RENDERED: OCTOBER 30, 2020; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2018-CA-1073-MR

BUCKHORN RESOURCES, LLC APPELLANT

APPEAL FROM LESLIE CIRCUIT COURT

v. HONORABLE OSCAR GAYLE HOUSE, JUDGE

ACTION NO. 09-CI-00256

COMBS HEIRS, LLC; SAMUEL L. COMBS;

LAURA COMBS; B.C. NOLAN TRUST BY

VIRGINIA NOLAN CRAFT; CATHERINE B.

NOLAN BY VIRGINIA NOLAN CRAFT;

FRANK PETERS; PATRICIA S. PETERS; 

AND ICG HAZARD, LLC APPELLEES

OPINION

AFFIRMING

**   **  **

BEFORE: CALDWELL, DIXON, AND L. THOMPSON, JUDGES.

DIXON, JUDGE: Buckhorn Resources, LLC, (“Buckhorn”) appeals from the

judgment declaring its property deeds void as champertous and awarding royalties 

for coal mining by ICG Hazard, LLC, (“ICG”) on the property to Combs Heirs, 
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LLC; Samuel L. Combs; Laura Combs; B.C. Nolan Trust by Virginia Nolan Craft; 

Catherine B. Nolan by Virginia Nolan Craft; Frank Peters; and Patricia S. Peters 

(“Combs Heirs”) entered on June 5, 2018,

1 by the Leslie Circuit Court. Following

review of the record, briefs, and law, we affirm.

FACTS AND PROCEDURAL BACKGROUND

On October 21, 2009, the Combs Heirs sued ICG for unpaid royalties 

for coal mining on their property. The heirs attached an unsigned memorandum of 

lease agreement, which was also undated beyond indicating the year was 2000,2to 

their complaint. This memorandum identified the property as:

located on the waters of Coal Branch and Long Fork of 

Langdon Branch, tributaries of the Middle Fork of the 

Kentucky River, in Leslie County, Kentucky, said 

property (i) being more particularly described on Exhibit 

A attached hereto, (ii) being shown on the map attached 

as Exhibit B to the Agreement (as defined below), and 

(iii) being hereinafter referred to as the “Leased 

Premises[.]”

However, neither Exhibit A nor B was made a part of the record. 

 

1

 The circuit clerk mistakenly indicated that this order was entered on May 5, 2018, although it 

was signed and dated by the trial court on June 5, 2018. Buckhorn subsequently moved the trial 

court to correct the record on appeal (on July 3, 2019) to reflect the June 5, 2018, date of this 

order, which was granted (on August 22, 2019). 

2 This lease was between the Combs Heirs and Leslie Resources. The parties allege the lease 

was entered on February 9, 2000. ICG replaced Leslie Resources as the lessee on September 30, 

2005.
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On December 1, 2009, ICG moved the trial court for leave to join 

Buckhorn as a party to this action, asserting that ICG had competing coal mining 

leases with the Combs Heirs, as well as Buckhorn, for what it referred to as the 

“Dr. Combs Property.” Along with this motion, ICG tendered a counterclaim 

against the Combs Heirs and Buckhorn seeking a declaratory judgment to 

determine the proper recipient of the disputed coal mining royalties. The following 

day, the court entered two agreed orders: the first required that ICG deposit the 

disputed royalties with the court pending resolution of this matter, and the second 

granted ICG’s motion for leave to join Buckhorn as a counterclaim defendant. The 

Combs Heirs answered ICG’s counterclaim, alleging Buckhorn’s claim “is barred 

by champerty and a complete failure of title, if any[.]” Buckhorn counterclaimed

against ICG for its failure to pay royalties pursuant to the coal mining lease dated 

September 1, 2009.

Nearly seven years later, the Combs Heirs moved the trial court for 

summary judgment. The Combs Heirs asserted that this case involved 

approximately 440 acres of land on the Coal Branch of the Middle Fork of the 

Kentucky River in Leslie County, Kentucky, of which they claimed their family 

had possession for over 100 years. They further asserted that the principles of res 

judicata and collateral estoppel entitled them to judgment as a matter of law 
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because Buckhorn’s 2005 deeds had been declared void for champerty in two other 

circuit court cases.3 

On June 5, 2018, the court entered its judgment finding the 

prospecting, core-drilling, and mining constituted sufficient evidence of possession 

to void Buckhorn’s deeds as champertous under KRS4 372.080. The court also 

awarded the unpaid coal mining royalties to the Combs Heirs. Buckhorn moved 

the court to alter, amend, or vacate its order pursuant to CR5 59.01(f). While this 

motion was pending, Buckhorn filed its notice of appeal.6 The court subsequently

denied Buckhorn’s motion to alter, amend, or vacate.

NONCOMPLIANCE WITH RULES OF APPELLATE PROCEDURE

Another panel of our Court has recently addressed the growing 

problem of noncompliance with the rules of appellate practice.

This Court is weary of the need to render opinions such 

as this one, necessitated as they are by the failure of 

appellate advocates to follow rules of appellate advocacy. 

In just the last two years, at least one hundred and one 

 

3

 By order of the Perry Circuit Court, Action No. 08-CI-00073, entered November 27, 2012, the 

court found Leslie Resources was in actual possession of at least portions of the area in dispute; 

therefore, it found the portion of the deed relating to that property in Perry County void for 

champerty. By order of the Leslie Circuit Court, Action No. 08-CI-00023, entered August 11, 

2014, the court found “the deed” from East Kentucky Land Corporation to Buckhorn void for 

champerty. 

4

 Kentucky Revised Statutes.

5

 Kentucky Rules of Civil Procedure.

6

 The Supreme Court of Kentucky has found the premature notice of appeal related forward, 

citing CR 73.02(1)(e)(i). Johnson v. Smith, 885 S.W.2d 944, 950 (Ky. 1994). 
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(101) Kentucky appellate opinions were rendered in 

which an attorney’s carelessness made appellate rule 

violations an issue in his or her client’s case. The 

prodigious number of attorneys appearing in Kentucky’s 

appellate courts lacking the skill, will, or interest in 

following procedural rules is growing. In 2005, only two 

(2) Kentucky opinions addressed appellate rules 

violations. In 2010, the number jumped to eleven (11).

In 2015, the number rose slightly to fourteen (14). The 

average for the last two years is more than three times 

that. If this is not a crisis yet, it soon will be if trends do 

not reverse.

We will not reiterate all that has been said too many 

times before on this subject. If a lawyer is curious about 

the importance of these procedural rules or the practical

reasons for following them, we recommend reading these 

opinions in chronological order: Commonwealth v. Roth, 

567 S.W.3d 591 (Ky. 2019); Koester v. Koester, 569 

S.W.3d 412 (Ky. App. 2019); Hallis v. Hallis, 328 

S.W.3d 694 (Ky. App. 2010); Elwell v. Stone, 799 

S.W.2d 46 (Ky. App. 1990).

. . . Some rule violations are alone sufficient to justify 

applying a manifest injustice standard of review or, 

worse, striking the brief. CR 76.12(8); see also Roth, 

567 S.W.3d at 593; Mullins v. Ashland Oil, Inc., 389 

S.W.3d 149, 154 (Ky. App. 2012). Other violations are 

less profound; however, “there is an important purpose 

behind each of these rules.” Hallis, 328 S.W.3d at 696 

(referring by footnote to the purpose underlying some of 

the more mundane rules). 

Clark v. Workman, 604 S.W.3d 616, 616-18 (Ky. App. 2020) (footnotes omitted). 

Buckhorn’s brief violates CR 76.12(4)(c)(v), requiring “at the 

beginning of the argument a statement with reference to the record showing 

whether the issue was properly preserved for review and, if so, in what manner.” 
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Buckhorn provided no statement of preservation for any of its arguments. 

Notwithstanding these errors, this Court will not strike the brief and dismiss the 

appeal for issues presented that were properly preserved for review. 

STANDARD OF REVIEW

Summary judgment is appropriate “if the pleadings, depositions, 

answers to interrogatories, stipulations, and admissions on file, together with the 

affidavits, if any, show that there is no genuine issue as to any material fact and 

that the moving party is entitled to a judgment as a matter of law.” CR 56.03. An 

appellate court’s role in reviewing a summary judgment is to determine whether 

the trial court erred in finding no genuine issue of material fact exists and the 

moving party was entitled to judgment as a matter of law. Scifres v. Kraft, 916 

S.W.2d 779, 781 (Ky. App. 1996). A grant of summary judgment is reviewed de 

novo because factual findings are not at issue. Pinkston v. Audubon Area Cmty.

Servs., Inc., 210 S.W.3d 188, 189 (Ky. App. 2006) (citing Blevins v. Moran, 12 

S.W.3d 698 (Ky. App. 2000)). 

ANALYSIS

On appeal, Buckhorn contends the trial court’s decision is 

unsupported by the evidence and erroneous as a matter of law. Nevertheless, one 

issue not squarely addressed by Buckhorn is dispositive herein. That issue is 
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whether Buckhorn is bound by the trial court’s determination in a separate case7

that its deed is champertous.

The champerty statute, KRS 372.080, provides “[a]ny contract to 

prosecute an action for the recovery of any land in the adverse possession of 

another, for the whole or part of the land thus possessed, or for the whole or any 

part of the profits thereof, is void.” Buckhorn claims ownership of the property at 

issue herein through a single deed8for a large tract of land located in Leslie and 

Perry Counties. Buckhorn had purchased the 9,800 acres from East Kentucky 

Land Corporation in January 2005 for $825,000. That deed was the subject of at 

least two separate lawsuits wherein it was claimed that Buckhorn’s deed was void 

as champertous.

One of the two prior lawsuits occurred in Leslie County and resulted 

in the Leslie Circuit Court’s order on August 11, 2014, holding that the entirety of 

Buckhorn’s deed was void for champerty. That prior order was not appealed and 

became final. 

In 1970, Kentucky adopted what is known as “claim preclusion” or 

“issue preclusion” in Sedley v. City of West Buechel, 461 S.W.2d 556 (Ky. 1970). 

Therein the Court held, “a person who was not a party to the former action nor in 

 

7

 Leslie Circuit Court Action No. 08-CI-00023.

8

 A deed of correction regarding the same property was later recorded.
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privity with such a party may assert res judicata against a party to that action, so as 

to preclude the relitigation of an issue determined in the prior action.” Id. at 559. 

The doctrine is different from collateral estoppel in that it is unnecessary that the 

collateral litigation be among the same parties, and is also known as “offensive 

collateral estoppel.” See May v. Oldfield, 698 F. Supp. 124 (E.D. Ky. 1988). The 

trial court specifically recognized in its final judgment herein that Buckhorn’s deed 

at issue here is the same deed that it previously declared void due to champerty. 

This is undisputed by the parties. Consequently, the prior order is controlling, and 

the trial court properly followed its prior determination that Buckhorn’s deed was 

void. 

CONCLUSION

Therefore, and for the foregoing reasons, the orders entered by the 

Leslie Circuit Court are AFFIRMED.

ALL CONCUR.
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BRIEFS FOR APPELLANT:

Gary W. Napier

Drayer B. Spurlock 

London, Kentucky 

BRIEF FOR APPELLEES COMBS 

HEIRS, LLC; SAMUEL L. COMBS;

LAURA COMBS; B.C. NOLAN 

TRUST BY VIRGINIA NOLAN 

CRAFT; CATHERINE B. NOLAN 

BY VIRGINIA NOLAN CRAFT;

FRANK PETERS; AND PATRICIA 

S. PETERS:

Phillip Lewis

Hyden, Kentucky 

BRIEF FOR APPELLEE ICG 

HAZARD, LLC:

Anne Chesnut

R. Clay Larkin 

Lexington, Kentucky