Deane Mining, LLC v. the Elk Horn Coal Company, LLC

RENDERED: MAY 14, 2021; 10:00 A.M.
NOT TO BE PUBLISHED

Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1922-MR

DEANE MINING, LLC APPELLANT

APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE JOHN E. REYNOLDS, JUDGE
ACTION NO. 19-CI-02181

THE ELK HORN COAL COMPANY, LLC APPELLEE

OPINION
AFFIRMING

** ** ** ** **

BEFORE: ACREE, JONES, AND K. THOMPSON, JUDGES.

JONES, JUDGE: Appellant Deane Mining, LLC (“Deane”) appeals the judgment

of the Fayette Circuit Court granting summary judgment to The Elk Horn Coal

Company, LLC (“Elk Horn”). Elk Horn brought suit seeking a declaration of

rights regarding the Amended Lease 1703, which Elk Horn contends was

terminated and voided on September 11, 2018. Following review of the record and

applicable law, we AFFIRM for the reasons more fully explained below.
 I. BACKGROUND AND PROCEDURAL HISTORY

On September 15, 2017, Elk Horn and Deane entered into a Lease

Agreement (the “Lease”) with respect to the Elk Horn No. 3 coal seam in Letcher

County, Kentucky. Pursuant to the lease terms, Deane was given the right to mine

and process certain coal located in seam three in exchange for paying various fees

and royalties to Elk Horn. These payments were due each month. The parties

subsequently modified and supplemented the Lease on April 20, 2018, on grounds

inconsequential to this case. The Lease anticipated and addressed potential default

and waiver that could result therefrom. Section 3.17 of the Lease provided in part:

C. Termination for Default. In the Event of Default
under Section 3.17 (A)(1), 3.17 (A)(2), 3.17 (A)(3), 3.17
(A)(5) or an Event of Default for which a cure period is
provided above continues and is not fully cured as
provided above, and as often as the same may occur,
Lessor may, at its sole option, and in addition to any
other remedies available to it hereunder, at law or in
equity, immediately terminate this Lease, and declare all
rights granted hereunder forfeited, whereupon this Lease
and the leasehold created hereby shall immediately cease
and terminate and be of no further force or effect. Such
termination shall not impair Lessor’s rights to royalties
and fees due or accrued up to the time of termination or
thereafter if Lessee does not vacate upon termination.
After such termination, any entry onto the Leased
Premises by Lessee, its employees, agents, or contractors,
other than solely for reclamation purposes, which shall
not include coal extraction or transportation, shall be
considered a willful trespass. . . .

....

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 J. Non Waiver. No receipt by Elk Horn of money from
Lessee after an Event of Default or termination of this
Lease in any lawful manner shall: (1) reinstate, continue
or extend the term of this Lease or affect any notice given
to Lessee; (2) operate as a waiver of the right of Elk Horn
to enforce the payment of royalties then due or falling
due; or (3) operate as a waiver of the right of Elk Horn to
recover possession of the Leased Premises or Leased
Coal by proper suit, action, proceeding, or other remedy.
Any and all such monies so collected will be deemed to
be a payment on account of the use and occupation of the
Leased Premises or, at the election of Elk Horn, on
account of the liability of Lessee hereunder.

Record (“R.”) at 51-52, 56-57. Section 3.19(R) of the Lease further dictates, “No

waiver, release, modification or amendment of any of the terms, conditions or

provisions of this Lease is valid unless it is in writing and duly executed by Elk

Horn and Lessee.”

Elk Horn contends that, from the inception of their relationship,

Deane frequently failed to timely make payments including, but not limited to, the

Production Royalty, Surface Royalty, and Overriding Royalty payments required

under the Lease. Indeed, Deane admits that it frequently made payments a day late

due to the nature of its wire transfer system.

However, according to Elk Horn the late payment issue reached a

head in August of 2018. Elk Horn asserts that in August of 2018, Deane failed to

timely pay Elk Horn $33,212.00. As a result, on August 28, 2018, Elk Horn sent

Deane a “Notice of Default” specifying each of the events of Deane’s nonpayment

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and the amount owed. Deane received the Notice of Default on August 31, 2018.

The Notice of Default alleged that Deane was past due on four separate categories

of payments – transloading fees, production royalties on underground mined coal,

surface royalties, and unmined mineral taxes.

Under the terms of the Lease, Deane was entitled to a ten-day cure

window upon receipt of Elk Horn’s Notice of Default during which Deane could

cure its default or lodge a dispute as to the nature of the default. In accordance

with the Lease, the Notice of Default provided that Deane had “[t]en (10) days

from the date of this notice to cure this default. Nothing herein shall be construed

as a waiver of additional rights Elk Horn may have under its agreement with Deane

Mining and/or the law and [Elk Horn] further reserves those rights to be exercised

at Elk Horn’s discretion.” R. at 79. However, Deane failed to make payment or

communicate any concerns within the ten-day cure period, which ended on

September 10, 2018.

Consequently, on September 11, 2018, Elk Horn issued a Notice of

Termination notifying Deane that its lease had been terminated “in accordance

with Section 3.17” of the Lease. The letter further provided:

Deane Mining has failed to pay the production royalties
for the month of July 2018.

Deane Mining has failed to pay the Unmined Mineral
Taxes due and owing at the time of this notice.

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 Deane Mining has also failed to pay related interest/late
payment penalties under the related lease.

Deane Mining was previously provided a Notice of
Default on August 28, 2018. These defaults have not
been cured as required by the Lease.

Elk Horn’s exercise of its termination right as set forth
herein shall be effective upon receipt of this notice. Any
coal removal after said date shall be an intentional
trespass actionable against the individuals participating in
the remove [sic] or sale of Elk Horn’s coal.

Nothing contained herein shall be construed as a waiver
of the additional rights Elk Horn has under or through
Elk Horn’s Lease No. 1703 and/or the laws of the
Commonwealth of Kentucky. Elk Horn reserves such
rights and claims to be exercised or asserted hereafter at
Elk Horn’s discretion.

R. at 83.

On September 13, 2018, two days after the cure period expired, Deane

paid Elk Horn $24,389.00 – nearly $10,000.00 less than the full amount Elk Horn

alleges it was owed. Elk Horn informed Deane that this payment would be applied

against Deane’s account but that its acceptance of payment would not reinstate the

Lease. Elk Horn explained that the payment was “insufficient to cure all monetary

defaults prior to the Termination Date.” R. at 87. Elk Horn further averred that

any further mining on Elk Horn’s property would be construed as trespass.

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 On October 3, 2018, Elk Horn repeated this warning through the

email of its employee, Joseph Funk, and demanded Deane cease any further

loading or selling of Elk Horn’s coal:

[Elk Horn] has observed that Quest/Deane Mining
continues to trespass upon [Elk Horn] mineral [sic] and
continues to loan and sell our property. Quest/Deane
Mining’s lease with us has been terminated and [it]
continues to owe [Elk Horn] amounts due for production,
late fees and interest associated with the past due
amounts.

[Elk Horn] again requests that you not trespass upon our
property until all issues are resolved and [Elk Horn]
grants you the right to mine our coal.

We have and will not reinstate this lease while amounts
due to [Elk Horn] are outstanding (including recent
production amounts that were due on Sept 25th) and any
other items are fully addressed and properly
memorialized.

R. at 90.

However, Deane’s employee, Mark Jensen, responded, somewhat

unclearly: “We are also in compliance with lease currently given terms. Happy to

talk on phone but I feel there is [sic] other objectives you are trying to achieve here

with harshness is [sic] letter.” R. at 93.

On January 23, 2019, Elk Horn reiterated its stance on the Lease,

writing:

Elk Horn continues to be of the position the payments
transmitted were insufficient to cure the monetary

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 defaults. Therefore, Elk Horn’s termination latter [sic]
dated September 11, 2018 remains effective and any
mining thereafter constitutes a trespass to Elk Horn’s
property interests for which any individual who has
participated or is participating therein shall be liable.

R. at 95.

Despite receiving multiple notices of termination and trespass, Deane

continued to mine tens of thousands of tons of Elk Horn’s coal between September

2018 and May 2019. During this time, Deane periodically made payments to Elk

Horn. Elk Horn accepted the payments but routinely followed up with reminders

that the Lease was terminated and that Deane was now trespassing on Elk Horn’s

property. On May 15, 2019, after months of back-and-forth, Elk Horn issued a

second Notice of Termination.

Deane presently maintains that the Lease is currently in full force and

effect and continues to mine Elk Horn’s coal. However, since May 2019, Elk Horn

has not received any payments from Deane for royalties owed under the

agreement, insufficient or not. Deane explained that it ceased payment upon Elk

Horn’s instruction to make no further payments until this litigation is resolved.

On July 12, 2019, Elk Horn filed a petition seeking a declaration of

rights from the Fayette Circuit Court that the Lease terminated on September 11,

2018. Deane filed its answer on July 29, 2019. Discovery ensued, and Deane

emailed an extensive corporate deposition notice to Elk Horn with a number of

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topics apparently designed to learn more about the communications between the

parties, Elk Horn’s document management system, and the electronic systems used

by Elk Horn to communicate with Deane and other similarly situated lessors. On

August 29, 2019, Deane requested deposition dates and locations for several Elk

Horn employees. Elk Horn agreed to a deposition date of September 13, 2019, and

suggested deposing several Deane employees on the same day. However, on

September 11, 2019, the parties agreed to postpone the deposition pending the

results of written discovery. Deane did not attempt to reschedule.

On September 24, 2019, Elk Horn moved to amend its complaint as

agreed to by Deane. Elk Horn did so on October 8, 2019, pleading that, if the

Lease had not terminated on September 11, 2018, then it had at least terminated on

May 15, 2019, upon its second Notice of Termination.

On October 21, 2019, Elk Horn filed a motion for summary judgment,

arguing that the parties in fact agreed upon the facts rendered material by the

express terms of the Lease. Deane opposed this motion, arguing that summary

judgment was premature as Deane had not had any opportunity to take discovery

and only thirteen days had passed since Elk Horn amended its complaint. Deane

argued that there were unresolved issues as to the amounts owed under the lease

and, to the extent any payments were late, whether Elk Horn was aware of the

reason the payments were late and approved payment. Deane also argued that

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Deane’s breach was induced by its reliance on Elk Horn’s past acceptance of late

payments.

On November 21, 2019, the Fayette Circuit Court granted the motion

and declared the lease between Elk Horn and Deane terminated as of September

11, 2018.

This appeal followed.

II. STANDARD OF REVIEW

“[S]ummary judgment is to be cautiously applied and should not be

used as a substitute for trial” unless “there is no legitimate claim under the law and

it would be impossible to assert one given the facts.” Steelvest, Inc. v. Scansteel

Serv. Ctr., Inc., 807 S.W.2d 476, 483 (Ky. 1991); Shelton v. Kentucky Easter Seals

Soc’y, Inc., 413 S.W.3d 901, 916 (Ky. 2013), as corrected (Nov. 25, 2013). A

motion for summary judgment should be granted “[o]nly when it appears

impossible for the nonmoving party to produce evidence at trial warranting a

judgment in his favor” even when the evidence is viewed in the light most

favorable to him. Steelvest, 807 S.W.2d at 482; Shelton, 413 S.W.3d at 905. To

survive a properly supported summary judgment motion, the opposing party must

have presented “at least some affirmative evidence showing that there is a genuine

issue of material fact for trial.” Steelvest, 807 S.W.2d at 482; see also Neal v.

Welker, 426 S.W.2d 476, 479 (Ky. 1968) (“When the moving party has presented

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evidence showing that . . . there is no genuine issue of any material fact, it becomes

incumbent upon the adverse party to counter that evidentiary showing by some

form of evidentiary material that there is a genuine issue pertaining to a material

fact.”).

“The standard of review on appeal of a summary judgment is whether

the trial court correctly found that there were no genuine issues as to any material

fact and that the moving party was entitled to judgment as a matter of law.” Scifres

v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996)) (citing CR1 56.03). Because there

are no factual findings at issue, the appellate court reviews that trial court’s

decision de novo. Shelton, 413 S.W.3d at 905.

III. ANALYSIS

Deane alleges two errors on appeal: first, that the circuit court

prematurely granted summary judgment to Elk Horn, depriving Deane of any

opportunity to conduct meaningful discovery, and second, that the circuit court

erred in granting Elk Horn’s motion for summary judgment because issues of fact

exist regarding: whether Deane made payment during the cure period, how much

Deane allegedly owed under the Lease, and whether Elk Horn waived Deane’s

default. Because we hold that the circuit court correctly determined that the Lease

1
Kentucky Rules of Civil Procedure.

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terminated as of September 11, 2018, any issues regarding Elk Horn’s alternative

termination date – May 15, 2019 – are moot and will not be addressed.

“[F]or summary judgment to be properly granted, the party opposing

the motion must have been given adequate opportunity to discover the relevant

facts. Only if that opportunity was given do we reach the issue of whether there

were any material issues of fact precluding summary judgment.” Suter v. Mazyck,

226 S.W.3d 837, 842 (Ky. App. 2007), as modified (Jul. 13, 2007); Pendleton

Bros. Vending v. Com. Fin. & Admin. Cabinet, 758 S.W.2d 24, 29 (Ky. 1988) (“A

summary judgment is only proper after a party has been given ample opportunity

to complete discovery . . . .”). “There is no requirement that discovery be

completed, only that the non-moving party have ‘had an opportunity to do so.’”

Carberry v. Golden Hawk Transp. Co., 402 S.W.3d 556, 564 (Ky. App. 2013)

(quoting Hartford Insurance Group v. Citizens Fidelity Bank & Trust Company,

579 S.W.2d 628, 630 (Ky. App. 1979)) (holding summary judgment was not

premature because, although discovery was still ongoing, the material facts were

no longer in dispute); see also Ray v. Stone, 952 S.W.2d 220, 223 (Ky. App. 1997)

(holding that an appellant had not been denied any meaningful “right to discovery”

because the additional discovery sought would not change the outcome of the

case). To demonstrate that more discovery is needed, the party opposing summary

judgment party must proffer “specific examples of what discovery could have been

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undertaken that would have affected the outcome had it been conducted.” Benton

v. Boyd & Boyd, PLLC, 387 S.W.3d 341, 344 (Ky. App. 2012).

Whether a summary judgment was prematurely granted
must be determined within the context of the individual
case. In the absence of a pretrial discovery order, there
are no time limitations within which a party is required to
commence or complete discovery. As a practical matter,
complex factual cases necessarily require more discovery
than those where the facts are straightforward and readily
accessible to all parties.

Suter, 226 S.W.3d at 842.

According to Deane, the question before our Court is not whether

Deane had been allowed adequate opportunity for discovery, but whether Deane

had had any time to conduct any discovery at all. To that end, Deane seems to

argue that the discovery period should be determined from the time that Elk Horn

amended its complaint to the time Elk Horn moved for summary judgment,

meaning that Deane had only thirteen days to conduct discovery.

Deane attempts to draw a comparison between the case before us and

Suter. In that case, “the Suters served interrogatories and a request for production

of documents [promptly after they filed their complaint in June 2005]; however, it

was not until September 2005 that the records were made ‘available’ to the

Suters.” Id. at 844. Six weeks after the Suters were permitted access to opposing

counsel’s office to review the thousands of documents produced, some of which

were irrelevant or had not been requested, the defendants moved for summary

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judgment. Id. When presented with the question of “whether the Suters were

given the opportunity to conduct further discovery or if they simply failed to

conduct the necessary discovery,” our Court held that, “[u]nder the circumstances,

. . . the Suters did not have a reasonable [amount of] time to complete discovery”

when faced with such a massive document dump. Id. Significantly, the Suter

Court also noted that “the movant does not have to show that the party opposing a

motion for summary judgment actually completed discovery but only that the

opposing party had the opportunity to do so.” Id. at 842.

According to Deane, under the Suter holding, “[i]f six weeks after

producing documents is unreasonable, then thirteen days after the amendment of

the Complaint is similarly unreasonable.” Appellant’s Brief (“Br.”) at 9. Deane is

correct that thirteen days is an unreasonable amount of time in which to complete

discovery. However, Deane fails to acknowledge and account for the four months

prior to Elk Horn’s amended complaint. Deane was afforded more than four

months during which to conduct discovery regarding Elk Horn’s first complaint –

the claim upon which the circuit court rendered summary judgment. This is

especially relevant here because summary judgment was granted on the allegations

and claim made in the first complaint. The amended complaint added an

alternative claim based on a second alleged termination date. However, the trial

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court granted summary judgment on the first termination date, which had been at

issue since the inception of the litigation.

Deane additionally contends that its deposition requests from August

29, 2019, should have been honored prior to the trial court even considering a

summary judgment motion, as Elk Horn’s summary judgment motion depended in

part upon the affidavit of Joseph Funk, one of the witnesses whose deposition

Deane requested and whose deposition Deane now claims is essential to its

defense. However, it was Deane that moved to postpone Funk’s deposition on

September 11, 2019. Deane did not communicate any plans to reschedule that

deposition or any others prior to Elk Horn’s motion. Furthermore, there was no

discovery pending at the time the circuit court ruled on Elk Horn’s motion.

According to Deane, the depositions of Faye Conn, Russell Hill, Terry

Gibson, and other Elk Horn corporate representatives would also have supported

Deane’s positions with regard to the amounts owed under the Lease and whether

Deane was aware of the reason the payments were late and approved of the late

payments. However, none of this proposed discovery “would have affected the

outcome had it been conducted[,]” as it probes into a line of inquiry immaterial to

the issues before the circuit court. Benton, 387 S.W.3d at 344. Deane further

argues that the depositions may reveal prior breach by Elk Horn and maintains that

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its late payment was induced by its reliance on Elk Horn’s assent.2 “However,

‘[t]he hope or bare belief . . . that something will “turn up,” cannot be made basis

for showing that a genuine issue as to a material fact exists.’” Benningfield v.

Pettit Envtl., Inc., 183 S.W.3d 567, 573 (Ky. App. 2005) (quoting Neal, 426

S.W.2d at 479-80).

Had the circuit court determined that the Lease had been terminated as

of May 2019, Deane would in fact be correct that it had been denied sufficient time

to conduct meaningful discovery regarding Elk Horn’s additional claim. However,

the circuit court made its determination based upon Elk Horn’s first claimed

termination date of September 11, 2018. Deane fails to make any argument as to

why it did not conduct discovery on Elk Horn’s original claim during the four

months after Elk Horn filed its first petition, and Deane’s proposed continued

discovery explores lines of inquiry that ultimately have no bearing on the circuit

court’s determination. Because the circuit court granted summary judgment to Elk

Horn on its original claim as represented in its first complaint, Deane’s argument

that it was denied meaningful discovery is not persuasive.

2
Deane also contends that it ceased payments for its use of Elk Horn’s mines because Deane was
informed not to make further payment once the lawsuit was filed. This argument is irrelevant to
our decision and that of the circuit court due to the Lease’s September 11, 2018, termination
date.

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 Deane argues that there are several questions of material fact still

unresolved, the first of which is whether a breach of the Lease even occurred due

to the “operation of the cure periods.” Appellant’s Br. at 10. According to Deane,

“Elk Horn produced both documents reflecting that the notice of termination was

mailed out on August 28, 2019 [sic], and also other documents demonstrating that

it was mailed out on September 12, 2019 [sic].” 3 Id. Although Deane contends

that there is a veritable question of when the Notice of Termination was mailed,

this issue is ultimately due to Deane’s own confusion regarding the Notice of

Default Elk Horn issued on August 28, 2018, and the Notice of Termination sent

on September 11, 2018. Appellant’s Br. at 10.

Under the terms of the parties’ agreement, the Notice of Default and

Notice of Termination are two distinct documents operating to initiate the cure

period and terminate the lease as provided by the Lease. There is no real doubt as

to when the Notice of Default was first sent and received, nor is there any issue as

to when the cure period ended. Furthermore, it is undisputed that Deane made its

payment on September 13, 2018, two days after the cure period and after the Lease

was terminated. Although Deane repeatedly argues that it “was never in default in

September of 2018,” Deane expressly admits in its appellate brief that “payment

3
Deane consistently mistakes the years – the dates of these notices are and always have been
2018, not 2019.

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was made on September 13, 2019 [sic],” days after the cure period ended.

Appellant’s Br. at 10. In other words, Deane concedes to the very facts amounting

to default in the same breath that it denies ever having been in default.

Next, Deane claims that there is an issue of material fact as to the

amount Deane owed under the Lease in September 2018. While the amount of

relief would certainly constitute a material fact in a claim for damages, Elk Horn is

not seeking such relief. Rather, Elk Horn sought a declaration of rights. “[A]

declaratory judgment action is not a claim for damages, but rather it is a request

that the plaintiff’s rights under the law be declared.” Cabinet for Health & Family

Servs. v. Puckett, No. 2012-CA-002165-MR, 2014 WL 689094, at *3 (Ky. App.

Feb. 21, 2014). Consequently, it does not matter how much Deane owed to Elk

Horn in September 2018 or how much Deane tendered to Elk Horn after the

expiration of the cure period. What does matter is that no payment was made until

after termination. Although the parties dispute how much money was owed under

the Lease in September 2018, this issue is ultimately immaterial and irrelevant to

the dispositive issue in this case. See V & M Star Steel v. Centimark Corp., 678

F.3d 459, 465 (6th Cir. 2012) (a genuine issue of material fact exists when there

are factual disputes that might affect the outcome of the case). “An issue of

nonmaterial fact will not preclude the granting of a summary judgment.” Isaacs v.

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Smith, 5 S.W.3d 500, 503 (Ky. 1999), as modified on denial of reh’g (Dec. 16,

1999).

Finally, Deane contends that Elk Horn waived the September 2018

default, which Deane alleges would have been demonstrated through discovery.

Ordinarily, acceptance of late payment for any defaulted period in a lease

constitutes waiver of default. Ohio Valley Oil & Gas Co. v. Irvin Development

Co., 212 S.W. 110, 112 (Ky. 1919); see also Bridges v. Jeffrey, 437 S.W.2d 732,

733 (Ky. 1968). However, Section 3.19(R) of the Lease expressly provides that

“No waiver, release, modification or amendment of any of the terms, conditions or

provisions of this Lease is valid unless it is in writing and duly executed by Elk

Horn and Lessee.”

“‘[I]n the absence of ambiguity[,] a written instrument will be

enforced strictly according to its terms,’ and a court will interpret the contract’s

terms by assigning language its ordinary meaning and without resort to extrinsic

evidence.” Frear v. P.T.A. Indus., Inc., 103 S.W.3d 99, 106 (Ky. 2003) (quoting

O’Bryan v. Massey-Ferguson, Inc., 413 S.W.2d 891, 893 (Ky. 1966)); Smith v.

Crimson Ridge Development, LLC, 410 S.W.3d 619, 621 (Ky. App. 2013) (“A

contract is interpreted by looking solely to the four corners of the agreement.”);

Codell Const. Co. v. Commonwealth, 566 S.W.2d 161, 164 (Ky. App. 1977) (“The

final contract that resulted from the acceptance of the bid is not ambiguous, and is

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therefore, not susceptible to any reformation or other rewriting by this Court.”).

The parties do not dispute that the language of the Lease is clear and unambiguous,

and therefore the Lease must be strictly enforced. See Smithfield Farms, LLC v.

Riverside Developers, LLC, 566 S.W.3d 566, 571 (Ky. App. 2018), disc. rev.

denied (Ky. Feb. 7, 2019). Furthermore, our Court has specifically upheld the

validity of non-waiver provisions in a variety of contracts. Universal C.I.T. Credit

Corp. v. Middlesboro Motor Sales, Inc., 424 S.W.2d 409, 411 (Ky. 1968)

(upholding a nonwaiver provision in contract governing a secured transaction);

Home Finance Company v. Frazier, 380 S.W.2d 91, 93 (Ky. 1964) (upholding a

nonwaiver provision in contract governing a conditional sale that was also a

secured transaction). Consequently, under the terms of the Lease, only a written

waiver would be effective to reinstate the Lease.

Deane acknowledges that the Lease terms included a nonwaiver

provision providing that accepting payment does not constitute a waiver of any

rights under the lease. However, Deane appears to suggest that although the Lease

was terminated, an Elk Horn representative modified the Lease to waive and

nullify the termination. As evidence meant to support this proposition, Deane

references email correspondence between Deane and Elk Horn employee Faye

Conn. According to Deane, Deane “emailed [Elk Horn] after receiving the

termination notice to verify that it could be disregarded, aside from the unmined

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mineral tax discrepancy (which the lease allows 30 days to correct) and [Elk Horn]

responded by email affirming that only the late fee and unmined mineral tax

remained at issue.” R. at 425. While Deane did in fact email this very inquiry,

Deane’s depiction of Elk Horn’s response is disingenuous. In fact, the entirety of

Conn’s email provided:

Hi Kirk,

The amount we show due EHCC is as follows:

Late Fees $5,165.78
2018 UMT Prorated 9 months @ 4406.44 totaling
$3,657.96
Total due $8,823.74

Thanks, Faye

R. at 443.

Conn’s email ignored Deane’s request for “verification.” R. at 443.

This noncommittal acknowledgement of payment cannot be construed as the

written confirmation envisioned by the lease that Deane’s default and the resulting

termination could be disregarded. Deane has not offered affirmative evidence of

valid, written waiver under the terms of the Lease, or convincingly suggested that

additional discovery will unearth a written waiver.

To the extent that Deane appears to suggest that an Elk Horn

representative orally modified the Lease to waive and nullify the termination, we

reiterate that the Lease requires written waiver executed by both parties to the

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Lease according to Section 3.19(R). Deane argues that additional discovery would

“uncover substantial support for its claim that Elk Horn agreed that the termination

letter could be disregarded.” Appellant’s Br. at 12. However, Deane has not

suggested that it is in possession of a written, signed waiver, as required by the

Lease, nor does Deane suggest that it is aware of the existence of such a waiver.

The facts are undisputed that Deane defaulted on the Lease, failed to

cure within the cure period, and attempted to salvage the Lease through late and

insufficient payment. Elk Horn terminated the Lease, as was its right, on

September 11, 2018.

IV. CONCLUSION

In light of the foregoing, we AFFIRM the Fayette Circuit Court’s

judgment.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Billie R. Shelton Robert J. Patton
Jordan W. Morgan Prestonsburg, Kentucky
Lexington, Kentucky
Mickey T. Webster
Thomas E. Travis
Lexington, Kentucky

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