a 

right to relief. Liberality does not go so far as to excuse omission of that which is material 

and necessary in order to entitle relief.” Mysse, 279 Mont. at 266, 926 P.2d at 773 (citation 

omitted). 

¶14 However, I believe the District Court erred by dismissing the complaint with 

prejudice. I would affirm the dismissal and remand for a revised order dismissing the 

complaint without prejudice. I would affirm the grant of attorney fees incurred by the 

Glastonbury Landowners Association in defending against the complaint. 
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/S/ JIM RICE