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# IMPORTANT NOTICE NOTTO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOTTO 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, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.RENDERED: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 NOT TO BE PUBLISHED 

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# t!ieiF~**~**

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. 2016-SC-000583-MR 

# [Q)~

# ufE,,""'~.~ru..Nt,bC. LAURA FRANCES HENSLEY, APPELLANT ADMINISTRATRIX OFTHE ESTATE OFJAMES ELIJAH HENSLEY


### V. ON APPEAL FROM COURT OFAPPEALS CASE NO. 2016-CA-001033 FAYETTE CIRCUIT COURT NO. 12-CI-04948
HON. PAMELA R. GOODWINE, JUDGE· FAYETTE CIRCUIT COURT AND APPELLEE

.TRAXX MANAGEMENT COMPANY REAL PARTY IN INTEREST

MEMORANDUM OPINION OF THE COURT


## .. AFFIRMING.
In 2011, Wendell Price worked at a gas stationin Rockcastle County that
was owned byTraxxManagement 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 Hensleyhad run 150 feet from the store, Price shot

### himin the back, killing him. LauraFrances Hensley is theAdministratrix ofthe Estate ofJames Hensley (the "Estate"). In 2012, the Estate filed a wrongful death claim in Fayette Circuit Court againstTraxx. After trial, thejuryentered a verdictin favor ofthe 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 ajudgmentin accordance with thejury'.s verdict. On December 11, 2015, Traxx filed a motion forjudgmentnotwithstanding 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 inconsistencyin the verdict because thejuryfound that Price acted intentionally 

### and negligently in shooting Hensley. 

### See, e.g., TenBroeckDupont, Inc. v. Brooks, 283 S.W.3d 705, 733 (Ky. 2009) (citing 

### Martin v. Yeoham, 419 S.W.2d 937, 945 (Mo. App. 1967) .("
... proofthat the wrongdoing on the part of the defendantwas deliberate would exclude negligence.")). The trial court also addressed numerous otherissues in its order. The Estate petitioned the Court ofAppeals for writ prohibiting the trial court's order granting a new trial, which the Court ofAppeals denied. The Estate now appeals that ruling. Having reviewed the facts and the law, we affirm the Court ofAppeals' denial ofthe petition. 

### Standard ofReview It is clear that the trial courtwas actingwithin itsjurisdictionwhen it ordered

## a: new trial. An appellate court has discretion to grant a writwhere a trial courtis proceedingwithin itsjurisdictionupon a showing that the court 2is: 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 ifthe petition is not granted. 

### Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004). We review the Court ofAppeals' determination under an abuse ofdiscretion 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 ofAppeals aptly addressed these and other issues as follows: The issue ofwhether a trial courtproperly 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 trialjudge improperly communicated with thejuryoutside the presence ofthe parties and that this alleged error cannotbe remedied by appeal. An improper ex parte communication betweenjudge andjurymay 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 ofan adequate [remedy] by appeal and irreparable injury, which are mandatory prerequisites to the issuance ofan extraordinarywrit. We agree with the Court ofAppeals' reasoning and adoptit herein. The Estate also claims that itwould suffer great injustic~ and irreparable injury because the trial court's order granting a new trial made additional evidentiary determinations thatwould 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 itwould not be
3possible to prove an employee committed a tort in the scope of employmentfor vicarious liability purposes withoutintroducing
·evidence regarding the Defendant company andits policies

procedures, and training. Contrary to the Estate's argument, however, the trial court's orderprovides the following relevant ruling: Plaintiffon numerous occasions throughout the trial referenced the size ofthe company, the number of stores and employees, and the chairman ofthe board, DudleyWebb. Upon retrial, the ruling stands and Plaintiff shall not present any evidence regarding direct claims againstTraxx for negligenthiring, training, retention and/or supervision. The trial court also noted that, prior to trial, the courtgranted summary judgmenton claims for negligent hiring, training, retention and supervision. Therefore, the Estate's argument that, upon retrial, "there will be no evidence about the companyTraxx[,]" 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 notjustifywrit relief. Lastly, the Estate insists that th~s case satisfies the "special case" exception to ourwrit standard. However, "our case law is clear that the certain-special-cases exception only supplants the requirement that a petitionerprove irreparable harm in the absence ofa writ, not the requirement that there be no adequate remedy by appeal or otherwise." 

### RidgewayNursing & 

### RehabilitationFacility, LLC v. Lane, 415 S.W.3d 635, 641-42 (Ky. 2013) (citing 

### Benderv. Eaton, 343 S.W.2d 799, 801 (Ky. 1961)). As previously discussed, the Estate has failed to demonstrate the absence ofan adequate

4remedy on appeal. Accordingly, the Court ofAppeals did not abuse its discretion in denying the Estate's petition. Conclusion For the foregoing reasons, we affirm the Court ofAppeals' denial ofthe petition seeking a writ ofprohibition All sitting. All concur.

COUNSEL FORAPPELLANT: SandraVarellas 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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