Tyrone Glenn v. Agnes Marie Mucker

• Court: Court of Appeals of Kentucky
• Decided: April 22, 2021
• Docket: 2019 CA 000204
• Status: Unknown

Opinion

RENDERED: APRIL 23, 2021; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2019-CA-0204-MR

TYRONE GLENN AND FLAGSTONE APPELLANTS HOME IMPROVEMENTS, LLC

APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE ANN BAILEY SMITH, JUDGE ACTION NO. 16-CI-001620

AGNES MARIE MUCKER APPELLEE

OPINION AFFIRMING

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BEFORE: ACREE, KRAMER, AND TAYLOR, JUDGES.

TAYLOR, JUDGE: Tyrone Glenn and Flagstone Home Improvements, LLC,

(collectively referred to as appellants) bring this appeal from a January 14, 2019,

Agreed Judgment between Agnes Marie Mucker and appellants in settlement of

injuries Mucker incurred from a dog bite. We affirm.

Tyrone Glenn is the sole owner of Flagstone Home Improvements,

LLC, (Flagstone). Flagstone owned residential real property located at 2325 West Oak Street, Louisville, Kentucky. On July 3, 2015, Flagstone leased the subject

property to Laneisha Wiley. Wiley, her children, and Wiley’s boyfriend, Kenric

Rogers, resided at the leased property. Pursuant to the lease agreement, no pets

were allowed on the property.

A few months after Wiley entered into the lease, a maintenance man

working for Flagstone was on the property trimming trees. Two dogs belonging to

Rogers apparently escaped from Wiley’s residence and attacked the maintenance

worker. The worker reported the attack to Glenn, and a report was also made to

Louisville Metro Animal Control. A day or two later, Glenn contacted Wiley

about the incident and told her to remove the dogs from the leased property. Wiley

responded that she intended to euthanize the two dogs. A few days later, Glenn

again contacted Wiley, and she reported the dogs had been euthanized. The

following day, Glenn drove by the property and did not see any indication that

dogs were present on the property.

About a week later, on October 6, 2015, Glenn received a letter from

an attorney stating that his client, Mucker, had been attacked by a dog upon the

property leased to Wiley. Glenn contacted an attorney, and the attorney hired an

investigator. The investigator went to the leased property and spoke with Wiley.

Wiley admitted the dogs had not been euthanized and were still being kept on the

property. Thereafter, Glenn went to the property and spoke with Wiley and

-2- Rogers. While the conversation was apparently brief, Wiley and/or Rogers

acknowledged the dog had bitten a second person, Mucker. On December 1, 2015,

Glenn filed a forcible detainer action against Wiley and the other occupants of the

home. A writ for eviction was granted on December 17, 2015.

On April 7, 2016, Mucker filed an action in the Jefferson Circuit

Court against Glenn and Rogers. Therein, Mucker alleged that Glenn and Rogers

were liable to Mucker for her injuries from the dog bite. Glenn filed an answer to

the complaint, a cross-claim against Rogers, and a third party complaint against

Wiley. Mucker subsequently filed an Amended Complaint, on June 23, 2016, and

named Flagstone and Wiley as additional defendants.

On August 15, 2018, Mucker filed a motion for summary judgment on

the issue of liability. Therein, Mucker asserted that Glenn was strictly liable for

her injuries from the dog bite pursuant to Kentucky Revised Statutes (KRS)

258.990(2) and 285.095(5). By order entered November 6, 2018, the circuit court

summarily denied Mucker’s motion for summary judgment without addressing the

issue of strict liability.

Then, on December 13, 2018, Mucker filed a motion seeking a

declaration by the circuit court regarding which version of KRS 258.095 was

applicable to the facts of this case. Mucker asserted the version of KRS 258.095 in

effect at the time of the dog bite applied and, thus, created strict liability for Glenn

-3- and Flagstone. On the other hand, Glenn and Flagstone asserted that the version of

KRS 258.095, as amended effective June 29, 2017, applied retroactively and thus

relieved them of any liability.

By order entered December 18, 2018, the circuit court agreed with

Mucker that the version of KRS 258.095 in effect at the time of the dog bite was

applicable. And, the circuit court determined that the 2017 amendment to KRS

258.095 would not apply retroactively. In light of the circuit court’s ruling, the

parties ultimately reached a settlement agreement. By Agreed Judgment entered

January 14, 2019, it was agreed that Glenn and/or Flagstone would pay to Mucker

$30,000 in settlement of her claims against them.1 This appeal follows.

Appellants assert that the circuit court erred by concluding that the

June 29, 2017, amendment to KRS 258.095 was inapplicable. Mucker responds

that the January 14, 2019, Agreed Judgment was reached by agreement of the

parties in settlement of their dispute and therefore is not an appealable order.

It is well established that agreed judgments are not subject to appeal

absent fraud or mistake. Little v. Mann, 195 S.W.2d 321, 323 (Ky. 1946). More

specifically, as stated in Harrel v. Yonts, 113 S.W.2d 426, 430 (Ky. 1938), and

1 By this point, both Laneisha Wiley and Kenric Rogers had disappeared and were not capable of being served. It was also believed that Wiley and Rogers were likely judgment proof. By Order of Dismissal entered January 14, 2019, Wiley and Rogers were dismissed as parties without prejudice.

-4- more recently adopted in Stoecklin v. River Metal Recycling, LLC, 370 S.W.3d

527, 529 (Ky. App. 2012):

It is a universal rule regulating the right of an appeal that it will not lie in favor of a party unless it was an involuntary adverse judgment. If the judgment appealed from was rendered at the instance of the complaining parties or by their consent, they will not be permitted to complain upon an appeal.

In this case, the January 14, 2019, Agreed Judgment was reached by

agreement in settlement of the claims asserted by Mucker. Appellants obviously

weighed the potential risks of going forward and decided that a settlement of the

claims was in their best interests. As the Agreed Judgment was reached by their

consent and in settlement of this case, appellants are barred from appealing the

Agreed Judgment. See Stoecklin, 370 S.W.3d at 529; Little, 195 S.W.2d at 323.

Any remaining issues are moot or without merit.

For the foregoing reasons, the January 14, 2019, Agreed Judgment is

affirmed.

ALL CONCUR.

BRIEF FOR APPELLANTS: BRIEF FOR APPELLEE:

Maureen Sullivan A. Neal Herrington Louisville, Kentucky Christopher H. Morris Louisville, Kentucky

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