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 COUN TY 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. Watt ers, 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 Attorney s, Billings, Montana

Submitted on Briefs: June 21, 2006 Decided: August 22, 2006 Filed:

__________________________________________ Clerk2 Justice W. William Leaphart delive red 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 Su preme 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, Ju dy Horton and Lois Lenoir filed separate discrimination complaints with th e 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 ag ainst because she filed a successful lawsuit against Sellers, while Horton alleged that Sellers discriminated against her because Horton had testified against Se llers 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 co mplaint in the Thirteenth Judicial District Court, Yellowstone County, on Decembe r 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 subsequen tly 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 comp laint as one of discrimination under the3 exclusive jurisdiction of the Act when the complaint “cle arly” 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 no ted that the plaintiffs missed th e ninety-day statute of limitations by nine months, as they filed their complain t on December 2, 2003, when the deadline for was February 15, 2003. The court also determ ined 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 concl uded that the Act is the ex clusive remedy for Horton and

Lenoir’s discrimination claim an d that the plaintiffs cannot circumvent this exclusive remedy by simply re-characterizing the co mplaint 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 f iled a motion to file an ame nded complaint. On May 11, 2005, a week after the court granted summary judgm ent, Horton and Lenoir filed a

motion to file a second amen ded complaint and a notice of withdrawal of the original amended complaint. The Dist rict Court denied the plaintiffs’ motion to file a second amended complaint, concludi ng that it was inappropriate for the court to allow amendment of a complaint after both parties had fully brie fed and argued their respective positions and a dispositive ruli ng had been issued. The court concluded that the plaintiffs’ motion was untimely, noting that Horton and Lenoir “chose to defend their original Complaint th roughout briefing and oral argumen t and, only after it was readily apparent that the language of the Complaint was fatal to thei r case, did they file a last-4 minute Motion for Leave to File (First) Amende d Complaint.” The court also determined that since the plaintiffs were precluded from re -characterizing their claims as tort claims, the filing of an amended co mplaint 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 th eir 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. Furt hermore, 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 pl aintiffs’ motion to amen d their complaint, we agree with the District Court that an amended complaint woul d have been futile. ¶7 It is appropriate to decide this case pur suant to our Order of February 11, 2003, amending Section 1.3 of our 1996 Inte rnal 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 me rit because the legal issues are clearly controlled by settled

Montana law which the District Court corr ectly 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 LEAPHART5 We concur: /S/ KARLA M. GRAY /S/ JAMES C. NELSON /S/ BRIAN MORRIS /S/ JIM RICE