No. 8 6 - 4 6 6
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,
-vs-
EARL 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, 1 9 8 6
Decided: February 9, 1987
e*,c4LLA-d
Clerk
8
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 . 2 d
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. - at 238, 41 St.Rep. at
Id.
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
- - v. Slaubaugh, 366 N.W.2d at 807. Further, the North
Bank
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 ~ . ~ . 2 d 77.
61,
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 - Bottensek, 350 N.W.2d at 591.
v. 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 - -no
- make
determination regardinq the possibility - - Montana court
of the
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. - at 588.
Id.
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 - LaCounte, factual questions
v.
remain to be answered. LaCountes' motion for summary
judgment was properly denied by the District Court.
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