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Tharaldson Ethanol Plant I, LLC v. VEI Global, Inc.

Supreme Court of North Dakota

May 6, 2014

Tharaldson Ethanol Plant I, LLC and Tharaldson Financial Group, Inc., Plaintiffs and Appellants
v.
VEI Global, Inc., f/k/a Valley Engineering, Inc., Defendant and Appellee and VEI Global, Inc., f/k/a Valley Engineering, Inc., Defendant, Third-Party Plaintiff and Appellee
v.
Dougherty Funding, LLC, Third-Party Defendant

Page 901

Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Wickham Corwin, Judge.

Matthew T. Collins (argued) and Nathan Sellers (on brief), Minneapolis, Minn., for plaintiffs and appellants.

Jeffrey W. Coleman (argued) and Gregory S. Schwartz (on brief), Minneapolis, Minn., James S. Hill (appeared) and Rebecca S. Thiem (on brief), Bismarck, N.D., for defendant and appellee.

Dale V. Sandstrom, Daniel J. Crothers, Carol Ronning Kapsner, Todd L. Cresap, D.J., Gerald W. VandeWalle, C.J. Opinion of the Court by Sandstrom, Justice. The Honorable Todd L. Cresap, D.J., sitting in place of McEvers, J., disqualified.

OPINION

Page 902

Sandstrom, Justice.

[¶1] Tharaldson Ethanol Plant I, LLC (" Tharaldson Ethanol" ) and Tharaldson Financial Group, Inc. (" Tharaldson Financial" ) appeal from a judgment and amended judgment ordering Tharaldson Financial to pay VEI Global, Inc., $1,150,000 plus interest, and from an order granting certification under N.D.R.Civ.P. 54(b). We dismiss the appeal, concluding the district court should not have directed entry of a final judgment under N.D.R.Civ.P. 54(b).

I

[¶2] VEI provided design and construction management services for an ethanol plant owned and operated by Tharaldson Ethanol. In April 2009, Tharaldson Ethanol and VEI reached a settlement on disputed fees, agreeing Tharaldson Ethanol would pay VEI $1,350,000 for all work VEI performed through February 28, 2009. The agreement also provided Tharaldson Financial would enter into a $1,350,000 promissory note payable to VEI, and a copy of the note was attached and incorporated into the agreement. Tharaldson Financial signed the promissory note, promising to pay VEI $1,350,000 with interest, under the following terms:

A. The sum of $200,000.00 shall be paid on or before April 20, 2009.
B. The principal sum of $100,000.00 plus all accrued interest on July 1, 2009 and $100,000.00 on the first day of each month thereafter until the principal amount owed, plus all accrued interest has been reduced to $150,000.00 (Final Payment).
C. The Final Payment will only be made if Tharaldson Ethanol Plant I, LLC achieves an ethanol production rate equal to or exceeding 30,821,918 gallons of 2% denatured ethanol over a 90 day period. VEI agrees to waive the Final Payment if Tharaldson Ethanol Plant I, LLC is unable to achieve said ethanol production rate prior to April 1, 2011.

Tharaldson Ethanol deposited $1,350,000 in VEI's bank account. VEI paid Tharaldson Financial $1,350,000. Tharaldson Financial and Tharaldson Ethanol claim Tharaldson Financial made a $1,350,000 equity contribution to Tharaldson Ethanol. Tharaldson Financial made the first payment of $200,000 as required by the terms of the promissory note, but did not make any further payments on the note.

[¶3] In a complaint dated August 28, 2012, Tharaldson Ethanol and ...


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