No. 80-474 IN THE SUPREME COURT OF THE STATE OF MONTANA 1981

LORI BUSCH, Plaintiff and Appellant,
VS

# . CLINTON KAMMERER, Defendant and Respondent.
Appeal from: District Court of the Fourth Judicial District, In and for the County of Missoula, Montana Honorable Jack L. Green, Judge presiding. Counsel of Record: ForAppellant: Terry Sehestedt, Legal Services, Missoula,Montana For Respondent: Balyeat,Kammerer and Rodli, Missoula,Montana

Submitted on briefs: February 25, 1981 Decided: September 1, 1952Mr. Justice John C. Sheehy delivered the Opinion of the Court. Plaintiff Lori Busch brought this action seeking damages from her former landlord, Clinton Kammerer, for his alleged violation of the Landlord TenantAct. The landlord moved to dismiss the complaint for failure to state a claim for which relief could be granted. Both parties filed briefs on the motion and the Missoula County District Court dismissed the action. From this dismissal, the tenant appeals. The sole issue for this Court to consider is whether the District Court erred in concluding that the complaint filed herein is insufficient for failure to state a claim. The substanceof the facts and allegations contained in the tenant's complaint are as follows: She and the landlord entered into a rental agreement on or about November 8, 1979,whereby shewould occupy a certain Missoula residence for a monthly rental of $150. At all times during the tenancy, the sole source of domestic water for the residence
was a garden hose run above ground from a neighboring house to the residence. The tenant contends that, by renting and maintaining the premises in this condition, the landlord failed in his duties under section 70-24-303 of the Montana Residential Landlord and TenantAct (act). She alleges he knew itwas unlawful for him to enter into a rental agreement under which he would accept rent free from the obligation to provide a safe source of domestic water for the residence. He was not, she argues, entitled to accept any amount of rentpayments under section 70-24- 203,MCA, if he had not complied with the statutory duties set forth in section 70-24-303,MCA.Until June 1, 1980, when the tenancy terminated, she claims to have performed all her duties under the terms of the rental agreement and the act. She contends she suffered actual damages. Defendant landlord filed no responsivepleading to the allegations in the complaint. Instead,he filed a motion to dismiss under Rule 12(b)(6),M.R.Civ.P. Such a motion has the effect of admitting all the well-pleaded allegations of the complaint. Duffy v. Butte Teachers' Union, Number 332, AFL-CIO (1975),168 Mont. 246, 253, 541 P.2d 1199; Fulton v. Farmers Union Grain Terminal Ass'n. (1962),140Mont. 523, 531, 374 P.2d 231. The standard test of the sufficiency of a complaint as against a motion to dismiss was set forth by the United States Supreme Court in Conley v. Gibson (1957),355 U.S.

"Inappraising the sufficiency of the complaint we follow, of course, the accepted rule that 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 facts in support of his claim which would entitle him to relief." This Court has repeatedly endorsed the same test. Tobacco River Lbr. Co., Inc. v. Yoppe (1978), 176 Mont. 267, 270, 577 P.2d 855; Local No. 8 Intern. Ass'n. v. City of Great Falls (1977), 174Mont. 53, 61, 568 P.2d 541;Duffy v. Butte Teachers' Union,Number 332, AFL-CIO, supra. The complaint in this case is sufficient to meet this test and the motion to dismisswas improperly granted. It appears from our examination of the District Court file that the District Court may have relied on allegations of fact contained in the briefs of both parties. Such allegations, however, are no part 

### of the pleadings. If the court intended to utilize Rule 12(b)(6)

## ,M.R.Civ.P., as asummary judgment procedure, itwould be under a duty to give notice to the parties of the changed status of the motion, and a reasonable opportunity to present allmaterial made pertinent to suchmotion. State ex rel. Dept. of H. & E. S.
v. City of Livingston (19761,169Mont. 431, 435, 548 P.2d 155. That procedure was not followed here. Accordingly, the judgment of dismissal is reversed and the cause remanded to District Court.

Justice

We Concur:

Chief JusticeMr. Justice Daniel J. Shea concurring:

I join the majority opinion, but the procedural background helps toexplain why theplaintiff was compelled to take an appeal inthe firstinstance. Originally, the defendant filed inDistrict Court a motion todismiss the complaint. Briefs were filedbut it does not appear from the District Court filethat the case
was evernoticed forhearing on the motion todismiss. Suddenly a minute entrywas filedby the clerk of the District Court which stated that the trial judge (notthe same judge who appears on the face sheet of thepresent opinion) had granted the motion todismiss. A judgment was never entered, but the plaintiffs filed a notice of appeal and appellate briefs were filedby both sides. In studying the case on appeal, thisCourt discovered that a judgment had never been entered and soremanded the case for entry of judgment. The trialcourt then simply went along with the originalminute entry tothe other trialjudge, which indicated that the motion todismiss had been granted. A judgment was entered, and then thisCourt proceeded tohear the appeal on the merits. It does not appear that the originaljudge who granted the motion todismiss did anything beyond a pro forma order directing the clerk toenter a minute entry that the motion todismiss had been granted. Certainly any judge, before dismissing a case, and compelling a party totake an appeal, should atleast give an explanation of why the complaint was dismissed. That, of course, was nct done. This is a little
more understandable when one considers that the defendant worked for some timefor the trialjudge who granted the defendant's motion to dismiss. Such arethe realities of practicing lawand fartoo frequent judicial decision making inMontana.