No 

No. 98-717

IN THE SUPREME COURT OF THE STATE OF MONTANA

1999 MT 130

294 Mont. 487

982 P.2d 1007

RICHARD POEPPEL,

Plaintiff and Appellant,

v.

FLATHEAD COUNTY, a body politic,

Defendant and Respondent.

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APPEAL FROM: District Court of the Eleventh Judicial District,

In and for the County of Flathead,

The Honorable Ted O. Lympus, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Richard Dejana, Attorney at law, Kalispell, Montana

For Respondent:

Jonathan B. Smith, Deputy, Office of the County Attorney,

Kalispell, Montana

Submitted on Briefs: May 13, 1999

Decided: June 10, 1999

Filed:

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__________________________________________

Clerk

Justice W. William Leaphart delivered the Opinion of the Court.

¶1. The Eleventh Judicial District Court, Flathead County, granted Flathead 

County's Rule 12(b)(6), M.R.Civ.P., motion to dismiss Richard Poeppel's complaint 

for failure to state a claim upon which relief can be granted. This is an appeal from 

that dismissal. We affirm in part and reverse in part and remand for further 

proceedings. 

Factual Background

¶2. Richard Poeppel (Poeppel) filed a complaint against Flathead County (the 

County) for an order compelling arbitration, for unused vacation pay and, in the 

alternative, for wrongful discharge. The County filed a motion to dismiss under Rule 

12(b)(6), M.R.Civ.P. Such a motion has the effect of admitting all well-pleaded 

allegations of the complaint. In considering the motion, the complaint is construed in 

the light most favorable to the plaintiff and all allegations of fact contained therein 

are taken as true. Trankel v. State, Dep't of Military Affairs (1997), 282 Mont. 348, 

351, 938 P.2d 614, 616. 

¶3. The facts alleged in the complaint are summarized as follows:

¶4. Poeppel was employed by the County in its road maintenance department. On 

June 1, 1995, twelve days before he completed six months of employment, he was 

discharged as a "probationary employee" despite the fact that the collective 

bargaining agreement provided that the probationary period only extended for two 

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months. On that date, Foreman Gary Owen refused to hear his grievance. The shop 

steward was not available at that time. 

¶5. On June 6, 1995, Poeppel met with County Commissioner Robert Watne 

(Commissioner Watne), who advised Poeppel that his firing was an "over kill," but 

there was nothing that could be done because Poeppel was a probationary employee 

and the grievance procedure required a grievance within six days. The shop steward 

was then contacted and he advised Poeppel that a grievance would not be successful 

since Poeppel was a probationary employee. 

¶6. On June 13, 1995, the Union Business Agent advised Poeppel that the grievance 

period had passed, but that he would meet with the new superintendent and try to 

resolve the dispute. Poeppel subsequently learned that the grievance period was 

twenty days. On August 11, 1995, Poeppel advised the County of its error regarding 

the grievance period and grieved the firing. On August, 17, 1995, the County 

declined to entertain the grievance. 

¶7. On September 11, 1995, Poeppel filed a second grievance and contended that the 

actions of Commissioner Watne and others estopped the County from denying him 

the opportunity to proceed with a grievance. He also sought arbitration should the 

grievance be denied. Poeppel also alleged that he was not given an unused vacation 

time pay-off, which he claimed was due him since he was not a probationary 

employee when he was terminated. On November 17, 1995, the County declined the 

second grievance and request for arbitration.

Issues Presented

¶8. We state the issues as follows:

¶9. 1. Whether the complaint sufficiently alleges equitable estoppel.

¶10. 2. Whether § 2-18-617, MCA, allows an unused vacation time pay-off for those 

employed less than six months.

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¶11. 3. Whether Poeppel failed to timely file and process a grievance.

Discussion

¶12. 1. Did the District Court err in dismissing Poeppel's claim that the County 

should be estopped from arguing that he failed to file a timely grievance?

¶13. Poeppel argued in the District Court that he was misled by a representative of 

the County as to the proper time within which to file a grievance, and that this 

estopped the County from arguing that the request for a grievance was untimely. The 

County argues on appeal that the claim of estoppel was properly dismissed since 

Poeppel's complaint failed to allege the six elements of estoppel as set forth in Dagel 

v. City of Great Falls (1991), 250 Mont. 224, 234-35, 819 P.2d 186, 192-93. In Dagel,

we set forth the six elements of estoppel as follows:

"Six essential elements have been held necessary to constitute an equitable estoppel:

'(1) there must be conduct, acts, language, or silence amounting to a representation or a 

concealment of material facts; (2) these facts must be known to the party estopped at the 

time of his conduct, or at least the circumstances must be such that knowledge of them is 

necessarily imputed to him; (3) the truth concerning these facts must be unknown to the 

other party claiming the benefit of the estoppel at the time it was acted upon by him; (4) 

the conduct must be done with the intention, or at least with the expectation, that it will be 

acted upon by the other party, or under the circumstances that it is both natural and 

probable that it will be so acted upon; (5) the conduct must be relied upon by the other 

party, and, thus relying, he must be led to act upon it; and (6) he must in fact act upon it in 

such a manner as to change his position for the worse.' "

Dagel, 250 Mont. at 234-35, 819 P.2d at 192-93 (citations omitted).

¶14. The District Court concluded that the complaint was insufficient in that there 

were no allegations that the misinformation was given with the expectation that it 

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would be relied upon by Poeppel, or that Commissioner Watne knew the information 

given to Poeppel was incorrect. Although the District Court did not discuss the 

interplay between the pleading with "particularity" requirement of Rule 9(b), M.R.

Civ.P., and Montana's "notice pleading" rule, Rule 8, M.R.Civ.P., it is apparent that 

the District Court concluded that Poeppel failed to plead the various elements of 

estoppel with sufficient particularity. 

¶15. Although Dagel sets forth the six elements required for equitable estoppel, it 

does not resolve the question presented here. That is, must those elements be alleged 

in the complaint or are they factual issues of proof? Dagel was decided in our review 

of a summary judgment proceeding. We reversed the district court on the issue of 

estoppel not because the pleadings were deficient, but because "the facts in th[at] 

case clearly m[et] the required six elements of equitable estoppel . . . ." Dagel, 250 

Mont. at 236, 819 P.2d at 193. 

¶16. Rule 9(b), M.R.Civ.P., requires particularity in the pleading of certain specified 

matters, i.e., fraud and mistake. However, it does not require particularity in the 

pleading of estoppel. Thus, estoppel is governed by Rule 8(e), M.R.Civ.P., which 

requires that pleadings be "simple, concise, and direct." Rule 8(e), M.R.Civ.P. "No 

technical forms of pleading or motion are required." Rule 8(e), M.R.Civ.P.

¶17. " '[A] complaint should not be dismissed for failure to state a claim unless it 

appears beyond doubt that the plaintiff can prove no set of acts in support of his 

claim which would entitle him to relief.' " Fraunhofer v. Price (1979), 182 Mont. 7, 

12, 594 P.2d 324, 327, quoting Conley v. Gibson (1957), 355 U.S. 41, 45-46, 78 S.Ct. 

99, 102, 2 L.Ed.2d 80, 84. The most basic consideration in determining the sufficiency 

of a pleading is determining whether the allegations are sufficiently detailed to 

provide the other party with adequate notice of the claim so as to enable him or her 

to prepare a responsive pleading. Irving v. School Dist. No. 1-1A (1991), 248 Mont. 

460, 466-67, 813 P.2d 417, 421 (citing Fraunhofer, 182 Mont. at 14-15, 594 P.2d at 

328-29, quoting Wright & Miller, Federal Practice and Procedure: Civil § 1298, at 

406-07, 410, 415).

¶18. The complaint alleges that Poeppel met with Commissioner Watne, who advised 

him that there was nothing that could be done about the firing because Poeppel was a 

probationary employee and the grievance procedure required a grievance within six 

days. It further alleges that the actions of Commissioner Watne, on behalf of the 

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County, constituted an estoppel. Unquestionably, the claim for estoppel could have 

been more artfully pleaded and with more particularity. Nonetheless, we conclude 

that the allegations, sparse as they may be, are sufficient to put the County on notice 

of the claim so as to enable it to prepare a responsive pleading.

¶19. We conclude that the District Court erred in dismissing the claim for estoppel 

under Rule 12(b)(6), M.R.Civ.P. Whether Poeppel can satisfy the six elements of 

estoppel is a question of proof, not pleading. 

¶20. Having determined that the District Court erred in dismissing the estoppel 

claim, we need not reach the question of whether Poeppel's August 11, 1995, 

grievance was timely, since resolution of that issue will hinge upon whether or not he 

can prove his claim of estoppel at trial.

¶21. 2. Did the District Court err in holding that Poeppel failed to state a claim for 

unpaid vacation? 

¶22. In his complaint, Poeppel alleges that he was entitled to unpaid vacation since he 

was not a probationary employee at the time of his termination. Section 2-18-617(2), 

MCA, provides that cash compensation for unused vacation leave is recoverable only 

if the employee has worked for the qualifying period set forth in § 2-18-611, MCA. 

Section 2-18-617(2), MCA. Under § 2-18-611(1), MCA, "employees are not entitled to 

any vacation leave with pay until they have been continuously employed for a period 

of 6 calendar months." Section 2-18-611(1), MCA. As the District Court observed, 

since Poeppel alleges that he was employed by the County for less than six months, he 

is not entitled to pay for unused vacation leave. In Stuart v. Department of Social & 

Rehab. Serv. (1993), 256 Mont. 231, 846 P.2d 965, we discussed §§ 2-18-611(1) and 2-

18-617, MCA, and noted:

[Section] 2-18-611(1), MCA, imposes a specific condition on when earned vacation 

credits can be exercised; namely, an employee is not entitled to any vacation leave with 

pay until she or he has been continuously employed for a period of six months. This single 

statute makes it clear from the outset that no absolute right to earn or exercise vacation 

leave credits exists; any entitlement to earn or exercise vacation leave credits is purely a 

matter of statute. . . .

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. . . Absent § 2-18-617, MCA, no right whatsoever would exist whereby employees could 

either accumulate vacation leave or "cash out" unused leave on termination of 

employment. The legislature, having created these rights, elected to condition them.

Stuart, 256 Mont. at 235, 846 P.2d at 967-68. 

¶23. Poeppel argues on appeal that despite the six-month period specified by the 

statute, the collective bargaining agreement, as alleged in his complaint, provided 

that the probationary period ceased after two months. Thus, he posits that he would 

qualify for unused vacation pay after only two months, rather than the statutory six 

months. The statute, however, is not couched in terms of "probationary" periods; it 

simply requires six months of service to qualify an employee for a pay-off of accrued 

vacation benefits. As the County points out, under Poeppel's "probationary period" 

theory, a governing body could establish a one-year probationary period and refuse 

to pay former employees who served less than one year, but more than six months, 

for accrued vacation time. 

¶24. The six-month qualifying period established by the legislature is separate from, 

and not controlled by, any probationary period that the local governing body 

establishes by policy or negotiation of a collective bargaining agreement. We hold 

that the District Court did not err in dismissing Poeppel's claim for unused vacation 

pay. 

¶25. We also note that in the prayer to his complaint, Poeppel sought, as an 

alternative to an order for arbitration, damages for wrongful discharge. The District 

Court dismissed the claim for wrongful discharge and Poeppel has not appealed from 

that dismissal. Accordingly, we need not address that claim. 

¶26. We affirm the District Court's conclusion that the complaint fails to state a 

claim for payment of unused vacation pay. We reverse the District Court's dismissal 

of Poeppel's claim for estoppel and remand for further proceedings.

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No 

/S/ W. WILLIAM LEAPHART

We concur:

/S/ J. A. TURNAGE

/S/ JAMES C. NELSON

/S/ JIM REGNIER 

/S/ KARLA M. GRAY

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