Commonwealth of Kentucky Court of Appeals

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1 RENDERED: FEBRUARY 8, 2013; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO CA MR CHARLES RAY PHELPS AND DONNA P. SOLLY, CO-TRUSTEES OF THE HERSCHEL L. AND ERMA PHELPS TRUST APPELLANTS APPEAL FROM CALDWELL CIRCUIT COURT v. HONORABLE CLARENCE A. WOODALL, III, JUDGE ACTION NO. 09-CI HANSON AGGREGATES MIDWEST, LLC APPELLEE OPINION AFFIRMING ** ** ** ** ** BEFORE: ACREE, CHIEF JUDGE, NICKELL AND STUMBO, JUDGES. ACREE, CHIEF JUDGE: Donna P. Solly and Charles Ray Phelps, co-trustees of the Herschel L. and Erma Phelps Trust (hereinafter the trustees ), appeal from the Caldwell Circuit Court s entry of summary judgment in favor of the defendant

2 below, Hanson Aggregates Midwest, LLC, and from the denial of the trustees own motion for summary judgment. We conclude the circuit court properly found Hanson Aggregates was not a holdover tenant as contemplated by Kentucky Revised Statutes (KRS) (1) and affirm. I. Facts and procedure The following facts are uncontested. Herschel and Erma Phelps were owners of several parcels of land near Princeton, Kentucky, which abutted a limestone mine operated by Hanson Aggregates. This mine was commonly referred to as the Princeton Quarry. In 1991, Hanson Aggregates wished to extend its operation onto a portion of the Phelps property. To that end, the parties executed a lease agreement in February In exchange for $36,000 annually plus royalties for limestone extracted, Hanson would be permitted to enter the Phelps property and mine for limestone. Hanson also undertook the responsibility to reclaim that portion of the land used in an open pit operation as required Kentucky law. The lease agreement was set to expire in February In late 2000, several months before expiration of the lease, Hanson Aggregates sold a portion of its business to the Rogers Group, Inc., another mine operator. Rogers Group acquired the Princeton Quarry and agreed to take over Hanson Aggregate s reclamation obligations on the Phelps property. Rogers Group did not, however, negotiate a new lease with the Phelpses, nor was the lease assigned to Rogers Group. Hanson Aggregates ceased its limestone extraction -2-

3 operations on the Phelps property effective December 2, 2000, and so informed the Phelpses in a letter dated January Neither Hanson Aggregates nor Rogers Group reclaimed the open pit mine prior to the filing of the trustees complaint. 1 Rogers Group did, however, enter into a licensing agreement with Herschel Phelps which permitted the mine operator to explore one tract of the Phelps property for desirable minerals for a six-month period in Erma died in 2004, and Herschel died in The property at issue was held in a testamentary trust. On December 11, 2009, the trustees filed an action against Hanson Aggregates asserting, in relevant part, that Hanson Aggregates became a holdover tenant when the lease expired in 2001 and remained as such through the date the complaint was filed. 2 To that end, the trustees argued Hanson Aggregates had failed to abandon the leased premises by the end of the lease term and therefore became a holdover tenant as defined by KRS (1). The trustees claimed Hanson Aggregates still occupied the property because it had failed to reclaim the land. The trustees demanded that Hanson Aggregates pay rent as required by the 1 Hanson began reclamation of the land during the pendency of the action before the circuit court. 2 The complaint also contained claims that the lessee had failed to provide an accounting as required by the lease agreement and that Hanson Aggregates had breached a covenant not to remove limestone from areas within twenty-five feet of the lessors property line shared with adjoining landowners. The trustees acknowledged to the circuit court that summary judgment in favor of Hanson Aggregates was proper with respect to those two claims; only the question of holdover tenancy and the corollary matter of abandonment remain at issue. -3-

4 lease agreement for the period of February 2001 until the reclamation was completed in the amount of $36,000 per year. Hanson Aggregates denied that it was a holdover tenant. It argued that it had abandoned the property in December of 2000 and therefore owed the lessors no rent. The parties submitted cross-motions for summary judgment. The circuit court sustained Hanson Aggregate s motion and overruled that of the trustees. In so doing, the circuit court determined that, pursuant to KRS , Hanson Aggregate was not a holdover tenant, but had abandoned the property by the end of the lease. It relied upon the following circumstances, among others, to arrive at its conclusion: The plaintiffs had brought forth no evidence that Hanson Aggregates had physically occupied or possessed the property after expiration of the lease agreement. Hanson Aggregates did not mine or remove any limestone from the property after the termination date. Plaintiffs have identified no reason they were unable to lease the property to another tenant for any other purpose. Hanson Aggregates took no action which interfered with the plaintiffs use or possession of the property. Failure to complete the reclamation work did not prevent the plaintiffs from leasing the property to another tenant. Plaintiffs made no attempt to lease the property to anyone else. Plaintiffs made no demands for holdover rent between 2001 and

5 In 2007, Rogers entered a licensing agreement to enter and explore a tract of the subject property. On appeal, the trustees contend the circuit court erroneously concluded Hanson Aggregates had abandoned the lease prior to its expiration. More specifically, they reiterate their position, first argued before the circuit court, that Hanson s failure to reclaim the portion of the property on which it mined was the equivalent of continued occupation of the premises for purposes of KRS We are not persuaded. II. Discussion On appeal from a circuit court s entry of summary judgment, we must determine 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). We review this determination de novo since factual findings are not at issue. Id. The standard is the same for denial of a motion for summary judgment. Northern Kentucky Area Planning Comm'n v. Cloyd, 332 S.W.3d 91, 93 (Ky. App. 2010). The question before us is whether the circuit court properly applied the undisputed facts to Kentucky s holdover tenancy statute. 3 KRS (1) provides as follows: 3 The trustees brief fails to comply with CR 76.12(4)(c)(iv-v) in the following respects: it contains citations to the appendix of the appellant s brief rather than to the record; the few citations to the circuit court record do not indicate the specific page number upon which the referenced documents can be found; citations to the record are sparse rather than ample; and the brief contains no statement of preservation. Under these circumstances, we are permitted to strike the brief or to review the arguments presented therein under the manifest injustice standard. CR 76.12(8)(a); Elwell v. Stone, 799 S.W.2d 46, 48 (Ky.App. 1990). We decline to do so because the outcome will be the same under any standard. -5-

6 If, by contract, a term or tenancy for a year or more is to expire on a certain day, the tenant shall abandon the premises on that day, unless by express contract he secures the right to remain longer. If without such contract the tenant shall hold over, he shall not thereby acquire any right to hold or remain on the premises for ninety (90) days after said day, and possession may be recovered without demand or notice if proceedings are instituted within that time. But, if proceedings are not instituted within ninety (90) days after the day of expiration, then none shall be allowed until the expiration of one (1) year from the day the term or tenancy expired. At the end of that year the tenant shall abandon the premises without demand or notice, or stand in the same relation to his landlord that he did at the expiration of the term or tenancy aforesaid; and so from year to year, until he abandons the premises, is turned out of possession, or makes a new contract. Abandonment of a mineral lease consists of surrender of the property, coupled with an intention to relinquish the lease and is, in fact, to be determined in each case upon the surrounding facts and circumstances. Browning v. Cavanaugh, 300 S.W.2d 580, 582 (Ky. 1957). It may be inferred that leased property has been abandoned due to the lessee s inactivity on the land. Id. Cessation of mining or exploration operations constitutes abandonment. Id. at 583 (citing Ison v. Edra Lee Oil & Gas Co., 241 Ky. 754, 45 S.W.2d 3 (1931)). The circuit court correctly determined that Hanson Aggregates was not a holdover tenant under KRS (1) because it had abandoned the lease by the date of termination. There is no evidence that Hanson Aggregates or any of its employees occupied any portion of the Phelps property after December 2, To the contrary, all of the evidence is that Hanson Aggregates left the premises on -6-

7 that date and ceased all operations thereupon, well before the February 2001 expiration of the lease agreement. Although the trustees vigorously contend Hanson Aggregate s failure to reclaim the mined portion of the property is the equivalent of continued occupation, we cannot agree. The duty to reclaim the land was a contractual term to which Hanson Aggregates agreed, but breached. See 52A C.J.S. Landlord & Tenant 880 (2012). Breach of a term of the lease agreement does not constitute failure to abandon the property when the lessee has ceased all activity on the property and maintains no physical presence thereupon. The record does not reveal whether the trustees have elected to pursue a breach of contract claim seeking damages for Hanson Aggregate s failure to reclaim the land as provided in the contract. See Cohen v. Reif, 223 Ky. 603, 4 S.W.2d 388, 390 (1928) ( where the lease contains an express covenant to yield up the premises in good condition at the end of the term, the landlord has the option of suing on such covenant or of bringing the proper action to recover directly for the waste. ). The trustees also argue that Hanson Aggregates was a holdover tenant because Rogers Group has continued to obtain mining permits, which covered the Phelps property as well as the Princeton Quarry, since the asset sale in late In making this argument, the trustees attempt to characterize Rogers Group as a subtenant of Hanson Aggregates; however, the evidence does not show that Rogers Group became a subtenant following Hanson Aggregates departure. See KRS (5); see also SUBLESSEE, BLACK'S LAW DICTIONARY (9th ed. 2009) -7-

8 (defining a subtenant or sublessee as [a] third party who receives by lease some or all of the leased property from a lessee. ). Rather, the evidence shows that for some years Rogers Group may have failed to perform the reclamation duty which it owed to Hanson Aggregates pursuant to the sale of the Princeton Quarry to Rogers Group, but the Phelpses were not a party to this agreement. The trustees have attempted to characterize Rogers Group as a subtenant of Hanson Aggregates, but the record does not demonstrate that Rogers Group assumed the lease Hanson Aggregates entered into with the Phelpses or indeed that Rogers Group has any contractual relationship to the subject property other than the 2007 licensing agreement which did not obligate Rogers Group to undertake reclamation of the land. Simply obtaining a mining permit which covers the Phelps property in addition to the Princeton Quarry did not give Rogers Group a right to enter or occupy the land. If in applying for the permits Rogers Group misrepresented to the Department of Surface Mining Reclamation and Enforcement that it had a legal right to enter the Phelps property, such misrepresentation is a matter for the permitting authority to resolve; it does not make Rogers Group a subtenant of Hanson Aggregates. III. Conclusion KRS does not provide a cause of action against Hanson Aggregates because the mining company was not a holdover tenant on the Phelps property. -8-

9 The circuit court correctly determined as much in resolving the parties crossmotions for summary judgment. For these reasons, we affirm. ALL CONCUR. BRIEFS FOR APPELLANT: Vance W. Cook Princeton, Kentucky BRIEF FOR APPELLEE: Ridley M. Sandidge, Jr. Louisville, Kentucky George E. Stigger St. Marys, Georgia -9-