                                            No. 05-642

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2006 MT 200N



JUDY HORTON and LOIS LENOIR,

              Plaintiffs and Appellants,

         v.

YELLOWSTONE COUNTY TREASURER’S
OFFICE and CINDY SELLERS, former
Yellowstone County Treasurer,

              Defendants and Respondents.



APPEAL FROM:         The District Court of the Thirteenth Judicial District,
                     In and For the County of Yellowstone, Cause No. DV 2003-1248,
                     Honorable Susan P. Watters, Presiding Judge

COUNSEL OF RECORD:

              For Appellants:

                     Robert L. Stephens, Southside Law Center, Billings, Montana

              For Respondents:

                     Dennis Paxinos, County Attorney; Kevin Gillen and Mark A. English,
                     Deputy County Attorneys, Billings, Montana


                                                          Submitted on Briefs: June 21, 2006

                                                                     Decided: August 22, 2006

Filed:


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

¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal

Operating Rules, the following decision shall not be cited as precedent. It shall be filed

as a public document with the Clerk of the Supreme Court and shall be reported by case

title, Supreme Court cause number and result in this Court’s quarterly list of noncitable

cases published in the Pacific Reporter and Montana Reports.

¶2     On May 14, 2002, Judy Horton and Lois Lenoir filed separate discrimination

complaints with the Montana Human Rights Commission (MHRC) against Yellowstone

County Treasurer’s Office and Cindy Sellers, the former Yellowstone County Treasurer.

Lenoir alleged that she was discriminated against because she filed a successful lawsuit

against Sellers, while Horton alleged that Sellers discriminated against her because

Horton had testified against Sellers in that same lawsuit. The MHRC dismissed both of

the complaints on November 12, 2002, after finding that there was no reasonable cause to

believe that discrimination had taken place.

¶3     Horton and Lenoir filed a complaint in the Thirteenth Judicial District Court,

Yellowstone County, on December 2, 2003, alleging causes of action under Title 49 of

the Montana Code Annotated, which contains the Montana Human Rights Act. Sellers

filed a motion for summary judgment, which the County subsequently joined, arguing

that Horton and Lenoir failed to file their complaint within ninety days, as required by the

statute of limitations provided for in § 49-2-509(5), MCA. Horton and Lenoir argued in

response that Sellers misconstrued their complaint as one of discrimination under the

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exclusive jurisdiction of the Act when the complaint “clearly” gave notice of “tort

claims,” which have a three-year statute of limitations.

¶4     On May 2, 2005, the District Court granted defendants’ motion for summary

judgment. The court noted that the plaintiffs missed the ninety-day statute of limitations

by nine months, as they filed their complaint on December 2, 2003, when the deadline for

was February 15, 2003. The court also determined that Horton and Lenoir did not allege

any torts in their complaint. Citing Arthur v. Pierre, Ltd., 2004 MT 303, 323 Mont. 453,

100 P.3d 987, the court concluded that the Act is the exclusive remedy for Horton and

Lenoir’s discrimination claim and that the plaintiffs cannot circumvent this exclusive

remedy by simply re-characterizing the complaint as one of tort claims.

¶5     A few days prior to the District Court’s order granting summary judgment to the

defendants, Horton and Lenoir filed a motion to file an amended complaint. On May 11,

2005, a week after the court granted summary judgment, Horton and Lenoir filed a

motion to file a second amended complaint and a notice of withdrawal of the original

amended complaint. The District Court denied the plaintiffs’ motion to file a second

amended complaint, concluding that it was inappropriate for the court to allow

amendment of a complaint after both parties had fully briefed and argued their respective

positions and a dispositive ruling had been issued.        The court concluded that the

plaintiffs’ motion was untimely, noting that Horton and Lenoir “chose to defend their

original Complaint throughout briefing and oral argument and, only after it was readily

apparent that the language of the Complaint was fatal to their case, did they file a last-

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minute Motion for Leave to File (First) Amended Complaint.” The court also determined

that since the plaintiffs were precluded from re-characterizing their claims as tort claims,

the filing of an amended complaint would be futile.

¶6     Horton and Lenoir appealed, arguing that the ninety-day statute of limitations for

filing the HRC claim was equitably tolled by their filing of a 42 U.S.C. § 1985 claim in

federal court. Because Horton and Lenoir failed to argue tolling in the District Court,

however, we will not consider this argument on appeal. Allen v. Atl. Richfield Co., 2005

MT 281, ¶ 20, 323 Mont. 230, ¶ 20. Furthermore, the federal claim under 42 U.S.C.

§ 1985 cannot serve to save a separate and distinct HRC discrimination claim in state

court. As for the court’s denial of the plaintiffs’ motion to amend their complaint, we

agree with the District Court that an amended complaint would have been futile.

¶7     It is appropriate to decide this case pursuant to our Order of February 11, 2003,

amending Section 1.3 of our 1996 Internal Operating Rules and providing for

memorandum opinions. It is manifest on the face of the briefs and the record before us

that the appeal is without merit because the legal issues are clearly controlled by settled

Montana law which the District Court correctly interpreted and there was clearly no

abuse of discretion by the District Court.

¶8     We affirm the judgment of the District Court.

                                                        /S/ W. WILLIAM LEAPHART




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We concur:

/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ BRIAN MORRIS
/S/ JIM RICE




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