' 

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NOT TO BE PUBLISHED OPINION 

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, 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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED 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 NOT TO BE PUBLISHED 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 t!ieiF~ ~ l . 2016-SC-000583-MR 

[Q)~ ufE,,""' ~.~ru .. Nt,bC. 

LAURA FRANCES HENSLEY, APPELLANT 

ADMINISTRATRIX OF THE ESTATE 

OF JAMES ELIJAH HENSLEY 

V. 

ON APPEAL FROM COURT OF APPEALS 

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 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 

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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 

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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 

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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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