Jelen and Son, Inc. v. Kaiser Steel Corp.

• Court: Colorado Court of Appeals
• Citation: Jelen and Son, Inc. v. Kaiser Steel Corp., 807 P.2d 1241 (Colo. App. 1991)
• Decision Date: 17 January 1991
• Docket Number: 89CA1649
• Parties: JELEN AND SON, INC., Plaintiff-Appellant, v. KAISER STEEL CORPORATION, a Delaware corporation; Groves/Calder Joint Venture, a Colorado general partnership; S.J. Groves & Sons Company, a Minnesota corporation; Calder & Company, a Colorado limited partnership, formerly a Colorado general partnership; Western States Mineral Corporation, a Utah corporation;Partnership, Ltd., a Colorado limited partnership; Shirley Zubal, Public Trustee of Huerfano County; the Rocky Mountain Fuel Company, a Delaware corporation; Mineral Resources Land Company, a Colorado corporation, and Jack R. Eatherton and Darry A. Ferguson, individually; Colorado Coal Resources Company, a Colorado limited partnership; Permwinn Corporation, a Colorado corporation; Charter Colorado Resources Company, a Florida corporation; Anthony Abeyta, Public Trustee of Las Animas County; Dr. Eustace H. Winn, Jr.; Union Planters National Bank of Memphis, Tennessee; Dorn L. Schmidt; Eustace H. Winn, Sr.; SPS Industries, Inc., a Texas corporation; Perma Resources Corporation, a Colorado corporation; Domenic Leone Construction Company, a Colorado corporation; H.H. Champlin, III;enderson; Robert Mapes; James F. Adams; Joel Price; T.B. Harris, Jr.; Jack Ferchau; Quixx Corporation, a Texas corporation; All Unknown Persons Who May Claim an Interest in the Property Which is the Subject of This Action, Defendants-Appellees. . I

Page 1241

807 P.2d 1241

JELEN AND SON, INC., Plaintiff-Appellant, v. KAISER STEEL CORPORATION, a Delaware corporation Groves/Calder Joint Venture, a Colorado general partnership S.J. Groves & Sons Company, a Minnesota corporation Calder & Company, a Colorado limited partnership, formerly a Colorado general partnership; Western States Mineral Corporation, a Utah corporation; G-C Partnership, Ltd., a Colorado limited partnership; Shirley Zubal, Public Trustee of Huerfano County; the Rocky Mountain Fuel Company, a Delaware corporation; Mineral Resources Land Company, a Colorado corporation, and Jack R. Eatherton and Darry A Ferguson, individually; Colorado Coal Resources Company, a Colorado limited partnership; Permwinn Corporation, a Colorado corporation; Charter Colorado Resources Company, a Florida corporation; Anthony Abeyta, Public Trustee of Las Animas County; Dr. Eustace H. Winn, Jr.; Union Planters National Bank of Memphis, Tennessee; Dorn L. Schmidt; Eustace H. Winn, Sr.; SPS Industries, Inc., a Texas corporation; Perma Resources Corporation, a Colorado corporation; Domenic Leone Construction Company, a Colorado corporation; H.H. Champlin, III; S.F. Henderson; Robert Mapes; James F. Adams; Joel Price; T.B. Harris, Jr.; Jack Ferchau; Quixx Corporation, a Texas corporation; All Unknown Persons Who May Claim an Interest in the Property Which is the Subject of This Action, Defendants-Appellees.

No. 89CA1649.

Colorado Court of Appeals, Div. I.

Jan. 17, 1991.

Rehearing Denied Feb. 21, 1991.

Holley, Albertson & Polk, P.C., George Alan Holley and Scott D. Albertson, Golden, for plaintiff-appellant.

Moye, Giles, O'Keefe, Vermeire & Gorrell, Erik K. Foster and Dwight K. Shellman, III, Denver, for defendants-appellees SPS Industries, Inc. and Quixx Corp.

Pendleton & Sabian, P.C., Jeffrey R. Fiske and Keith M. Crough, Denver, for defendant-appellee Charter Colorado Resources Co.

No appearance for the remaining defendants-appellees.

Opinion by Judge PLANK.

Jelen & Son, Inc., appeals the trial court's judgment requiring a remote grantee to convey realty to Jelen while leaving certain intervening interests intact. We reverse.

The action was resolved upon undisputed facts. In 1977, Jelen conveyed an interest in specified mineral rights to Groves/Calder Joint Venture, a general partnership, by general warranty and quitclaim deeds. The pertinent language of the general warranty deed provides:

"1. IN CONSIDERATION of Ten Dollars ... Grantor hereby grants ... to Grantee, its successors and assigns, the entire interests in the Property ... reserving and excepting unto Grantor the Production Royalty and Ten Cent Wheelage Royalty, both described below; subject only to the production royalty reserved in the Delcarbon Deed, to Grantor's right of re-entry for condition broken, as described below, and to those matters set forth in Part II of Exhibit A.

....

"3. Grantee shall pay to Grantor an 'Annual Advance Minimum Production Royalty' in the following amounts on the following anniversary dated of this Deed:

Payment      Date
                $100,000.00  2nd Anniversary
                $100,000.00  3rd Anniversary
                $100,000.00  4th Anniversary
                $110,000.00  5th Anniversary
                $120,000.00  6th Anniversary
                $130,000.00  7th Anniversary
                $140,000.00  8th Anniversary
                $150,000.00  9th Anniversary
                $160,000.00  10th Anniversary
                $170,000.00  11th Anniversary
                $180,000.00  12th Anniversary
                $190,000.00  13th Anniversary
                $200,000.00  14th Anniversary
                $200,000.00  15th Anniversary
                

"All Advance Minimum Royalty Payments shall be cumulative in nature....

....

"5. If Grantee defaults in the payment of Annual Advance Minimum Production Royalty and the default is not cured within 30 days after receipt by Grantee of written notice from Grantor served upon Grantee or the authorized representative of any successor or assign of Grantee, then Grantor shall be entitled to a reconveyance of the Property and delivery of exclusive possession thereto. In that event, Grantee's reconveyance and delivery to exclusive possession to Grantor of the Property will be conveyed by Special Warranty Deed and will be free and clear of all claims, liens, and encumbrances which would be enforceable against the Property as limited by the Special Warranty Deed...." (emphasis added)

The quitclaim deed states:

"3. If Grantee defaults in the payment of Annual Advance Minimum Production Royalty payable to Grantor under the Warranty Deed and the default is not cured within 30 days after receipt by Grantee of written notice from Grantor served upon Grantee or the authorized representative of any successor or assign of Grantee, then Grantor shall be entitled to a reconveyance of the Property and the delivery of exclusive possession thereto. In that event, Grantee's reconveyance and delivery of exclusive possession to Grantor of the Property will be conveyed by Special Warranty Deed and will be free and clear of all claims, liens, and encumbrances which would be enforceable against the Property and which are attributable to the acts of Grantee or those claiming through Grantee." (emphasis added)

Groves/Calder conveyed its interest in the property which was subsequently acquired by Colorado Coal Resources Company. Colorado Coal executed a deed of trust against the property for the benefit of Charter Colorado Resources Company (Charter) and thereafter conveyed a non-participating royalty interest to SPS Industries, Inc. SPS further assigned this royalty interest to Quixx Corporation. Colorado Coal by quitclaim deed conveyed the property to Kaiser Steel Corporation.

The tenth, eleventh, and twelfth anniversary payments of the "annual advance Minimum Production Royalty" described in the general warranty deed were not paid by Kaiser or any other party, and Jelen commenced this action. At the time of judgment Kaiser was under the protection of the bankruptcy court, and it disclaimed its interest in the property, and a clerk's default has entered against Groves/Calder and Colorado Coal.

Jelen sought to quiet title to the property through the exercise of a claimed right of re-entry for condition broken. The court dismissed the action upon the motions of Charter, SPS, and Quixx, whereupon Jelen, with leave of court, filed an amended complaint requesting a decree of judicial foreclosure and a declaratory decree. Following trial upon stipulated facts, the trial court determined that Jelen's sole remedy was conveyance of the property from Kaiser by special warranty deed, subject to the interests of SPS, Quixx, and Charter.

I.

Jelen essentially argues the trial court erred by its refusal to construe the language of the...