No. 86-466 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

MORRIS THORING, as Personal Representative 

of PATTY JEAN THORING, Deceased, MORRIS 

THORING as Guardian of Shawn Michael Thoring, 

surviving heir of Patty Thoring and NATIONAL 

FARMERS UNION INSURANCE COMPANY, a corporation, 

Plaintiffs and Respondents, 

-vsEARL L. LaCOUNTE and JANICE C. LaCOUNTE, 

d/b/a LENNY'S BAR, and MICHAEL J. BOTTENSEK, 

Defendants and Appellants. 

APPEAL FROM: District Court of the Fifteenth Judicial District, 

In and for the County of Roosevelt, 

The Honorable Leonard Langen, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Crowley; Haughey; Hanson; Toole & Dietrich; Donald L. 

Harris, Billings, Montana 

For Respondents: 

Bjella, Neff, Rathert, Wahl & Eiken; A1 Wahl & William 

E. McKechnie, Williston, North Dakota 

Submitted on Briefs: Dec. 4, 1986 

Decided: February 9, 1987 

e *, c4LLA-d 8 

Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

On petition for rehearing, appellants LaCounte have 

called to our attention the District Court's certification of 

the issue of res judicata pursuant to Rule 54(b), M.R.Civ.P., 

and we find that the same is ripe for appeal. Accord.ingly, 

we withdraw our earlier opinion of January 8, 1987 and 

substitute the opinion below. 

The LaCountes appeal the order of the District Court, 

Fifteenth Judicial District, County of Roosevelt, denyinq 

their motion for summary judgment. We dismiss the appeal and 

remand for further proceedings. 

This case is a wrongful death action arising out of an 

automobile accident which occurred September 20, 1980, three 

miles west of Williston, North Dakota. The facts of this 

case have been set out previously by this Court in Nehring v. 

LaCounte (Mont. 1986), 712 P.2d 1329, 43 St.Rep. 93. The 

plaintiff in this action, however, is the father of Patty 

Thoring, who was killed while a passenger in the car of 

defendant Michael Bottensek. The father seeks damages from 

LaCountes as owners of Lenny's Bar for negligently serving 

liquor to the allegedly intoxicated Bottensek, whose driving 

later that evening killed three people when his car crossed 

over the centerline of U.S. Highway 2 and collided with an 

oncoming vehicle driven by Mr. Nehring. 

Thoring filed suit in North Dakota and in Montana on 

behalf of Patty Thoring's estate and on behalf of Patty's son 

Shawn. The suit in North Dakota was ultimately dismissed 

with prejudice in 1984. LaCountes then moved the Montana 

District Court for summary judgment on the grounds that the 

North Dakota judgment of dismissal with prejudice was res 
judicata on the Montana action. The Montana District Court 

granted partial summary judgment in favor of 1,aCountes as to 

the issue of the applicability of the North Dakota Dram Shop 

Act, but denied summary judgment as to LaCountesl liability 

under Montana law. For the purposes of this appeal, the 

District Court certified its judgment on the issue of res 

judicata as a final judgment pursuant to Rule 54(b), 

M.R.Civ.P. Roy v. Neibauer (1980), 188 Mont. 81, 610 P.2d 

1185. 

The issues raised by LaCountes on appeal 

are: 1) Whether the doctrines of res judicata and full 

faith and credit preclude the plaintiff from relitigating 

claims previously dismissed with prejudice by the North 

Dakota trial court?; 2) Whether the Montana District Court 

erred in denying L'aCountesl motion for summary judgment? 

We turn first to the issue of res judicata, which we 

find to be dispositive of the issues on appeal. As we stated 

in Brault v. Smith (Mont. 1984), 679 P.2d 236, 238, 41 

St.Rep. 527, 529, " [tlhe basic proposition embraced by the 

doctrine of res judicata has always remained the same: a 

party should not be able to relitigate a matter he or she has 

already had an opportunity to litigate." The application of 

res judicata presumes a judgment was rendered on the merits 

of the case, the policy being that a lawsuit should bring not 

only justice to the parties, but also provide a final 

resolution to the controversy. - Id. at 238, 41 St.Rep. at 

529. 

The LaCountes argue that under the full faith and credit 

clause of the United States Constitution, Art. IV, S 1, U.S. 

Const., and under Montana law, § 26-3-203, MCA, the effect of 

the judgment of the North Dakota action must have the same 

effect in our Court as it does in North Dakota. They argue 
that North Dakota law should guide the interpretation of the 

effect of the North Dakota judgment and res judicata. 

Under the full faith and credit clause of the United 

States Constitution, and $ 26-3-203, MCA, a valid judgment 

rendered in one state must be recognized in a sister state. 

Restatement (Second) of Conflict of Laws $ 93 (1971). What 

issues are determined by a valid judgment is determined by 

the local law of the state where the judgment was rendered. 

Restatement (Second) of Conflict of Laws S 95, comment c. 

Local law dictates whether or not a judgment was made on the 

merits, and other states will recognize a judgment not on the 

merits only as to the issues actually decided. Restatement 

(Second) of Conflict of Laws § 110, comment b. 

In North Dakota, an issue is considered res judicata 

when it appears the issue presented in a later suit was 

litigated and decided. Dolajak v. State Auto. & Cas. 

Underwriters (N.D. 1977), 252 N.W.2d 180, 182-83; followed - in 

Rugby Milling Co. v. Logosz (N.D. 1977), 261 N.W.2d 662; 

Matter of Estate of Nelson (N.D. 1979), 281 N.W.2d 245; 

Becker v. Doubek (N.D. 1980), 292 N.W 2d 72; Farmers State 

Bank v. Slaubaugh (N.D. 1985), 366 N.W.2d 804. "The doctrine 

of res judicata is not applicable as to issues and facts not 

considered or decided in prior proceedings." Farmers State 

-- Bank v. Slaubaugh, 366 N.W.2d at 807. Further, the North 

Dakota Supreme Court has stated "that a decision rendered on 

any ground which does not involve the merits of the action 

may not be used as a basis for the operation of the doctrine 

of res judicata. " Robertson Lumber Co. v. progressive 

Contractors, Inc. (N.D. 1968), 160 ~.~.2d 61, 77. 

With these principles in mind, we turn to the record in 

the North Dakota action to see what issues were decided in 

that action. Thoring filed a complaint in a wrongful d.eath 

suit pursuant to the laws of North Dakota and. the laws of 
Montana. In their answer, the LaCountes raised the 

affirmative defense of lack of personal jurisdiction. They 

then moved for summary judgment on the ground of lack of 

personal jurisdiction over them, and the inapplicability of 

the North Dakota Dram Shop Act to them. The North Dakota 

District Court denied LaCountes' motion, finding that it had 

personal jurisdiction and that the North Dakota Dram Shop Act 

applied. LaCountes appealed this order to the North Dakota 

Supreme Court in Thoring v. Bottensek (N.D. 1984), 350 N.W.2d 

586. 

The North Dakota Supreme Court declined to reach the 

issue of personal jurisdiction, narrowly holding that a 

Montana bar could not be liable under the North Dakota Dram 

Shop Act. Thoring - v. Bottensek, 350 N.W.2d at 591. The 

court expressly stated, "Our holding today is strictly 

limited to the determination that North Dakota's dram shop 

act applies only to North Dakota vendors. We --- make no 

determination regardinq the possibility -- of the Montana court 

reconsidering its previous rulings." (Emphasis added.) - Id. 

The court declined to make Montana law, remarking that the 

LaCountes could be held liable only und-er Montana common law, 

which could be created only by a Montana court. - Id. at 588. 

The North Dakota Supreme Court then reversed the trial 

court's order. 

On August 13, 1984, the North Dakota District Court 

entered its order for judgment of dismissal "[plursuant to 

the mandate of the Supreme Court of the State of North 

Dakota, dated June 19, 1984, in the above entitled matter, 

and the opinion of the Supreme Court filed May 23, 

1984 . . .. " We find the record clearly reveals that the 

sole issue fully litigated in the North Dakota courts was the 

issue of whether North Dakota's Dram Shop Act applied 

extraterritorially to the LaCountes. The issue of the 
the liability of the LaCountes under Montana law was never 

litigated or decided. As to the issue of the 

extraterritorial effect of the North Dakota Dram Shop Act, we 

hold the judgment was decided on the merits, and under the 

full faith and credit clause and S 26-3-203, MCA, 

relitigation is barred under the doctrine of res judicata. 

However, as to the issue of LaCountes' liability under 

Montana law, we hold the liability issue was not litigated 

and decided in the North Dakota courts, and the Montana 

courts are free to examine the issue. 

The second issue raised by LaCountes is whether their 

motion for summary judgment was properly denied by the 

Montana District Court. Summary judgment is proper when 

there is no genuine issue as to any material fact and the 

moving party is entitled to judgment as a matter of law. 

Reagan v. Union Oil Co. of California (Mont. 1984), 675 P.2d 

953, 956, 41 St.Rep. 131, 134. The duty of the trial court 

on a motion for summary judgment is to decide whether genuine 

issues of fact exist, not how those factual issues are to be 

decided. Harland v. Anderson (1976), 169 Mont. 447, 450, 548 

P.2d 613, 615. 

In this case, the District Court granted LaCountes' 

motion as to the second claim of Thoring's complaint, which 

alleged LaCountes' liability under the North Dakota Dram Shop 

Act. However, the District Court allowed Thoring's claims as 

to the alleged negligence of LaCountes under Montana law to 

go forward. Generally, factual issues relating to negligence 

are not susceptible to summary judgment. Hendrickson v. 

Neiman (Mont. 1983), 665 P.2d 219, 222, 40 St.Rep. 909, 912. 

In this case as with Nehring - v. LaCounte, factual questions 

remain to be answered. LaCountes' motion for summary 

judgment was properly denied by the District Court. 
.sbu~paaaoxd 

asne3 sy papuemax 02 ayq qayxqsya Wno3 103 xaWJn2 

ay;L xaplo 30 ayq qayxqs~a qxno3 sy 'P~UJTJ~B Pug ay?