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                                                                  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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/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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