NOT TO BE PUBLISHED

OPINION

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 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) 383.160(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 January 1991. 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 2001.

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 Aggregates' 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 operations on the Phelps property effective December 2, 2000, and so informed the Phelpses in a letter dated January 2001.

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 2007.

Erma died in 2004, and Herschel died in 2007. 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 383.160(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 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 Aggregates' motion and overruled that of the trustees. In so doing, the circuit court determined that, pursuant to KRS 383.160, Hanson Aggregates 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:

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 383.160. 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 383.160(1) provides as follows:

"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 383.160(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, 2000. To the contrary, all of the evidence is that Hanson Aggregates left the premises on that date and ceased all operations thereupon, well before the February 2001 expiration of the lease agreement.

Although the trustees vigorously contend Hanson Aggregates' 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 Aggregates' 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 2000. 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 383.010(5); see also SUBLESSEE, BLACK'S LAW DICTIONARY (9th ed. 2009) (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 383.160 does not provide a cause of action against Hanson Aggregates because the mining company was not a holdover tenant on the Phelps property. The circuit court correctly determined as much in resolving the parties' cross-motions for summary judgment. For these reasons, we affirm.

ALL CONCUR.