author: Justice ROSS.

text:
    Thomas H. BARANOWSKI, Appellant, v. The STATE of Texas, Appellee.
    No. 06-04-00153-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted Oct. 5, 2005.
    Decided Nov. 2, 2005.

      Mary Ann Rea; Longview, for appellant.
    Ray Bowman, Asst. Dist. Atty., Long-view, for state.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice ROSS.

Thomas H. Baranowski pled guilty in 1984 to allegations of sexual assault. In August 2003, he filed his motion for DNA testing pro se. See Tex.Code Crim. Proc. Ann. art. 64.01 (Vernon Supp.2005). He now appeals the trial court’s order denying his motion. He raises three points of error, challenging the trial court’s findings. We affirm.

I. Factual and Procedural History

Baranowski pled guilty in May 1984 to sexual assault. A Gregg County jury assessed an enhanced punishment of life in prison and a $10,000.00 fine. Nearly twenty years later, on August 6, 2003, Baranowski filed his motion for forensic DNA testing pro se, stating “that proper testing of DNA evidence in possession of the [Sjtate during the prosecution of this case will establish the true identity of the person committing the offense....” He also stated that “[n]ew DNA evidence has been discovered in a lab” and that he “believes that the materiality of this evidence is such as would probably bring about a different result on rehearing.” Baranowski sought, but was initially refused, appointed counsel. The State responded that Baranowski had failed to sufficiently plead the requirements of Article 64.01. Specifically, the State argued Baranowski had failed to plead that there was evidence secured at the time of trial that could be tested and that the “new” evidence was not covered by the statute.

The trial court did later appoint counsel to represent Baranowski during this proceeding. In counsel’s search for the biological evidence taken at the time of trial, he discovered from the court’s file that the Tyler Crime Laboratory received several items of clothing and linens, along with the victim’s sexual evidence kit. The laboratory reported that no sperm sample was detected on the vaginal swab included in the sexual evidence kit or on any of the cloth items. Type 0 blood, consistent with the victim’s blood, was found on a gown and a blanket. Blood was also found on a watch and under the fingernail clipping taken from the victim. However, the laboratory reported, the sample on the watch did not respond to testing for blood type, and the sample under the victim’s fingernail was not in a quantity sufficient to determine blood type. Counsel then took steps to locate the biological samples for further, more modern testing.

The Tyler Crime Laboratory, by letter, explained that it did not maintain custody of any evidence associated with this case and that the evidence was returned to the Longview Police Department (LPD) in 1984. Good Shepherd Medical Center stated it needed additional information about the victim in order to identify and locate any records. The LPD informed defense counsel that the only item retained by the LPD was the necklace belonging to the victim. The other evidence was released to the district attorney’s office June 4,1984.

So, the last known location of the evidence appears to be the district attorney’s vault. Some time elapsed during which Baranowski’s counsel was in contact with the district attorney’s office. Apparently not having received a satisfactory response from the district attorney’s office, Bara-nowski’s attorney moved the trial court to compel disclosure of the biological evidence at issue and to order the State to provide necessary identifying information about the victim to enable Baranowski to obtain access to hospital records.

The trial court held a hearing February 20, 2004, on Baranowski’s motion to compel disclosure, after which it ordered the State to deliver any biological evidence in its possession, as well as personal identification numbers of the complaining witness. On March 1, 2004, the State filed its “Tender,” documenting the State’s efforts to locate any biological evidence from this case. Ultimately, the State concluded the LPD forwarded any evidence gathered, except for a necklace, to the district attorney’s office. The State attached an affidavit from an investigator who searched the district attorney’s vault for evidence from this case and found none.

The State had disclosed the victim’s date of birth in its March 1 “Tender,” but did not disclose her social security number (SSN). Baranowski maintained he could not obtain hospital records without the SSN and, so, moved the trial court to order Good Shepherd Medical Center to send a representative to appear before the court and disclose its file on the complaining witness. The trial court set the hearing on this motion for April 30, 2004. Before the hearing, the hospital delivered its file to the district attorney’s office, who turned it over to the trial court.

At the April 30 hearing, the trial court and the parties attempted to clarify the development of the process up to that point. Although the hearing seemed somewhat unnecessary at this point, the hospital’s custodian of records testified that records previously delivered by the hospital represented all the records retained in relation to this case. The custodian of records for the LPD testified she had disclosed all the written material available to her at the police department. Sergeant Jamie Johnson of the LPD testified that physical evidence was kept in a separate location from the written records and added that he understood that no physical evidence relating to the trial was located at the LPD.

At the end of this confused hearing, Baranowski’s counsel realized that, as municipal judge, he had signed the search and arrest warrant in this matter back in January 1984. He therefore moved and was granted leave to withdraw from representation. The trial court delayed its ruling until new counsel had been appointed for Baranowski.

After appointment of new counsel, the trial court held another hearing October 14, 2004, during which the State offered its second response, reiterating its efforts to locate the physical evidence and, again, concluding that it could not do so. Bara-nowski’s new appointed attorney indicated she had no objection to the State’s response and the attorneys had agreed that the State would make this second “Tender.” The trial court then denied Bara-nowski’s motion. In its order, the trial court made three findings, all of which Baranowski challenges: 1) Baranowski failed to prove he was seeking DNA testing evidence that was secured in relation to the offense and that was in the possession of the State during the trial; 2) there was no evidence that any physical evidence amenable to DNA testing exists at the present time; and 3) there was a failure of proof with respect to Baranowski’s burden to meet the requirements of Tex.Code Cmm. PR0C. Ann. art. 64.03(a)(2) (Vernon Supp.2005).

II. Applicable Law

A. Standard of Review

We employ a bifurcated standard of review in this post-conviction DNA appeal. Rivera v. State, 89 S.W.3d 55, 59 (Tex.Crim.App.2002). We afford almost total deference to a trial court’s determination of issues of historical fact and application-of-law-to-fact issues that turn on credibility and demeanor, while we review de novo other application-of-law-to-fact issues. Id.; Eubanks v. State, 113 S.W.3d 562, 565 (Tex.App.-Dallas 2003, no pet.). Therefore, the trial court’s finding regarding the existence or location of the evidence is afforded almost total deference. See Rivera, 89 S.W.3d at 59; Bright v. State, No. 07-04-0586-CR, 2005 WL 2090657, *1-2, 2005 Tex.App. LEXIS 7157, at *2-3 (Tex.App.-Amarillo Aug.30, 2005, no pet. h.).

B. Procedure under Article 64

Article 64.01 imposes certain pleading requirements on a defendant seeking to compel DNA testing:

(a) A convicted person may submit to the convicting court a motion for forensic DNA testing of evidence containing biological material. The motion must be accompanied by an affidavit, sworn to by the convicted person, containing statements of fact in support of the motion.
(b) The motion may request forensic DNA testing only of evidence described by Subsection (a) that was secured in relation to the offense that is the basis of the challenged conviction and was in the possession of the state during the trial of the offense, but:
(1) was not previously subjected to DNA testing:
(A) because DNA testing was:
(1) not available; or
(ii) available, but not technologically capable of providing probative results; or
(B) through no fault of the convicted person, for reasons that are of a nature such that the interests of justice require DNA testing; or
(2) although previously subjected to DNA testing, can be subjected to testing with newer testing techniques that provide a reasonable likelihood of results that are more accurate and probative than the results of the previous test.

Tex.Code Crim. Proc. Ann. art. 64.01.

On receipt of a post-conviction motion requesting DNA testing, the trial court must order the state to deliver the evidence or explain in writing why it cannot do so. Tex.Code Crim. Proc. Ann. art. 64.02(2) (Vernon Supp.2005). The trial court may reach its decision on whether evidence exists to be tested “based on the sufficiency of the state’s written explanation.” Cravin, 95 S.W.3d at 509.

If the trial court makes certain findings, it may order DNA testing:

(a) A convicting court may order forensic DNA testing under this chapter only if:
(1) the court finds that:
(A) the evidence:
(i) still exists and is in a condition making DNA testing possible; and
(ii) has been subjected to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material respect; and
(B) identity was or is an issue in the case; and
(2) the convicted person establishes by a preponderance of the evidence that:
(A) the person would not have been convicted if exculpatory results had been obtained through DNA testing; and
(B) the request for the proposed DNA testing is not made to unreasonably delay the execution of sentence or administration of justice.

Tex.Code Crim. Proc. Ann. art. 64.03(a).

III. Analysis

A. Did the Trial Court Err by Finding Baranowski Failed To Prove He Sought Testing of Evidence Secured in Relation to the Offense, Which Was in the State’s Possession at the Time of Trial?

Assuming Baranowski was successful in arguing that he did meet Article 64.01’s pleading requirements, then the appropriate remedy would be to order the State to produce the evidence or explain, which, of course, the trial court already did. See Tex.Code Crim. Proc. Ann. art. 64.02 (Vernon Supp.2005). So, the issue concerning whether Baranowski’s motion properly pled the evidence at issue in accordance with Article 64.01(b) is rendered moot by the fact that the trial court did, in fact, order the State to produce the evidence. For this reason, we overrule this first point of error as moot.

B. Did the Trial Court Err By Concluding There Is No Physical Evidence Amenable to DNA Testing Currently in Existence?

1. The Record Supports the Trial Court’s Finding

First, reading this point of error literally and affording nearly total deference to this type of finding by the trial court, we conclude the trial court properly concluded that the biological evidence available at the time of trial no longer existed. The State’s “Tender” supports the conclusion that the evidence ultimately ended up at the district attorney’s office. There, Investigator Mike Augustine searched the vault for any biological evidence in connection with Baranowski’s trial and found none. Beyond that, the district attorney’s office can provide no details as to whether or how the evidence was removed, destroyed, or lost. After reviewing the evidence submitted, we find that the record supports the trial court’s determination that no evidence containing biological material capable of DNA testing presently exists. The trial court was aware of the great deal of time that had elapsed between Baranowski’s conviction and his motion for DNA testing — nearly twenty years. Considering this extensive lapse of time, the State’s response that it simply did not know what happened to the evidence is not surprising. Nor is the response inadequate as it might have been had the State’s response involved a more recent conviction. Deferring to the trial court’s finding, we hold that the trial court properly denied Baranowski’s motion for post-conviction DNA testing. See Lopez v. State, 114 S.W.3d 711, 717 (Tex.App.-Corpus Christi 2003, no pet.).

2. Any Complaint Concerning Adequacy of State’s Search Was Waived

At oral argument, it became clear that Baranowski’s argument also challenged the trial court’s acceptance of the results of the State’s search and the adequacy of the State’s explanation why it could not deliver the evidence. That is, Baranowski argues the trial court should have made the State look again or look more thoroughly.

The Texas Court of Criminal Appeals makes clear that the issue of asking for more investigation on the state’s part is an issue that can be waived by a failure to request such relief from the trial court. See Shannon, 116 S.W.3d at 54-55. Such is the very situation we have before us. The record shows no request for a further search was made to the trial court. In fact, Baranowski’s second appointed attorney affirmatively stated she had “no objection to the tender today” and indicated that the parties had come to some sort of agreement as to the State’s second response or “tender.” Since Baranowski failed to request from the trial court an order directing the State to do more, he has not preserved for our review the trial court’s failure to provide such relief. See Tex.R.App. P. 33.1; Shannon, 116 S.W.3d at 54-55.

We overrule this point of error and, based on such disposition, conclude that we need not address the remaining point of error and affirm the trial court’s ruling.

      . This Court affirmed Baranowski’s conviction. See Baranowski v. State, No. 06-84-00094-CR (Tex.App.-Texarkana Mar. 5, 1985, no pet.) (not designated for publication). Baranowski also filed several applications for writs of habeas corpus. Identity was not challenged on appeal or in any other proceeding. On appeal, Baranowski alleged improper jury argument and excessive punishment. His several and lengthy applications for writs of habeas corpus filed pro se seem to deal largely with mandatory supervision and parole matters.

      . Although not required to do so, the State presented supporting affidavits to its response. See Cravin v. State, 95 S.W.3d 506, 509 (Tex.App.-Houston [1st Dist.] 2002, pet. ref’d).

      . The trial court's finding of which Baranowski complains is one clearly concerning Article 64.01. Appeals concerning motions filed before September 1, 2003, are subject to the following limitation: "an appeal of a finding under Article 64.03 or 64.04 is to a court of appeals....” Act of Apr. 3, 2001, 77th Leg., R.S., ch. 2, § 2, 2001 Tex. Gen. Laws 2, 4 (amended 2003); Wolfe v. State, 120 S.W.3d 368, 372 (Tex.Crim.App.2003) (holding appellant had no right to appeal trial court’s denial of request to appoint independent expert since issue was not within Articles 64.03 or 64.04); see also Hurd v. State, No. 05-03-01000-CR, 2004 WL 113099, *1-2, 2004 Tex.App. LEXIS 704, at *4 (Tex.App.-Dallas Jan.26, 2004, no pet.) (mem.op.) (not designated for publication) (holding court lacked jurisdiction to consider complaint regarding trial court's procedure under Article 64.02).
      Baranowski filed his motion August 6, 2003, meaning his motion is subject to the prior law limiting the rulings that can be reviewed. So, under Wolfe, we lack jurisdiction over this issue. Even though the parties do not raise this point, we are obligated to determine sua sponte whether we have jurisdiction. State v. Roberts, 940 S.W.2d 655, 657 (Tex.Crim.App.1996), overruled on other grounds, State v. Medrano, 67 S.W.3d 892, 903 (Tex.Crim.App.2002); Watson v. State, 96 S.W.3d 497, 500 (Tex.App.-Amarillo 2002, pet. ref’d).
      This seemingly clear application of the prior Article 64.05 is undermined, however, by the Texas Court of Criminal Appeals in Shannon v. State, 116 S.W.3d 52, 54 (Tex.Crim.App.2003), cert. denied, — U.S. -, 125 S.Ct. 75, 160 L.Ed.2d 44 (2004). In Shannon, although the motion for DNA testing was filed in "late 2001,” the court directly addressed Shannon’s argument that Article 64.02, specifically, directed the trial court to make an inquiry into whether the state had properly accounted for all the evidence. Id. With no reference to the limitation on jurisdiction to review this issue, the court held that Shannon had forfeited his right to complain by failing to request such relief from the trial court and overruled Shannon’s point of error. See id. at 54-55. This disposition appears to conflict with Wolfe and the language of the pre-2003 statute. In light of Shannon, the extent of our jurisdiction to review this and related issues involved in motions filed before September 1, 2003, is unclear. With that in mind, we conclude we probably lack jurisdiction over this Article 64.01 issue, but, nevertheless, conclude that the issue was rendered moot at any rate.

      . We reiterate our concerns regarding jurisdiction to consider this Article 64.01 issue. However, we feel compelled to follow Shannon to the extent that it is relevant and note that Shannon involves a very similar substantive issue as the one before us.

      . Baranowski’s final point of error challenges the trial court’s findings relating to Article 64.03. Article 64.03 authorizes the trial court to order DNA testing only when the applicant establishes by a preponderance of the evidence that, among other things, "the person would not have been convicted if exculpatory results had been obtained through DNA testing.” Tex.Code Crim. Proc. Ann. art. 64.03(a)(2)(A). A trial court must order testing only if the statutory preconditions are met. Bell v. State, 90 S.W.3d 301, 306 (Tex.Crim.App.2002). Because we have concluded the trial court did not err by concluding no testable evidence currently exists, then Bara-nowski clearly failed to satisfy those preconditions. See Shannon, 116 S.W.3d at 54 n. 6. (noting the several points of issues that were rendered moot by the court's disposition of two primary issues).


source: Caselaw Access Project

author: Justice MORRIS.

license: Public Domain

text:
    In the Matter of J.H., a Juvenile.
    No. 05-05-00073-CV.
    Court of Appeals of Texas, Dallas.
    Nov. 14, 2005.

      Dennis R. Croman, Law Office of Dennis R. Groman, Inc., Irving, for Appellant.
    William T. (Bill) Hill, Jr., District Atty., Gina Savage, Asst. District Atty., Larissa Roeder, Assistant Criminal District Atty., for Appellee.
    Before Justices MORRIS, BRIDGES, and FRANCIS.
   OPINION

Opinion by

Justice MORRIS.

In this case, J.H. appeals the trial court’s order transferring determinate sentence probation to an appropriate criminal district court. In four issues, J.H. contends the trial court erred in transferring his probation because: (1) the State’s motion did not cite adequate grounds to give the trial court discretion to transfer J.H.’s probation; (2) the trial court erred in signing a nunc pro tunc order without notice or hearing; (3) the trial court erred by not filing additional findings of fact and conclusions of law after a timely request to do so; and (4) section 56.01 of the Texas Family Code is unconstitutional. We conclude the trial court’s order is not appeal-able and appellant’s argument that section 56.01 is unconstitutional is without merit.

On October 17, 2001, when J.H. was fifteen years of age, the trial court adjudicated J.H. a child engaged in delinquent conduct for committing aggravated sexual assault of a child. The trial court committed J.H. to the Texas Youth Commission for ten years, probated for ten years. J.H. was placed in his mother’s custody. On August 13, 2004, the trial court granted the State’s motion to transfer determinate sentence probation to a criminal court and ordered J.H.’s probation transferred to the 283rd Judicial District Court, effective September 16, 2004, J.H.’s eighteenth birthday.

J.H. argues the trial court abused its discretion in ordering his probation transferred. The State responds that the trial court’s order is not appealable. We agree with the State.

Section 56.01 of the Texas Family Code sets out a child’s right to appeal a juvenile court’s orders and describes which of those orders are appealable. Subsection (c) provides an appeal may be taken:

(1) except as provided by Subsection (n), by or on behalf of a child from an order entered under:
(A) Section 54.03 with regal’d to delinquent conduct or conduct indicating a need for supervision;
(B) Section 54.04 disposing of a case;
(C) Section 54.05 respecting modification of a previous juvenile court disposition; or
(D) Chapter 55 by a juvenile court committing a child to a facility for the mentally ill or mentally retarded; or
(2) by a person from an order entered under Section 54.11(i)(2) transferring the person to the custody of the institutional division of the Texas Department of Criminal Justice.

Id. § 56.01(c) (Vernon 2003).

An order entered under Section 54.051 to transfer a determinate sentence probation to an appropriate district court is not one of the orders enumerated in the statute. Therefore, applying the plain language of subsection (c), we conclude the trial court’s order transferring determinate sentence probation to an appropriate criminal district court is not an appealable order. Id.

Appellant also argues that if we determine section 56.01 precludes an appeal of the order, as we have done, then the section is unconstitutional because it violates the due process and equal protection clauses of the United States and Texas Constitutions. See U.S. Const. Amend. XIV; Tex. Const. Art. I, § 19. Specifically, appellant contends section 56.01 allows some juveniles to appeal while denying other juveniles the same appeal rights and, therefore, discriminates against certain juveniles simply because of the type of hearing held by a juvenile court. The State responds that section 56.01 is not unconstitutional either on its face or as applied to appellant.

The Texas and United States Constitutions do not provide for a right of appeal. See Phynes v. State, 828 S.W.2d 1, 2 (Tex.Crim.App.1992); see also In re Jenevein, 158 S.W.3d 116, 119 (Tex.Spec.Ct.Rev.2003) (right to appeal not of constitutional magnitude). The right to appeal is regulated by the legislature, and the legislature “may deny the right to appeal entirely, the right to appeal only some things, or the right to appeal all things only under some circumstances.” See In re Jenevein, 158 S.W.3d at 119. Thus, when a legislative enactment says a juvenile may appeal orders delineated in the statute, there is no right to appeal orders not so included. See id. Further, because appellant is treated the same as all similarly situated juveniles whose determinate sentence probation is transferred to a criminal district court, his argument fails. See Sonnier v. State, 913 S.W.2d 511, 520-21 (Tex.Crim.App.1995). Accordingly, we reject appellant’s claim that section 56.01 is unconstitutional.

We dismiss the appeal for want of jurisdiction.

      . The grand jury approved the State's petition regarding a child engaged in delinquent conduct and found there was probable cause to believe that appellant engaged in delinquent conduct by committing the offense of aggravated sexual assault of a child. The grand jury certified the petition to the juvenile court.

      . Subsection (n) deals with plea or stipulation of evidence agreements between the State and the child regarding the disposition of the case.


author: Justice O’NEILL.

text:
    ALLODIAL LIMITED PARTNERSHIP, Appellant v. NORTH TEXAS TOLLWAY AUTHORITY, Appellee.
    No. 05-04-01568-CV.
    Court of Appeals of Texas, Dallas.
    Nov. 16, 2005.

      James A. Pikl, James A. Pikl, P.C., McKinney, for Appellant.
    Clinton Schumacher, Locke Liddell & Sapp LLP, Dallas, for Appellee.
    Before Chief Justice THOMAS and Justices WRIGHT and O’NEILL.
   OPINION

Opinion by

Justice O’NEILL.

Appellant, Allodial Limited Partnership (“Allodial”), appeals the trial court’s order granting appellee’s, North Texas Tollway Authority (“NTTA”), motion for summary judgment. Allodial contends in two issues that the trial court erred in finding Allodial did not have standing to bring a cause of action and that the statute of limitations had already expired when Allodial filed suit. We affirm the trial court’s judgment.

BACKGROUND

The subject of this lawsuit is a 2.99 acre tract of land (“the property”) situated at the corner of the President George Bush Turnpike (“PGBT”) and McCoy Road in Carrollton. Charis Interests (“Charis”), owned the property and also an adjacent 12.384 acre tract. In 1996, Charis conveyed the 12.384 acre tract to the State of Texas (“the State”), but retained the 2.99 acre tract. At the time, the State was contemplating building a state highway through the 12.384 acre tract and alongside the 2.99 acre tract.

Meanwhile, NTTA acquired the main lanes of what was to be the state highway and entered into an agreement with the State and the Federal Highway authority to develop the route as a tollway. As a result, the PGBT was constructed and the westbound service road ran adjacent to the property that is the subject of this case. For safety reasons, the elevation of the service road had to be lowered so that patrons approaching the nearby toll plaza would not have to go downhill sharply. In November of 1999, a retaining wall was built on the service road next to the property to accommodate the change in elevation and to prevent erosion. The westbound service road of the PGBT opened on September 26, 2000, at which time, the retaining wall was substantially complete.

Charis’s manager, Tom Staley was told of the plans for the retaining wall on September 22,1999, when he was contacted by Pat Ellis, an engineer hired by NTTA. Ellis informed Staley that the retaining wall was going to be constructed and asked whether Staley wanted a sound wall constructed between the property and the service road. Staley indicated that a retaining wall would damage the property. Staley also drove by the property “almost every day” for a year during the construction of the PGBT when he would take his children to school.

On August 23, 2002, Charis sold its interest in the property to Allodial. Allodial filed suit in this case on December 31, 2002, alleging inverse condemnation because the land was no longer accessible from the service road due to the change in elevation and the construction of the retaining wall. The trial court granted NTTA’s motion for summary judgment because Allodial lacked standing to sue and because the statute of limitations for bringing its claim had run.

STANDARD OF REVIEW

To prevail on a traditional motion for summary judgment, the movant must show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a (c); Southwestern Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002). We review the trial court’s ruling granting a motion for summary judgment de novo and take as true all evidence favorable to the non-movant. Dickey v. Club Corp. of Am., 12 S.W.3d 172, 175 (Tex.App.-Dallas 2000, pet. denied); Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222 (Tex.1999). We resolve any doubts about the existence of a genuine issue of material fact against the movant. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985).

In a no-evidence motion for summary judgment, the movant must specifically state the elements for which there is no evidence. Tex.R. Civ. P. 166a (i). The nonmovant must then bring forth evidence that raises a fact issue on the challenged elements. Id. A no-evidence motion for summary judgment is subject to a legal sufficiency standard of review. Crocker v. Paulyne’s Nursing Home, Inc., 95 S.W.3d 416, 419 (Tex.App.-Dallas 2002, no pet.).

STANDING

Allodial first claims the trial court erred in granting appellee’s motion for summary judgment based on NTTA’s allegation that Allodial lacks standing to sue. Generally, a claim for damage to property belongs to the entity who owns the property at the time of the injury. Abbott v. City of Princeton, 721 S.W.2d 872, 875 (Tex.App.-Dallas 1986, writ ref’d n.r.e.). Allodial argues its inverse condemnation claim was assigned to it by Charis and directs us to the portion of the “exchange agreement” between Charis and Allodial which “represents and warrants” that:

Charis shall assign over to Allodial all rights Charis has to any benefits or awards Charis is due from claims or causes of action it has against third parties as they relate to the tracts of land, including but not limited to claims it has against the Texas Department of Transportation, the North Texas Tollway Authority and the City of Carrollton, Texas.

To recover on an assigned cause of action, the plaintiff must show that the cause of action being assigned existed and was assigned to the party alleging the assignment occurred. Esco Elevators, Inc. v. Brown Rental Equipment Co., Inc., 670 S.W.2d 761, 764 (Tex.App.-Fort Worth 1984, writ ref’d n.r.e.). The language in the agreement above does not support Al-lodial’s position that it has standing because this language does not reflect a present assignment of Charis’s rights to Allodial. Id.; See also Pape Equipment Co. v. I.C.S., Inc., 737 S.W.2d 397, 401 (Tex.App.-Houston [14th Dist.] 1987, writ ref’d n.r.e.) (holding that an agreement is not an assignment where there are no present words of transfer).

Despite the language of the contract, Allodial asserts that the exchange agreement was, in fact, a present assignment of rights. It offers the affidavit of Wayne Paul, a trustee for Charis, which explains that, by the terms of the agreement, Char-is assigned its rights to any causes of action against NTTA to Allodial. However, when a contract is unambiguous, we must defer to the language of the contract, not the parties’ interpretation of that language. Nicol v. Gonzales, 127 S.W.3d 390, 394 (Tex.App.-Dallas 2004, no pet.). Accordingly, we determine that the trial court did not err in granting NTTA’s motion for summary judgment because Allo-dial cannot show it has standing to bring an action in this case.

STATUTE OF LIMITATIONS

Even assuming Allodial had standing, summary judgment was proper because the statute of limitations expired before Allodial filed suit in this ease. Allodial contends that the statute of limitations applicable to its inverse condemnation claim is ten years, not two years as the trial court found. Allodial argues this is so because its property was “taken” rather than “damaged.” We disagree.

To be entitled to compensation for inverse condemnation under Article I, Section 17, of the Texas Constitution, the plaintiff must show that their property has been taken, damaged, or destroyed for public use. Allen v. City of Texas City, 775 S.W.2d 863, 864 (Tex.App.-Houston [1st Dist.] 1989, writ denied). Our inquiry into whether property has been “taken” or “damaged” is a question of law. DuPuy v. City of Waco, 396 S.W.2d 103, 110 (Tex.1965).

In a claim for inverse condemnation, a “taking” occurs when property is taken for public use without process or without proper condemnation proceedings. Allen, 775 S.W.2d at 864. To recover under this theory, the property owner must establish that: (1) a governmental entity intentionally performed acts; (2) that resulted in a taking of the property; (3) for public use. City of Abilene v. Smithwick, 721 S.W.2d 949, 951 (Tex.App.-Eastland 1986, writ ref’d n.r.e.). It is well settled that a “taking” of land under Article I, Section 17, means an actual physical invasion or an appropriation of the land. Nueces County Drainage and Conservation Dist. No. 2 v. Bevly, 519 S.W.2d 938, 943-44 (Tex.App.-Corpus Christi 1975, writ ref’d n.r.e.). When property has been “taken,” a party is not barred from bringing a cause of action until the ten-year period for acquiring land by adverse possession has expired. Hudson v. Arkansas Louisiana Gas Co., 626 S.W.2d 561, 563 (Tex.App.-Texarkana 1981, writ ref’d n.r.e.); see also Tex. Civ. Prac. & Rem.Code Ann. §§ 16.026(a) (Vernon Supp.2001).

A property is “damaged” when no physical taking has occurred, but its value has been diminished. DuPuy, 396 S.W.2d at 108. In cases such as the one before us, where access to the property has been impaired, the property is “damaged,” not “taken.” Id. The Texas Supreme Court explained:

It is the settled rule in this state that an abutting property owner possesses an easement of access which is a property right; that this easement is not limited to a right of access to the system of public roads; and that diminishment in the value of property resulting from a loss of access constitutes damage.

Id., citing Powell v. Houston & T.C.R. Co., 104 Tex. 219, 135 S.W. 1153, 1155 (1911). When property has been “damaged,” a party must bring a cause of action within two years. Hues v. Warren Petroleum Co., 814 S.W.2d 526, 530 (Tex.App.-Houston [14th Dist.] 1991, writ denied); Hudson, 626 S.W.2d at 563-64; see also Tex. Civ. Prac. & Rem.Code Ann. §§ 16.003(a) (Vernon Supp.2001).

Despite Allodial’s position that its property was “taken,” the evidence presented to the trial court showed, at most, that the land in this case was “damaged.” Specifically, it showed only that the construction of the retaining wall impeded access to the property, thus diminishing its value; not that any portion of the land was physically appropriated. See DuPuy, 396 S.W.2d at 108. Thus, the statute of limitations applicable in this case is two years. Hues, 814 S.W.2d at 530; Tex. Civ. Prac. & Rem.Code Ann. §§ 16.003(a) (Vernon Supp.2001).

Allodial filed suit in this case on December 31, 2002. The record reflects that Charis was notified of the plans for the retaining wall on September 22, 1999, when Ellis contacted Staley. At that time, Staley indicated that a retaining wall would damage the property. Staley testified that he drove by the property virutally every week day during the construction of the PGBT when he drove his children to school. The service road adjacent to the property opened on September 26, 2000, at which time the retaining wall was substantially complete. Even assuming, arguendo, that the limitations period began to run on this late date, Allodial’s petition was still filed over three months beyond the limitations period. Thus, summary judgment was proper based on the trial court’s finding that the statute of limitations for bringing an action had expired when Allo-dial filed its original petition.

Allodial also requested, should we find that its claim is one of damages subsequent to a two-year statute of limitations, that we equitably toll the limitations period because the property was the subject of a condemnation action brought by the City of Carrollton from April 24, 2001, until August 29, 2002. However, Allodial waived its claim for equitable tolling by failing to present it to the trial court. Tex.R. Civ. P. 166a (c).

CONCLUSION

For the reasons set forth above, we conclude that summary judgment was proper in this case. Allodial did not have standing to bring an action against NTTA for inverse condemnation; and, even assuming it did, the statute of limitations to bring such an action ran before Allodial filed suit. Accordingly, we affirm the trial court’s judgment.


text:
    W. Joyce ANDERSON, Appellant v. Barry D. COCHEU, Appellee.
    No. 05-04-01257-CV.
    Court of Appeals of Texas, Dallas.
    Nov. 18, 2005.

      Daylen K. Gallman and Blake L. Beck-ham, Beckham & Thomas, L.L.P., Dallas, for Appellant.
    John B. Schorsch, Jr., Mastrogiovanni, Schorsch & Mersky, P.C., Dallas, for Ap-pellee.

      Before Justices MORRIS, WRIGHT, and RICHTER.
   OPINION

Opinion by

Justice MORRIS.

This is a summary judgment case. W. Joyce Anderson contends the trial court erred in granting judgment in favor of Barry D. Cocheu on her claims against him. Anderson asserts six points of error arguing generally that Cocheu’s motion for summary judgment was insufficient because it failed to address the factual and legal bases of her claims. After examining the record, we conclude Cocheu failed to show he was entitled to judgment as a matter of law. We reverse the trial court’s judgment and remand the cause for further proceedings.

I.

The claims brought in this suit are based in large part on an alleged settlement agreement between Joyce Anderson and Barry Cocheu arising from an earlier suit. Anderson filed that suit against Cocheu in November 1998, alleging Cocheu had failed to repay various loans she had made to him. The 1998 suit included causes of action for breach of contract, fraud, and unjust enrichment.

In May 1999, Anderson and Cocheu met to discuss settling the pending claims. Although present, their attorneys waited in another room. According to Anderson, she and Cocheu reached an agreement that they reduced to writing. The terms of the agreement included monthly payments of $500 by Cocheu to Anderson. Anderson contends she and Cocheu then presented the written agreement to their attorneys. According to Anderson, Co-cheu’s attorney insisted the settlement agreement be drafted into a more formal document. Anderson alleged she gave the handwritten agreement to Cocheu’s attorney so that settlement documents could be prepared. Apparently, Cocheu’s attorney did not prepare formal settlement documents. And Anderson’s attorney did not either. In the end, neither party filed a written, signed settlement agreement with the trial court.

Despite the absence of a filed settlement agreement, Cocheu began making $500 monthly payments to Anderson. Soon afterward, the trial court dismissed Anderson’s lawsuit against Cocheu. Co-cheu, however, continued making monthly payments to Anderson for over a year and then stopped. Anderson filed this suit against Cocheu in July 2008, asserting claims for breach of the settlement agreement. Anderson later amended her petition to add claims for breaches of other agreements, fraudulent inducement, fraudulent misrepresentation and “unjust enrichment/restitution.” Anderson contended Cocheu fraudulently induced her to discontinue pursuing her original lawsuit against him by promising to make payments according to the settlement terms agreed to in May 1999 without intending to fulfill those terms.

Cocheu filed a motion for summary judgment arguing the settlement agreement was unenforceable because it did not comply with rule 11 of the Texas Rules of Civil Procedure. Cocheu also argued the statutes of limitations on Anderson’s breach of contract and fraud claims expired before she filed suit. Finally, Co-cheu argued Anderson could not establish justifiable reliance as a matter of law.

Anderson responded that Cocheu could not rely on rule 11 because he failed to plead the rule as an affirmative defense. Anderson further responded that rule 11 did not bar enforcement of the oral settlement agreement because Cocheu never denied the existence of the agreement and, in fact, performed under the agreement for over a year. Anderson contended Cocheu’s arguments relating to the statutes of limitations and lack of justifiable reb-anee were premised on the false assumption that the creation of a formal, written settlement document to be filed with the trial court was a material term of her agreement with Cocheu. Furthermore, Anderson argued Cocheu’s motion failed to address numerous claims raised in her petition. The trial court disagreed with Anderson and granted Cocheu’s motion for summary judgment. Anderson then brought this appeal.

II.

The standard of review for a summary judgment is well established. To obtain a summary judgment, Cocheu had the burden of demonstrating that no genuine issues of material fact existed and he was entitled to judgment as a matter of law. See Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985). Because the trial court granted Cocheu’s summary judgment without specifying the grounds on which it was based, Anderson has the burden on appeal of showing that each summary judgment ground alleged by Co-cheu is insufficient to support the trial court’s judgment. See Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex.1995).

Anderson’s six points of error challenge the sufficiency of all three of Cocheu’s asserted grounds for summary judgment. In her second and third points of error, Anderson contends Cocheu is not entitled to summary judgment on the ground that their settlement agreement did not comply with rule 11 of the Texas Rules of Civil Procedure because Cocheu failed to plead the rule as an affirmative defense and failed to show that their agreement did not fall under one of the exceptions to the rule.

Rule 11 of the Texas Rules of Civil Procedure states that “[ujnless otherwise provided in these rules, no agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record.” Tex.R. Civ. P. II. The purpose of the rule is to reheve the courts of the necessity of resolving disputes over the terms of oral agreements relating to pending suits. See Kennedy v. Hyde, 682 S.W.2d 525, 529 (Tex.1984); Thomas v. Smith, 60 S.W.2d 514, 516 (Tex.Civ.App.-Texarkana 1933, writ dism’d). In enforcing this rule, however, the Texas Supreme Court has been mindful of the fact that the rule may be said to abridge the substantive right of persons to enter into oral contracts. See Kennedy, 682 S.W.2d at 529. For this reason, the court has balanced the purpose of the rule with the ability of parties to make oral agreements. This balancing has resulted in the recognition of certain equitable exceptions to rule ll’s writing requirement. See id; see also Ebner v. First State Bank of Smithville, 27 S.W.3d 287, 299 (Tex.App.-Austin 2000, pet. denied).

One exception to the writing requirement arises when the oral agreement is undisputed. See Thomas, 60 S.W.2d at 516. In cases where the existence of the agreement and its terms are not disputed, the agreement may be enforced despite its literal noncompliance with the rule. See Kennedy, 682 S.W.2d at 529. Such an exception recognizes that, in the absence of a dispute over the oral agreement, the trial court would not be called upon to resolve misunderstandings about the terms of the agreement.

In this case, Cocheu has not disputed the existence or the terms of the oral agreement with Anderson either in his pleadings, in his motion for summary judgment, or elsewhere in the summary judgment record before us. Cf. Masi v. Scheel, 724 S.W.2d 438, 439 (Tex.App.-Dallas 1987, writ ref’d n.r.e.) (failure to plead requirements of rule 11 is waiver of its benefits). Although Cocheu asserted the statute of frauds and the parol evidence rule as defenses, these defenses do not challenge the existence of the agreement. They merely raise the issue that the alleged agreement was not reduced to writing. As discussed above, however, rule ll’s writing requirement may not affect the enforceability of an oral agreement where the agreement is not disputed. Furthermore, neither the statute of frauds nor the parol evidence rule is equivalent to rule 11 because, although similar, they have distinct requirements and purposes.

To be entitled to the protections of rule 11 in a case in which it is applicable, a party must either deny entering into the alleged oral agreement or dispute one or more of the agreement’s alleged terms. See London Mkt. Cos. v. Schattman, 811 S.W.2d 550, 552 (Tex.1991); Kennedy, 682 S.W.2d at 530. Cocheu has done neither. The evidence shows that Cocheu, in fact, performed under the alleged agreement for over a year. Because Cocheu did not dispute the existence or the terms of the alleged settlement agreement with Anderson, he was not entitled to summary judgment on the ground that the alleged settlement agreement did not comply with the requirements of rule 11.

Cocheu also moved for summary judgment on the ground that Anderson did not file her claims within the period of time allowed by the applicable statutes of limitations. In her fourth point of error, Anderson argues the trial court erred in granting summary judgment on the basis of limitations because Cocheu failed to establish when the limitations periods on her claims began to run. A defendant moving for summary judgment on the affirmative defense of limitations has the burden to establish conclusively that defense. See KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999). As part of that burden, the defendant must conclusively prove when the cause of action accrued. Id. The limitations period for both breach of contract and fraud claims is four years. See Hoover v. Gregory, 835 S.W.2d 668, 676-77 (Tex.App.-Dallas 1992, writ denied).

It is well settled that a breach of contract claim accrues when the contract is breached. Stine v. Stewart, 80 S.W.3d 586, 592 (Tex.2002). In his motion for summary judgment, Cocheu specifically contended the alleged settlement agreement was breached, if at all, no later than May 9, 1999, when his attorney failed to provide Anderson with a written settlement agreement to be signed and filed with the trial court. The summary judgment evidence, however, does not support Cocheu’s contention that his attorney’s promise to draft the settlement documents was part of the settlement agreement that Anderson alleged was breached. Although Anderson testified at length in her deposition about her belief that Cocheu’s attorney was going to create a written settlement agreement, at no point did she state that this was a material part of her agreement with Cocheu. Cocheu simply did not show that the failure to provide Anderson with a written settlement agreement was a breach of the alleged contract. Therefore, Cocheu failed to conclusively prove when Anderson’s claim for breach of contract accrued.

Unlike a cause of action for breach of contract that accrues when the wrongful act occurs, a claim for fraud does not accrue until the plaintiff discovers, or in the exercise of reasonable care and diligence should have discovered, the fraud. See Computer Assocs. Int’l, Inc. v. Altai Inc., 918 S.W.2d 453, 455 (Tex.1996); Harris v. American Prot. Ins. Co., 158 S.W.3d 614, 628 (Tex.App.-Fort Worth 2005, no pet. h.). Cocheu’s argument that limitations barred Anderson’s fraud claim also hinged on his attorney’s alleged failure to provide a written settlement agreement. Cocheu argued that Anderson knew or should have known about any alleged fraud associated with the settlement when his attorney did not produce a written settlement agreement. But, as stated above, Anderson did not contend that a promise to create a written settlement agreement was part of her oral contract with Cocheu. The fraud alleged by Anderson arose out of Cocheu’s purported promise to pay her under the terms of the settlement. Cocheu made no argument and produced no evidence to show when Anderson knew or should have known about the alleged fraud associated with Cocheu’s purported promise to pay. Because Cocheu failed to show when Anderson’s claims accrued, he was not entitled to summary judgment on the ground that Anderson’s claims were brought after the limitations period had expired.

Finally, Cocheu moved for summary judgment on Anderson’s fraud claims contending Anderson could not establish justifiable reliance on his alleged misrepresentations. Cocheu first argued there could be no rebanee as a matter of law because the alleged representations were made in the context of ongoing litigation. Although reliance on statements made in an adversarial context is not generally justifiable, Cocheu points to no case, and we have found none, holding that a party’s rebanee on an opposing party’s statement during btigation is unjustified as a matter of law. Indeed, other courts that have examined this issue have concluded that reliance on an opposing party’s statements is unjustified where the opponent’s statement is an “obvious be” or “a misrepresentation that, with reasonable dibgence, could easily have been refuted.” See Atlantic Lloyds Ins. Co. v. Butler, 137 S.W.3d 199, 226 (Tex.App.-Houston [1st Dist.] 2004, pet. denied). Cocheu presented no evidence that his alleged misrepresentations were either obvious lies or easily refuted.

Cocheu next argued in his motion for summary judgment that any justifiable reliance by Anderson ended when his attorney failed to deliver a written settlement agreement. Anderson notes in her fifth point of error that, once again, Cocheu misplaced the focus of his argument on events that Anderson did not contend were part of her agreement with Cocheu. The misrepresentations described by Anderson involved Cocheu’s alleged promise to pay. Cocheu made no argument in his motion for .summary judgment, and produced no evidence, to show that Anderson could not have justifiably relied on Cocheu’s alleged promise to pay. Because Cocheu’s motion for summary judgment did not address the correct factual basis of Anderson’s fraud claims, he was not entitled to summary judgment on Anderson’s fraud claims on the ground of lack of justifiable reliance.

Based on the foregoing, we conclude the trial court erred in granting Cocheu’s motion for summary judgment. Given this conclusion, it is unnecessary for us to address Anderson’s remaining points of error. We reverse the trial court’s judgment and remand the cause for further proceedings.

      . One of Anderson's points of error addresses the trial court’s order striking portions of her affidavit filed in support of her response to the motion for summary judgment. Because of our disposition of the remainder of the issues on. appeal, it is unnecessary for us to address this issue.

      . Anderson does not dispute that her alleged oral settlement is an agreement "touching [a] suit pending” and, therefore, we do not reach the issue.


author: /s/ Joseph E. Lambert Chief Justice.

text:
    KENTUCKY BAR ASSOCIATION, Petitioner v. Nickie Barton VANMETER, Respondent.
    No. 2005-SC-000724-KB.
    Supreme Court of Kentucky.
    Nov. 23, 2005.
   OPINION AND ORDER

The Kentucky Bar Association (KBA) recommends that this Court declare Respondent, Nickie Barton Vanmeter of Louisville, Kentucky, guilty of numerous charges brought in three cases before the Association. Due to the gravity of these charges, the KBA further moves for an Order of permanent disbarment. We so find and enter an Order of permanent disbarment.

I. KBA File 8351

Respondent was properly served with a charge by the Inquiry Commission on March 5, 2005 alleging numerous violations of the Rules of Professional Conduct in connection with his representation of Patricia Bales. Respondent failed to respond to the charge.

Respondent failed to timely respond to or participate in the ongoing domestic proceedings involving Ms. Bales. Respondent failed to appear in court on behalf of this client on six occasions. When Ms. Bales terminated Respondent’s service, he failed to file a motion to withdraw as counsel or to respond to a Subpoena mandating his presence before the court. On November 2, 2000, the court found that Respondent’s “pattern of perpetual failures to appear before the Court is evidence of a willful disobedience of and an open disregard for the rule and order of this Court.” Respondent was held in criminal contempt and ordered to serve twelve consecutive hours in jail.

II. KBA File 9423

On March 5, 2005, Respondent was properly served a charge alleging violation of SCR 3.130-8.3(b) (commission of a criminal act). Respondent failed to respond to this charge.

Pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), Respondent pled guilty to six felony offenses: First Degree Perjury, Tampering with Physical Evidence, Tampering with Public Records, and three counts of Second Degree Criminal Possession of a Forged Instrument on or about June 11, 2003. Respondent received a sentence of twenty years imprisonment, probated for a period of five years, and a fine of $5,000. Effective June 12, 2003, this Court temporarily suspended Respondent from the practice of law pursuant to SCR 3.166.

III. KBA File 9902

On March 5, 2005, Respondent was properly served a charge alleging more violations of the Rules of Professional Conduct in connection with his representation of David Tate. Respondent failed to respond.

In July 2001, Mr. Tate paid Respondent $500 for representation on a criminal charge. While representing Mr. Tate, Respondent failed to return phone calls or to adequately communicate with his client. On two occasions Respondent failed to appear in court on behalf of his client. Upon termination of legal representation, Respondent failed to withdraw or to notify his client that he was terminating his legal representation. Respondent also failed to return the client’s papers and property or to refund unused portions of the retainer.

IV. Conclusion

The record in this case indicates a clear pattern of noncompliance with and disobedience to the rule of law and to the rules of Respondent’s chosen profession. In 1997, Respondent received two Private Admonitions for violating SCR 3.130-8.1(b) by failing to respond to Bar Complaints. Upon the foregoing facts and charges, we find sufficient evidence to adjudicate Respondent guilty of all counts currently pending before this Court. We further hold that in light of the seriousness of Respondent’s conduct, the recommendation of the KBA should be adopted. Therefore, it is ORDERED that:

1. Nickie Barton VanMeter is adjudicated guilty of all charges alleged in KBA Files 8351, 9423, and 9902.
2. Nickie Barton VanMeter is hereby permanently disbarred from the practice of law in the Commonwealth of Kentucky for committing criminal acts which reflect adversely on Respondent’s character and fitness as a lawyer and for violating numerous provisions of our Rules of Professional Conduct.
3. In accordance with SCR 3.450, Nick-ie Barton VanMeter is directed to pay all costs associated with these disciplinary proceedings in the amount of $783.42 for which execution may issue from this Court upon finality of this Order.
4. If he has not already done so, in accordance with SCR 3.390, Nickie Barton VanMeter shall, within ten (10) days from the entry of this Opinion and Order: (a) to the extent possible, cancel and cease any advertising activities in which he is engaged; and (b) notify, in writing, all courts in which he may have matters pending, and all clients for whom he is actively involved of his inability to provide fuiffier legal services, and furnish the Director of the Kentucky Bar Association with a copy of all such letters.

All concur.

ENTERED: November 23, 2005.

/s/ Joseph E. Lambert Chief Justice.


author: /s/ Joseph E. Lambert Chief Justice

text:
    INQUIRY COMMISSION, Complainant v. Kenneth Eugene RYLEE, Jr., KBA No. 85636, Respondent.
    No. 2005-SC-0776-KB.
    Supreme Court of Kentucky.
    Nov. 23, 2005.
    Linda Gosnell, Chief Bar Counsel, Greg Munson, Office of Bar Counsel, Kentucky Bar Association, Frankfort, KY, Counsel for Complainant.
    Gardner L. Turner, Sturgill, Turner & Truitt, Lexington, KY, Harry P. Hellings, Jr., Kenneth E. Rylee, Jr., Covington, KY, Counsel for Respondent.
   ORDER OF TEMPORARY SUSPENSION

Kenneth Eugene Rylee, Jr., whose bar roster address is 111 Park Place, Coving-ton, Kentucky 41011, has been charged with engaging in organized crime, criminal syndicate, a class B felony, and theft by extortion over $300, a class D felony. We agree with the Inquiry Commission that there is probable cause to believe, pursuant to SCR 3.165(l)(b), that the conduct of Rylee poses a substantial threat of harm to his clients or to the public at large.

In addition, Rylee has been charged in Woodford District Court, case No. 05-M-00028, with two counts of criminal solicitation in violation of KRS 506.030, class A misdemeanors.

It is therefore ORDERED that Kenneth Eugene Rylee, Jr., be and is hereby temporarily suspended from the practice of law in the Commonwealth of Kentucky until further order of this Court.

It is further ORDERED that:

1)Within 20 days from the date of the entry of the order of suspension, Rylee shall notify all clients in writing of his inability to continue to represent them, and shall furnish copies of the letters of notice to the Director of the Kentucky Bar Association.

2) Pursuant to SCR 3.165(6), Rylee shall immediately, to the extent reasonably possible, cancel and cease any advertising activities in which he is engaged.

3) The temporary suspension of Rylee shall be effective with the entry of this order and shall continue in effect until such time as the merits of this disciplinary proceeding can be finally determined by this Court in accordance with SCR 3.370 or SCR 3.480, or until such time as Rylee can show good cause why the order of temporary suspension should be amended or dissolved.

4) Rylee shall pay all costs of these proceedings for which execution may issue.

All concur.

ENTERED: November 23, 2005.

/s/ Joseph E. Lambert Chief Justice


author: SCHRODER, Judge.

text:
    Brandee TOCHE, Appellant, v. THE AMERICAN WATERCRAFT Association; Polaris Industries, Inc.; The Friends of Lake Cumberland, Inc.; Davis Outdoor Sports, Inc.; Dana Davis, Don Lokovich, and Lisa Price, Individually and d/b/a Jet Stream Productions & Jam Productions, Appellees.
    No. 2004-CA-001074-MR.
    Court of Appeals of Kentucky.
    Nov. 4, 2005.

      Jonathon N. Amlung, Louisville, KY, for Appellant.
    R. William Tooms, London, Jennifer A. Peterson, Louisville, KY, for Appellee The American Watercraft Association.
    Donald P. Moloney, II, Andrew DeSi-mone, Lexington, KY, George W. Soule, David S. Miller, Minneapolis, MN, for Ap-pellee Polaris Industries, Inc.
    R. Kent Westberry, Caroline Pitt Clark, Jennifer A. Peterson, Louisville, KY, for Appellee The Friends of Lake Cumberland, Inc.
    No Briefs for appellees Davis Outdoor Sports, Inc.; Dana Davis, Don Lokovich, and Lisa Price, Individually and d/b/a Jet Stream Productions & Jam Productions.
    Before MINTON and SCHRODER, Judges; EMBERTON, Senior Judge.

      . Senior Judge Thomas D. Emberton sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.

   OPINION

SCHRODER, Judge.

This appeal concerns the statute of limitations for injuries suffered in a personal watercraft accident. Having concluded that the trial court correctly applied the one-year statute of limitations for personal injury actions of KRS 413.140(l)(a), we affirm.

On May 17, 2002, appellant, Brandee Toche, sustained serious personal injury while she was a passenger riding on the back of a personal watercraft commonly referred to as a “waverunner.” Matthew Moseley was operating the waverunner at the time of the accident, which occurred on Lake Cumberland in Russell County, Kentucky. Toche’s complaint alleged that the accident occurred when an individual, Don Lokovich, was operating another waverun-ner in such a negligent way so as to bring about a collision between the two waverun-ners.

The accident took place during an event known as the Lake Cumberland PWC Jamboree and Freestyle Fest, referred to as “The Jam”. The complaint alleged that The Jam was organized and directed by two of the appellees, The American Watercraft Association (“AWA”) and The Friends of Lake Cumberland, Inc. (“FLC”). The complaint further alleged that appellee, Polaris Industries, Inc. (“Polaris”), was the primary sponsor of The Jam, which provided Polaris with the opportunity to market its personal watercraft. It was alleged that Lokovich was operating a Polaris personal watercraft on behalf of Polaris in an effort to promote Polaris products, and that the watercraft may have been owned by Polaris.

Toche filed her complaint on June 27, 2003, approximately one year and one month following the accident. The action was filed against several defendants, including appellees Polaris, the AWA, and the FLC.

Polaris moved for summary judgment on grounds that Tdche’s claims were barred by the one-year statute of limitations for bodily injury claims per KRS 413.140(l)(a). The AWA and the FLC joined in the motion. In an order entered May 3, 2004, the trial court dismissed Toche’s complaint as to the moving parties as untimely filed as it was not within the one-year statute of limitations for personal injury actions under KRS 413.140. This appeal followed.

On appeal,' Toche contends that the trial court erred in finding that the one-year statute of limitations of KRS 413.140 applies to her claims. KRS 413.140(1) provides: “The following actions shall be commenced within one (1) year after the cause of action accrued: (a) An action for an injury to the person of the plaintiff....” Toche contends that KRS 413.120, not KRS 413.140(l)(a), is controlling, on grounds that her claims arise by statute. KRS 413.120, provides: “The following actions shall be commenced within five (5) years after the cause of action accrued: ... (2) An action upon a liability created by statute, when no other time is fixed by the statute creating the liability.”

Toche argues that, as to her claims, liability is created by statute, KRS Chapter 235 (“Boats and Boating”), in particular, KRS 235.300, “Civil liability for negligent operation”, which provides:

The operator of a vessel or motorboat shall be liable for any injury or damage occasioned by the negligent operation of such vessel or motorboat, whether such negligence consists of a violation of the provisions of the statutes of this state or neglecting to observe such ordinary care and operation as the rules of the common law require. Where the owner is not the operator of the vessel or motorboat he shall not be hable for such injury or damage unless such owner is aboard the vessel or motorboat at the time of such injury or damage or unless the operator at such time of injury or damage is operating said boat upon the owner’s business or in the course and scope of his employment with the owner. The “Family Purpose Doctrine” as it is applied in the use and operation of automobiles shall be applicable to the use and operation of vessels or motorboats. Nothing contained herein shall be construed to reheve any other person from any liability which he would otherwise have, but nothing contained herein shall be construed to authorize or permit any recovery in excess of injury or damage actually incurred.

Toche contends that because KRS Chapter 235 does not set forth a time limitation for bringing a civil action, per KRS 413.120(2), the five-year period applies. We disagree with Toche that KRS 413.120(2) applies to her claims.

A panel of this court considered a similar argument in Stivers v. Ellington, 140 S.W.3d 599 (Ky.App.2004), wherein the snowboarding appellant was injured when she collided with the downhill skiing appel-lee in Colorado. The appellant’s complaint, which claimed the appellee’s negligence caused the collision which resulted in her injuries, was dismissed as untimely filed per the one-year limitations period of KRS 413.140(1)(a). The appellant argued the action was governed by the five-year limitations period of KRS 413.120 on grounds that liability was created by statute, the Colorado Ski Safety Act, which provided, in part:

Each skier has the duty to maintain control of his speed and course at all times when skiing and to maintain a proper lookout so as to be able to avoid other skiers and objects. However, the primary duty shall be on the person skiing downhill to avoid collision with any person or objects below him.

Id. at 600. The Stivers court concluded that the Colorado Ski Safety Act did not create any new liability, but “merely substituted the legislature’s determination of the standard of care for the common-law standard of care in such negligence actions.” Id. at 601. Accordingly, the court held the applicable statute of limitations as one year per KRS 413.140(1)(a).

In Robinson v. Hardaway, 293 Ky. 627, 169 S.W.2d 823 (1943), the appellant was injured in an automobile collision caused by the negligence of the minor son of the appellee. Appellant obtained a judgment against the son for the injuries sustained. Execution on the judgment returned “no property found.” Appellant therefore sought to recover the amount of the judgment from the appellee (the minor’s father) pursuant to then section 2739m-53 of the Kentucky Statutes (now KRS 186.590) which provided that “[a]ny negligence of a minor ... when driving any motor vehicle upon a highway, shall be imputed to the person who shall have signed the application of such minor for said license, which person shall be jointly and severally liable, with such minor, for any damages by such negligence.” Robinson, at 824. The trial court found appellant’s action barred by the one-year statute of limitation for personal injury per then section 2516 of the Kentucky Statutes (now KRS 413.140). Appellant argued that the five-year statute of limitations of section 2515 of Kentucky Statutes (now KRS 413.120) applied because section 2739m-53 created liability by statute. The Robinson court disagreed, concluding that the one-year period, per section 2516, applied, rather than the five-year period of section 2515, because “[t]he action is, in its final analysis, an action for injury to the person....” Id. The court went on to explain:

The statute under which appellee’s liability is asserted merely imposes responsibility on the father for the son’s negligence. A right of action, a liability for the negligence, was in existence. The statute created no new type of liability but only brought others into the area of responsibility. We think it is clear that section 2515 was not intended to embrace such a situation as this and that the one year limitation provided by section 2516 as to an action for injury to the person applies.

Id.

In the present case, KRS 235.300 merely codifies common law liability and does not create a new theory of liability. Toche’s claim is still a basic personal injury claim under common law. We therefore conclude that the trial court correctly found that the one-year statute of limitations of KRS 413.140(1)(a) applied.

We next address Toche’s argument that the five-year statute of limitations of KRS 413.120 applies to her claims against the AWA and the FLC because the action is based in part on civil liability arising out of KRS 446.070. Lisa Price, a promoter of The Jam, received citations from the U.S. Corps of Engineers for federal violations related to The Jam. Toche contends that Price was acting as an agent of the AWA and the FLC, and that one of the violations (failure to follow posted restrictions, in violation of 36 CFR § 327.21(a)) has a nexus to her injuries. Toche contends that Price’s violation of this federal regulation permits her to recover under the “per se” statute, KRS 446.070, which provides: “A person injured by the violation of any statute may recover from the offender such damages as he sustained by reason of the violation, although a penalty or forfeiture is imposed for such violation.” Toche contends that because KRS 446.070 does not set forth any limitation period for filing suit, that the applicable statute of limitations is five years per KRS 413.120(2). Again, we disagree with Toche that KRS 413.120(2) applies. KRS 446.070 does not create a new theory of liability. See Alderman v. Bradley, 957 S.W.2d 264, 267 (Ky.App.1997) (“KRS 446.070 was enacted to ensure that a person for whose benefit a statute was enacted may recover from an offender although the statute does not prescribe a civil remedy for violation.”). As discussed above, Toche’s claim is a basic personal injury claim under common law. See Robinson, 293 Ky. 627, 169 S.W.2d 823. Accordingly, the applicable statute of limitations is one year per KRS 413.140(1)(a).

For the aforementioned reasons, the May 3, 2004 order of the Russell Circuit Court dismissing Toche’s claims against Polaris Industries, Inc., The Friends of Lake Cumberland, Inc., and The American Watercraft Association is affirmed.

ALL CONCUR.

      . KRS Chapter 235, "Boats and Boating”, governs watercraft in the Commonwealth, including registration, operations, and safety. It is undisputed that the type of personal watercraft at issue are included in the definition of "vessel” for purposes of KRS Chapter 235. See KRS 235.010(1) and (4). Toche’s complaint alleged violations of several previsions of KRS Chapter 235. Toche also cites in particular to KRS 235.285(4) which states, in part: "A personal watercraft or motorboat operated on public waters shall at all times be operated according to the ‘Rules of the Road’ and in a reasonable and prudent manner so as not to endanger human life, human physical safety, or property.”

      . Citations for failure to pay permit fee in violation of 36 CFR § 327.23(a) and failure to follow posted restrictions in violation of 36 CFR § 327.21(a).

      . Although we are deciding this case on statute of limitations grounds, we note that KRS 446.070 is limited to violations of Kentucky statutes and does not extend to federal regulations. Alderman, 957 S.W.2d at 266.


author: BUCKINGHAM, Judge.

text:
    Gale HORNBACK and Gwen Hornback, Appellants, v. BANKERS LIFE INSURANCE COMPANY; Alex Montgomery, Inc.; and Rebecca Lynn Garrett, Appellees.
    No. 2004-CA-001724-MR.
    Court of Appeals of Kentucky.
    Nov. 4, 2005.

      Matthew C. Hess, Elizabethtown, KY, for Appellants.
    David A. Nunery, Campbellsville, KY, for Appellee, Bankers Life.
    Peter B. Jurs, Cincinnati, OH, for appel-lees, Alex Montgomery, Inc. and Rebecca Lynn Garrett.
    Before BUCKINGHAM, DYCHE, and TAYLOR, Judges.
   OPINION

BUCKINGHAM, Judge.

Gale and Gwen Hornback appeal from a summary judgment granted by the Taylor Circuit Court in favor of Bankers Life Insurance Company; Alex Montgomery, Inc. (AMI); and Rebecca Lynn Garrett. We affirm.

On June 22, 2000, the Hornbacks purchased a Dodge pickup truck from a dealership owned and operated by AMI. As part of the transaction, an employee of AMI, Rebecca Lynn Garrett, sold the Hornbacks a credit life and disability insurance policy. The cost of this insurance, $4,644.01, was included in the vehicle financing. As a result, the premiums were paid in full at the time of the transaction.

When Gale Hornback was diagnosed as having congestive heart failure in January 2002, the Hornbacks applied for the disability coverage under their policy. Bankers Life denied coverage and rescinded the policy. It took this action after learning the answers submitted by the Hornbacks on the insurance application did not accurately reflect Gale’s past medical history. In response, the Hornbacks filed a civil complaint in the Taylor Circuit Court against Bankers Life, AMI, and Garrett.

Under the Eligibility Statement of the application of insurance, there was a provision which stated that “PRE-EXISTING CONDITIONS ARE EXCLUDED.” Further, the application required the Hornbacks to answer the following question:

In the past 60 months, have you been treated for or diagnosed as having any of the following: stroke, cancer, any disease of the heart, lungs, kidneys, liver or digestive system, insulin dependent diabetes, chemical dependency or mental or nervous disorder?

The Hornbacks responded to the question by checking the box “NO.” In addition, the application stated that the applicant was not eligible for coverage if he or she had answered ‘YES” to that or two other questions.

Gale had suffered a heart attack in 1994. While the heart attack fell outside the 60-month window, his subsequent care did not. From the date of his heart attack, Gale utilized various medications to control his heart condition. Despite the use of medication and monitoring with his cardiologist, Gale experienced chest pains severe enough to cause him to seek medical attention in the emergency room more than once during the 60-month period prior to his application for insurance. As a result of his ongoing problems, Gale underwent various procedures intended to assess the condition of his heart. This included several heart catheterizations and at least one thallium test. After being hospitalized with chest pains in August 1995, Gale was diagnosed as having multi-vascular coronary artery disease.

Despite full knowledge of the above facts, the Hornbacks’ application for insurance makes no mention of the above information. They attempt to explain this by pointing to the circumstances under which the application was made. They note that Garrett, an employee of AMI and an agent of the insurer, reviewed the application with them. Garrett read the questions and completed the application based on the answers they supplied. After completing the application, Garrett asked the Horn-backs to sign it. They testified that they were hurried and did not read the application before signing it. Despite these claims, they acknowledge that no one prevented them from either reading the form or filling out the answers themselves.

The Hornbacks testified that they disclosed the medical care Gale had received to Garrett. They claim they told her that Gale had suffered a heart attack in 1994, that he had suffered from chest pains and shortness of breath in the past 60 months, and that he had received checkups since his heart attack. In addition, both of the Hornbacks testified that, in their opinion, Gale had not been diagnosed or treated for disease of the heart.

Garrett testified that she had no independent recollection of what was said during her conversation with the Hornbacks. However, she testified that she read the questions on the application as they were written. Further, Garrett testified that she did not attempt to explain or define the terms used in the application.

In January 2002, Gale again sought treatment for chest pains and shortness of breath. On this occasion, he was diagnosed with congestive heart failure. Based on this diagnosis, the Hornbacks sought disability coverage under their insurance policy with Bankers Life. Upon receiving the Hornbacks claim for disability coverage, Bankers Life obtained Gale’s medical records for the 60-month period prior to his application for insurance. Upon discovering the discrepancies between the Hornbacks’ application and Gale’s actual medical history, Bankers Life denied coverage and rescinded the policy.

As a result of Bankers Life’s actions, the Hornbacks filed a civil complaint in the Taylor Circuit Court. They sought performance under the policy. In addition, they raised claims of negligence and breach of fiduciary duty against Garrett. AMI, as Garrett’s employer, was named as having vicarious liability for her actions.

Following discovery, Bankers Life, AMI, and Garrett moved the court to award them summary judgment. They argued that the Hornbacks made material misrepresentations on the application. The Hornbacks countered that they did not make any misrepresentations, that the Eligibility Statement was ambiguous and unenforceable, and that the Eligibility Statement conflicts with the definition of preexisting medical condition defined in the application. The court granted summary judgment to Bankers Life, AMI, and Garrett. This appeal by the Hornbacks followed.

Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” CR 56.03. “The record must be viewed in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor.” Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky.1991). “The standard of review on appeal of a summary judgment is whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky.App.1996). “There is no requirement that the appellate court defer to the trial court since factual findings are not at issue.” Id.

KRS 304.14-110 relates to representations in applications for insurance and states in its entirety as follows:

All statements and descriptions in any application for an insurance policy or annuity contract, by or on behalf of the insured or annuitant, shall be deemed to be representations and not warranties. Misrepresentations, omissions, and incorrect statements shall not prevent a recovery under the policy or contract unless either:
(1) Fraudulent; or
(2) Material either to the acceptance of the risk, or to the hazard assumed by the insurer; or
(3) The insurer in good faith would either not have issued the policy or contract, or would not have issued it at the same premium rate, or would not have issued a policy or contract in as large an amount, or would not have provided coverage with respect to the hazard resulting in the loss, if the true facts had been made known to the insurer as required either by the application for the policy or contract or otherwise. This subsection shall not apply to applications taken for workers’ compensation insurance coverage.

The Hornbacks’ first argument is that the Eligibility Statement in the application is ambiguous because of the use of broad, undefined terms that conflict with the specific definition of “pre-existing medical condition” on the second page of the application. As noted earlier herein, the first question asked of the applicant on page one of the application was whether the' applicant had been treated or diagnosed for, among other things, “any disease of the heart.” The Hornbacks argue that the terms “treated,” “diagnosed,” and “disease” are ambiguous operative terms that were not defined in the application.

Further, they argue that the definition of “pre-existing medical condition” on page two of the application is more specific than the language in the first question on the first page and, therefore, that it governs. The Hornbacks reason that the definition of “pre-existing medical condition” actually compels coverage. They assert that Gale was treated and diagnosed for his heart condition prior to the 60-month period. They thus conclude that he did not have a “pre-existing medical condition” as that term was defined in the application.

In response, Bankers Life argues that had full disclosure occurred in response to the first question on the first page, they would not have issued a policy at all. As a result, Bankers Life maintains that the wording on page two does not come into play. We agree.

The language on the first page of the application clearly states that if the answer to the aforementioned question is “YES,” then the applicant is not eligible for credit life or credit disability insurance coverage. Also, the question does not focus on preexisting conditions. Rather, it specifically asks the applicant if he or she has been treated or diagnosed in the past 60 months for any of several conditions, including “any disease of the heart.” Thus, the simple issue is whether this question is ambiguous.

Gale suffered a heart attack in 1994. While the heart attack fell outside the 60-month window, his subsequent care did not. From the date of his heart attack, Gale utilized various medications to control his heart condition, including nitroglycerine tablets that he has carried since 1994. Throughout the period, Gale kept periodic appointments with his cardiologist. Despite this use of medication and monitoring, at various times throughout the 60-month period, Gale experienced chest pains severe enough to cause him to seek medical attention in the emergency room. As a result of his ongoing heart problems, Gale underwent various procedures intended to assess the condition of his heart, including several heart catheterizations and at least one thallium test.

In St. Paul Fire & Marine Ins. Co. v. Powell-Walton-Milward, Inc., 870 S.W.2d 223 (Ky.1994), the court stated that “the policy must receive a reasonable interpretation consistent with the parties’ object and intent or narrowly expressed in the plain meaning and/or language of the contract.” Id. at 226. Further, in Hendrix v. Fireman’s Fund Ins. Co., 823 S.W.2d 937 (Ky.App.1991), the court stated:

Unless the terms contained in an insurance policy have acquired a technical meaning in law, they “must be interpreted according to the usage of the average man and as they would be read and understood by him in the light of the prevailing rule that uncertainties and ambiguities must be resolved in favor of the insured.” (Citation omitted.)

Id. at 938. Considering these principles, we conclude that the aforementioned facts fall within the plain meaning of having “been treated for or diagnosed as having ... any disease of the heart.” Thus, we reject the Hornbaeks’ claim that the question in the application is ambiguous. Further, for this reason, we reject the Hornbaeks’ claim that they are entitled to coverage based on the doctrine of reasonable expectations. See Woodson v. Manhattan Life Ins. Co. of New York, 743 S.W.2d 835, 839 (Ky.1987).

The Hornbaeks’ second argument is that the disclosures they made to Garrett concerning Gale’s heart condition create genuine issues of material fact as to whether they misrepresented the information contained on the application. The Hornbaeks testified that they related Gale’s previous heart problems to Garrett at the time she completed the application. They further testified that they thought Gale’s previous treatment for a heart attack in 1994 was treatment of a heart condition. They also testified, however, that they thought his follow up, maintenance, and treatments for chest pains were not treatments for an ongoing diagnosis of a disease of the heart. They maintain that whether these statements amounted to a misrepresentation is a fact issue for the jury to decide, especially since Garrett testified that she had no memory of the conversation. Further, the Hornbacks state that their disclosure of Gale’s medical history to Garrett at least creates a fact issue as to their claims of negligence and breach of fiduciary duty against Garrett and AMI. The Hornbacks did not cite legal authority to support their arguments in this regard.

As we have noted, the plain meaning of the language in the first question on page one of the application is not ambiguous. Further, the Hornbacks cannot argue that their answers accurately reflect Gale’s heart condition. Additionally, although the Hornbacks claim they did not read the application before they signed it, they also acknowledge that no one stopped them from reading it.

The court faced a similar situation in Commonwealth Life Ins. Co. v. Bruner, 299 Ky. 335, 185 S.W.2d 408 (1945). Therein, the applicant on a life insurance policy made false statements material to the risk in the application. Upon her son’s death, the applicant sought to recover under the policy. While it was clear that the answers given by the applicant in the application were false, the applicant claimed that she did not read it before signing it. Nevertheless, the court held that the statements written in the application by the local agent were actually or constructively known to the applicant and that “she may not thereafter repudiate the answers in the application and recover on the policy.” Id. at 410. See also Reserve Life Ins. Co. v. Thomas, 310 S.W.2d 267, 269-70 (Ky.1958). In short, whether they read the application or not, the Hornbacks are held to have actual or constructive knowledge of its contents. Further, by signing the application, the Hornbacks adopted the answers as their own. Thus, we conclude that the circuit court properly determined that the Hornbacks had made misrepresentations that were material to the insurer’s acceptance of the risk and that there was no fact issue in this regard.

Likewise, we find no error with the court’s decision granting summary judgment in favor of Garrett and AMI. The Hornbacks argue Garrett, and through Garrett, AMI acted negligently and breached a fiduciary duty to them in completing their application for coverage. It is uncontested that Garrett read the question to them directly from the form. Further, there is no dispute over the fact that Garrett filled in the answers. Having said that, the Hornbacks acknowledge that, while they did not read the form, they were not prevented from doing so. Further, they were not prevented from filling in the answers themselves. Finally, as a matter of law, the Hornbacks adopted and were responsible for the answers when they signed the application. Thus, regardless of what disclosures were made to Garrett, the responsibility for the answers rests solely with the Hornbacks. Under these circumstances, Garrett and AMI were, as a matter of law, entitled to a judgment in their favor.

The Hornbacks’ third and final argument is that a fact issue remains with regard to the good faith of Bankers Life and its underwriting process under KRS 304.14-110(3). Specifically, they contend that Bankers Life “merely move[d] that underwriting process to the period of time following the claim.” Citing a law review article, they maintain that such a “post-claim underwriting” should be held to be fraudulent, illegal, or a bad faith settlement practice. See Thomas C. Cady & Georgia Lee Gates, Post Claim Underwriting, 102 W.Va.L.Rev. 809 (2000).

This position has not been adopted by Kentucky courts. KRS 304.19-080(3)(b)2 provides that an insurer may underwrite risks on an individual basis. The questions contained on the application are intended to elicit information for this purpose. An insurance company that issues a policy based on the applicant’s answers, without any investigation, is not precluded from raising the defense of fraud or material misrepresentation. See State Farm Mut. Auto. Ins. Co. v. Crouch, 706 S.W.2d 203, 206 (Ky.App.1986). When an insured misrepresents material facts on the application, the insurer is justified in denying coverage and rescinding the policy. See Crouch, supra; KRS 304.14-110. Such was the case here.

The judgment of the Taylor Circuit Court is affirmed.

ALL CONCUR.

      . Kentucky Rules of Civil Procedure.

      . Kentucky Revised Statutes.

      . In reading the provisions in the application together, it is apparent that one could have a pre-existing medical condition as that term is defined on page two of the application and still have coverage. However, if one had been treated for any of the conditions stated in the first question on page one within 60 months of the application, then the applicant would not be eligible for coverage.

      . The application itself included language stating that the applicants had read and answered the questions and that they were correct and complete to the best of their knowledge.