                                  '




                IMPORTANT NOTICE
          NOT TO BE PUBLISHED OPINION

  THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
  PURSUANT TO.JHE RULES OF CIVIL PROCEDURE
  PROMULGATED BY THE SUPREME COURT, CR 76;28(4)(C},
  THIS OPINION IS NOT1°0 BE PUBLISHED AND 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, UNPUBLISHED KENTUCKY APPELLATE DECISIONS,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  BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED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.
                                                   RENDERED: JUNE 15, 2017
                                               .      NOT TO BE PUBLISHED

               ~upreme ~nutf nf
                      .       2016-SC-000583-MR
                                                   t!ieiF~ ~ l
LAURA FRANCES HENSLEY,
                                                      [Q)~   ufE,,""' ~.~ru..
                                                                    APPELLANT
                                                                                 Nt,bC.

ADMINISTRATRIX OF THE ESTATE
OF JAMES ELIJAH HENSLEY


                    ON APPEAL FROM COURT OF APPEALS
V.                       CASE NO. 2016-CA-001033
                  FAYETTE CIRCUIT COURT NO. 12-CI-04948


HON. PAMELA R. GOODWINE, JUDGE·                                      APPELLEE
FAYETTE CIRCUIT COURT

AND

. TRAXX MANAGEMENT COMPANY                           REAL PARTY IN INTEREST



                  MEMORANDUM OPINION ..
                                     OF THE COURT

                                  AFFIRMING.


      In 2011, Wendell Price worked at a gas station in Rockcastle County that

was owned byTraxx Management Company (Traxx). On November 7, 2011,

J~es Hensley entered the gas station armed with a kitchen knife and

demanded money. He was givert. the money and then fled the store on foot.·

After Hensley had run 150 feet from the store, Price shot him in the back,

killing him. Laura Frances Hensley is the Administratrix of the Estate of
James Hensley (the "Estate"). In 2012, the Estate filed a wrongful death claim

in Fayette Circuit Court against Traxx.

      After trial, the jury entered a verdict in favor of the Estate and awarded

$7,168.00 in funeral expenses, $395,000.00 for Hensley's future loss of

earnings, and $2,000,000.00 in punitive damages. On December 1, 2015, the

trial court entered a judgment in accordance with the jury'.s verdict. On

December 11, 2015, Traxx filed a motion for judgment notwithstanding the

verdict (JNOV) and a motion for a new trial. On March 25, 2016, the trial court

entered an order granting the motion for a new trial based primarily on the

inconsistency in the verdict because the jury found that Price acted

intentionally and negligently in shooting Hensley. See, e.g., Ten Broeck Dupont,

Inc. v. Brooks, 283 S.W.3d 705, 733 (Ky. 2009) (citing Martin v. Yeoham, 419

S.W.2d 937, 945 (Mo. App. 1967) .(" ... proof that the wrongdoing on the part of

the defendant was deliberate would exclude negligence.")). The trial court also

addressed numerous other issues in its order.

      The Estate petitioned the Court of Appeals for writ prohibiting the trial

court's order granting a new trial, which the Court of Appeals denied. The

Estate now appeals that ruling. Having reviewed the facts and the law, we

affirm the Court of Appeals' denial of the petition.

                                  Standard of Review

      It is clear that the trial court was acting within its jurisdiction when it

ordered   a: new trial.   An appellate court has discretion to grant a writ where a

trial court is proceeding within its jurisdiction upon a showing that the court

                                            2
is: 1) acting or is about to act erroneously; 2) there exists no adequate remedy

by appeal or otherwise, and 3) great injustice and irreparable injury will result

if the petition is not granted. Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004).

We review the Court of Appeals' determination under an abuse of discretion

standard. Sowders v. Lewis, 241 S.W.3d 319, 322 (Ky. 2007).

                                      Analysis

      The Estate raises several issues, most of which can be classified as

contesting the merits of the trial court's order granting a new trial. The Court

of Appeals aptly addressed these and other issues as follows:

      The issue of whether a trial court properly granted a new trial is
      routinely decided upon direct appeal. CertainTeed Corp. v. Dexter,
      330 S.W.3d 64, 68 (Ky. 2010). Further, the expense and delay of
      litigation does not amount to irreparable injury. National Gypsum
      Co. v. Corns, 736 S.W.2d 325, 327-28 (Ky. 1987). The Estate
      further argues that the trial judge improperly communicated with
      the jury outside the presence of the parties and that this alleged
      error cannot be remedied by appeal. An improper ex parte
      communication between judge and jury may be remedied upon
      direct appeal. Welch v. Commonwealth, 235 S.W.3d 555, 557-58
      (Ky. 2007). Therefore, we conclude that the Estate has failed to
      demonstrate the lack of an adequate [remedy] by appeal and
      irreparable injury, which are mandatory prerequisites to the
      issuance of an extraordinary writ.

We agree with the Court of Appeals' reasoning and adopt it herein.

      The Estate also claims that it would suffer great injustic~ and irreparable

injury because the trial court's order granting a new trial made additional

evidentiary determinations that would impact the new trial. The Estate

specifically alleges the following:

       ... at a second trial there will be no evidence about the company
      Traxx, even though Traxx is the sole Defendant and it would not be

                                         3
       possible to prove an employee committed a tort in the scope of
       employment for vicarious liability purposes without introducing
     · evidence regarding the Defendant company and its policies
       procedures, and training.

Contrary to the Estate's argument, however, the trial court's order provides the

following relevant ruling:

      Plaintiff on numerous occasions throughout the trial referenced
      the size of the company, the number of stores and employees, and
      the chairman of the board, Dudley Webb. Upon retrial, the ruling
      stands and Plaintiff shall not present any evidence regarding direct
      claims against Traxx for negligent hiring, training, retention
      and/ or supervision.

The trial court also noted that, prior to trial, the court granted summary

judgment on claims for negligent hiring, training, retention and supervision.

Therefore, the Estate's argument that, upon retrial, "there will be no evidence

about the company Traxx[,]" is unfounded. To the extent that the trial court

issued additional evidentiary determinations that may arguably disfavor the

Estate's case during retrial, these rulings do not justify writ relief.

      Lastly, the Estate insists that th~s case satisfies the "special case"

exception to our writ standard. However, "our case law is clear that the

certain-special-cases exception only supplants the requirement that a

petitioner prove irreparable harm in the absence of a writ, not the requirement

that there be no adequate remedy by appeal or otherwise." Ridgeway Nursing

& Rehabilitation Facility, LLC v. Lane, 415 S.W.3d 635, 641-42 (Ky. 2013)

(citing Bender v. Eaton, 343 S.W.2d 799, 801 (Ky. 1961)). As previously

discussed, the Estate has failed to demonstrate the absence of an adequate



                                          4
remedy on appeal. Accordingly, the Court of Appeals did not abuse its

discretion in denying the Estate's petition.

                                   Conclusion

      For the foregoing reasons, we affirm the Court of Appeals' denial of the

petition seeking a writ of prohibition

      All sitting. All concur.




COUNSEL FOR APPELLANT:

Sandra Varellas
David Todd Varellas
James Varellas, III
VARELLAS & VARELLAS


APPELLEE:

Hon. Pamela R. Goodwine
Judge, Fayette Circuit Court

COUNSEL FOR REAL PARTY IN INTEREST:

Ronald L. Green
James Michael Inman
GREEN, CHESNUT & HUGHES, PLLC




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