DO NOT REMOVE FROM FILE FttE COpy

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

THE BRUCE MCDONALD HOLDING COMPANY, DA VID B. MCDONALD LAND COMPANY, OAKLEY, LLC, S. E. MCDONALD, LLC, C B MORRIS, LLC, L.O.U., LLC, GLENN T. YOST, as attorney-in-fact for

EDYTHE NASH GAISER, CLERK' SUPREME COURT OF APPEALS

Ernest Phipps Credit Shelter Trust, and CDC REAL ESTATE, LLC,

Petitioners, v.

ADDINGTON, INC., THE BRINK'S COMPANY, and PITTSTON COAL COMPANY,

Respondents.

Brian A. Glasser (WVSB #6597) Sharon F. Iskra (WVSB #6582) Bailey & Glasser LLP 209 Capitol Street Charleston, West Virginia 25301 (304) 345-6555 telephone (304) 324-1110 facsimile bglasser@baileyglasser.com siskra@baileyglasser.com Counsel for Petitioners

Case No. 17-0847 (Appeal from final order of Logan County Circuit Court Business Court Division, 16-C-70)

Reply Brief

C!F WE_ST-"IRGI~NI~A __ ,.,-

I. PREAMBLE ............................................................................................................................ 1

II. STATEMENT OF THE CASE ................................................................................................ 2

III. ARGUMENT ........................................................................................................................... 7

A. The circuit court failed to follow the Lease, the law, and public policy when it ruled that the McDonald Family has no claim for damages against Pittston for failure to diligently mine coal reserves ................................................................................................................................. 7

1. The Lease does not contain any textual or structural basis to abrogate the express promise of diligent prosecution of mining operations .............................................................. 9

a. Article XIII lacks any language that would allow it to override another separate article of the Lease .............................................................................................................. 10

b. Pittston's argument that Article XIII impliedly supplants Article X violates a cardinal rule of contract construction by rendering large sections of the Lease meaningless .......... ll

c. Pittston's argument that Article XIII is the McDonald Family's sole and exclusive remedy violates the Lease and the law ............................................................................... 13

2. The McDonald Family is asking the Court to enforce an express promise, not to imply a duty into the Lease ................................................................................................................. 15

B. Because "the writing is the repository of what the parties meant, and cannot be varied by extraneous evidence," Pittston's resort to parol evidence should be disregarded ..................... 17

C. Given the McDonald Family's repeated verbal and written objections to the lack of mining, at a minimum, a fact question exists on the affirmative defense of waiver .................. 18

D. Since neither party contends the Lease is ambiguous, the Court does not need to determine course of performance ................................................................................................................ 21

E. The Prior Litigation, which concluded in 1991, could not have passed on the claims in the present case, which deal with different claims altogether, defeating res judicata and collateral estoppel. ..................................................................................................................................... 21

F. Cross-Assignment of Error: Because the law at the time of Lease signing granted lessor the right to withhold consent, the circuit court reached the right result on Pittston's counterclaim ............................................................................................................................... 23

IV. CONCLUSION ...................................................................................................................... 26

Table of Authorities

Cases

Boron v. Smith, 380 Pa. 98,110 A.2d 169 (1955) ........................................................................ .l2 Cabot Oil & Gas Corp. v. HuJJman, 227 W. Va. 109, 705 S.E.2d 806 (2010) ......................... 9, 24 Coal Resources, Inc. v. Gulf & Western Industries, Inc., 865 F.2d 761 (6th Cir. 1989) ............... 12 Cotiga Dev. Co. v. United Fuel Gas Co., 147 W. Va. 484,128 S.E.2d 626 (1962) ................. 8, 21 Creasy v. Tincher, 154 W.Va. 18,22, 173 S.E.2d 332,334 (1970) .............................................. 20 Dave & Buster's, Inc. v. White Flint Mall, LLLP, 616 Fed. Appx. 552, 563 (4th Cir. 2015) ...... .l9 Dobyns v. South Carolina Dep't of Parks, Recreation and Tourism, 325 S.C. 97,480 S.E.2d 81

(S.C. 1997) ................................................................................................................................. 24 Elderberry of Weber City, LLC v. Living Centers-Se., Inc., 794 F.3d 406 (4th Cir. 2015) ........... 14 Flemingv. Fairmont & MR. Co., 72 W. Va. 835, 79 S.E. 826 (1913) ......................................... 14 Franklin Sugar Refining Co. v. Martin-Nelly Grocery Co., 94 W.Va. 504, 119 S.E. 473 (1923) .9 Gazale v. Gazale, 219 Va. 775,250 S.E.2d 365 (1979) ................................................................ 24 Grassv. Big Creek Dev. Co., 75 W. Va. 719, 84 S.E. 750 (1915) .............................................. 7, 8 Hamrick v. Nutter, 93 W. Va. 115, 116 S.E. 75 (1923) ........................................................... 1, 2, 8 Homa-GoJJ Interiors, Inc. v. Cowden, 350 So. 2d 1035 (Ala. 1977) ............................................ 25 Hutchison v. Sunbeam Coal Corp., 513 Pa. 192, 519 A.2d 385 (1986) ........................................ 16 Iafolla v. Douglas Pocahontas Coal Corp., 162 W. Va. 489, 250 S.E.2d 128 (1978) ............ 14, 15 Ionno v. Glen-Gery Corp., 2 Ohio St. 3d l31, 443 N.E.2d 504 (1983) ......................................... 12 John D. Stump & Associates, Inc. v. Cunningham Mem'l Park, Inc., 187 W. Va. 438, 419 S.E.2d

699 (1992) ............................................................................................................................ 17, 18 McGinnis v. Cayton, 173 W. Va. 102,312 S.E.2d 765 (1984) ..................................................... 24 Mike Ross, Inc. v. Dante Coal Co., 230 F. Supp. 2d 716 (N.D.W. Va. 2002) .............................. 16 N. Star Co. v. Howard, 341 S. W.2d 251 (Ky. 1960) ..................................................................... 11 Narwick v. Wexler, 901 F.Supp. 1275 (N.D. Ill. 1995) ................................................................. 19 Potesta v. Us. Fid. & Guar. Co., 202 W. Va. 308, 504 S.E.2d l35 (1998) ................................. 18 Sf. Luke's United Methodist Church v. CNG Dev. Co., 222 W. Va. 185,663 S.E.2d 639 (2008) .. 7 Valentine & Kebartas, Inc. v. Lenahan, 239 W. Va. 416, 801 S.E.2d 431 (2017) ........................ 19 VanKirkv. Green Const. Co., 195 W. Va. 714,466 S.E.2d 782 (1995) ....................................... 14 Watson v. Buckhannon River Coal Co., 95 W. Va. 164, 120 S.E. 390 (1923) .............................. 17 Wellman v. Bobcat Oil & Gas, Inc., 2010 WL 2720748, (S.D.W. Va. July 8, 2010) ..................... 8 Wood v. Sterling Drilling & Prod. Co., Inc., 188 W. Va. 32,422 S.E.2d 509 (1992) .................. 11

Treatises

Restatement (Second) of Property: Landlord and Tenant § 15.2 (1977) ................................ 25, 26 Richard 1. Bolen, Coal Lease Terminations: Minimizing the Pain of Untying the Knot, 25 Energy

& Min. L. Inst. 262, 269 (2005) ................................................................................................. 12

I. PREAMBLE

Almost 100 years ago, in Hamrick v. Nutter, I this Court decided that "the lessor in a coal

mining lease may maintain an action of assumpsit for breach of the lessee's covenant to properly

and diligently develop the mine property." Yet, the circuit court, via a summary judgment order,

nixed the McDonald Family's diligent mining claim against Pittston, brought under Hamrick. The

circuit court's decision defies the express language of the Lease, West Virginia law, and public

policy-an unholy trinity of flawed contractual interpretation.

According to Pittston and the circuit court, the McDonald Family has signed its high-value

metallurgical coal reserves over to Pittston in a 54-year coal mining Lease that does not require

Pittston to ever mine the coal. And, in fact, over the 40 years it has held this Lease, Pittston hasn't

mined any coal. Instead, it sat on the Lease during the biggest and most prolonged metallurgical

coal boom known to the modem western world. It wasted the assured profit from the "last, best

virgin block of metallurgical coal" remaining in Logan County.

As they watched the metallurgical coal market boom and coal mines open all around their

Pittston Lease, the McDonald Family hammered out a constant "drumbeat" of demands to Pittston

to mine their coal. Yet, Pittston refused to mine. Pittston's refusal to prosecute mining operations

caused the McDonald Family to miss out on the substantial coal mining royalties that, through the

Lease, Pittston promised to deliver. Because Pittston caused this loss to the McDonald Family,

the family filed this suit.

In spite of the clear damage done to the McDonald Family, Pittston argued, and the circuit

court agreed, that the Lease will not, under any set of circumstances, obligate Pittston to mine.

J Syl. pt. 1, Hamrick v. Nutter, 93 W. Va. 115, 116 S.E. 75 (1923).

The circuit court, in its summary judgment order, did not even address Hamrick. Instead, the circuit

court decided that the language of the Lease grants Pittston an option to mine, and even if Pittston

intentionally sits on the Lease during record-smashing coal markets, Pittston gets off scot-free.

Like the circuit court, Pittston's Response Brief does not address the central holding of

Hamrick. Pittston's only rejoinder to the central legal issue is that, under this Lease, there can be

no claim for breach of the express promise to diligently mine, because this Lease contains a

minimum royalty payment. But, like courts in the rest of the Appalachian coal basin, Hamrick

rejected that exact argument. Because the Lease, the law, and the public policy of this state all

require Pittston to mine, the McDonald Family is asking this Court to reverse the circuit court's

summary judgment order and remand this case for trial.

Lacking any authority to support its premise that a coal mining Lease does not require coal

mining, Pittston pivots towards raining down a flood of attacks on the character, conduct, and

motives of the McDonald Family. According to Pittston, we "did not inform the Court" about

certain facts, conducted a "beauty pageant" of potential litigation firms, "came up with" the

diligent mining claim after interviewing lawyers, "made up demands to leverage more money from

a lease that the lessors no longer see as favorable," made "false" statements, "made up" references

to the hearing transcripts, and are so "desperate" that we made "baseless accusations." We will

leave the mud-slinging to Pittston, and instead tum back to the elements that will decide this case:

the facts and the law.

II. STATEMENT OF THE CASE

Pittston's Response Brief did not contest the facts relevant to this appeal, which are

briefly summarized as follows:

2

• In 1978, Pittston signed the Lease with the McDonald Family. (J.A. 7536). At that time,

Pittston was the United States' largest exporter of metallurgical coal. (1.A. 3033).

• The Lease, in Article X, obligates Pittston to "diligently prosecute its operations on the

premises hereby leased so that all the merchantable and mineable coal herein provided to

be mined shall be mined and royalties therefor paid to McDonalds." (l.A. 4574).

• Article X of the Lease is devoid of any words of condition, such as "if," "when

undertaken," or "once commenced," and instead Article X contains only an absolute and

unequivocal promise to diligently prosecute coal mining operations. (Id.).

• Separately, in Article XIII, the Lease also obligates Pittston to make an annual minimum

royalty payment, determined by a "tons times selling price" calculation, rather than a fixed­

dollar amount or a per-acreage amount. (1.A. 4577).

• The Lease does not contain the phrase "mine or pay." (J.A. 4543 - 4605).

• The Lease lacks any "in lieu of' or similar language that makes Article XIII's minimum

royalty payment supplant or override Article X's duty to diligently prosecute mining

operations. (lA. 6425 - 6426).

• As even Pittston's expert witness agrees, the minimum royalty payment exists to keep the

lease alive during periods of excusable non-production, such as when coal markets are bad.

(1.A. 5647 - 5648).

• The Lease does not specify Article XIII as the exclusive remedy available to the McDonald

Family. Instead, the Lease, in two places, says that the McDonald Family's remedies are

cumulative:

o "All ofthe provisions herein contained for the lien for, or collection of royalties, rentals,

or other payments shall be determined cumulative and are not exclusive and shall not

3

deprive McDonalds of any of their legal or equitable rights or remedies which they

might otherwise have" (l.A. 4586).

o "The remedies given in this Article are merely cumulative and shall not deprive

McDonalds of any of their other legal or equitable remedies." (l.A. 4594).

• After the Lease's 6-year ramp-up period (1978 - 1984) to allow for permitting and for

infrastructure to be built, Pittston did not mine from 1984 - 1991, because it was in court

attempting to prematurely terminate the Lease. (l.A. 183 - 189; 648 - 667).

• After losing that litigation, Pittston justifiably did not mine from 1991 - 1999 because, due

to poor metallurgical coal markets, it would have been unprofitable to do so. (l.A. 6434).

• In 1999, Pittston decided to begin withdrawing from West Virginia and the coal business

entirely, because it wanted to curtail its retiree medical liabilities to UMW A coal miners.

Instead, Pittston chose to focus on its Brink's cash delivery and freight businesses. (l.A.

6434 - 6436).

:1 I!IIIIIIBRINKS

• From 1999-2006, except for the McDonald Lease and some other leases, Pittston disposed

of almost all of its coal miners and coal mining assets. (l.A. 6440-6441).

4

• In a letter dated May 10, 2006, Pittston told the McDonald Family that it was not going to

mine their coal. (lA. 6440-6441). Pittston also said it had failed to find any other mining

company to fulfill its Lease obligations. (Jd.). Instead, Pittston asked the McDonald Family

to negotiate a resolution of its remaining obligations under the Lease. (Jd.).

• Meanwhile, around this same time, as Pittston's expert testified, the selling price for

metallurgical coal generally increased by 600%! (l.A. 5900). The great boom was on,

spurring development of metallurgical coal mines literally surrounding the McDonald

property. (l.A. 3034). But, Pittston still refused to mine.

• By 2008, upset that Pittston had done nothing to develop mines as promised in response to

the coal markets, the McDonald Family sent Pittston multiple written correspondences that

state, "our primary concern ... is the continued holding of the leasehold without mining

taking place;" "our intent remains in getting the property mined as soon as possible;" "the

McDonald's primary objective is to get the property mined as quickly as possible;" and

"We, of course, do not believe it is umeasonable for us to encourage you to mine the coal

as contemplated in the Lease[.]" (lA. 6146 - 6153).

• While Pittston continued to hold the Lease idle, in February 2009, the McDonald Family

again wrote to Pittston and demanded assurances from Pittston that "operations would be

promptly commenced and diligently pursued upon the leasehold estate as contemplated by

the Lease Agreement." (l.A. 2782).

• In response to the February 2009 letter, Pittston assured the McDonald Family that it had

hired A. T. Massey Coal Company ("Massey") as a contract miner to develop the Lease

and together, "[Pittston] andlor its contractors, including Massey, will implement a plan

5

for mining both the deep and surface coal consistent with the Lease Agreement." (lA.

2712).

• As uncovered in discovery, Massey never actually wanted to mine the property, only to

"tie up" the assets to "prevent others from gaining a competitive foothold in close

proximity" to Massey's operations. (lA. 3049, 3060 - 3061).

• After the Massey freeze-out scheme ended in December 2010, the McDonald Family

engaged Pittston in a series of face-to-face meetings in an attempt to work out all issues

between the parties. (lA. 2788 - 2789). The series of work-out meetings lasted through

2014, and during the meetings, the McDonald Family bluntly told Pittston that its liability

far exceeded Pittston's minimum payment obligation. (Jd.).

• Following the work-out meetings, in January 2015, Pittston sought a tripartite deal among

itself, the McDonald Family, and a third-party, RAMACO. Pittston wanted to do the deal

in part to "reduce, (although not likely eliminate) exposure, if any, to some sort of diligent

development and/or lost coal claim." (l.A. 2747-2748).

• Pittston ultimately rejected a proposal from the McDonald Family for a tripartite deal with

RAMACO. Then, on March 21, 2016, the McDonald Family, having exhausted all

reasonable efforts at an out-of-court solution over a period of almost ten years, was forced

to institute this suit. (l.A. 3055-3066).

• The McDonald Family's objections to the lack of mining under the Lease were so persistent

and unwavering that one Pittston executive deemed it the McDonald Family's "drumbeat

all along." (lA. 5846 - 5847).

• From 2006 through 2016, the McDonald Family accepted an annual minimum royalty

payment of $500,000, without objecting to the way in which the payment was calculated.

6

• In 2016, the McDonald Family rejected the payment, because for "the first time in the long

history ofthe Lease, [Pittston] issued the minimum royalty check with a statement that they

view the check as fully discharging all of their obligations under the Lease." (J.A. 5810).

• Not once prior to 2016 did Pittston send a payment under the Lease with a statement that

it was intended as "payment in full" or as a payment "in lieu of mining." (lA. 4880).

III. ARGUMENT

A. The circuit court failed to follow the Lease, the law, and public policy when it ruled that the McDonald Family has no claim for damages against Pittston for failure to diligently mine coal reserves.

The Lease requires Pittston to "diligently prosecute its operations on the premises hereby

leased so that all the merchantable and mineable coal herein provided to be mined shall be mined

and royalties therefor paid to McDonalds.,,2 West Virginia law obligates a mineral lessee to

"exercise due and reasonable diligence in prosecuting operations thereunder for the mutual benefit

of himself and his lessor; and, if he unreasonably fails or refuses so to do, damages therefor are

recoverable against him in an appropriate action at law."3 And, the public policy of this state

"discourages tying up and rendering unproductive the vast fields of mineral wealth," construes

leases, "so as to best promote production, development and progress," and "frowns upon every

attempt to evade it as being in contravention of both good morals and public policy.,,4 This public

2 l.A. 4574. While Article X best express the promise to diligently mine, some 90% of the remaining Articles of the Lease make no sense if there is no mining required. (l.A.7455).

3 Grass v. Big Creek Dev. Co., 75 W. Va. 719, 84 S.E. 750 (1915).

4 St. Luke's United Methodist Church v. CNG Dev. Co., 222 W. Va. 185, 192,663 S.E.2d 639, 646 (2008) (citation omitted).

7

policy keeps miners employed, keeps ancillary ventures such as truckers and suppliers in business,

and keeps severance taxes flowing to the state and the counties.

Applying those concepts, three long-standing opinions from this Court define each element

of the cause of action brought by the McDonald Family:

1. Hamrick, construing what is now W. Va. Code § 55-8-3, specifically adopted a lessor's

claim for breach of its lessee's duty to diligently prosecute mining operations; 5

2. Grass6 and its progeny7 announced the "reasonably prudent operator" rule as the

standard of care against which the diligence of the operator is measured; and

3. Cotiga8 selected the modified royalty rule as the measure of damages for such a claim,

affording the derelict operator the chance to reimburse itself by treating the damages

as prepaid royalties against future production.

5 Syl. pt. I, Hamrick v. Nutter, 93 W. Va. 115, 116 S.E. 75 (1923).

6 A lessee is "bound by that degree of diligence which, surrounding circumstances and conditions being considered, would reasonably be expected of operators of ordinary prudence, experienced and engaged in the same business, having due regard for the interests and advantage ofthemselves and their lessors." Syllabus, Grass v. Big Creek Dev. Co., 75 W. Va. 719, 84 S.E. 750 (1915).

7 "This standard of ordinary prudence remains effective today." Wellman v. Bobcat Oil & Gas, Inc., 20 10 WL 2720748, at *3 (S.D.W. Va. July 8, 2010).

8 "[T]he proper measure of damages is the aggregate sum of money which, under the terms of the lease, the lessor would have been entitled to receive for the total volume of gas which would have been marketed during the period in question but for the dereliction of the assignee. Payment of such damages by the assignee shall be deemed in effect, a payment pro tanto by the assignee for gas not yet extracted and marketed pursuant to the terms of the lease; and the assignee shall be entitled to credit for such sum, dollar for dollar without interest, in the settlement and payment for gas next thereafter extracted and marketed from the leased premises in compliance with such covenant." Syl. pt. 7., Cotiga Dev. Co. v. United Fuel Gas Co., 147 W. Va. 484, 485,128 S.E.2d 626, 629 (1962)

8

Because "[t]he laws which subsist at the time and place where a contract is made and to be

performed enter into and become a part of it to the same extent and effect as if they were expressly

incorporated in its terms,,,9 these cases became a part of the Lease.

Pittston's Response Brief attempts to side-step the Lease, the law, and the public policy by

making two arguments. First, Pittston argues that since Article XIII calculates a minimum royalty

based upon a tonnage multiplier-rather than a fixed-dollar or per-acre minimum-Article XIII is

the McDonald Family's sole and exclusive recourse for Pittston's refusal to mine. Pittston calls

this its "mine or pay" argument. Second, Pittston argues that, when a Lease contains a minimum

royalty payment, the law will not imply a diligent mining obligation. Pittston's first argument fails

because it is not supported at all by the language or structure of the Lease or any background law.

Pittston's second argument fails because the Lease contains an express promise of diligent mining.

The McDonald Family is not relying on any implied duties.

1. The Lease does not contain any textual or structural basis to abrogate the express promise of diligent prosecution of mining operations.

Pittston does not argue that Hamrick, Grass, and Cotiga, are bad law, have been

overturned, or do not stand for the propositions for which we say they do. CRespo Br., 19-22).

According to Pittston, because the minimum royalty provision in Article XIII is calculated using

"tons times price" instead of a fixed-dollar amount or a per acreage amount, Article XIII, by

implication, overrides the express duty to diligently prosecute operations in Article X. CRespo Br.,

16 - 23). This argument is wrong for three reasons.

9 Syl pt. 5, Cabot Oil & Gas Corp. v. Huffman, 227 W. Va. 109, 111,705 S.E.2d 806,808 (2010) (citing Syllabus, Franklin Sugar Refining Co. v. Martin-Nelly Grocery Co., 94 W.Va. 504, 119 S.E. 473 (1923».

9

a. Article XIII lacks any language that would allow it to override another separate article a/the Lease.

As an example of the key language missing from the Lease that might otherwise support

Pittston's argument, when a proposed tripartite deal with RAMACO was on the table, RAMACO

proposed inserting into the deal documents the following language: "The payment of advanced

rental and minimum production payments by sublessee shall be in lieu of any expressed or implied

covenant of diligent development." (l.A. 5886). Pittston's in-house coal lawyer with 40 years'

experience negotiating coal leases acknowledged, "[T]his language would make it clear that

payment of advanced rental and minimum production shall be in lieu of that covenant" of diligent

development. (lA. 5887). But, as Pittston admitted, the "in lieu of' or similar language, does not

appear in the Lease. (lA. 4631).

In our opening Brief, we pointed out many of the provisions of the Lease that show,

textually, that the Lease requires mining to occur. For instance, Article VII notes that the term of

the Lease continues until Pittston has mined and removed "all of the merchantable and mineable

coal contemplated to be mined by this leasing agreement." (lA. 4567). Article XIII likewise refers

to "all the merchantable and mineable coal herein contemplated to be mined .... " (l.A. 4577).

Article XXXI refers to "all the merchantable and mineable coal required to be mined by Lessee[.]"

(lA. 4600). Pittston's Response Brief does not explain how its construction of the Lease as simply

a mining option is consistent with the language in Articles VII, XII, and XXXI that mining is, in

fact, "contemplated" and "required." Thus, the Lease lacks a textual basis to support Pittston's

10

argument that Article XIII overrides or obliterates Article X, or the remaining 90% ofthe Articles

of the Lease that contemplate and require mining to occur.

b. Pittston's argument that Article XIII impliedly supplants Article X violates a cardinal rule of contract construction by rendering large sections of the Lease meaningless.

To wit:

[T]he language of a lease agreement must be considered and construed as a whole, giving effect, if possible, to all parts of the instrument. Accordingly, specific words or clauses of an agreement are not to be treated as meaningless, or to be discarded, if any reasonable meaning can be given them consistent with the whole contract.

Wood v. Sterling Drilling & Prod. Co., Inc., 188 W. Va. 32, 34, 422 S.E.2d 509, 511 (1992).

Despite this bedrock principle, Pittston argues that by paying a minimum royalty under

Article XIII, it has discharged its obligation to diligently prosecute its operations in Article X.

This, again, is Pittston's "mine or pay" argument. Because Pittston's interpretation violates a clear

rule of construction, courts have routinely rejected it.

First, Hamrick approved a diligent mining claim in spite of the Lease's minimum royalty

payment. Hamrick, 116 S.E. at 76. Next, applying Kentucky law, North Star Co. v. Howard,

reached the same result.

Star argues that the Howards are not entitled to recover damages against Star because of Star's failure to diligently mine the Howards' coal, but are limited to the minimum royalty specified in the Howards' lease. The lease contains not only a provision for the payment of minimum royalty but also a covenant requiring Star to diligently mine the Howards' coal. The parties to the lease obviously did not intend the minimum royalty provision as a limitation on the specific covenant requiring Star to mine diligently. Any other interpretation would render the requirement of diligence meaningless.

N. Star Co. v. Howard, 341 S.W.2d 251, 254 (Ky. 1960).

Virginia law agrees: "[T]he leases involved herein provided for both a minimum royalty

and diligent development of the mines. Therefore, the payment of minimum royalties does not

11

satisfy the duty of diligent development." Coal Res., Inc. v. Gulf & Western Indus., Inc., 865 F.2d

761, 766 (6th Cir. 1989) (applying Virginia law). Ohio law agrees: "The fact that the lessees have

continued to make annual payments for a period of over eighteen years does not alter their

responsibility to develop the land within a reasonable time. The questions of working diligently

and of paying rent or royalties are entirely separate matters." lonna v. Glen-GelY Corp., 2 Ohio St.

3d 131, 134, 443 N.E.2d 504, 508 (1983). And, Pennsylvania law agrees: "Even if the [lessee]

paid royalties (including the monthly minimums) ... still it was the [lessee's] duty to mine and

remove the coal during the term of the lease." Boron v. Smith, 380 Pa. 98, 103-04, 110 A.2d 169,

171 (1955).

Richard J. Bolen, a renowned coal mining lawyer writing for the Energy and Mineral Law

Foundation's annual proceedings, summed up the point this way:

[W]here a coal lease contains both a minimum royalty provision and a covenant requiring the coal to be diligently mined, both of these independent covenants will be given meaning and effect, and, consequently, the payment of minimum royalties alone will not relieve the lessee from the consequences of failure to diligently mine.

Richard 1. Bolen, Coal Lease Terminations: Minimizing the Pain of Untying the Knot, 25 Energy

& Min. L. Inst. 262, 269 (2005).

Thus, the entirety of the Appalachian coal basin, including West Virginia, is consistent on

the central legal issue-payment of a minimum royalty does not supplant a separate, express duty

to diligently mine the lessor's coal. This only makes sense, structurally, too, since the McDonald

Family only realizes the full value of the Lease when mining occurs. Even with a minimum royalty

payment, "the real consideration for the lease is the expected return derived from the actual mining

of the land." lonna, 443 N.E.2d at 508.

In fact, when comparing (1) the mining royalties that would have been earned if Pittston

had deployed a reasonably diligent mining plan to (2) the minimum payments over that same

12

period, the minimum payments amount to only 5% of the expected mining royalty. (l.A. 7408).

Inarguably, then, the McDonald Family is not made whole by minimum royalty payments. Pittston

admitted as such, testifying that if mining had occurred between 2006 and 2016, during each of

those years, "the payment owing to the McDonalds would have been in excess of' the minimum

royalty payment. (l.A. 5672).

Pittston's own internal documents best illustrate why the "mine or pay" argument does not

fly. In 1998, Pittston prepared an internal study of the McDonald and surrounding properties. The

1998 study concluded that a feasible mine plan would produce 1,500,000 tons annually from just

two coal mines. (lA. 6985). Using Pittston's internal mine plans as well as his own, the

McDonald Family's mining operations expert conservatively estimated that a reasonable annual

production from the Leased premises would be 1.2 million tons per year. (l.A. 7426). Article

XIII's 250,000-ton multiplier, which is used to calculate a minimum royalty payment, does not

remotely approach the level of production that a reasonably diligent operator would achieve from

the McDonald property during the years at issue.

These facts highlight the necessity of Article X's promise of diligent prosecution. By

bargaining for that promise, the McDonald Family is entitled to receive the royalties that, given

market circumstances, would be produced by an objectively reasonable and prudent operator. The

Lease contains no express language nor any reasonable inference that Article XIII was intended to

deprive the McDonald Family of the benefit of their bargain.

c. Pittston's argument that Article XIII is the McDonald Family's sale and exclusive remedy violates the Lease and the law.

Article XIII, even if it were a remedy provision, is not the McDonald Family's exclusive

remedy. Under the law, "the remedy provided will be exclusive of other possible remedies only

where the language employed in the contract clearly shows an intent that the remedy be exclusive."

13

Elderberry a/Weber City, LLC v. Living Centers-Se., Inc., 794 F.3d 406, 412 (4th Cir. 2015), as

amended (Aug. 10, 2015) (citation omitted). This is because "the right to sue upon a written

obligation admitted to be valid is of too high a character to be taken away by implication[.]"

Fleming v. Fairmont & MR. Co., 72 W. Va. 835,79 S.E. 826,827 (1913).

The Lease does not contain an exclusivity of remedy provision. Quite the opposite, in two

separate places, the Lease unmistakably makes the McDonald Family's remedies cumulative. (lA.

4586; 1.A. 4594).

Thus, the background law and the Lease entitle the McDonald Family to all available

remedies. Even if Article XIII was some sort of "remedy" provision-it is, after all, only a

minimum royalty provision and not a remedy-the McDonald Family's right to damages for

breach of Article X is preserved by the law and the Lease language. Cf, syl. pt. 3, VanKirk v.

Green Canst. Co., 195 W. Va. 714, 719, 466 S.E.2d 782, 787 (1995) ("A liquidated damage clause

for delay in completing contract work does not preclude an injured party from recovering

compensatory damages under the contract unless the liquidated damage clause expressly limits the

right to such other damages.").

The purpose of including the minimum royalty provision was not to define the exclusive

remedy under the Lease, but rather, to provide consideration to the Lessor through times when the

operator has a reasonable explanation for not prosecuting operations, such as a poor coal market.

See, la/alia v. Douglas Pocahontas Coal Corp., 162 W. Va. 489, 494, 250 S.E.2d 128,131 (1978)

("[A]ppellant's failure to mine due to depressed market prices of coal ... was expressly

contemplated under the lease."). Pittston's Response Brief cites no provision of the Lease or case

that says otherwise. Its "mine or pay" argument, therefore, must fail.

14

2. The McDonald Family is asking the Court to enforce an express promise, not to imply a duty into the Lease.

Pittston argues that the McDonald Family is asking the court to imply a duty of diligent

development into the Lease. CRespo Br., 21) C"[T]here is simply no basis for implying a duty to

develop when a delay rental is paid for the right not to develop."). Pittston is wrong.

The McDonald Family is not bringing a claim for breach of an implied duty to develop.

The Lease contains an express covenant of diligent prosecution in Article X, and it is upon that

covenant that the McDonald Family brings its claim.

Pittston cites la/alia, Mike Ross, and Hutchison in its Response Brief for the unremarkable

point that under certain circumstances, a minimum royalty payment will cause courts to decline to

imply a duty to mine. CRespo Br. 21-22). This is not even an argument the McDonald Family is

making. As noted above, Pittston breached the express language in Article X of the Lease- there

is nothing implied about it.

In any event, each case actually supports our position. la/alia was not even a damages

case. Instead, the question in la/alia was whether a coal mining lease "can be abandoned by the

lessee as long as the minimum rental payment is regularly paid[.]" la/alia V. Douglas Pocahontas

Coal Corp., 162 W. Va. 489, 494, 250 S.E.2d 128, 131 (1978). Just as the McDonald Family has

argued, the la/alia court ruled that the minimum royalty payment keeps the lease alive through

contemplated periods of non-production, such as when coal markets are depressed. "[A ]ppellant's

failure to mine due to depressed market prices of coal, which was not contested by appellees, was

expressly contemplated under the lease." !d., n. 3. The McDonald Family agrees that the law will

not compel a lessee to mine at a loss. But, the claim in this case is based upon the opposite scenario:

mining during the great metallurgical coal boom would have been immensely profitable to both

the McDonald Family and Pittston.

15

While Mike Ross does state that "Courts have generally imposed an implied duty to act

with reasonable diligence only when there is no provision requiring payment of minimum royalties

or rentals," that point has no application to this case. Mike Ross, Inc. v. Dante Coal Co., 230 F.

Supp. 2d 716,721 (N.D.W. Va. 2002). Instead, that court recognized, "Unlike in many coal leases,

the lease did not contain any clause requiring Dante to act with reasonable diligence." Id. Mike

Ross specifically rested its decision on the lack of an express due diligence clause. Because the

McDonald-Pittston Lease does, in fact, contain an express due diligence clause, Mike Ross does

not apply.

The plaintiff in Hutchison also asked the court to imply a duty to mine. Yet again, the

court declined to imply such a duty alongside a minimum royalty provision. "An obligation to pay

minimum advance royalties does not create an implied duty to mine under Pennsylvania law."

Hutchison v. Sunbeam Coal Corp., 513 Pa. 192, 197,519 A.2d 385, 388 (1986). Like the cases

above, however, Hutchison, noted that the result would be different if the parties had expressly

bargained for an obligation of diligent prosecution. The court said, "The parties to a mineral lease

are free, of course, to bargain for a duty to mine in addition to the payment of minimum advance

royalties." Id. at 389, n. 4. In the present case, the McDonald Family did, in fact, bargain for a

duty to mine in addition to the minimum royalty payments.

Pittston's argument that this Court should not imply a duty to mine is a non-sequitur. The

McDonald Family is not basing any claim on an implied duty. Its claim is based squarely on the

many articles of the Lease, including Article X, that contain express duties to mine.

16

B. Because "the writing is the repository of what the parties meant, and cannot be varied by extraneous evidence," Pittston's resort to parol evidence should be disregarded.

Pittston cherry-picks parol evidence to support its premise that the Lease does not contain

a duty to mine. (Resp. Br. at 4). But, "the writing is the repository of what the parties meant, and

cannot be varied by extraneous evidence," Watson v. Buckhannon River Coal Co., 95 W. Va. 164,

120 S.E. 390 (1923). Accordingly, even if Pittston's cherry-picked evidence had presented the full

story, it is still irrelevant. The Court should focus on the four-comers of the contract between the

parties and its previous pronouncements of law.

Even if extraneous evidence were needed to explain the Lease, the circuit court should not

have resolved the factual disputes surrounding that evidence. "If the parol evidence be not in

conflict, the court must construe the writing; but if it be conflicting on a material point necessary

to interpretation of the writing, the question of its meaning should be left to the jury under proper

hypothetical instructions." John D. Stump & Associates, Inc. v. Cunningham Mem'f Park, Inc., 187

W. Va. 438,446,419 S.E.2d 699,707 (1992) (citing Syl. pt. 4, Watson, 120 S.E. at 390).

For example, Pittston says, "the 30(b )(7) representative of the McDonald Companies

admitted that the 1978 Lease is a mine-or-pay lease." (Resp. Br. at 4). To the McDonald Family,

"mine or pay" means they are owed damages "if [Pittston] has left any mineable and merchantable

coal on the Leased premises," not that Pittston fulfills its duty to mine by paying a minimum

royalty. (lA. 5863).

In fact, the full testimony of the 30(b)(7) representative, when asked if Article XIII

represented the full extent of Pittston's obligations, clearly disagreed:

Q. Mine ... or pay, right? If you didn't mine? Correct?

A. The Article XIII deals with that specifically. Article X says that you must mine diligently. They are separate covenants under this lease.

17

(l.A. 5903).

And in a different place, the 30(b )(7) representative testified:

Pittston and Elkay signed up to two different covenants under this lease. Article X requires diligent mining as a prudent miner would. Article XIII allows for the opportunity to have years when mining isn't good, mining conditions are not good, and allows them to not mine in those years and keep their coal lease intact by paying the minimum production royalty.

(J.A. 5905).

It is not permissible to use extraneous evidence to vary the terms of the Lease. Pittston's

attempt to do so should be rejected. Even if, for some reason, extraneous evidence is necessary,

under John D. Stump, resolution of the evidence must be left to a jury.

C. Given the McDonald Family's repeated verbal and written objections to the lack of mining, at a minimum, a fact question exists on the affirmative defense of waiver.

Pittston spills much ink arguing that a party is presumed to know its contract and cannot

claim that "I did not know I had that right" in order to avoid waiver. (Resp. Br., 24 - 26). Once

again, Pittston is attacking an argument the McDonald Family does not even make. Instead, the

circuit court's error on waiver was resolving a highly fact-specific issue-intent-in its summary

judgment order.

Pittston has no writing or other document to show an explicit or express waiver. Thus, its

waiver defense is limited to implied waiver. To establish its affirmative defense of implied waiver,

Pittston must show by clear and convincing evidence that McDonald possessed the specific intent

to relinquish its diligent mining claim. Potesta v. Us. Fid. & Guar. Co., 202 w. Va. 308, 315, 504

S.E.2d 135, 142 (1998) ("However, where the alleged waiver is implied, there must be clear and

convincing evidence of the party's intent to relinquish the known right. ") (citations omitted).

18

Pittston's only evidence of a potential implied waiver is acceptance of the annual minimum

royalty payments. (Resp. Br. at 26). "[W]hether the continued acceptance of rent constitutes a

waiver is a fact-intensive question of intent." Dave & Buster's, Inc. v. White Flint Mall, LLLP, 616

Fed. Appx. 552, 563 (4th Cir. 2015) (applying Maryland law). Intent is a "highly fact-specific

issue." Valentine & Kebartas, Inc. v. Lenahan, 239 W. Va. 416,801 S.E.2d 431,442 (2017)

(Workman, J., dissenting). And, as a highly fact-specific issue, intent "should therefore typically

be left to the jury[.]" Id. (quoting Narwick v. Wexler, 901 F.Supp. 1275, 1282 (N.D. Ill. 1995)).

Meeting Pittston's argument that its acceptance of minimum royalties constituted a waiver

of its diligent mining claims, the McDonald Family presented a metric ton of evidence that it

repeatedly objected to the lack of mining and insisted on diligent prosecution. For instance, in

2009, the McDonald Family submitted a letter that demanded assurances from Pittston that

"operations would be promptly commenced and diligently pursued upon the leasehold estate as

contemplated by the Lease Agreement." (J.A. 2782). The McDonald Family then held years' worth

of work-out meetings complaining about the lack of mining. One of Pittston's executives-who

attended all the work-out meetings---called the McDonald Family's repeated objections "their

drumbeat all along." (J.A. 5846 - 5847).

And, despite the fact that Pittston's sole evidence of waiver is acceptance of annual

payments under the Lease, Pittston never designated any payment as "in lieu of mining" or "in full

payment." (J.A. 4880). When, after this suit was filed in 2016, Pittston tried for the first time to

tender checks meant to "represent full payment," the McDonald Family sent the check back with

a letter stating, "for the first time in the long history of the Lease, [Pittston] issued the minimum

royalty check with a statement that they view the check as fully discharging all of their obligations

under the Lease." (J.A. 5808, 5810). Looking at all the evidence, the circuit court even said, "I

19

mean, I know it's disputed and I think they could appeal that and say I made a wrong decision."

(l.A. 7583).

The circuit court's acknowledgement of the factual dispute aside, the record is replete with

evidence that the McDonald Family in no way consented to lack of mining under the Lease in

exchange for a minimum royalty payment. Why else would it hold over two years' worth of work­

out meetings with Pittston? Why would Pittston accuse the McDonald Family of "ma[king] up

demands to leverage more money" from Pittston if all the McDonald Family had done was silently

accept a check? And, why would Pittston tell RAMACO, over a year prior to this suit being filed,

that it wanted to "reduce, (although not likely eliminate) exposure, if any, to some sort of diligent

development and/or lost coal claim."? (l.A. 2747-2748). There is a veritable mountain of facts on

the McDonald Family's side of the waiver issue, and we are at least entitled to present them to a

JUry.

Pittston's Response Brief obsesses over the fact that the McDonald Family never told

Pittston it had to mine more than 250,000 tons per year. (e.g., Resp. Br. at 7, 13). This irrelevant

and distracting argument is the brief-writing equivalent of internet click-bait. Because "[i]t is the

general rule that [a] notice or demand is not a prerequisite to performance," the McDonald Family

is not obligated to provide Pittston any notices at all. Creasy v. Tincher, 154 W.Va. 18,22,173

S.E.2d 332, 334 (1970) (citing 17 Am lur.2d, Contracts, Section 356). Thus, even ifthe McDonald

Family had failed to demand performance of the diligent mining obligations under the Lease, that

fact would not preclude its claims or constitute a waiver.

The facts, however, show that the McDonald Family made repeated demands of Pittston to

mine their coal. Admittedly, none of the correspondences name a precise tonnage amount that must

be mined in any particular year. But, neither the law or the Lease required such a statement.

20

Even so, all of the McDonald Family's communication, both written and verbally in work-

out meetings, consistently conveyed the McDonald Family's position that Pittston has an

obligation to mine the coal. It's been our constant "drumbeat all along."

Because the circuit court used summary judgment to resolve a material dispute over the

fact-intensive issue of waiver, this Court should reverse and remand for trial.

D. Since neither party contends the Lease is ambiguous, the Court does not need to determine course of performance.

The course of performance or practical construction "can never be used to change the legal

effect of clear and unambiguous language." Syl. pt. 4, Cotiga, 128 S.E.2d at 628-29. Article X is

unambiguous. Pittston does not argue otherwise. (Resp. Br., 30-31). Thus, neither this Court nor

the circuit court should consider course of performance.

E. The Prior Litigation, which concluded in 1991, could not have passed on the claims in the present case, which deal with different claims altogether, defeating res judicata and collateral estoppel.

Within the confines of same Response Brief, Pittston simultaneously argues that (1) the

Prior Litigation, as of 1991, disposed of our claims in this case, and (2) the first time we ever

asserted our claims in this case was 2016. CRespo Br. 19). The circuit court correctly concluded

in its July 26,2016 order that res judicata did not bar the McDonald Family's diligent mining claim

because "no such cause of action was ruled upon in the prior litigations." CJ.A. 2818 - 2819).

Acknowledging the difference between the two suits, the circuit court said, "Even if the prior

litigations between the parties had been decided on the issue regarding the duty of Defendants to

diligently mine coal, Article X of the Lease could have continued to require Defendants to

diligently mine coal in the future." (Jd.).

21

The circuit court's analysis was correct the first time. Pittston's Response Brief does not

even analyze the issue under the "same evidence test," perhaps because the evidence supporting

the claims now, as compared to the claims in the Prior Litigation, is wholly different. Pittston

acknowledges that the claims involve different lease years. (Resp. Br. at 34). And, our claim in

this case is that Pittston breached its duty to diligently prosecute operations in response to record-

smashing prices that occurred during 2006 - 2016. In the Prior Litigation, the entire case centered

on a terrible coal market and Pittston's effort, based on those sour coal markets, to terminate the

Lease.

In the Prior Litigation, the circuit court, In its judgment order, made only three (3)

adjudications. (l.A. 665-666):

1. That the aforesaid Lease of June 18, 1978, the Guaranty Agreement of June 22, 1978, and the Agreement of Modification of January 8, 1982, are not terminated or cancelled and are still in full force and effect, and have been in full force and effect continuously from the date of execution until the present.

2. That Defendants are indebted to Plaintiffs for annual rentals in the amounts of Sixty Thousand Dollars ($60,000.00) per annum, payable on July 1 st of 1984, 1985, 1986 and 1987, with interest thereon at the legal rate from the respective due dates thereof, until paid; and

3. That Defendants are indebted to Plaintiffs for minimum annual royalties[.]

The third adjudication goes on to list the years for which Pittston owed minimum royalties (1984,

1985, 1986 and 1987) before concluding

Inasmuch, however, as said minimum annual royalty is, by Article XIII of the Lease, to be based upon sale prices for other comparable coals sold by the Lessee . . . an inqujry of damages will be held before this Court at a date and time to be designated by the Court, to determine the actual amounts, if any, which are payable by Defendants to Plaintiffs.

(lA. 665-666). And that's it.

22

These adjudications say nothing about Pittston's duty to mine. They don't deal with any

Lease years other than those listed. And, they deal only with Pittston's attempt to walk away from

their deal with the McDonald Family.

Further, if $2.00 per ton was an adjudication of the circuit court as a matter of law, why

would it hold a damages inquiry and hear evidence of comparable coals sold by the Lessee? The

Prior Litigation, which ended with a judgment on May 31, 1988, simply did not decide the claims

or issues in this case, which deal with Pittston's breach of the duty to mine during extraordinary

coal markets occurring from 2006 through 2016.

F. Cross-Assignment of Error: Because the law at the time of Lease signing granted lessor the right to withhold consent, the circuit court reached the right result on Pittston's counterclaim.

Pittston filed a counterclaim against the McDonald Family, alleging that the McDonald

Family breached Article XXX of the Lease by failing to consent to assign the Lease to Massey.

Article XXX states, "[Pittston] covenants that it will not, without the prior written consent of

McDonalds, either voluntarily or by operation of law, assign, transfer, sublet, or mortgage this

lease, the leasehold estate hereby created or any part thereof." The Lease places no condition upon

the McDonald Family's right to withhold consent. Sometimes, this type of clause is called a

"silent" consent provision. Accepting, as we must, Pittston's contention that the McDonald Family

23

"unreasonably" withheld consent lO to a transaction with Massey, Pittston still has no claim under

the Lease and the law.

Because, "The rights and duties of the parties to a contract are controlled by the law in

effect at the time the contract was executed," the law that prevailed in 1978 defines the parties'

rights and duties under the Lease. McGinnis v. Cayton, 173 W. Va. 102, 105, 312 S.E.2d 765, 768

(1984) (citing Gazale v. Gazale, 219 Va. 775,250 S.E.2d 365 (1979)). Thus, "it is useful to look

at analogous cases which were decided at the time the appellant's predecessors in interest entered

into the lease." Id; see also Cabot Oil & Gas Corp. v. Huffman, 227 W. Va. 109, 118, 705 S.E.2d

806, 815 (2010) ("Typically, the law that is in effect at the time a contract is executed is the law

that thereafter applies to and governs the parties' agreement.")

No case in West Virginia has ever decided the contours of the lessor's right to withhold

consent under a "silent" consent provision. Even today, many states do not engraft a

reasonableness standard into a contract that does not contain one. E.g., Dobyns v. South Carolina

Dep't of Parks, Recreation and Tourism, 325 S.C. 97, 480 S.E.2d 81 (S.C. 1997) (liThe contract

clearly provides that the leases may be transferred 'upon consent of the lessor. There is no stated

reasonableness requirement and this Court declines to read one into the contract. If the parties had

chosen to limit Lessor's ability to deny consent, they could have so stated in the contract.")

But, as Pittston acknowledged, "Judge Young further found that in 1978, when the Lease

was negotiated, the law would have allowed an arbitrary or unreasonable refusal to consent."

(Resp. Br. at 38). The circuit court's ruling was correct. Pittston's key source document to

10 The McDonald Family, in fact, agreed to consent to an assignment to Massey on the condition that Massey would give them a commitment to mine the property. But, Massey's witness testified that Massey was "unwilling to give them a commitment that we could mine the property." (l.A. 4837).

24

argue otherwise is the Restatement (Second) of Property: Landlord and Tenant § 15.2 (1977). That

document itself, however, notes that Pittston's argument is a "minority view." Restatement

(Second) of Property: Landlord and Tenant § 15.2, n. 1 (1977). In fact, the one pre-1978 case

cited by Pittston recognizes, "The general rule throughout the country has been that, when a lease

contains an approval clause, the landlord may arbitrarily and capriciously reject proposed

subtenants." Homa-GofJlnteriors, Inc. v. Cowden, 350 So. 2d 1035,1037 (Ala. 1977).

Given the circuit court's conclusion on the state of the law in 1978, it did not need to look

any further. The circuit court, however, concluded that-knowing the background law-the

parties expressly bargained for an unrestrained consent provision. The circuit court based its ruling

on the following testimony from Pittston's 30(b)(7) witness, who had reviewed notes and drafts

created during the negotiation of the Lease:

Q. And it appears, at least the-the language there that has pen line drawn through it, reflects the fact that there was a discussion, and it says, quote, "Lessors will not arbitrarily withhold such consent and in the event of a disagreement this matter may be submitted to arbitration." Do you see that?

A.Yes.

Q. All right. So there was a discussion about Article 30 including some language that would have lessors not arbitrarily withholding consent, is that right?

A. Yeah. That's what the note says.

Q. And that language ultimately does not appear in Article 30 of the lease that ultimately gets signed?

A. I believe that is correct.

(l.A. 4702 - 4703).

While it did not need to reach into the negotiations, the circuit court's ruling was ultimately

correct. Even the Restatement article referenced by Pittston recognized the validity of an absolute

right to withhold consent, "if such provision is freely negotiated." Restatement (Second) of

25

Property: Landlord and Tenant § 15.2, n. 1 (1977). Thus, the circuit court correctly entered

judgment against Pittston on its counterclaim.

IV. CONCLUSION

We are asking this Court to enforce the promise made by Pittston to mine our metallurgical

coal reserves. Despite a constant drumbeat of demands from the McDonald Family to commence

operations, Pittston, with no valid excuse, refused to mine. Under the Lease, the law, and the public

policy of this state, because it failed to meet its duty to diligently prosecute its operations, Pittston

is liable in damages. A minimum royalty provision--especially one that pays the lessor only 5%

of the expected return on the Lease-no matter if it is calculated in dollars, tons, or acres, is not a

substitute for diligent prosecution. Every state in the central Appalachian coal basin, including this

one, agrees.

The McDonald Family asks this Court to reverse the summary judgment entered by the

circuit court that prevented the presentation of its claims to a jury and remand this case for trial.

I

Brian A. Glasser (WVSB #6597) Sharon F. Iskra (WVSB #6582) Bailey & Glasser LLP 209 Capitol Street Charleston, West Virginia 25301 (304) 345-6555 telephone (304) 342-1110 facsimile bglasser@baileyglasser.com siskra@baileyglasser.com

Counsel for Petitioners

Respectfully submitted,

Petitioners.

By Counsel.

26

Certificate of Service

I, Brian A. Glasser, the undersigned counsel for Petitioners hereby certify that on this

~ day of March, 2018, I served a true copy of the foregoing Reply Brief via email and First

Class United States Mail, postage prepaid, upon the following counsel of record:

W. Henry Jernigan, Jr. Dinsmore & Shohl 707 Virginia Street, Suite 1300 Charleston, WV 25301

Shawn P. George George & Lorensen PLLC 1526 Kanawha Blvd., East Charleston, WV 25311

Wade W. Massie Penn Stuart & Eskridge P. O. Box 2288 Abingdon, VA 24212

~4~/5A Brian A. Glasser (WVSB #?5i7)