IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.”
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
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RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
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ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
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ACTION.
RENDERED: MARCH 24, 2022
NOT TO BE PUBLISHED
Supreme Court of Kentucky
2021-SC-0385-MR
BELL HELICOPTER TEXTRON, INC. APPELLANT
ON APPEAL FROM COURT OF APPEALS
V. NO. 2021-CA-0339
CLAY CIRCUIT COURT NO. 14-CI-00013
HONORABLE OSCAR GAYLE HOUSE APPELLEE
JUDGE, CLAY CIRCUIT COURT
AND
EMILEE DOBBS, INDIVIDUALLY, AND AS
ADMINISTRATRIX OF THE ESTATE OF HERMAN
LEE DOBBS, JR; HAYDEN DOBBS, BY HIS
MOTHER AND NEXT FRIEND, EMILEE DOBBS;
WALKER DOBBS, BY HIS MOTHER AND NEXT
FRIEND, EMILEE DOBBS; STACEY COLE,
CO-ADMINISTRATOR OF THE ESTATE OF
EDDY SIZEMORE; JUSTIN SIZEMORE,
CO-ADMINISTRATOR OF THE ESTATE OF
EDDY SIZEMORE; AND TYSON JONES, BY
HIS MOTHER AND NEXT FRIEND,
BRITTANY PARTIN REAL PARTIES IN INTEREST
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Bell Helicopter Textron, Inc. appeals from the Court of Appeals’ denial of
its Petition for a writ of mandamus precluding Judge Oscar Gayle House from
enforcing his order with respect to retrial of a tort liability case following
reversal from the Court of Appeals. After a careful review of the record and the
arguments of the parties, we affirm the Court of Appeals.
I. Facts and Procedural Background.
The underlying case arose from a tragic helicopter accident in Clay
County in June 2013. Bell manufactured the helicopter involved in the
accident. The Real Parties in Interest collectively filed three lawsuits against
Bell seeking damages for personal injury, wrongful death, and loss of
consortium arising from the deaths of the helicopter’s occupants.
The consolidated cases were tried before Clay Circuit Court in 2017. The
jury awarded damages of over $21 million, collectively, and the trial court
entered a judgment accordingly. On Bell’s appeal, the Court of Appeals
reversed the judgment based on errors regarding certain evidentiary issues and
declined to address the issues as to sufficiency of evidence regarding
manufacturing defect and excessiveness of the damage awards. Bell Helicopter
Textron, Inc. v. Dobbs, No. 2018-CA-0049-MR, 2019 WL 248691 (Ky. App. June
14, 2019), discretionary rev. denied, No. 2019-SC-0387-D, No. 2019-SC-0388-
D (Ky. Dec. 13, 2019).
Following remand, the trial court scheduled a new trial for August 2022.
In response to several motions from the Real Parties in Interest, the trial court
entered an Order providing: 1) discovery would remain closed; 2) the case
would be retried on liability only; and 3) in the event the jury once again found
against Bell, the damages award from the first trial would be reinstated, with
interest accruing from the date of the original, albeit reversed, judgment,
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October 2, 2017. The trial court denied Bell’s motion to reconsider these
rulings and, additionally, denied its request to reopen discovery to name an
additional expert witness who was neither identified nor testified at the first
trial.
Following the trial court’s orders, Bell filed an original action, pursuant
to CR1 76.36, requesting the Court of Appeals issue a writ of mandamus
compelling the trial court to hold a new trial on damages, if necessary; to limit
the interest on any potential second judgment to the date of the second
judgment; and to allow it to supplement its trial and expert witness disclosures
so that it might present different or additional witnesses and testimony in the
second trial. The Court of Appeals denied the Petition and this appeal follows.
II. Writ Standard.
As stated in Appalachian Racing, LLC v. Commonwealth, 504 S.W.3d 1, 3
(Ky. 2016), “[w]e employ a three-part analysis in reviewing the appeal of a writ
action.” First, we examine the Court of Appeals’ factual findings for clear error.
Id. Second, we review all legal conclusions under the de novo standard. Id.
And, third, since the ultimate “decision whether . . . to issue a writ of
prohibition is a question of judicial discretion[, our] review of a court’s decision
to issue a writ is conducted under the abuse-of-discretion standard.” Id. In
other words, “we will not reverse the lower court's ruling absent a finding that
the determination was ‘arbitrary, unreasonable, unfair, or unsupported by
1 Kentucky Rules of Civil Procedure.
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sound legal principles.’” Id.; see also Allstate Prop. & Cas. Ins. Co. v. Kleinfeld,
568 S.W.3d 327, 331 (Ky. 2019).
Our standard for the issuance of writs, whether of prohibition or of
mandamus, is oft stated:
A writ of prohibition may be granted upon a showing that (1)
the lower court is proceeding or is about to proceed outside of its
jurisdiction and there is no remedy through an application to an
intermediate court; or (2) that the lower court is acting or is about
to act erroneously, although within its jurisdiction, and there
exists no adequate remedy by appeal or otherwise and great
injustice and irreparable injury will result if the petition is not
granted.
Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004). Within the second class of
writs, we have recognized a subcategory in certain special cases:
[I]n certain special cases this Court will entertain a petition for
prohibition in the absence of a showing of specific great and
irreparable injury to the petitioner, provided a substantial
miscarriage of justice will result if the lower court is proceeding
erroneously, and correction of the error is necessary and
appropriate in the interest of orderly judicial administration. It
may be observed that in such a situation the court is recognizing
that if it fails to act the administration of justice generally will
suffer the great and irreparable injury.
Bender v. Eaton, 343 S.W.2d 799, 801 (Ky. 1961). In Grange Mutual Insurance
Co. v. Trude, we expounded on this latter subcategory, stating “these ‘certain
special . . . cases’ are exactly that— they are rare exceptions and tend to be
limited to situations where the action for which the writ is sought would violate
the law, e.g., by breaching a tightly guarded privilege or by contradicting the
requirements of a civil rule.” 151 S.W.3d 803, 808 (Ky. 2004) (footnotes
omitted).
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In all cases, the issuance of a writ depends on the absence of an
adequate remedy by appeal or otherwise. Bender, 343 S.W.2d at 801; see also
Henderson Cnty. Health Care Corp. v. Wilson, 612 S.W.3d 811, 816 (Ky. 2020)
(holding that “[e]ven in these special [second class writ] cases, the party
seeking a writ must show that there is no adequate remedy by appeal[]”); Indep.
Ord. of Foresters v. Chauvin, 175 S.W.3d 610, 617 (Ky. 2005) (“[w]e have tended
to apply this exception only in those limited situations where the action for
which the writ is sought would blatantly violate the law[]”). Furthermore, a writ
is an extraordinary and disfavored remedy. Kleinfeld, 568 S.W.3d at 331;
Buckley v. Wilson, 177 S.W.3d 778, 780 (Ky. 2005). Writs are reserved for
situations wherein litigants will be subjected to substantial injustice if required
to proceed. Kleinfeld at 331. Additionally, this remedy is disfavored since it
may have a tendency to interfere significantly with the proper and efficient
operation of the circuit and other courts, to short-circuit normal appeal
procedure, possibly on an abbreviated record, Bender, 343 S.W.2d at 800, and
to “magnif[y] the chance of incorrect rulings that would prematurely and
improperly cut off the rights of litigants[.]” Cox v. Braden, 266 S.W.3d 792, 795
(Ky. 2008).
III. Analysis.
Bell’s argument that the Court of Appeals erred in failing to grant the
writ essentially boils down to its claim that the trial court failed to adhere to
the Court of Appeals’ mandate reversing the original 2017 judgment.
Additionally, Bell argues that a writ was proper to permit it to reopen discovery
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for its additional expert. While Bell cites cases from the federal and other state
courts arguing as to the trial court’s lack of jurisdiction and its, Bell’s, lack of a
remedy, our ample case law addressing writs discloses that its arguments are
without merit.
Under the first category of writs, “jurisdiction” refers to “subject matter
jurisdiction. Appalachian Racing, 504 S.W.3d at 4; Davis v. Wingate, 437
S.W.3d 720, 725 (Ky. 2014); Goldstein v. Feeley, 299 S.W.3d 549, 552 (Ky.
2009); see also Lee v. George, 369 S.W.3d 29, 33 (Ky. 2012) (stating that “[i]n
the context of the extraordinary writs, ‘jurisdiction’ refers not to mere legal
errors but to subject matter jurisdiction[]”). No question exists that the Clay
Circuit Court has subject matter jurisdiction over this case. As to Bell’s
argument that the trial court has erroneously interpreted the Court of Appeals’
opinion in reversing the original 2017 judgment, Buckley is directly on point:
“[a] trial court, in interpreting an appellate court’s decision, is not acting
outside its jurisdiction even if its interpretation is erroneous.” 177 S.W.3d at
781.
As to both categories of writs, Bell argues that it has no adequate remedy
by appeal. Again, Buckley is instructive. We paraphrase, that if the trial court
incorrectly interpreted the Court of Appeals’ opinion, its order limiting the
second trial to liability issues will be subject to appellate correction. See 177
S.W.3d at 781. Similarly, the failure of the trial court to open discovery or
permit additional witnesses, if error, is correctible by appellate process. Like
the plaintiff in Buckley, Bell’s inadequacy arguments center on delay and the
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practical difficulties of fading memories and witness unavailability. Id.; see
also Inverultra, S.A. v. Wilson, 449 S.W.3d 339, 347 (Ky. 2014) (stating that
“general risk of conceivable information loss, like ‘inconvenience, expense,
annoyance and other undesirable aspects of litigation,’ is simply one of the
ordinary costs of litigation, and we have held time and time again that such
costs do not make an appeal an inadequate remedy[.]”) (internal citation
omitted).
IV. Conclusion.
The Court of Appeals’ Order denying Bell Helicopter Textron, Inc.’s
Petition for Relief in the Nature of a Writ of Mandamus is affirmed.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Casey Wood Hensley
Jason Patrick Renzelmann
Griffin Terry Sumner
Frost Brown Todd, LLC.
Honorable Oscar Gayle House
COUNSEL FOR REAL PARTIES IN
INTEREST:
Kevin Crosby Burke
Burke & Neal PLLC
Robert S. Madden
Madden Sergent PLLC
Gary Robb
Law Firm of Robb & Robb
Virginia Hamilton Snell
Wyatt, Tarrant & Combs, LLP
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