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: 

For Appellant: 

Terry Sehestedt, Legal Services, Missoula, Montana 

For Respondent : 

Balyeat, Kammerer and Rodli, Missoula, Montana 

Submitted on briefs: February 25, 1981 

Decided: September 1, 1952 
Mr. 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 Tenant Act. 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 substance of 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 she would 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 Tenant Act (act). 

She alleges he knew it was 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 rent payments 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 responsive pleading 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), 140 Mont. 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. 

"In appraising 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), 174 Mont. 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 dismiss was 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 a 
summary judgment procedure, it would be under a duty to give 

notice to the parties of the changed status of the motion, 

and a reasonable opportunity to present all material made 

pertinent to such motion. State ex rel. Dept. of H. & E. S. 

v. City of Livingston (19761, 169 Mont. 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 Justice 
Mr. Justice Daniel J. Shea concurring: 

I join the majority opinion, but the procedural 

background helps to explain why the plaintiff was compelled 

to take an appeal in the first instance. 

Originally, the defendant filed in District Court a 

motion to dismiss the complaint. Briefs were filed but it 

does not appear from the District Court file that the case 

was ever noticed for hearing on the motion to dismiss. 

Suddenly a minute entry was filed by the clerk of the District 

Court which stated that the trial judge (not the same judge 

who appears on the face sheet of the present opinion) had 

granted the motion to dismiss. A judgment was never entered, 

but the plaintiffs filed a notice of appeal and appellate 

briefs were filed by both sides. In studying the case on 

appeal, this Court discovered that a judgment had never been 

entered and so remanded the case for entry of judgment. The 

trial court then simply went along with the original minute 

entry to the other trial judge, which indicated that the 

motion to dismiss had been granted. A judgment was entered, 

and then this Court proceeded to hear the appeal on the 

merits. 

It does not appear that the original judge who granted 

the motion to dismiss did anything beyond a pro forma order 

directing the clerk to enter a minute entry that the motion 

to dismiss had been granted. Certainly any judge, before 

dismissing a case, and compelling a party to take an appeal, 

should at least 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 time for the trial judge who granted the 

defendant's motion to dismiss. Such are the realities of 

practicing law and far too frequent judicial decision making 

in Montana.