Perian Salviola v. Commonwealth of Kentucky Energy and Environment Cabinet ( 2021 )

RENDERED: NOVEMBER 19, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1160-MR
PERIAN SALVIOLA APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
v. HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NO. 18-CI-00611
COMMONWEALTH OF KENTUCKY,
ENERGY AND ENVIRONMENT
CABINET APPELLEE
OPINION
AFFIRMING
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BEFORE: CALDWELL, McNEILL, AND TAYLOR, JUDGES.
McNEILL, JUDGE: This case involves numerous regulatory violations by
Appellant, Perian Salviola (hereafter “Salviola”), and Viking Acquisition Group
(hereafter “Viking”). Viking was a corporate entity holding surface coal mining
permits issued pursuant to KRS1 Chapter 350. Salviola was the sole manager of
1
Kentucky Revised Statutes.
Viking. Appellee in the present case is the Commonwealth of Kentucky Energy
and Environment Cabinet (hereafter “Cabinet”).
On November 1, 2012, Salviola went from being an 80% shareholder
of Viking to being the 100% shareholder. Thereafter, she transferred her
ownership interest in Viking to a successor entity, Mine Investments, LLC, a
subsidiary of NewLead Holdings. Attendant to the transfer of Viking were several
attempted transfers of its mining permits. Because these attempted permit transfers
occurred without the Cabinet’s approval pursuant to KRS Chapter 350, between
2014-2018, forty-six final orders were issued by the Cabinet against Appellant
attempting to rectify numerous regulatory violations. These were all the result of
administrative hearings held by the Cabinet. There is no indication that Viking
responded to these charges or the final administrative orders resulting therefrom.
Salviola was not named as a party in any of the administrative cases. On June 14,
2018, the Cabinet filed suit in the Franklin Circuit Court against Viking and
Salviola seeking enforcement of over one million dollars in fines and fees. The
trial court subsequently entered a default judgment against both. On November 19,
2018, the court set aside default judgment against Salviola and sustained the
default judgment against Viking. On November 27, 2018, Salviola was served
with the Cabinet’s complaint, to which she filed an answer. The Cabinet
subsequently filed a motion for summary judgment which, after a hearing on the
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matter, was granted by the trial court. Due to a clerical error in the monetary
amount set out in the court’s order granting summary judgement, the Cabinet filed
a motion to correct the error, which the court granted. On October 2, 2019, the
court entered an Amended Summary Judgment in the Cabinet’s favor and awarded
it fines and penalties totaling $1,420,460.00. Salviola now appeals to this Court as
a matter of right. Having considered the record and the law, we affirm the
judgment of the Franklin Circuit Court.
I. 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.” CR2 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
2
Kentucky Rules of Civil Procedure.
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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
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
these standards in mind, we turn to the applicable law and the facts of the present
case.
II. ANALYSIS
Salviola raises three arguments on appeal: 1) that the Cabinet’s
actions violated its own regulations and are contrary to their federal counterpart; 2)
the Cabinet’s actions violated her due process rights; and 3) that the trial court
erred in granting the Cabinet’s motion for summary judgment because numerous
genuine issues of material fact exist. For the following reasons, we disagree. The
statutory and regulatory provisions relevant to the present case are as follows:
KRS 350.135(1):
No surface coal mining permit issued pursuant to this
chapter shall be transferred by sale, assignment, lease, or
otherwise except upon the written approval by the
cabinet of a joint application submitted by both the
transferor and the transferee. . . .
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405 KAR3 8:001 Section 1(133):
“Transfer, assignment, or sale of permit rights” means a
change in ownership or other effective control over the
right to conduct surface coal mining operations under a
permit issued by the cabinet.
KRS 350.990(1):
Any permittee, person, or operator who violates any of
the provisions of this chapter or administrative
regulations promulgated pursuant thereto or who fails to
perform the duties imposed by these provisions, except
the refusal or failure to obtain a permit or other
authorization as provided in this chapter, or who violates
any determination or order issued pursuant to the
provisions of this chapter, may be liable to a civil penalty
of not more than five thousand dollars ($5,000) for the
violation, and an additional civil penalty of not more than
five thousand dollars ($5,000) for each day during which
the violation continues, and in addition, may be enjoined
from continuing the violations provided in this section.
KRS 350.990(9):
When a corporate permittee violates any provision of this
chapter or administrative regulation promulgated
pursuant thereto or fails or refuses to comply with any
final order issued by the secretary, any director, officer,
or agent of the corporation who willfully and knowingly
authorized, ordered, or carried out the violation, failure,
or refusal shall be subject to the same civil penalties,
fines, and imprisonment as may be imposed upon a
person pursuant to this section.
3
Kentucky Administrative Regulations.
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In the trial court’s amended summary judgment, the court stated the following in
support of its decision:
As recently as October 5, 2018, Defendant Salviola signed
a Transfer Application identifying herself as having the
authority, as a Member of Viking to approve the transfer
of permit rights to Pike Clean Processing LLC. This
demonstrates her acknowledgement that she was still in
fact a . . . “director, officer, or agent of the corporation
. . .” who exercised “ownership and control” over the
permits at issue. See Cabinet Exhibits 53 and 54.
Defendant Salviola failed to put on any proof that she was
ever relieved of her obligations and liabilities as an owner
or controller of a corporate permittee under the
requirements of KRS 350, which govern the transfer if
coal mining permits.
On appeal, Salviola has similarly failed to present any convincing argument or
evidence that would counter the trial court’s findings or require reversal thereof.
Furthermore, Salviola’s appeal includes several arguments that were not presented
to the trial court. “[A]ppellants will not be permitted to feed one can of worms to
the trial judge and another to the appellate court.” Kennedy v. Commonwealth, 544
S.W.2d 219, 222 (Ky. 1976), overruled on other grounds by Wilburn v.
Commonwealth, 312 S.W.3d 321 (Ky. 2010). In any event, the federal statutes and
regulations she cites in support of her argument on appeal are of little relevance to
our determination, which is based on Kentucky law. Furthermore, there is nothing
in the record indicating that Salviola and Viking were afforded insufficient
process. See Nat. Res. & Env’t Prot. Cabinet v. Williams, 768 S.W.2d 47 (Ky.
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1989) (holding that Cabinet could seek enforcement of its decision against
shareholder, even though shareholder was not involved in administrative
proceeding, and that shareholder’s refusal to cooperate in suit warranted imposition
of judgment against her). Moreover, Salviola was afforded ample opportunity to
present her defense and evidence to the trial court, and failed to do so. As for her
remaining argument that the trial court erred in granting the Cabinet’s motion for
summary judgment because numerous genuine issues of material fact exist, she has
failed to cite a single item of evidence that would support that claim. See CR
76.12.
III. CONCLUSION
For the foregoing reasons, we hereby affirm the judgment of the
Franklin Circuit Court.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Billy R. Shelton John S. West
Jordan W. Morgan Frankfort, Kentucky
Lexington, Kentucky
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