Energy Investments, Inc. v. Greehey & Co.

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 8 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ENERGY INVESTMENTS, INC., a No. 16-35245
Colorado corporation and PINE
PETROLEUM, INC., a North Dakota D.C. No. 4:14-cv-00013-JTJ
corporation,
Plaintiffs-Appellees, MEMORANDUM*
v.
GREEHEY & COMPANY, LTD., a Texas
limited partnership,
Defendant-Appellant.
ENERGY INVESTMENTS, INC., a No. 16-35256
Colorado corporation and PINE
PETROLEUM, INC., a North Dakota D.C. No. 4:14-cv-00013-JTJ
corporation,
Plaintiffs-Appellants,
v.
GREEHEY & COMPANY, LTD., a Texas
limited partnership,
Defendant-Appellee.
Appeal from the United States District Court
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
for the District of Montana
John T. Johnston, Magistrate Judge, Presiding
Submitted December 6, 2017**
Seattle, Washington
Before: O’SCANNLAIN, TALLMAN, and WATFORD, Circuit Judges.
Greehey & Company, Ltd. (“Greehey”) appeals the district court’s partial
grant of Energy Investments, Inc.’s and Pine Petroleum, Inc.’s (collectively “EII”)
summary judgment motion holding the Area of Mutual Interest Agreement
(“AMI”) unambiguously required Greehey to pay EII prospect fees for mineral
acres acquired by Greehey or its agents. EII 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. 16-35256.
Greehey argues the AMI for oil and gas leases contains a latent ambiguity
because it does not contain language stating Greehey has to pay EII 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
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2
Agreement, payable to EII subject to the terms of this Agreement.” The language
of this provision is “reasonably susceptible to only one construction”: that Greehey
must pay EII $50 for each net mineral acre that is acquired by Greehey or Shale
Exploration during the term of the AMI, even if EII did not contribute to securing
the lease. Mary J. Baker Revocable Tr. v. Cenex Harvest State Coop. Inc., 338
Mont. 41, 50 (2007). The district court properly “appl[ied] the language as
written.”1 Id.EII 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. EII 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.
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
(2009).
3