Wedel v. American Elec. Power Service Corp.

• Decision Date: 12 June 1997
• Docket Number: No. 87A04-9602-CV-53,87A04-9602-CV-53
• Citation: 681 N.E.2d 1122
• Parties: Connie S. WEDEL, as personal representative of the Estate of Charles O. Beshear, Deceased, Appellant-Plaintiff, v. AMERICAN ELECTRIC POWER SERVICE CORPORATION and Ohio Valley Coal Company, Inc., Appellee-Defendants.
• Court: Indiana Appellate Court

Page 1122

681 N.E.2d 1122

Connie S. WEDEL, as personal representative of the Estate of Charles O. Beshear, Deceased, Appellant-Plaintiff, v. AMERICAN ELECTRIC POWER SERVICE CORPORATION and Ohio Valley Coal Company, Inc., Appellee-Defendants.

No. 87A04-9602-CV-53.

Court of Appeals of Indiana.

June 12, 1997.

Rehearing Denied Sept. 5, 1997.

Thomas H. Morsch, Timothy E. Kapshandy, Steven J. Ellison, Theodore T. Chung, Sidley & Austin, David P. List, Chicago, for appellant.

G. Daniel Kelley, Jr., Edward P. Steegmann, Ice Miller Donadio & Ryan, Indianapolis, for appellees.

OPINION

CHEZEM, Judge.

Case Summary ¹

Plaintiff-Appellant, Connie S. Wedel ("Beshear"), ² appeals the trial court's order granting partial summary judgment in favor of Defendant-Appellee, American Electric Power Service Corporation ("AEP"). Judgment was entered "Re: Perpetuities Issues" with the express determination that there is not just reason for delay pursuant to Trial Rule 56(C). We affirm in part and reverse in part.

Issue

Beshear raises several issues in this appeal: 1) whether the failure to plead an affirmative defense is a waiver of the issue in a subsequent suit between the parties; 2) whether the rule against perpetuities applies to an overriding royalty interest in coal; and 3) whether an agreement in violation of the rule against perpetuities can be reformed to preserve the agreement. We restate the issue on appeal as:

Whether the specific findings of fact and conclusions of law entered by the trial court support the finding that the overriding royalty agreement between the parties for the sale of coal deed options violates the rule against perpetuities.

Facts and Procedural History

The facts most favorable to the judgment, as set forth herein, are largely taken from an earlier action between these parties. See American Elec. Power Serv. Corp. v. Beshear, 529 F.2d 1113 (6th Cir.1976).

Beshear and his partner acquired options for coal on approximately 14,275 acres in Southern Indiana. By design, the options were obtained on acres arranged in a checkerboard pattern in Posey, Gibson, and Vanderburgh Counties. AEP had plans to construct an electric power plant in Kentucky, directly across the Ohio River, which would entail the need for an assured supply of coal. In the spring of 1969, Beshear approached AEP and offered to sell the options. Subsequent meetings produced a general agreement that AEP would purchase the options and retain Beshear to acquire additional options on behalf of AEP. AEP and Beshear executed an agreement on January 3, 1970, the pertinent portions of which read:

5. Upon the assignment of your options under items 2 and 3 above, AEP will promptly begin an exploratory program to determine the tons of coal in said reserves, the coal quality and the expected cost of producing the coal. If such program proves that the coal in this area is minable and it also proves possible to consolidate all or substantial part or parts of the aforesaid acreage and any additional areas which might be acquired into minable tract or tracts, then AEP will either exercise or advise you of its intention to exercise the options for such acreage assigned to it by you in items 2 and 3 above.

If such program proves the coal is not minable, or it becomes impossible to consolidate the coal into minable tracts, AEP will not exercise the options assigned to it by you. AEP will re-assign to you said options, if you so desire, provided you will reimburse AEP for any amounts expended by AEP in connection with this coal reserve. For the purposes of this agreement, the options shall be deemed to have been exercised by AEP if they were not re-assigned to you or offered for reassignment to you within three years from the date when you assign the options to AEP as provided in items 2 and 3 above. Upon such offer by AEP to re-assign said options to you, you shall have a six-month period in which to accept such offer.

6. At any time within five years after AEP has exercised its options as provided in item 5 above, you may, at your election from time to time, request AEP to pay you, an advance royalty for such coal covered by all or any number of such options which you have acquired and assigned to AEP (excluding the 7,500 acres mentioned above in item 2), at a rate of $0.015 per ton, using a reasonable recoverable factor (which is expected to be 3,750 tons per seam per acre) to arrive at the total amount due. Upon such payment by AEP, you shall have no further claims with respect to such coal.

....

* * *

8. Once we have progressed beyond item 1 above, you shall continue to acquire options on additional areas acceptable to AEP in Posey and Vanderburgh Counties, Indiana. AEP will pay the cost of obtaining such additional options and shall in addition reimburse you as provided in item 6 or 7 above, as the case may be. In the event AEP independently acquires coal without your help within the limits of the coal field, then the reserves in such areas shall be included under items 6 and 7 above for the payment of royalties to you.

Id. at 1115.

On April 18, 1970, Beshear assigned to AEP the original options on 14,275 acres. In return, AEP reimbursed Beshear for the cost of acquiring the original options, and paid Beshear his first annual advance royalty payment. Beshear commenced obtaining additional options for AEP until he was notified by AEP that effective June 30, 1971, he should cease obtaining options for AEP. As of that date, Beshear had optioned an approximate total of 38,000 acres (including the original 14,275) while AEP had acquired options on another 20,000 acres through another agent. Subsequent to June 30, 1971, AEP independently acquired options on an additional 25,000 acres. Thus AEP acquired options on a total of approximately 83,000 acres. During late 1972, AEP elected to keep the coal rather than cancel under the provisions of paragraph 5 of the agreement. Id. at 1115-16.

On April 21, 1973 and June 28, 1973, Beshear elected the advance royalty provisions of paragraph 6 of the agreement. He requested $0.015 per ton on the recoverable coal in seams 5 and 6 in a specified acreage, later stipulated by the parties to be 56,280 acres. When AEP refused to pay, Beshear filed a complaint in the U.S. District Court for the Western District of Kentucky. The only matter submitted to the jury was the amount that Beshear should recover under the 1973 elections. The jury returned a verdict in the amount of $4,766,203.00 plus interest and judgment was entered for Beshear. Id. at 1116.

AEP appealed the judgment on numerous grounds, three of which are relevant here:

(1) whether Beshear is precluded from recovering because he was not a licensed real estate broker; ... (3) whether an alleged ambiguity of paragraph 8 should have been submitted to the jury; [and] (4) whether Beshear should have been denied recovery on acreage acquired by AEP after June 30, 1971.

Id. at 1116. The rule against perpetuities was not raised by AEP as a defense in that action. As to the first issue, the Sixth Circuit panel held that

[t]he agreement is for the sale of real estate interests of which Beshear was at least co-owner. Property owners may sell their own property without participation of real estate brokers.... That Beshear was not a licensed real estate broker cannot, therefore, preclude his recovery under the agreement.

Id. at 1117. Regarding an alleged ambiguity in paragraph 8 of the agreement, which ambiguity apparently related to the acreage to be included in the royalty calculation, the court stated,

as a matter of law, we find nothing in paragraph 8, or anywhere in the agreement, which would render the foregoing provision ambiguous or which would conflict with its interpretation as mandating that Beshear be paid a royalty on the total acreage acquired by AEP within the period specified in paragraph 6. ³

Id. at 1118 (emphasis added). ⁴ It was, therefore, proper that this issue was not submitted to the jury. The court also explicitly held that "[t]he agreement specifically provides, in paragraph 8, for payment to Beshear of royalties on coal options obtained without his help.... We find no error in the interpretation of the plain language of the agreement as requiring recovery on options acquired after June 30, 1971." Id. at 1118. The judgment was affirmed in all respects.

Thereafter, on August 15, 1977, and again on February 13, 1978, Beshear made further elections to receive advance royalties on coal deed options obtained independently by AEP. After negotiation, two agreements, dated January 19, 1978 and April 18, 1978, were executed. These agreements amended the original agreement between the parties and simplified the royalty calculations, resulting in further payments to Beshear of $645,025.75 and $1,089,092.42. (R. 104-05, 119-21).

On June 22, 1978, Beshear made a general election to receive advance royalties, this time on all acreage not previously elected and specifically for all recoverable coal in seam 7. Again, on June 20, 1983, Beshear made an election regarding all seams of minable coal in acreage acquired by AEP to date. Finally, on September 14, 1983, Beshear made an election regarding acreage in two specific tracts, for coal in seams 5 and 6. AEP did not make payment on any of these three elections.

Beshear filed this action on August 1, 1986 to recover royalties on coal options acquired by AEP subsequent to the 1978 amendments to the original agreement and for royalties on coal reserves in acreage not acquired by AEP. ⁵ (R. 14). On January 23, 1995, AEP filed its Motion for Partial Summary Judgment Re: Perpetuities Issues, which the trial court granted on July 5, 1995. Beshear appeals that decision.

Discussion and Decision

Upon review of the grant or denial of a summary judgment motion, we apply the same legal standard as the trial court: summary judgment is appropriate only when there are no genuine issues of material fact and the...