                           NOT FOR PUBLICATION                           FILED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).

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