February 11 2014
DA 13-0520
IN THE SUPREME COURT OF THE STATE OF MONTANA
2014 MT 36N
PETER ROTHING,
Plaintiff and Appellant,
v.
GALLATIN COUNTY,
Defendant and Appellee.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and For the County of Gallatin, Cause No. DV-11-665A
Honorable Holly Brown, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Peter Rothing (Self Represented), Belgrade, Montana
For Appellee:
Marty Lambert, Gallatin County Attorney, Bozeman, Montana
Submitted on Briefs: January 8, 2014
Decided: February 11, 2014
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath 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 On July 18, 2011, Rothing brought this action against Gallatin County asserting
claims for damages and for injunctive relief, all arising out of the County’s adoption or
implementation of a floodplain regulation ordinance. Rothing filed amended and second
amended complaints and the County moved to dismiss. After briefing the District Court
granted the County’s motion and Rothing appeals. We affirm.
¶3 The District Court concluded that Rothing’s claims arose from County actions
taken in April 2009, and that the two-year statute of limitations for damages to real
property in § 27-2-207, MCA, applied. Since the complaint was filed in July 2011, it was
barred. Even though the action was barred, the District Court analyzed Rothing’s
remaining claims, determining that his filings were insufficient to meet the pleading
requirements of M. R. Civ. P. 8(a), and were too vague and conclusory to establish a
claim upon which relief can be granted.
¶4 It is clear that the District Court afforded Rothing substantial opportunity to refine
his pleadings to state claims. It is also clear that his complaint was barred by the statute
of limitations and that he otherwise failed to state a claim upon which relief can be
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granted. The courts cannot create a cause of action not explicitly or implicitly stated in
the complaint. Sikorski v. Johnson, 2006 MT 228, ¶ 23, 333 Mont. 434, 143 P.3d 161.
¶5 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of
our Internal Operating Rules, which provides for memorandum opinions. The issues in
this case are legal and are controlled by settled Montana law, which the District Court
correctly interpreted.
¶6 Affirmed.
/S/ MIKE McGRATH
We concur:
/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ JIM RICE
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