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NOT TO BE PUBLISHED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 MCNEILL, JUDGES.

MCNEILL, JUDGE: This case concerns the breach of an agreement about mining 

operations. Appellants are Michael S. Branham (Branham), and MetElectric 

Energy, LLC (MetElectric). Appellee is the Commonwealth of Kentucky, Energy 

and Environment Cabinet (Cabinet). MetElectric is a surface coal mining 
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permittee located in Floyd County, Kentucky. Branham is its sole membermanager. 

Due to failure to follow Kentucky’s rules and regulations governing 

mining operations, the Cabinet cited and fined Appellants for various violations, 

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[.]” KRS1 350.010(12). The parties eventually entered 

into a twenty-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 surety, 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, Appellants failed to cure within a fourteen-day 

period provided by the Agreed Order. 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 necessary 

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.
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required . . . .” Appellants filed a motion to alter, amend, or vacate 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.” CR3 56.03. The Kentucky Supreme Court further explained this summary 

judgment standard in Steelvest, Inc. v. Scansteel Service Center, 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

 In 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 indicated 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.
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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 (Ky. 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 313, 315 (Ky. App. 2013) (citation omitted). With 

this standard in mind, we return to facts and issues in the present case. 

ANALYSIS

Appellants’ sole argument on appeal is that the circuit court erred in 

granting the Cabinet’s motion for summary judgment because numerous genuine 

issues of material facts exist. They specifically assert that MetElectric sent the 

Cabinet a “COVID 19 Application for Temporary Regulatory Flexibility,”

requesting an extension of the curative period. The reasoning behind this request 

is unspecified, and there 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, additional time. 

(First emphasis 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 
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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 the 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 foregoing reasons, we AFFIRM the Franklin Circuit Court’s 

order entered on January 24, 2022. 

ALL CONCUR.

BRIEFS FOR APPELLANTS:

Billy R. Shelton

Lexington, Kentucky 

BRIEF FOR APPELLEE:

Lance C. Huffman

Leilani Martin

Frankfort, Kentucky