DEBTOR CASE NO. 91-00419







VS. ADV. NO. 91-6193






This matter is before the Court on the defendant's Motion for Summary Judgment on his Counterclaim and on plaintiff Cyprus Mountain Coals Corporation's Motion for Summary Judgment Dismissing Defendant's Counterclaim. All parties have submitted briefs. This Court has jurisdiction of this matter pursuant to 28 U.S.C. '1334(b); it is a core proceeding pursuant to 28 U.S.C. '157(b)(2)(I).

This matter was initiated by the filing of the plaintiffs' Complaint on September 26, 1991. The Complaint sought to have the debt of the defendant to the plaintiffs declared nondischargeable pursuant to 11 U.S.C. '523(a)(6). The defendant filed his Response to Complaint, Motion to Avoid Lien and Counterclaim on October 29, 1991. The Counterclaim alleges that the defendant is the owner of certain coal property being mined by the plaintiffs. Plaintiff Cyprus Mountain Coals Corporation ("CMCC") claims ownership of this property.

A Separate Reply of Cyprus Mountain Coals Corporation to Counterclaim was filed on November 11, 1991. Plaintiff Kentucky River Coal Corporation ("KRCC") filed its Reply to Counterclaim on November 15, 1991. The defendant filed a Motion for Summary Judgment on his Counterclaim on December 9, 1991. Responses to the Motion for Summary Judgment were filed by both plaintiffs on December 18, 1991.

On December 30, 1991, this Court entered an Order giving the United States Office of Surface Mining Reclamation and Enforcement ("OSMRE") 30 days in which to intervene and respond to defendant's Motion for Summary Judgment. The Court found that OSMRE had been given an assignment of defendant's claim in an amount sufficient to collect fines and penalties owed by the defendant, and that therefore OSMRE had an interest in the litigation. On January 21, 1992, the Court issued its Order for Trial.

The defendant filed a Motion to Disqualify the Hon. Ron Combs and the Law Firm of Gullett, Combs and Branham on January 31, 1992. The Response of the Secretary of the Interior to Order of December 30, 1991 and Motion to Correct Record was filed on February 2, 1992. Therein the Secretary declined to intervene in this matter and moved to correct the record so as to show that the assignment by the defendant was to the United States of America rather than to the Office of Surface Mining, and that it was part of a settlement agreement negotiated by the defendant on behalf of his corporation, Eva Coal Co.

Plaintiff CMCC filed a Motion for Summary Judgment upon its Complaint and Motion for Summary Judgment Dismissing Defendant's Counterclaim on February 12, 1992. On February 25, 1992, this Court entered an Order overruling the defendant's Motion to join parties, for restraining order and right of entry, and holding in abeyance his Motion to disqualify counsel. An Order Rescheduling Trial was entered on March 3, 1992. The trial was re-set for May 1, 1992.

On March 11, 1992, the defendant filed his Response to Motion for Summary Judgment. At a hearing conducted on March 12, 1992, the Court sustained plaintiff CMCC's Motion for Summary Judgment upon its Complaint. On March 16, 1992, the trustee, by counsel, filed a Motion to Substitute Parties Pursuant to Rule 17(a) to Join Trustee as a Necessary and Indispensable Party Defendant/Counterclaim Plaintiff to FRCP Rule 19 (sic).

At a hearing conducted on April 16, 1992, the trustee's Motion was sustained. On March 18, 1992, plaintiff CMCC filed a Reply in support of its Motion for Summary Judgment Dismissing Counterclaim, as well as a Motion to Strike Affidavits. On April 27, 1992, this Court entered an Agreed Order finding the debt of the defendant to the plaintiffs nondischargeable pursuant to 11 U.S.C. '523(a)(6) and dismissing KRCC from the defendant's Counterclaim.

CMCC's Motion to Strike Affidavits is still before this Court. The affidavits in question are those of Grethel Ritchie and Mart Shepherd. Federal Rule of Civil Procedure 56(e) requires that affidavits be "made on personal knowledge". References to events which occurred before the affiant was born cannot be based on personal knowledge. Therefore, any references to such events in the affidavit of Grethel Ritchie, i.e., the matters contained in paragraphs 3, 6, 7, 9, 11, 12, 13, 15, 21, 22 and 23, are stricken. The Motion to Strike the Affidavit of Mart Shepherd is hereby overruled.

The issue raised by the defendant's Counterclaim is title to a certain tract of coal property in Knott County. The defendant contends that he and a partner have title. Plaintiff CMCC contends that it has superior title. Plaintiff KRCC claims no ownership interest in the property. The defendant and his partner claim title to the property by deed from one Sam Ritchie.

In Civil Action No. 82-CI-181, Southern Realty Resources, Inc. v. Irene Gibson, a/k/a Irene Jent, d/b/a I & W Coal Company, title to the claimed property has been litigated in Knott Circuit Court between Southern Realty and a lessee of Sam Ritchie. Southern Realty, now Cyprus Southern Realty, Inc., is an affiliate of CMCC. By a Partial Summary Judgment entered in the above-referenced action on August 28, 1990, the Knott Circuit Court held that Irene Gibson and her lessors, including Sam Ritchie, never had title to the subject tract.

As pointed out by CMCC, the issue of record title raised by the defendant's Counterclaim has previously been resolved by the Knott Circuit Court. The relitigation of that issue is precluded by the doctrine of collateral estoppel. The defendant never took issue with the collateral estoppel effect of the Knott Circuit Court decision. He has continued to insist on his claim of title to the property, but has not demonstrated that the Knott Circuit Court judgment did not effectively dispose of this issue. In addition, the affidavits he has submitted have not established any fact which calls the Knott Circuit Court's decision into question. This Court does not believe there is any genuine issue as to any material fact as concerns record title to the property.

At the March 12, 1992, hearing before this Court the defendant raised for the first time an allegation of adverse possession. The earliest date on which the defendant makes a claim of adverse possession is April 1977. The defendant claims that the period of adverse possession ran through 1986. Assuming this claim to be true, it is not enough to establish adverse possession as the statutory period is fifteen years. KRS 413.010.

In consideration of all of the foregoing, it is therefore the opinion of this Court that CMCC's Motion for Summary Judgment Dismissing Counterclaim should be sustained. A separate Judgment will be entered in conformity with this opinion.


By the Court -





Copies to:

John R. Hansen, Esq.

Ronald G. Combs, Esq.

Charles E. Shivel, Jr., Esq.

Stephen G. Barker, Esq.

James R. Westenhoefer, Esq., Trustee