RENDERED: OCTOBER 30, 2020; 10:00 A.M. NOT TO BE PUBLISHED 

# Commonwealth o f Kentucky Court of Appeals

NO. 201 8

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- 1073

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BUCKHORN RESOURCES, LLC APPELLANT

APPEAL FROM LESLIE CIRCUIT COURT v. HONORABLE OSCAR GAYLE HOUSE , JUDGE ACTION NO. 09

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

. DIXON , JUDGE: Buckhorn Resources, LLC, (“Buckhorn”) appeals from the judgment declaring its property deed s void as champert ous and awarding royalties for coal mining by ICG Hazard, LLC, (“ICG”) on the property to Combs Heirs,- 2

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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 H eirs”) entered on June 5 , 201 8 , 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 H eirs 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, 2 to 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) bei ng 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 n or B w as 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 reflec t the June 5, 2018, date of this order, which was granted (on August 22, 2019)

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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 o n September 30, 2005.- 3

- 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 C ombs H eirs , 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 H eirs 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 : t he first required that ICG deposit the
dis puted 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

. T he
Combs H eirs answered ICG’s counterclaim , alleging Buckhorn’s claim “is barred by champerty an d a complete failure of title, if any[.]” Buckhorn counterclaim ed against ICG for its failure to pay royalties pursuant to the coal mining lease dated September 1, 2009

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Nearly s even years later , the Combs H eirs moved the trial court for summary judgmen t. The Combs H eirs 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 t hey claimed their family had possession for over 100 years. They further asserted that the principles of res j u d i cata and collateral estoppel entitled them to judgment as a matter of law- 4

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because Buckhorn’s 2005 deed s 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 KRS 4 372.080

. The court also
awarded the unpaid coal mining royalties to the Combs H eirs. Buckhorn moved the court to alter, amend, or vacate its order pursuant to CR 5 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 A PPELLATE 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

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- 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 d eed relating to that property in Perry C ounty void for champerty. By order of the Leslie Circuit Court , Action No. 08

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- 00023, entered August 11, 2014, the court found “the deed” from E ast Kentucky Land Corporation to Buckhorn void for champerty

.
4 K entucky 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. 2 d 944, 950 (Ky. 1994).- 5

- (101) Kentucky appellate op inions 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 pro cedural 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 p reserved 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 C mty

. 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
iss ue not squarely addressed by Buckhorn is dispositive herein. That issue is- 7

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whether Buckhorn is bound by the trial court’s determination in a separate case 7 that its deed is champertous

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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 here in through a single deed 8 for a large tract of land located in Leslie and Perry C ounties. 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 sepa rate 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 wa s 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 C ourt held, “ a person who was not a party to the former action nor in

7 Leslie Circuit Court Action No. 08

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- 00023.

8 A deed of correction regarding the same property was later recorded.- 8

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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 differe nt 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)

. T he
trial court specifically reco gnized 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 un disputed 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

T herefore, and for the foregoing reasons, t he order s entered by the
Leslie Circuit Court are AFFIRMED

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ALL CONCUR.- 9

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BRIEF S FOR APPELLANT: Gary W. Napier Drayer B. Spurlock London, Kentucky BRIEF FOR APPELLEE S 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