RENDERED: JULY 8, 2022; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2021-CA-0650-MR

KENTUCKY POWDER COMPANY APPELLANT 

v. 

APPEAL FROM BOYD CIRCUIT COURT

HONORABLE JOHN F. VINCENT, JUDGE

ACTION NO. 20-CI-00918

DONNIE MAY AND DONNIE MAY, 

INC. APPELLEES 

OPINION

AFFIRMING

**   **  **

BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND TAYLOR, JUDGES.

CLAYTON, CHIEF JUDGE: Kentucky Powder Company (“Kentucky Powder”) 

appeals from the Boyd Circuit Court’s order granting summary judgment in favor 

of Donnie May (“May”). The circuit court granted May summary judgment on the 

basis that May had no liability for a corporate debt under a personal guaranty 

because the guaranty failed to satisfy the statutory requirements of Kentucky 
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Revised Statutes (“KRS”) 371.065, and neither May nor an authorized agent 

signed the guaranty. Finding no error, we affirm.

FACTUAL AND PROCEDURAL HISTORY

In August 2018, Cliff Wolford (“Wolford”), a representative of 

Kentucky Powder, approached May about the possibility of Kentucky Powder 

providing shot services and other blasting services to May and May’s company, 

Donnie May, Inc. (“May, Inc.”). Later that year, discussions ensued concerning

May’s plans to mine in Breathitt County, Kentucky. In October 2018, May 

contacted Wolford and subsequently hired Kentucky Powder to render blasting 

services and ship blasting materials to May and May, Inc.

Shortly thereafter, but before Kentucky Powder rendered any services 

or sent any materials to May or May, Inc., Wolford forwarded three pages for May 

to review, execute, and return to Kentucky Powder. The first page contained 

Kentucky Powder’s logo at the top of the document and inquired as to the 

“Company Applying for Credit,” the “Person Requesting Credit,” the “Company 

officers and percentage of stock owned,” and “other individuals that own over 5% 

of the stock.” 

The second page did not contain Kentucky Powder’s logo and stated: 

In order to establish credit for your company, we would 

like for you to furnish us the names and addresses of two 

substantial companies with which you have approved 
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credit. Also, please furnish us with the name and address 

of the bank where you have your account(s).

 

At the bottom of the second page of the application, language directed that the 

application be returned to Kentucky Powder at its business address. 

The third page contained Kentucky Powder’s logo, as well as the 

following language:

In consideration of sales made and sales to be made in 

the future by [Kentucky Powder] to [May] of [May, Inc.], 

hereinafter referred to as the “Customer,” we, the 

undersigned, jointly and severally, promise to pay any 

indebtedness of the customer to [Kentucky Powder,] 

including specifically, but without limitation, the price of 

merchandise and services purchased, service charges 

imposed thereon, costs, expenses, and attorney fees 

heretofore or hereinafter incurred by [Kentucky Powder] 

in connection with a default of the [C]ustomer.

 

Only the third page had a signature line, which contained May’s signature, the 

date, and a completed notary public portion. None of the paperwork contained 

page numbers. 

According to May, he was working at a mine site in Breathitt County

with no access to emails when Wolford contacted him via telephone concerning 

the preceding documents that Kentucky Powder would need May to execute to 

move the business relationship forward. In the phone conversation, May requested

that Wolford send the paperwork to his office manager, who May instructed to 

execute the credit application on his behalf. Further, May claimed in his 
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dispositive motion pleading that no discussion occurred between May and Wolford 

regarding May having to execute a personal guaranty and that his business practice 

was not to undertake such personal guarantees. 

After receiving the completed and executed paperwork, Kentucky 

Powder sold blasting materials and rendered blasting services to May and May, 

Inc. on an invoice basis. Kentucky Powder maintained an open account for May 

and May, Inc. in connection with these transactions. The account would be debited 

upon May’s receipt of goods sold or services rendered and credited upon Kentucky 

Powder’s receipt of payment. 

On August 4, 2020, Kentucky Powder filed a complaint against May, 

individually, and May, Inc. The complaint alleged that May, Inc. had not made a 

payment to Kentucky Powder since on or around January 22, 2019, and that it had 

an outstanding balance of $260,992.86. Kentucky Powder further alleged that 

May, in his individual capacity, had agreed to and promised to be held jointly and 

severally liable for any indebtedness to Kentucky Powder. May filed an answer 

setting forth a defense that the personal guaranty of May, individually, was 

unenforceable under KRS 371.065.

On March 29, 2021, Kentucky Powder filed a motion for summary 

judgment on all counts of its complaint against May, Inc. and May. Additionally, 

on April 19, 2021, May filed a motion for summary judgment as to the issue of the 
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personal guaranty. On May 7, 2021, the circuit court granted summary judgment 

in favor of Kentucky Powder and against May, Inc. on all counts of the complaint. 

However, on May 10, 2021, the circuit court entered summary judgment in favor 

of May, individually and against Kentucky Powder. The circuit court found that 

May could not be held personally liable for the debts of May, Inc. because the 

personal guaranty did not comply with the statutory requirements of KRS 371.065 

and was therefore invalid and unenforceable. The circuit court further found that 

because the signature of May attached to the document was not an act within the 

scope of the employee who signed the document, it was not May’s signature. 

Kentucky Powder filed this appeal contesting the circuit court’s grant of summary 

judgment in favor of May individually. 

ANALYSIS

a. Standard of Review

This appeal arises from the circuit court’s grant of summary judgment 

in favor of May. In such matters, the appellate court “determine[s] whether the 

record supports the trial court’s conclusion that there is no genuine issue as to any 

material fact and the moving party is entitled to judgment as a matter of law.” 

Foreman v. Auto Club Property-Casualty Insurance Company, 617 S.W.3d 345, 

349 (Ky. 2021) (internal quotation marks and footnote omitted). Summary 

judgment “expedite[s] the disposition of cases and avoid[s] unnecessary trials 
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when no genuine issues of material fact are raised[.]” Steelvest, Inc. v. Scansteel 

Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991) (citations omitted). It is 

appropriate to terminate litigation when it appears impossible for the non-moving 

party to produce evidence at trial warranting a judgment in its favor as a matter of 

law. Paintsville Hosp. Co. v. Rose, 683 S.W.2d 255, 256 (Ky. 1985) (citation 

omitted). While the record must be viewed in the light most favorable to the nonmoving party, “a party opposing a properly supported summary judgment motion 

cannot defeat it without presenting at least some affirmative evidence that there is a 

genuine issue of material fact for trial.” Steelvest, 807 S.W.2d at 482 (citations 

omitted).

b. Analysis

Kentucky Powder first argues that the circuit court erred in treating 

the personal guaranty as a mutually exclusive and separate document from the 

credit application. Thus, Kentucky Powder contends that the circuit court should 

have considered the guaranty to have been “written on” the credit application for 

purposes of KRS 371.065. 

Under KRS 371.065, a guaranty of indebtedness is valid if the 

guaranty (a) is “written on” the instrument being guaranteed; or (b) “expressly 

refer[s]” to the instrument being guaranteed; or (c) contains provisions specifying 

“the amount of the maximum aggregate liability of the guarantor” and “the date on 
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which the guaranty terminates.” A guaranty must fulfill only one of the preceding 

requirements to satisfy the statute. 

Here, it is undisputed that the guaranty failed to meet the second and 

third requirements. However, the parties dispute whether the guaranty met the first

requirement – that it be “written on” the instrument being guaranteed. See KRS 

371.065(1). Kentucky Powder submits that the requirement was satisfied because 

the personal guaranty was submitted with the credit application. Thus, the 

guaranty should be deemed to have been “written on” the credit application. 

Kentucky Powder sees this as the only logical approach to the “written on” 

requirement to guard against an absurd outcome.

First, we note that, when interpreting a statute, this Court must give 

the “[s]tatutory language . . . its literal meaning unless to do so would lead to an 

absurd or wholly unreasonable result.” Coy v. Metropolitan Property and Cas. Ins. 

Co., 920 S.W.2d 73, 74 (Ky. App. 1995). Where “[t]he language of a statute is 

both unambiguous and plain,” it “is to be given effect as written.” Lynch v. 

Commonwealth, 902 S.W.2d 813, 814 (Ky. 1995) (citation omitted). Moreover, 

courts should not “speculate upon legislative intent in order to interpret the 

language of a statute which is abundantly clear.” Cummings v. Covey, 229 S.W.3d 

59, 61 (Ky. App. 2007) (citation omitted). 
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In this case, we first note that the document submitted by the parties 

as the “credit application” is vague and appears to be more of a request for 

information versus a document establishing a formal business relationship between 

the parties. Additionally, although Kentucky Powder alleges that it submitted the 

guaranty document to May as part and parcel of the credit application, none of the 

guaranty language was contained within or on any portion of the credit application. 

Contrast this with the documents in Wheeler & Clevenger Oil Co., Inc. v. 

Washburn, where the guaranty agreement language was at the bottom of the front 

of the credit application. 127 S.W.3d 609, 610 (Ky. 2004). Additionally, the back 

of the application in Washburn contained guaranty language. Id. at 611. Thus, 

because the guaranty agreement was – quite literally – “written on” the document 

being guaranteed, the statutory requirements were met. Id. at 614-15.

Here, the guaranty appears as a stand-alone document, and thus the 

guaranty agreement was not “written on” any instrument it purported to guarantee. 

The credit application and the guaranty were two separate documents. Indeed, the 

guaranty was on a separate page with a separate logo, signature line, and notary 

section. Additionally, the end of the credit application was clearly indicated, with 

instructions to whom to return the application. Moreover, the guaranty’s language 

did not suggest that it was part of any other existing contractual or credit scheme
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but instead contained extremely general language that stated it applied to “any 

indebtedness of the [C]ustomer[.]” 

Kentucky Powder relies on Alliant Tax Credit Fund 31-A, Ltd. v. 

Nicholasville Community Housing, LLC, to argue that the guaranty in this case met 

the “written on” requirement. 663 F. Supp. 2d 575 (E.D. Ky. 2009). However, in 

Alliant, the Court found that the guaranty was a named exhibit in the instrument 

being guaranteed. Id. at 583-84. Thus, it did not need to consider whether the 

guaranty was “written on” the instrument being guaranteed to satisfy KRS 

371.065’s requirements. Consequently, this case offers no support for Kentucky 

Powder’s contention that an exhibit to an instrument to be guaranteed or a guaranty 

contained in the same packet as the instrument satisfies the “written on” 

requirement. Moreover, even if there was authority to such effect, the guaranty in 

this case was not an exhibit to the application or referred to as one in the credit 

application. 

Ultimately, Kentucky Powder was free to draft the guaranty with 

sufficient specificity to comply with the requirements of KRS 371.065. Because 

the guaranty failed to meet the requirements of KRS 371.065, we affirm the circuit 

court’s order granting summary judgment in favor of May in his individual 

capacity. 
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Additionally, because we agree that the circuit court correctly held 

that the guaranty is unenforceable as written, we decline to address the parties’ 

arguments regarding whether May properly executed the guaranty.

ALL CONCUR.

BRIEFS FOR APPELLANT:

Carl D. Edwards, Jr.

William Messer

Lexington, Kentucky

BRIEF FOR APPELLEE:

James H. Moore, III

Ashland, Kentucky