                                                                                        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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