2011-02-10_GENERAL DOCUMENTS - C1981008 ‎(2)‎

• Permit No: C1981008
• IBM Index Class Name: General Documents
• Doc Date: 2/10/2011
• Doc Name: Western Fuels- Colorado LLC Counterclaims 2010 CV 367
• From: Christopher Kamper, Craig R. Carver, Carver, Schwarz, McNab & Bailey, LLC
• To: District Court, Montrose County, Colorado
• Permit Index Doc Type: General Correspondence
• Email Name: DAB
• Media Type: D
• Archive: No

84. In the Coal Mining Lease, Counterclaim Defendants specifically agreed not to
interfere with WFC's activities on their land or on land belonging to other parties, and granted
WFC numerous other rights in addition to those implied at law.
85. Counterclaim Defendants, because of actions they have taken either acting alone
or through their agents and attorneys in fact are in breach of the Coal Mining Lease, including its
express and implied terms.
86. Counterclaim Defendants have also breached the duty of good faith and fair
dealing implied at law in the Coal Mining Lease.
87. WFC is therefore entitled to its damages as described herein in an amount to be
proven at trial.
THIRD CLAIM FOR RELIEF — BREACH OF THE COVENANT OF QUIET
ENJOYMENT AND WARRANTY OF TITLE
(WFC v. Frank and Mary Lou Morgan)
88. WFC incorporates by reference the allegations of paragraphs 1 to 87 of this
Counterclaim as if set forth in full herein.
89. The Coal Mining Lease contains an express warranty of title and quiet possession
and an implied covenant of quiet enjoyment.
90. To the extent JoEllen Turner and Michael Morgan, third parties claiming title in
the leasehold Property, have asserted rights against WFC based on agreements or leases among
the Counterclaim Defendants, Lessor is in breach of the express warranty of title and quiet
possession under the Coal Mining Lease.
91. The actions of Lessor have also breached the covenant of quiet enjoyment,
causing WFC damage, and amount to an attempt at constructive eviction. Specifically, Lessors'
attempts through the objections to PR -06, the appeal of PR -06 to the Mined Land Reclamation
Board, and the appeal of the approval of PR -06 to this Court as Civil Action No. 10 -CV -548 are
attempts to constructively evict WFC from the Premises and deny WFC the benefits of the Coal
Mining Lease.
92. WFC is therefore entitled to all damages suffered thereby in an amount to be
proven at trial.
FOURTH CLAIM FOR RELIEF — DECLARATORY JUDGMENT
(WFC v. JoEllen Turner and Michael Morgan)
93. WFC incorporates by reference the allegations of paragraphs 1 to 92 of this
Counterclaim as if set forth in full herein.
(00026036.1) 11