IMPORTANT NOTlcE
` NoT To BE PuBLlsHED 0PlNloN

THls oPlNloN ls DEslGNATEo “NoT To BE PuBLlsHED."
PuRsuANT To\THE RuLEs oF clvlL PRocEDuRE
PRoMuLGATED BY THE suPREME couRT, cR 76.28(4)(€),
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clTED 0R usED As BlNDlNG PREcEDENT IN ANY QTHER
cAsE lN ANY-couRT oF THls sTATE; HowEvER,
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RENDERED: JUNE 15, 2017
NOT TO BE PUBLISHED

§npr__eme Tuuri nf'i Beniuckg

2016- SC- 000583- MR

LAU'RA FRANCES HEN_SLEY, ~ APPELLANT
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 1

HON. PAMELA R. GOODWINE, JUDGE _. ' APPELLEE

FAYETTE CIRCUIT COURT
AND

TRAXX MANAGEMENT COMPANY 'REAL PARTY IN INTEREST

MEMORANDUM OPINION OF THE COURT

AF_FILMM

In 201 1, Wendell Price worked at a gas station_in Rockcastle County that
Was owned by Traxx Management Company (Traxx). On November 7, 201 1 ,
J ames Hensley entered the gas station armed Wi-th a kitchen knife and 4
demanded money. He Was given 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

Jarnes Hensley (the “Estate”). ln 2012,1' 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 jurny verdict On ‘
December 1 1, 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 Hensiey. See, e.g., Ten Broeck Dupont,
In'c. v. Brooks, 283 S.W.3d 7 05, 73_3 (Ky. 2009) (citing Martin v. Yeoham, 419
S.W.Qd 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 vlaw, we
affirm the Court of Appeals’ denial of the petition.

Standard of Review

lt 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. Man'cle, 150 S.W.Sd 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.Sd 64, 68 (Ky. 2010). Further, the expense and delay of
litigation does not amount to irreparable injury. National Gypsum
Co. v. Coms, 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.Sd 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 injustice 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

v3

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 this case satisfies the “special case”
exception to our writ standard l-Iowever, “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
85 Rehabilitation Facility, LLC v. Lane, 415 S.W.3d 635, 641-42 (Ky. 2013)
(citing Bender z_). Eaton, 343 S.W;2d 799, 801 (Ky. 1961]]. As previously

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

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. 4

COUNSEL FOR APPELLANT:

Sandra Varellas

David Todd Varellas

J ames Varellas, IIl
VARELLAS 85 VARELLAS_

APPELLEE:

I-Ion. Pamela R. Goodwine
Judge, Fayette Circuit Court

COUNSEL FOR REAL PARTY IN INTEREST:

-Rdnald L. Green
J ames Michael Inman
GREEN, CHESNUT & HUGHES, PLLC

