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 - I 9991 

Submitted on briefs: November 8, 1991 

Decided: December 31, 1991 

Clerk 
Justice 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 ~istrict Court 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 

doctrine of res judicata barred plaintiff Is claims brought 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 contended 
that she was subjected to continual harassment by 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 case which 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 that motion was 

denied. She then filed an appeal. That appeal resulted in the 

opinion in Dagel v. 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 limitations pursuant 

to 5 39-2-911, MCA; and that emotional distress damages are not 
recoverable 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 not properly 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 claims are 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 defendant under 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 the plaintiff Is complaint in the present 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 connection with that motion and reached the conclusion that the 

City of Great Falls was not liable for a 5 1983 claim based on a 
respondeat superior relationship with Ms. Manzer. 

In contrast, Dactel I1 was 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 a motion for summary judgment as provided in 

Rule 12 (b) , such a motion under Rule 12 (b) (6) was limited to a 

consideration of the pleadings. In addition, we point out that Ms. 

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 aqainst Ms. 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 against Ms. Manzer. Daqel I was 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 Justice 

December 31, 1991 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

Elizabeth A. Best 

BEST LAW OFFICES 

P.O. Box 2114 

Great Falls, MT 59403 

J. Dennis Moreen, Esq. 

CHRONISTER, DRISCOLL & MOREEN, P.C. 

208 North Montana Avenue 

Helena. MT 59601 

J. David Slovak, Esq. 

Roger T. Witt, Esq. 

UGRIN, ALEXANDER, ZADICK & SLOVAK, P.C. 

P.O. Box 1746 

Great Falls, MT 59403-1746 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA 

BY: 

Depu 

y