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




CARLENE DAGEL,
            Plaintiff and Appellant,
     -vs-
CHARLIS 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.

     J -I 9991
     6
                              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 ~ i g h t h ~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 I s 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 R u l e s 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 I complaint in the present case
                                     s

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 f o r
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 1 9 8 3 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


                                                     BY:
                                                        Depu
                                                            y
                                                     STATE OF MONTANA
