Energy Investments, Inc. v. Greehey & Co.

705 F. App'x 655

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 8, 2017
• Docket: 16-35245, 16-35256
• Status: Unpublished

Opinion

MEMORANDUM **

Greehey .& Company, Ltd. (“Greehey”) appeals the district court’s partial grant of Energy Investments, Inc.’s and Pine Petroleum, Inc.’s (collectively “ÉII”) summary judgment motion holding the Area of Mutual Interest Agreement (“AMI”) unambiguously required Greehey to pay Eli prospect fees for mineral acres acquired by Greehey or its agénts. Eli cross-appeals the district court’s denial of its motion for prejudgment interest. We have jurisdiction under 28 U.S.C. § 1291, and we affirm the district court’s judgment in No, 16-35245 and dismiss the cross-appeal in No. 16-36256.

Greehey argues the AMI for oil and gas leases contains a latent ambiguity because it does not contain language stating Gree-hey has to pay Eli a prospect fee for Shale Prospects, nor does it describe the circumstances under which a fee must be paid. However, the contract defines a prospect fee to mean “[a] fee of $50,00 per net mineral acre for all Oil and Gas.Interest acquired by Greehey or [a] Greehey subsidiary (such as Shale Exploration) during the terms of this Agreement, payable to Eli subject to the terms of this Agreement.” The language of this provision is “reasonably susceptible to only one construction”: that Greehey must pay Eli $50 for each net mineral acre that is acquired by Greehey or Shale Exploration during the term of the AMI, even if Eli did not contribute to securing the lease. Mary J. Baker Revocable Tr. v. Cenex Harvest State Coop. Inc., 338 Mont. 41, 50, 164 P.3d 851 (2007), The district court properly “applied] the language as written.” 1 Id.

Eli cross-appeals, arguing the district court erred in denying its request for prejudgment interest under Montana law. See Mont. Code Ann. § 27-1-211. The parties stipulated to the dismissal of all the remaining claims except for those covered by the partial summary judgment order. Eli failed to preserve its claim for prejudgment interest and it was not part of the summary judgment order. Therefore, we dismiss the cross-appeal.

Each party shall bear its own costs. See Fed. R. App. P. 39(a)(4).

AFFIRMED. The cross-appeal is DISMISSED.

** This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3,

1 . We do not reach Greehey's argument on parole evidence because we hold the AMI is unambiguous. See Richards v. JTL Group, Inc., 350 Mont. 516, 522, 212 P.3d 264 (2009).