from the District Court of Barnes County, Southeast Judicial
District, the Honorable Troy J. LeFevre, Judge.
H. McLean (argued) and Kasey D. McNary (on brief), Fargo, ND,
for plaintiff and appellant.
R. Hanson (argued) and James J. Grossman (on brief), Fargo,
ND, for defendants and appellees.
VandeWalle, Chief Justice.
1] Jacob Greer, doing business as Greer Farm, appealed from a
judgment dismissing his claims against Global Industries,
Inc. and Nebraska Engineering Co. ("NECO"), an
unincorporated division of Global Industries (collectively
"Global"). Greer argues the district court erred in
granting summary judgment dismissal of his claims against
Global because there were genuine issues of material fact
about whether Advanced Ag Construction Incorporation, also a
party to this action, was Global's agent when Advanced Ag
sold a grain dryer to Greer. We dismiss the appeal,
concluding certification under N.D.R.Civ.P. 54(b) was
2] Greer sued Global Industries, NECO, and Advanced Ag for
breach of contract and conversion. Greer alleged he purchased
a NECO grain dryer from Advanced Ag for $237, 075, Advanced
Ag was an agent of NECO and Global Industries, and he never
received the grain dryer from Advanced Ag, NECO, or Global
Industries. He requested damages for the amount he paid for
the dryer, lost tax deductions and advantages, and other
3] Global answered Greer's complaint and demanded a jury
trial on all triable issues. Global claimed NECO was an
unincorporated division of Global Industries and was not
separately subject to service of process. Global alleged
Greer's claims against Global were barred because he
could not establish an agency relationship between Global and
Advanced Ag. Global requested Greer's claims against them
be dismissed with prejudice.
4] Advanced Ag did not answer Greer's complaint or
otherwise appear in the action. A default judgment had not
been entered against Advanced Ag before this appeal. There is
nothing in this record to indicate Advanced Ag is bankrupt or
would be unable to pay a judgment against it.
5] Global moved for summary judgment requesting dismissal of
all of Greer's claims. Global argued Greer's claims
were based upon a theory of agency that was not available
under the law. Greer opposed the motion and alleged Advanced
Ag was Global's agent. After a hearing, the district
court granted Global's motion, ruling Advanced Ag did not
have actual authority to act as Global's agent and there
was no evidence to support a claim that Advanced Ag had
apparent or ostensible authority to act on behalf of Global.
The court granted summary judgment in favor of Global as a
matter of law and dismissed all claims against Global with
prejudice. Judgment was entered dismissing the claims and
awarding Global $18, 456.82 in costs and disbursements.
6] Greer moved for certification under N.D.R.Civ.P. 54(b) to
allow him to appeal the summary judgment dismissing his
claims against Global and for a continuance of the trial to
determine damages. After a hearing, the district court
granted the motion.
7] Before we can consider the merits of an appeal, we must
determine whether we have jurisdiction. Holverson v.
Lundberg, 2015 ND 225, ¶ 6, 869 N.W.2d 146. We
apply a two-step analysis to determine whether we have
First, the order appealed from must meet one of the statutory
criteria of appealability set forth in N.D.C.C. §
28-27-02. If it does not, our inquiry need go no further and
the appeal must be dismissed. If it does, then [ N.D.R.Civ.P.
54(b), if applicable, ] ...