Bracken County Courthouse, built 1915. Fourth courthouse.  Photo from Bracken County Historical Society.   The first courthouse was built in public square of Augusta in 1802. The second courthouse was built in Brookeville 1839. The third courthouse was built in 1862-64 by Mr. Flora, a local builder who also designed it, and was condemned and dismantled around 1913-15. The fourth courthouse above still stands and has been replaced. http://brackencountyhistory.weebly.com

 

There were only three tort-related issues this week, both published.  In Commonwealth of Kentucky  Cab. for Health and Family Services v Estate of Madisyn Davis, the Board of Claims dismissed appeal for failure to include indispensable party;  In Estate of Joseph Gilliam v. Correctcare-Integrated Health, Inc., a wrongful death claim was barred by statute of limitations of decedent dying before personal injury claim expired but failed to file within W/Death period based upon qualification of administrator or death of decedent date;  in Cross v. B.J. Management, Inc. , tender of personal check that is not cashed is unconditional tender cutting off post-judgment interest.

PUBLISHED DECISIONS:

260.  This opinion was withdrawn by the COA due to an error.  The link is to the AOC in the event it is reposted.
Baas v. Baas

264.   Criminal Law  Lethal force justified.
Commonwealth of Kentucky v. William Scott Albright
AFFIRMED trial judge who dismissed the indictment after a finding that probable cause existed to believe that Albright was justified in his use of lethal force, entitling him to immunity from prosecution.

271.   Prisons.  Inmate pay raises.
Paul Kordenbrock v. Kentucky Dept of Corrections
AFFIRMING dismissal.   Inmate sought to void certain internal memoranda issued by the Kentucky Department of Corrections (KDOC) which addressed inmate pay raises, violated Kentucky Revised Statutes (KRS) 13A.130 as well as his constitutional due process rights.

272.  Domestic Violence Order.  Duty of parent to protect child from injury.
Dunn v. Thacker
AFFIRMING.  KRS 620.010 states, “Children have certain fundamental rights which must be protected and preserved, including … the right to be free from physical … injury … and the right to a secure, stable family.”  In Lane v. Commonwealth, 956 S.W.2d 874 (Ky. 1997), the Kentucky Supreme Court established a new interpretation of parental responsibility and accountability for children.  Lane involved the issue of whether a mother could be convicted of complicity to commit assault for failing to intervene to protect her two-year old daughter from a vicious assault perpetrated by her “domestic companion.” The court reiterated an analysis of the evolution of the pertinent statutes and issued a new holding that comported with the legislative intent to create a duty on the part of a parent to protect a child from injury.

285.  Family Law. Post-decree modification re tax exemptions for children
Hillard v. Keating.
AFFIRMING  the post-decree order of the circuit court modifying her settlement agreement with her former husband and permitting him to claim the dependent- child tax exemptions for their younger two children.

286.  Domestic Violence Order (DVO)
Matehuala v. Torres
REVERSING AND REMANDING.  COA agreed with  Matehuala who contends the trial court erred in issuing a DVO because none of Torres’s allegations rose to the level of domestic violence under the definition contained in KRS4 403.270. Specifically, Matehuala argues merely throwing items out of the mobile home without first contacting Torres was insufficient to support a finding he committed an act of domestic violence or abuse.

Selected cases that were not designated for publication in tort, insurance and civil law.

256.  Board of Claims.  Appeal. Indispensable parties.
Commonwealth of Kentucky  Cab. for Health and Family Services v Estate of Madisyn Davis
VACATING AND REMANDING appeal with directions to dismiss for failure to name indispensable parties.

263.  Wrongful Death.  Statute of Limitations
Estate of Joseph Gilliam v. Correctcare-Integrated Health, Inc.
AFFIRMING circuit court’s dismissal of wrongful death claim barred by statute of limitations.  Claims for personal injury and for medical negligence must be brought within one year. KRS 413.140. However, if an injured person dies before the expiration of that one year, the decedent’s personal representative may bring the claim within one year from his date of qualification. KRS 413.180(1). Two years from the date of death is the latest the personal representative can file a wrongful death claim. See Everley v. Wright, 872 S.W.2d 95, 97 (Ky. App. 1993). This is because courts deem the last day of the one-year period provided in KRS 413.140 as the effective qualification date, in the event more than one year passes between the death and the day his personal representative is qualified. KRS 413.180(2).

270.  Post-judgment Interest.  Unconditional tender.
Cross v. B.J. Management, Inc.
AFFIRMING.  In Faulkner v. Smith, 747 S.W.2d 592, 593 (Ky. 1988), the Court explained a valid tender must be unconditional and “requires the actual production of the funds which are admitted to be due by draft, check, cash or otherwise.” Here, Appellees produced the funds in the form of personal checks to Appellants, and Appellants were thereafter free to immediately negotiate the checks. Under the facts presented, we simply find no error in the trial court’sdetermination the personal checks were an unconditional tender to satisfy theAppellees’ obligation.

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You will find the complete list of this week’s decisions below with number, names of parties, case number, lower court (eg., county), etc. with a hot link to the full text of the decision.  Please note that you will have to check Case Information for each decision for finality (if not already marked on first page of decision after publication), amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky.   Click Court of Appeals Minutes for entire listing of weekly minutes.

All decisions regardless of publication are posted and can be read, but those decisions designated not for publication cannot be cited as legal authority.  See, KRCP 76.28(4)(c)(“Opinions that are not to be published shall not be cited or used as binding precedent in any other case in any court of this state; however, unpublished Kentucky appellate decisions, rendered after January 1, 2003, may be cited for consideration by the court if there is no published opinion that would adequately address the issue before the court. Opinions cited for consideration by the court shall be set out as an unpublished decision in the filed document and a copy of the entire decision shall be tendered along with the document to the court and all parties to the action.”)