UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT GLACIER BEAR RETREAT, LLC; No. 23-35117 GAIL L. GOODWIN; DARRYL C. SLATTENGREN, D.C. No. 9:22-cv- 00019-KLD Plaintiffs-counter- defendants-Appellees, v. ORDER CERTIFYING MATT DUSEK; RACHEL DUSEK, QUESTION TO THE SUPREME Defendants-counter- COURT OF claimants-Appellants. MONTANA

GLACIER BEAR RETREAT, LLC; No. 23-35268 GAIL L. GOODWIN; DARRYL C. SLATTENGREN, D.C. No. 9:22-cv- 00019-KLD Plaintiffs-counter- defendants-Appellants, v. MATT DUSEK; RACHEL DUSEK,

Defendants-counter- claimants-Appellees. 2 GLACIER BEAR RETREAT, LLC V. DUSEK

Filed July 11, 2024

Before: Richard A. Paez, Jacqueline H. Nguyen, and Patrick J. Bumatay, Circuit Judges.

SUMMARY *

Certification Order / Montana Law

The panel certified the following question to the Montana Supreme Court:

Whether the compensation awarded as incident to a decree for specific performance of a contract constitutes legal damages for the purpose of awarding prejudgment interest under Montana Code Annotated section 27- 1-211.

ORDER

Pursuant to Rule 15(3) of the Montana Rules of Appellate Procedure, we respectfully certify the question set forth below to the Montana Supreme Court. The answer to the question will be “determinative of an issue in pending litigation” before this court, and there is “no controlling

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. GLACIER BEAR RETREAT, LLC V. DUSEK 3

appellate decision.” For the reasons below, we certify the following question:

Whether the compensation awarded as incident to a decree for specific performance of a contract constitutes legal damages for the purpose of awarding prejudgment interest under Montana Code Annotated section 27- 1-211. We recognize that our phrasing of this question does not restrict the court’s consideration of the issues involved and that the court may rephrase the question as it sees fit. We agree to accept the court’s answer. I. We briefly summarize the relevant facts. In this diversity action, Glacier Bear Retreat, LLC, Gail Goodwin, and Darryl Slattengren (collectively, “Sellers”) appeal from the district court’s denial of their motion to amend the court’s judgment to include prejudgment interest pursuant to Montana Code Annotated section 27-1-211. This case stems from a multi-million-dollar buy-sell agreement (“BSA”) between Matt and Rachel Dusek (collectively, “Buyers”) and Sellers. 1 Buyers sought to terminate the BSA on the basis of several express contingency clauses. After the closing date passed, Sellers sued for breach of contract. Buyers counterclaimed, asserting that Sellers failed to satisfy the contingencies in the BSA and that they were thus entitled to terminate the agreement. The parties eventually filed cross-motions for 1 The subject of the BSA was a property located inside Glacier National Park in Montana. 4 GLACIER BEAR RETREAT, LLC V. DUSEK

summary judgment on their respective breach-of-contract claims, with each arguing that the BSA unambiguously warranted judgment in their favor. The district court granted summary judgment in favor of Sellers and awarded them specific performance. 2 Following the district court’s decree of specific performance, Sellers sought to amend the judgment pursuant to Federal Rule of Civil Procedure 59(e) to includ