Commonwealth v. Johnson

Decision Date19 February 2021
Docket NumberNO. 2020-CA-0038-MR,2020-CA-0038-MR
CourtKentucky Court of Appeals




ACTION NO. 17-CI-00987



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DIXON, JUDGE: Commonwealth of Kentucky Energy, and Environment Cabinet ("Cabinet") appeals the order entered on December 2, 2019, by the Franklin Circuit Court. Following review of the record, briefs, and law, we reverse and remand for further proceedings consistent with this opinion.


Carl Eric Johnson ("Johnson") operated a landfill in the City of Olive Hill, Kentucky, without a waste disposal permit from the Cabinet. On May 8, 2015, the Cabinet issued Johnson a notice of violation of KRS1 Chapter 224 concerning Environmental Protection. On October 6, 2015, Johnson and the Cabinet participated in an administrative conference and reached an agreement, documented in an agreed order entered April 27, 2016, in which Johnson admitted to the violations described therein and accepted civil liability for same. Johnson agreed to remediate the site within six months, submit monthly reports to the Cabinet, pay a $1,000 civil penalty, and waive his right to a hearing. However, Johnson subsequently failed to abide by the terms of the agreed order and to complete remediation of the site within the time contemplated by the parties' agreement.

After written warnings to Johnson regarding his noncompliance went unheeded, the Cabinet brought this action seeking to enforce the agreed order. Johnson answered, admitting "that being unrepresented by counsel he did enter into an agreement with the Commonwealth as to penalty amount andremediation[.]" ROA2 20. Johnson pled various affirmative defenses, including duress. Shortly thereafter, the Cabinet moved the trial court for a judgment on the pleadings. Johnson responded and moved the trial court to set aside the agreed order, again noting that he was unrepresented by counsel and, more specifically, that he was unaware of the exception in KRS 224.40-310 relied upon by the Cabinet regarding waste disposal at the time of the agreement. The Cabinet replied, asserting Johnson had the opportunity to retain counsel prior to entering the agreement and his failure to do so did not constitute a valid reason for setting aside the Agreed Order. Following a hearing on the matter, the trial court entered an order denying both the Cabinet's and Johnson's motions on July 3, 2018. Rather, the trial court sua sponte ordered the parties to include the City of Olive Hill in mediation and make it a party to the action, and it placed the agreed order in abeyance pending mediation.

Mediation was scheduled for August 15, 2018. A subsequent agreement was reached by the parties, as documented by a second Agreed Order, entered September 10, 2018. Johnson agreed to remediate the site within ten months, submit monthly reports to the Cabinet, attend bi-monthly status conferences, and pay a $10,000 civil penalty. Johnson failed to comply with theterms of this second agreed order, and remediation of the site was not completed within the timeframe agreed to by the parties.

On April 19, 2019, the Cabinet moved the trial court for entry of a judgment finding Johnson in breach of the second agreed order and awarding the Cabinet the stipulated penalty for said breach. Johnson responded, stating he had hired a contractor to remove debris, but after only two months of work, the contractor failed to perform additional waste removal. Johnson further claimed he attempted to procure another contractor to conduct the site remediation but was unable to do so until May 2019. Johnson acknowledged delay of performance required under the second agreed order but asserted it was beyond his control. On September 9, 2019, the trial court awarded the Cabinet a $5,000 judgment but declined to enjoin Johnson from abating all violations immediately. In the same order, the trial court sua sponte placed the abatement in abeyance pending the prosecution of Olive Hill; Carter County, Kentucky; and an unnamed third-party contractor.

The Cabinet moved the trial court to alter, amend, or vacate its September 9, 2019, order, requesting: the amount of the penalty be increased to reflect the parties' agreed-on amount; additional parties not be prosecuted for actions Johnson admitted were his responsibility; the trial court rescind its order that the Cabinet prosecute individuals and entities it had previously declined toprosecute; and the order be made final and appealable. On October 21, 2019, the trial court granted the Cabinet's motion by amending the amount of the penalty from $5,000 to $10,000 but did not grant any other relief requested by the Cabinet.

The Cabinet moved the trial court to alter, amend, or vacate its October 21, 2019, order, requesting the order be made final and appealable. On December 2, 2019, the trial court entered an order granting the Cabinet's motion. This appeal followed.


On appeal, the Cabinet argues the trial court erred when it denied the Cabinet's motions for judgment on the pleadings, effectively refusing to enforce the agreed orders between the parties.3 Under CR 12.03, "any party to a lawsuit may move for a judgment on the pleadings." City of Pioneer Village v. Bullitt Cty. ex rel. Bullitt Fiscal Court, 104 S.W.3d 757, 759 (Ky. 2003). A judgment on the pleadings "should be granted if it appears beyond doubt that the nonmoving partycannot prove any set of facts that would entitle him/her to relief." Id. The trial court is "not required to make any factual determination; rather, the question is purely a matter of law." James v. Wilson, 95 S.W.3d 875, 883-84 (Ky. App. 2002). We review a judgment on the pleadings de novo. Schultz v. Gen. Elec. Healthcare Fin. Servs., Inc., 360 S.W.3d 171, 177 (Ky. 2012).

We first note the Cabinet's argument slightly mischaracterizes the trial court's orders. The orders of September 9, 2019, October 21, 2019, and December 2, 2019, serve to, at least partially, grant the Cabinet's motion for a judgment on the pleadings. The September 9, 2019, order awarded the Cabinet $5,000 with post-judgment interest pursuant to the terms of the April 27, 2016, agreed order; the October 21, 2019, order amended the September 9, 2019, order to award the Cabinet $10,000 as provided for in the parties' September 10, 2018, agreed order; and the December 2, 2019, order granted the Cabinet's motion to alter or amend its October 21, 2019, order to make it final and appealable.

Nevertheless, the Cabinet takes issue with the portion of the September 9, 2019, order in which the trial court declined to enjoin Johnson from abating all violations immediately. In its order, the trial court stated:

It has come to the Court's attention that other entities are also responsible for the transportation of materials to the dump site, located on Defendant's property. Those entities need to be held accountable, simultaneous with Defendant. The Court will take no further action against Defendant until Plaintiff has cited other responsibleparties. It is unrebutted that both the City of Olive Hill and Carter County contributed to the site, and a third-party contractor was also involved in the spread of material on the dump. None of these entities have ever been held accountable for their contribution to this problem. Prosecution of the Defendant, exclusively, is special enforcement, which is impermissible.

ROA 227-28. The trial court then held the matter of abatement in abeyance pending prosecution of other entities.

"An agreement to settle legal claims is essentially a contract subject to the rules of contract interpretation." Cantrell Supply, Inc. v. Liberty Mut. Ins. Co., 94 S.W.3d 381, 384 (Ky. App. 2002). The agreed orders herein represent just such agreements. Under the rules of contract interpretation, the intentions of the parties are to be discerned from the four corners of the document, and where there is no ambiguity, extrinsic evidence should not be considered. Id. at 385.

The September 10, 2018, agreed order specifically acknowledged Johnson was not responsible for the abatement of waste caused by the public road construction. Numbered paragraphs 4 and 5 of the agreed order provide:

4. After approval of the determination of the Cabinet, Defendant shall remove the solid waste, except those materials including, but not limited to, sand, soil, rock, gravel, or bridge debris extracted as part of a public road construction project funded wholly or in part with state funds.
5. Defendant shall lawfully remove and dispose of all solid waste from his property, except waste exempted inparagraph no. 4, within ten (10) months from execution of this Agreed Order.

ROA 94. Johnson was able to—and did—alert the Cabinet of any waste on his property for which he felt he was not responsible at the time the agreement was made, and the Cabinet was free to exempt Johnson from remediating such waste. Thus, and as a matter of law, the trial court not only impermissibly declined to enforce the parties' agreement, but also needlessly attempted to obtain extrinsic evidence from other entities. The terms of the agreement were unambiguous and therefore, further evidence was irrelevant.

Furthermore, Johnson admitted he failed to remediate the site under the terms of the greed order in his response to the Cabinet's show cause motion. ROA 123-24. Considering Johnson's admission, and absent any genuine issue of material fact or allegations of fraud in the inducement, the trial court should have enforced the second agreed order. ("[A]bsent fraud in the inducement, a written agreement duly executed by the party to be held, who had an opportunity to read...

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