RENDERED: JUNE 30, 2023; 10:00 A.M. NOT TO BE PUBLISHED 

# Commonwealth of Kentucky Court of Appeals

NO. 2022

- CA

- 0383

- MR

MICHAEL S. BRANHAM AND METELECTRIC ENERGY, LLC APPELLANTS

v. APPEAL FROM FRANKLIN CIRCUIT COURT

HONORABLE PHILLIP J. SHEPHERD, JUDGE

ACTION NO. 21

- CI

- 00671

COMMONWEALTH OF KENTUCKY, ENERGY AND ENVIRONMENT CABINET APPELLEE

OPINION AFFIRMING
**   **  **
BEFORE: ECKERLE, KAREM, AND M C NEILL, JUDGES.
M C NEILL, JUDGE: This case concerns the breach of an agreement about mining operations. Appellants are Michael S. Branham (Branham), and Met E lectric Energy, LLC ( Met E lectric )

. Appellee is the Commonwealth of Kentucky , Energy
and Environment Cabinet (Cabinet). Met E l e ctric is a sur face coal mining- 2

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permittee located in Floyd County, Kentucky. Branham is its sole member

manager. Due to failure to follow Kentucky’s rules and regulations governing mining operations, the C abinet cited and fined Appellants for various violation s , including coal mining reclamation requirements. Reclamation “means the reconditioning of the area affected by surface coal mining operations under a plan approved by the cabinet [

. ] ” KRS 1 350.010(12). The parties eventually entered
into a tw enty

- nine page amended agreed order in September of 2019 ( Agreed
Order )

. The signatories to the Agreed Order include the present parties and the
reclamation bond sur ety , Lexon Insurance Company

.

Appellants breached the Agreed Order for failure to comply with its requirement to pay reduced monthly civil penalty installments of $25,000. After receiving notice of their breach, Appellant s failed to cure within a fourteen

- day period provided by the Agreed O rder. As a result, the Cabinet filed suit in Franklin
Circuit Court

. The court granted summary judgment in favor of Cabinet , thereby enforcing the terms of the Agreed Order , including the pecuniary penalties for
breach. In addition to finding that Appellants failed to make the necess ary payments pursuant to the Agreed Order, the court also concluded that “there is no dispute that the amount of highwall reclaimed falls short of the amount that is

1 Kentucky Revised Statutes.- 3

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required . . . .” Appellants filed a m otion to a lter , a mend , or v acate that order,
which was denied. 2 Appellants now appeal the summary judgment as a matter of right. For the following reasons, we affirm.
STANDARD OF REVIEW
A motion for summary judgment should be granted “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 3 56.03

. The Kentucky Sup reme Court further explained this summary judgment standard in Steelvest, Inc. v. Scansteel Serv ice C enter , Inc. : While it has been recognized that summary judgment is designed to expedite the disposition of cases and avoid unnecessary trials when no genuine issues of material fact are raised, .

. . this Court has also repeatedly admonished that the rule is to be cautiously applied. The record must be viewed in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor. Even though a trial court may believe the party opposing the motion may not succeed at trial, it should not render a summary judgment if there is any issue of material fact. The trial judge must examine the evidence, not to decide any issue of fact, but to discover if a real issue exists. It clearly is

2 I n its order denying post

- judgment relief, the court indicated that Appellants ’ counsel “made a vigorous argument that Mr. Branham acted in good faith

. . . . ” The court also indic a ted that it is “mindful that this dispute dates back many years, and the Cabinet has showed flexibility and leniency many times before, which resulted in the present Agreed Order

. While the result may be harsh, the Cabinet is within its rights to enforce the Agreed Order.”

3 Kentucky Rules of Civil Procedure

.- 4

- not the purpose of the summary judgment rule, as we have often declared, to cut litigants off from their right of trial if they have issues to try.
807 S.W.2d 476, 480 (K y. 1991) (citations omitted). “Because no factual issues are involved and only a legal issue is before the court on the motion for summary judgment, we do not defer to the trial court and our review is de novo .” Univ. of Louisville v. Sharp , 416 S.W.3d 3 13, 315 (Ky. App. 2013) (citation omitted). With
th is standard in mind, we re turn to facts and issues in the present case.
ANALYSIS Appellants’ sole argument on appeal is that th e circuit court erred in granting the Cabinet’s motion for summary judgment because numerous genuine
issues of material facts exist. The y specifically assert that Met E lectric sent the
Cabinet a “ COVID 19 Application for Temporary Regulatory Flexibility , ” requesting an extension of the curative period. The reasoning behind this request
is u nspecified, and t he re is no indication that the appropriate department received
the form. What is clear, however, is that pursuant to the Agreed Order :

[ The ] fourteen (14) day period may be extended by the Cabinet if MetElectric is actively pursuing a cure for the breach and requests, in writing, a dditional time. ( First e mphasis added

. ) Therefore, the circumstances surrounding Appellants’ alleged request for an extension are of limited relevance here. The Agreed Order is not an instrument of equity , and any decisions concerning extensions of the- 5

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curative period are the discretion of the Cabinet. Furthermore, the Agreed Order was a product of previous written agreements between the parties. And t he parties here involve sophisticated individuals and entities , presumably well

- versed in
contractual obligations. In any event, Appellants have not presented any genuine
issue of material fact that would require reversal.
CONCLUSION
For the for e going reasons, we AFFIRM the Franklin Circuit Court’s
order entered on January 24, 2022.

ALL CONCUR

.

BRIEF S FOR APPELLANT S : Billy R. Shelton Lexington, Kentucky BRIEF FOR APPELLEE:
Lance C. Huffman Leilani Martin Frankfort, Kentucky