No. 91-341 IN THE SUPREME COURT OF THE STATE OF MONTANA

CARLENE DAGEL, Plaintiff and Appellant,-vsCHARLIS MANZER, individually,and in her official capacity, Defendant and Respondent.

APPEAL FROM: District Court of the Eighth Judicial District, In and for the County of Cascade, The Honorable Thomas McKittrick, Judge presiding.

COUNSEL OF RECORD: For Appellant: Elizabeth A. Best, Best Law Offices, Great Falls, Montana. For Respondent: J. Dennis Moreen, Chronister, Driscoll & Moreen, Helena, Montana; J. David Slovak and Roger 

### T.

itt, Ugrin, Alexander, Zadick & Slovak, Great alls, Montana.

6 

### J-

## I9991 Submitted on briefs: November 8, 1991 Decided: December 31, 1991

ClerkJustice Fred J. Weber delivered the Opinion of the Court. plaintiff, Carlene Dagel, brought 

### this action against ~harlis Manzer to recover damages for wrongful discharge, negligent and intentional infliction 

### of emotional distress, and violation of 42 U.S.C. 5 1983. 

### Ms. Manzer moved to dismiss the complaint on the basis of res judicata 

### and also 

### on the grounds that the wrongful discharge and emotional distress claims were barred by the statute of limitations. The ~istrictCourt for the ~ighth~udicial District,Cascade County,granted Ms. Manzer's motion and dismissed the complaint. Plaintiff appeals. We affirm in part and reverse in part. The issues for our review are: 1. Did 

### the 

### District Court err in concluding that the wrongful discharge action was barred by the statute of limitations pursuant to 39-2-911,MCA? 2. Did 

### the District Court err in concluding that emotional distress damages 

### are not recoverable under § 39-2-905, MCA? 3. Did the District Court err in concluding that the doctrineof res judicatabarred plaintiffIsclaimsbrought under 42 U.S.C. 1983? plaintiff, Carlene Dagel,was employed as a clerk by the City of Great Falls. Charlis Manzer was plaintiff's immediate supervisor. On October 24, 1990, plaintiff filed the present action against Ms. Manzer in her individual and official capacities. She sought to recover damages for wrongful discharge, violation of her constitutional rights, and intentional and negligent infliction of emotional distress. Plaintiff contendedthat she was subjected to continual harassmentby Ms. Manzer in the form of purported counsellings and reprimands. Because this was the second action filed by plaintiff,we will refer to it as Daqel 

### I.On February 16, 1988, plaintiff filed Daael I which was a complaint against the City of Great Falls. Plaintiff claimed damages on the same basis as set forth in Daqel 11. In Daqel I, plaintiff moved for summary judgment and also moved to join Ms. Manzer as a defendant in the casewhich at that time named the City of Great Falls as the only defendant. The City responded by filing
a cross motion for summary judgment. The District Court granted the city's motion for summary judgment. Plaintiff then moved to amend judgment or grant a new trial of Daqel I,but thatmotion was denied. She then filed an appeal. That appeal resulted in the opinion in Dagelv. City of Great Falls (Mont. 1991), 

### -P.2d 

### -, 48 St.Rep. 919. We will make further reference to the holdings of this Court in our opinion in Daqel I. Ms. Manzer moved the District Court to dismiss Daqel I1 based
on res judicata, or in the alternative, based upon certain provisions of the Wrongful Discharge from Employment Act. The District Court granted Ms. Manzer's motion to dismiss. Plaintiff appeals. I and I1 We will discuss issues I and I1 together. Did the District Court err in concluding that the wrongful discharge action was barred by the statute of limitationspursuant to 5 39-2-911, MCA; and that emotional distress damages are notrecoverable under § 39-2-905, MCA? The District Court found that plaintiff had conceded that the wrongful discharge and emotional distress claims were barred by application of the Wrongful Discharge from Employment Act. Therefore,these issues were notproperly preserved for appeal. It is well established Montana law that 

### an issue cannot be raised for the first time on appeal. We hold that plaintiff's wrongful discharge and emotional distress claimsare not properly before this Court and the District Court was correct in dismissing those claims. In Dagel I this Court held that the plaintiff should be allowed to join Ms. Manzer as a party defendantunder Rules 19 and 20,I4.R.Civ.P. Daqel I, 48 St.Rep. at 924. The determination of issues I and 11 in Dasel I1 are not res judicata for retrial Dasel 

### I.

Did 

### the District Court 

### err in concluding that 

### the doctrine of res judicata barred plaintiff's claims brought under 42 U.S.C.



### In its review of theplaintiffIs complaint in thepresent case of Dasel 11, the District Court considered the holding in Dasel I and concluded that res judicata applied and therefore barred plaintiff's 5 1983 claim in this Dasel I1 action. We do not agree with that conclusion. 

### In Daqel I the District 

### Court considered the motion for summary judgment, together with the facts presented 

### by all parties in connectionwith that motion and reached the conclusion that the City 

### of Great Falls was not 

### liable for a 

### 5 1983 claim based 

### on arespondeat superior relationship with Ms. Manzer. In contrast, Dactel I1was considered by the District Court on a motion to dismiss for failure to state a claim upon which relief could be granted under Rule 12(b), M.R.Civ.P. Unless the motion had been converted to amotion for summary judgment as provided in Rule 12

### (b)

### , such a motion under Rule 12(b)(6) was limited to a consideration of thepleadings. In addition,we point out thatMs. Manzer was not a party to Daqel I and as a result, neither the plaintiff nor Ms. Manzer was able to present all of the facts and theories regarding the claim aqainstMs. Manzer. We conclude that in the complaint in Daqel I1 plaintiff has sufficiently alleged a § 1983 claim against Ms. Manzer. 

### We further conclude it is not appropriate to apply the holding from Dasel I as res judicata on this issue. We hold that plaintiff's claim under 42 U.S.C. 

### 5 1983 is not barred by res judicata againstMs. Manzer. Daqel 

### Iwas remanded to the District Court in order that the plaintiff could join MS. Manzer as a party defendant. Affirmed in part and reversed in part.

" L'L Chief JusticeDecember

### 31, 1991 CERTIFICATEOFSERVICE Ihereby certify that the followingorderwas sentby United States mail,prepaid,

### tothe following named:
ElizabethA. Best BEST LAWOFFICES P.O. Box2114 GreatFalls,MT59403 J.DennisMoreen,Esq. CHRONISTER, DRISCOLL&MOREEN,P.C. 208North Montana Avenue Helena. MT 59601 J.DavidSlovak,Esq. RogerT.Witt, Esq. UGRIN, ALEXANDER, ZADICK &SLOVAK,P.C. P.O. Box 1746 GreatFalls, MT59403-1746
EDSMITH CLERKOFTHESUPREME COURT STATEOFMONTANA 

### BY:

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