917 N.W.2d 1
N.D.2018Background
- Greer (d/b/a Greer Farm) sued Advanced Ag, Global Industries, and Nebraska Engineering Co. (NECO, a division of Global) for breach of contract and conversion after paying $237,075 for a NECO grain dryer he never received.
- Greer alleged Advanced Ag sold the dryer as Global/NECO’s agent; Global denied any agency and moved for summary judgment.
- Advanced Ag never answered or appeared; no default judgment had been entered against it and there is no record it is insolvent.
- The district court granted Global’s motion, concluding no actual, apparent, or ostensible agency existed, dismissed Greer’s claims against Global with prejudice, and awarded costs to Global.
- Greer moved for and the district court granted certification under N.D.R.Civ.P. 54(b) to allow immediate appeal as to Global while claims against Advanced Ag remained pending.
- The Supreme Court reviewed jurisdiction and Rule 54(b) certification and concluded certification was improvidently granted, so it dismissed the appeal for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court erred granting summary judgment to Global by rejecting agency | Greer: Advanced Ag acted as Global/NECO’s agent when selling the dryer, creating triable issues of fact | Global: No actual, apparent, or ostensible authority existed for Advanced Ag to bind Global | Court did not reach merits on agency because appeal was dismissed for lack of jurisdiction due to improper Rule 54(b) certification |
| Whether Rule 54(b) certification was proper to permit immediate appeal while claims against another party remained pending | Greer: Certification necessary to avoid multiple trials, risk of res judicata/collateral estoppel, and because Advanced Ag defaulted/was unlikely collectible | Global: Multi-party claims remain; piecemeal appeal discouraged absent unusual hardship | Court: Certification improvidently granted — no unusual or cognizable hardship shown; Rule 54(b) improperly used; appeal dismissed |
| Whether the Supreme Court has jurisdiction over an appeal disposing of fewer than all parties without proper Rule 54(b) compliance | Greer: N/A on jurisdiction beyond arguing need for immediate review | Global: N/A beyond asserting correctness of dismissal and Rule 54(b) requirements | Court: Jurisdiction lacking when Rule 54(b) requirements are not properly met in multi-party case |
| Whether avoidance of multiple trials alone justifies Rule 54(b) certification | Greer: Avoiding multiple trials is sufficient hardship to justify certification | Global: Avoiding multiple trials is a generic concern present in all multi-party interlocutory appeals and insufficient | Court: Avoiding multiple trials alone is insufficient; must show unusual, compelling circumstances — none shown |
Key Cases Cited
- Holverson v. Lundberg, 2015 ND 225, 869 N.W.2d 146 (explaining two-step appealability and need to satisfy statutory criteria and Rule 54(b))
- In re Estate of Hollingsworth, 2012 ND 16, 809 N.W.2d 328 (clarifying Rule 54(b) compliance and appealability analysis)
- Baker v. Autos Inc., 2017 ND 229, 902 N.W.2d 508 (review standard for district court Rule 54(b) certifications and factors to consider)
- Peterson v. Zerr, 443 N.W.2d 293 (N.D. 1989) (cautioning against piecemeal appeals and describing weighing of Rule 54(b) factors)
- Club Broadway, Inc. v. Broadway Park, 443 N.W.2d 919 (rejecting multiple-trial avoidance as alone sufficient for Rule 54(b) certification)
- Union State Bank v. Woell, 357 N.W.2d 234 (listing factors district courts should consider when assessing Rule 54(b) certification)