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. uNPuBLlsHED l<ENTucl<Y APPELLATE DEclsloNs,‘
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RENDERED: JUNE 15, »2017
NOT TO BE PUBLISHED

§npr_eme mert of §§er H:

_-2016 SC- 000583- MR
oATEM»¢

LAURA FRANCES HENSLEY, .- APPELLAN-T
ADMINISTRATRIX OF THE ESTATE . ..
OF JAMES ELIJAH HENSLEY

 

v oN APPEAL FRO`M CoURT oF APPEALS
v. - cAsE No. 2016-cA-001033 ' _ ,
' FAYETTE cIRCUIT coURT No. 12~01-04948

HON. PAMELA R. GOODWINE, JUDGE' ' . ' APPELLEE
FAYET'I`E CIRCUIT COURT '
AND _

' TRAXX MANAGEMENT COMPANY h , `REAL PARTY IN INTEREST

MEMORANDUM OPINION OF THE COURT

AFFIRMING

In 201 1,Wende11 Price worked at a gas station in Rockcastle County that

was owned by Traxx Management Com_pany (Traxx). On November 7, 20 1 1,
James Hensley entered the gas station anned With a kitchen knife and .
demanded monej. He Was given th'e money and then fled the store on foot.‘
After Heneley 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,_l 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 losslof
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 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 Hensley. See, e.g., Ten Broeck Dupont,
Inc. v. Brooks, 283 S.W.3d 705, 730 (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 law, 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: l) 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).

Analgsis

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. 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.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 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

`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:

Plain.tiff 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. 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.” Riclgewa_y Nursing
85 Rehabilitation Facility, LLC v. Lane, 415 S.W.3d 635, 641-42 (Ky. 2013)
(citing Bender a. 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. l
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

J ames Varellas, Ill
VARELLAS 85 VARELLAS

APPELLEE:

l-lon. Pamela R. Goodwine
Judge, Fayette Circuit Court

COUNSEL FOR REAL PARTY IN INTEREST:

Ronald L. Green
James Michael lnman
GREEN, CHESNUT 85 HUGHES, PLLC

