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Greer v. Global Industries, Inc.

Supreme Court of North Dakota

August 30, 2018

Jacob Greer, d/b/a Greer Farm, Plaintiff and Appellant
v.
Global Industries, Inc., Nebraska Engineering Co., A Division of Global Industries, Inc., Defendants and Appellees and Advanced Ag Construction Incorporated, Defendant

          Appeal from the District Court of Barnes County, Southeast Judicial District, the Honorable Troy J. LeFevre, Judge.

          Ronald H. McLean (argued) and Kasey D. McNary (on brief), Fargo, ND, for plaintiff and appellant.

          Mark R. Hanson (argued) and James J. Grossman (on brief), Fargo, ND, for defendants and appellees.

          OPINION

          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 improvidently granted.

         I

         [¶ 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 related losses.

         [¶ 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.

         II

         [¶ 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 jurisdiction:

First, the order appealed from must meet one of the statutory criteria of appealability set forth in N.D.C.C. ยง 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, ] ...

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