llleoRTANT NoTlcE NoT To BE PuBLlsHED 0P1N10N THls oPlNloN ls DEslGNATED "NoT To BE PuBLlsHED." PuRsuANT To THE RuLEs 'oF clvlL PRocEDuRE PRolvluLGATED BY THE suPRElle couRT, cR 76-. 28(4)(€), THls 0PlNloN ls NoT To BE PuBLlsHED AND sHALL NoT BE clTED 0R usED As BlNDlNG PREcEDENT IN ANv oTHER cAsE lN ANY»couRT oF THls sTATE; HowEvER, . uNPuBLlsHED l<ENTucl<Y APPELLATE DEclsloNs,‘ RENDERED AFTER JANuARY 1, 2003, MAY BE clTED FoR coNleERATloN BY THE couRT lF THERE ls No PuBLlsHED 0Pl\NloN THAT WouLD ADEQuATELY ADDREss THE lssuE _ BEFORE THE couRT. 0PlNloNs clTED ‘FoR coNleERATloN BY THE couRT sHALL BE sET ouT As AN uNPuBLlsHED DEclsloN lN THE FlLED DocUMENT AND A coPY oF THE ENTIRE DEclsloN sHALL BE TENDERED ALoNG WlTH THE DoculleNT To THE couRT AND ALL PARTlEs To THE AchoN, RENDERED: JUNE 15, »2017 NOT TO BE PUBLISHED §npr_eme mert of §§er H: _-2016 SC- 000583- MR oATEM»¢ LAURA FRANCES HENSLEY, .- APPELLAN-T ADMINISTRATRIX OF THE ESTATE .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

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 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