XCELL ENERGY & COAL COMPANY, LLC v. EMERALD INTERNATIONAL CORPORATION
XCELL ENERGY & COAL COMPANY, LLC, APPELLANT,
v.
EMERALD INTERNATIONAL CORPORATION, APPELLEE.
No. 2010-CA-000368-MR..
Court of Appeals of Kentucky.
February 18, 2011.
Before: CLAYTON, COMBS, and WINE, Judges.
Not to be PublishedOPINIONCOMBS, Judge:
Xcell Energy & Coal Company, LLC appeals from a summary judgment granted in favor of Emerald International Corporation by the Kenton Circuit Court in an action for breach of contract. The trial court concluded that the parties' contract plainly provided for its cancellation, that there were no genuine issues of material fact to be resolved, and that Emerald International was entitled to judgment as a matter of law. After our review, we conclude that summary judgment was properly granted. Therefore, we affirm.
From a limited record, we have derived the following facts. Xcell is a Delaware Limited Liability Company headquartered in Scarsdale, New York, and is authorized to do business in Kentucky. It operates several coal mines and sells coal to its customers. Emerald is an Ohio corporation headquartered in Florence, Kentucky. Emerald blends, brokers, and exports coal purchased from coal mines in the United States.
From late 2007 through 2008, Emerald and its customer, Glencore, Ltd., entered into a series of contracts that provided for the cumulative sale of more than 2 million metric tons of coal. In order to fulfill Glencore's 2009 coal delivery requirements, Emerald needed to obtain approximately 1.5 million metric tons of coal.
On August 11, 2008, Emerald and Xcell entered into a written contract whereby Emerald agreed to purchase and Xcell agreed to sell approximately 181,437 metric tons of coal to be delivered by barge down the Big Sandy River from January 2009 through December 2009. Emerald sought to fulfill part of its obligation to Glencore by acquiring some of the necessary coal from Xcell. After the agreement was executed, Xcell purchased coal from a third-party producer to make sure that it had access to enough coal to fulfill its commitment to Emerald.