Pronschinske Trust Dated Mar. 21, 1995 v. Kaw Valley Cos.

899 F.3d 470
CourtCourt of Appeals for the Seventh Circuit
DecidedAugust 10, 2018
DocketNo. 17-2889
StatusPublished
Cited by1 cases

This text of 899 F.3d 470 (Pronschinske Trust Dated Mar. 21, 1995 v. Kaw Valley Cos.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pronschinske Trust Dated Mar. 21, 1995 v. Kaw Valley Cos., 899 F.3d 470 (7th Cir. 2018).

Opinion

Rovner, Circuit Judge.

In June 2012, Ivan and Beverly Pronschinske through their trust, the Pronschinske Trust Dated March 21, 1995 (hereinafter "Pronschinske"), entered into a Mining Leasing Agreement ("the lease") with Kaw Valley Companies ("Kaw Valley"). The land owned by Pronschinske contained frac sand, useful to gas and oil fracking operations, and the lease gave Kaw Valley the right to mine the sand, stone and rock products, but also provided that it was not obligated to extract any materials or sell any product by virtue of the lease.

Kaw Valley ultimately decided not to mine the land and terminated the lease through its provisions, but Pronschinske brought a contract action in district court alleging that Kaw Valley owed $400,000 under the lease provisions that required payment of a Commencement Royalty credit and a Minimum Production Royalty. The district court granted summary judgment for Kaw Valley, holding that under the terms of the lease neither payment was owed. On appeal, Pronschinske argues only that the court erred in determining that the Minimum Production Royalties were not owed. No claim to the Commencement Royalty credit is raised in this appeal. Both parties agree that the language of the lease agreement is unambiguous and controls the disposition of this contract claim, but the parties are diametrically opposed as to what that language unambiguously requires.

The lease grants to Kaw Valley the exclusive rights to "quarry, process, crush, manufacture, wash, remove and sell ('mine'

*472or 'quarry') all sand, gravel, stone and other rock products from the Property" under the terms set forth in the lease. It provides for an initial term of 5 years, commencing on the lease's Effective Date (with automatic continuation under certain defined circumstances), but allows for early termination. Pursuant to the lease, Kaw Valley engaged in actions in preparation for mining, including: surveying the property; conducting well checks; taking soil borings; entering into an agreement to pay for an upgrade of County Highway N; and paying for the widening of the road that accesses the property. It expended approximately $750,000 in preparing to operate the mine, primarily on engineering costs. It eventually determined that mining on the property was not commercially feasible or practical, and exercised its right to terminate the lease. The issue in this case is whether payments are owed to Pronschinske that were incurred while the lease was in effect.

The lease provides for payments to be made to Pronschinske at various stages of the mining process, including the Initial Royalty Credit, Commencement Royalty Credit, and Production Royalties. The Initial Royalty Credit is payable "[c]oncurrently with the execution of this Lease," and mandates a payment of $20,000 "as consideration for the entering into of this Lease." Lease ¶ 3. The agreement further provides that "[t]he Initial Royalty Credit shall be nonrefundable, but shall be used to offset any future amounts and royalties due Lessor from Lessee." Id . Therefore, that payment is a credit against future payments or royalties owed to Pronschinske, and was paid by Kaw Valley as required under the lease.

The lease provided for another credit, the Commencement Royalty Credit in the amount of $45,000, payable "[u]pon commencement of mine or quarry operations, as determined by Lessee in its reasonable discretion." Lease, ¶ 5. As with the Initial Royalty Credit, the lease provided that "[t]he Commencement Royalty Credit shall be nonrefundable, but shall be used to offset any future amounts and royalties due Lessor from Lessee." Id . Pronschinske does not argue on appeal that Kaw Valley owes it the Commencement Royalty Credit.

That brings us to the potential payments at issue here, which are found in the next paragraph of the lease-paragraph 6. We set forth the provision in its entirety, with the language relied upon by Pronschinske italicized:

6. Lessee shall pay Lessor a royalty of $1.50/ton (2,000 lbs.) for the first 65,000 ton of sand, stone and rock products mined from the Property in satisfaction of the offset requirements for the Initial Royalty Credit and Commencement Royalty Credit. Thereafter Lessee shall pay Lessor a royalty of $2.50/ton (2,000 lbs.) for sand, stone and rock products mined from the Property (all such royalties are hereinafter referred to as "Production Royalties") for the sand, stone and rock products mined from the Property weekly (measured from the Effective Date). Lessee shall make such payments to Lessor no later than the Friday following the week in which products are mined from the Property. Notwithstanding anything to the contrary contained herein, Lessee shall pay to Lessor an annual minimum Production Royalty of $75,000.00 (the "Minimum Production Royalty"). In the event that, as of the month containing the anniversary date of the Effective Date, the monthly Production Royalties (as such may be prorated) fail to meet or exceed the Minimum Production Royalty, Lessee shall pay to Lessor the difference between the actual *473amount paid to Lessor during that year and the Minimum Production Royalty for such year. This catch-up payment will be made with the next monthly payment due here-under.

Lease, ¶ 6 (emphasis added).

Pronschinske argues that the italicized language reflects a stand-alone requirement of a minimum annual payment of $75,000 beginning with the first anniversary of the Effective Date, regardless of what actions are taking place on the property. It reads the "[n]otwithstanding anything to the contrary contained herein" language as meaning that its location in paragraph 6 is irrelevant and that it represents a minimum annual payment unconnected to Production Royalties generally. Kaw Valley, however, argues that the "notwithstanding" language references the paragraph in which it is found, and should be read as stating that notwithstanding the calculation of Production Royalties in this paragraph, a minimum payment of $75,000 is owed once the Production Royalty provision is triggered. In other words, Kaw Valley argues that it merely sets a floor for Production Royalties once owed, which applies only when product begins to be mined from the property as set forth in paragraph 6.

As Pronschinske recognizes, under Wisconsin law "[t]he general rule as to construction of contracts is that the meaning of particular provisions in the contract is to be ascertained with reference to the contract as a whole." Tempelis v. Aetna Cas. & Sur. Co. , 169 Wis.2d 1, 485 N.W.2d 217, 220 (1992) ; First Nat'l Bank of Manitowoc v. Cincinnati Ins. Co., 485 F.3d 971, 976 (7th Cir. 2007) ; Folkman v. Quamme , 264 Wis.2d 617, 665 N.W.2d 857

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899 F.3d 470, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pronschinske-trust-dated-mar-21-1995-v-kaw-valley-cos-ca7-2018.