                IN THE SUPREME COURT OF IOWA
                               No. 16–0380

                           Filed April 28, 2017


IN RE STEINBERG FAMILY LIVING TRUST

DAVID L. STEINBERG,

      Appellee,

vs.

STEVEN C. STEINBERG,

      Appellant.



      Appeal from the Iowa District Court for Decatur County, Dustria A.

Relph, Judge.



      Two brothers, beneficiaries of a family trust, filed competing

motions for summary judgment in this declaratory judgment action. The

district court granted summary judgment to David and denied summary

judgment to Steven. Steven appeals. AFFIRMED IN PART, REVERSED

IN PART, AND REMANDED.



      Erik W. Fern and Dale L. Putnam of Putnam, Fern & Thompson

Law Office, P.L.L.C., Decorah, for appellant.



      Tonita M. Helton of Helton Law Offices, PLLC, Leon, for appellee.
                                            2

ZAGER, Justice.

       In this declaratory judgment action, we are asked to decide

whether we should recognize an exception to the doctrine of ademption 1

for real estate in a trust that was replaced through a like-kind tax

exchange.         In the alternative, we are asked to judicially adopt

section     2–606 of the Uniform Probate Code involving ademption. Two

brothers, the sole beneficiaries of the Steinberg Family Living Trust,

brought competing motions for summary judgment regarding the

distribution of property under the trust. The brothers, David and Steven,

disagree as to whether a specific bequest was adeemed. Specifically, they

requested a declaration of how a Minnesota farm should be distributed.

While the Minnesota farm is now a part of the trust, it was acquired after

the creation of the trust through a like-kind tax exchange of property.

The property exchanged was specifically bequeathed to Steven. However,

the acquired Minnesota farm is not specifically bequeathed to either

beneficiary.

       The district court held that the specific bequest was adeemed

because the bequeathed parcel of land was no longer in existence or part

of the trust assets.        The district court further held that a piece of

property that had been acquired in a like-kind tax exchange could not be

substituted for the prior, specifically bequeathed parcel of property.



       1Black’s   Law Dictionary defines “ademption” in a number of ways.               An
ademption occurs by “[t]he destruction or extinction of a testamentary gift by reason of
a bequeathed asset’s ceasing to be part of the estate at the time of the testator’s death.”
Ademption, Black’s Law Dictionary (10th ed. 2014). Ademption is also defined as the
“[e]xtinction or withdrawal of a legacy by the testator’s act equivalent to revocation or
indicating an intention to revoke.” Ademption, Black’s Law Dictionary (4th ed. rev.
1968). In our cases, we have defined ademption as “a taking away” and generally use it
to refer to removing or eliminating a specific bequest from a will or trust before the
death of the testator. In re Estate of Anton, 731 N.W.2d 19, 23 (Iowa 2007).
                                     3

Therefore, pursuant to a residuary clause of the trust, the Minnesota

farm was ordered to be distributed equally between the two beneficiaries.

      Additionally, the district court was asked to interpret Article 5,

section B(1) of the trust. The district court found that this provision of

the trust granting one brother the right to purchase or rent the other

brother’s   specifically   bequeathed    property    was    ambiguous    and

conflicting. The district court declared that the provision granting Steven

the option to purchase the Iowa farm from David, whether called a

repugnancy or an inconsistency, was ineffective and struck it. The

district court thereby granted summary judgment to David.

      For the following reasons, we affirm the decision of the district

court to the extent it declared the specific bequest to Steven was

adeemed and to the extent it concluded the Minnesota farm was to be

distributed equally between the brothers. We reverse the decision of the

district court to the extent it granted summary judgment to David on the

disputed trust provision.      While we agree the trust provision was

ambiguous, we also find that there are genuine issues of material fact

which preclude the entry of summary judgment in favor of David. We

remand to the district court for a trial on the disputed trust provision.

      I. Background Facts and Proceedings.

      On February 18, 2000, Jack and Clarine Steinberg established the

Steinberg Family Living Trust. They appointed themselves and their son,

Steven Steinberg, to serve as cotrustees. The trust provided that Steven

and their other son, David Steinberg, would serve together as cotrustees

upon the deaths of both Jack and Clarine.           In addition to ultimately

serving as cotrustees, David and Steven were the only named

beneficiaries. The trust was never amended by Jack or Clarine.
                                            4

      Jack passed away on August 22, 2011, and Clarine passed away

on July 24, 2013. At Clarine’s death, the trust became irrevocable and

triggered the appointment of David as cotrustee. David was appointed

cotrustee in April 2014. At the time of Clarine’s death, the trust held

several assets, including the two parcels of real estate at issue in this

case. David and Steven disagree as to their respective rights to the two

properties and how they should be distributed.

      The    first   property,        the   Minnesota    property,    consists   of

approximately eighty acres of land and is legally described as

      The West Half of the Southeast Quarter of Section 34,
      Township 105 North, Range 19 West, Steele County,
      Minnesota, excepting therefrom the following tract: Parcel
      Number 1 of Steele County Highway Right of Way Plat filed
      in the Office of the County Recorder the 5th day of April,
      2001, at 8:00 A.M. in Book 13 of Plats, page 278 as
      Instrument No. 288400.

The second property, the Iowa property, consists of approximately forty

acres of land and is legally described as “The Northwest Quarter of the

Northwest Quarter of Section 16, in Township 99 North, Range 26 West
of the 5th P.M., in Winnebago County, Iowa.” At the time of Clarine’s

death, the Minnesota property was appraised at $567,000.                 The Iowa

property    was   appraised      at    $9500    per   acre,   which   amounts    to

approximately $380,000.

      The trust paragraph at issue, Article 5, section B, provides,

      To the Trustors’ son, David L. Steinberg, shall be distributed
      the house at 112 N. Mill Rd., Buffalo Center, IA, Lots 24, 25,
      & 26, Block 24, Buffalo Center, Winnebago County, IA and
      the NW1/4NW1/4 Sec. 16-99-26. To the Trustors’ son,
      Steven C. Steinberg, shall be distributed the W1/2SW1/4
      Sec. 16-99-26. Steven C. Steinberg shall be given the first
      right to purchase or rent David L. Steinberg’s interest in the
      NW1/4NW1/4 Sec. 16-99-26 for $1500.00 per acre and can
      exercise this right at any time. All of the remaining Trust
      Estate is to be distributed as provided in Section C, or as
                                    5
      specified in the “Specific Distribution Schedule” attached
      hereto.

The parties agree that the “NW1/4NW1/4 Sec. 16-99-26” gifted to David

refers to the Iowa property. Article 5, section C provides that Steven and

David will have equal fifty percent shares of any remaining trust assets.

      In 2008, while Clarine and Steven were cotrustees, the trust sold

the Winnebago County, Iowa property described as “W1/2SW1/4 Sec.

16-99-26” (Winnebago property) and purchased the Minnesota property

in a like-kind tax exchange. Therefore, at the time of Clarine’s death,
there were two parcels of land contained in the trust: the Iowa property

and the Minnesota property.      However, only the Iowa property was

specifically gifted in the trust, to David. The Minnesota property was not

mentioned anywhere in the trust.

      Pursuant to the trust provision, Steven gave his notice of intent to

purchase the Iowa property from David for $1500 per acre or

approximately $60,000 for the forty acres. David responded by filing a

declaratory judgment action on May 4, 2015, requesting that the district

court clarify and interpret the trust as to the distribution of the two

parcels of land remaining in the trust.     In October, the parties filed

competing motions for summary judgment. David’s motion for summary

judgment argued that the trust expressly gifted the Iowa property to him,

subject to an option held by Steven to rent the property for $1500 per

acre while David continued to own the property.        David additionally

argued that the Minnesota property should be split equally between

himself and Steven under Article 5, section C of the trust.       Steven’s

motion for summary judgment argued that the district court should

issue a deed of trust for the Iowa property to him upon the payment of

$60,000. Steven additionally argued that the Minnesota property should
                                    6

be conveyed solely to him based on the like-kind tax exchange for the

Winnebago property specifically devised to him and not split equally

under section C.

      On December 4, the district court held a hearing on the competing

motions for summary judgment. On February 2, 2016, the district court

issued its ruling granting David’s motion for summary judgment on both

issues.   Correspondingly, the district court denied Steven’s motion for

summary judgment.      The district court held that since the Winnebago

property was no longer an asset of the trust, the specific bequest of it to

Steven was adeemed. The district court did not recognize an exception to

the doctrine of ademption for the like-kind tax exchange of property. The

Minnesota property therefore fell under Article 5, section C of the trust,

which provides for an equal fifty percent division of the property between

David and Steven. The district court also held that the trust agreement

expressly gifted the Iowa property to David and the gift was an absolute

devise. The district court struck the later provision that allowed Steven

to purchase the property and declared that the trust “expressly gifts the

Iowa property to David L. Steinberg, subject to an option held by Steven

C. Steinberg to rent the Iowa property for $1500.00 an acre for so long as

David L. Steinberg may own the property.”       Steven appealed, and we

retained the appeal.

      II. Standard of Review.

      We review the district court’s rulings on motions for summary

judgment for correction of errors at law.    Roll v. Newhall, 888 N.W.2d

422, 425 (Iowa 2016).    “On review, ‘we examine the record before the

district court to determine whether any material fact is in dispute, and if

not, whether the district court correctly applied the law.’ ” Id. (quoting

J.A.H. ex rel. R.M.H. v. Wadle & Assocs., P.C., 589 N.W.2d 256, 258 (Iowa
                                      7

1999)).    Summary judgment is proper only when “the pleadings,

depositions, answers to interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no genuine issue as to any

material fact.” Iowa R. Civ. P. 1.981(3). A genuine issue of material fact

exists “if reasonable minds can differ on how the issue should be

resolved.” Iowa Arboretum, Inc. v. Iowa 4-H Found., 886 N.W.2d 695, 701

(Iowa 2016) (quoting Cemen Tech, Inc. v. Three D Indus., L.L.C., 753

N.W.2d 1, 5 (Iowa 2008)). We view the record in the light most favorable

to the nonmoving party. Iowa Arboretum, 886 N.W.2d at 701. In doing

so, we grant the nonmoving party “all reasonable inferences that can be

drawn from the record.” Roll, 888 N.W.2d at 425 (quoting Estate of Gray

ex rel. Gray v. Baldi, 880 N.W.2d 451, 455 (Iowa 2016)).

      A declaratory judgment action to interpret a trust is tried in equity.

See Iowa Code § 633.33 (2015); see also In re Estate of Rogers, 473

N.W.2d 36, 39 (Iowa 1991). Our review for the interpretation of a trust

agreement tried in equity is de novo. Rogers, 473 N.W.2d at 39. Our

interpretation of a trust is guided by the intent of the testator. In re Trust

Known as Spencer Mem’l Fund, 641 N.W.2d 771, 774–75 (Iowa 2002).

We determine intent based on the language of the trust itself, utilizing

the ordinary and usual meaning of the words included. Id. at 775; see

also In re Trust of Killian, 459 N.W.2d 497, 499 (Iowa 1990). We consider

the document as a whole and reconcile all provisions of the trust when

reasonably possible.    Rogers, 473 N.W.2d at 39.         We only resort to

technical rules of construction to interpret a trust when the language

utilized is ambiguous. Id.

      III. Analysis.

      A. Minnesota      Property.      The   parties   disagree   as   to   the

distribution of the Minnesota property. While the Minnesota property is
                                    8

in the possession of the trust, it is not specifically bequeathed to either

party in Article 5, section B. David argues, therefore, that the Minnesota

property should be distributed under Article 5, section C, which provides

that all remaining property of the trust shall be split equally between

David and Steven.     Steven argues the Minnesota property should be

conveyed entirely to him because the property gifted to him in the trust

(the Winnebago property) was exchanged for the Minnesota property in a

like-kind tax exchange. Steven also argues that we adopted the Uniform

Probate Code definition of ademption in In re Estate of Anton, 731 N.W.2d

19 (Iowa 2007). In the alternative, he argues we should adopt section 2–

606(a)(5) of the Uniform Probate Code (UPC) to analyze questions of

ademption.

      1. History of ademption under Iowa law. In Anton, we summarized

the history of the Iowa approach to ademption.       Ademption means “a

taking away” and generally refers to removing or eliminating a specific

bequest from a will or trust before the death of the testator. Id. at 23;

see also Joseph Warren, The History of Ademption, 25 Iowa L. Rev. 290,

292 (1940). Iowa has applied different theories of ademption throughout

the years. Anton, 731 N.W.2d at 23–24.

      In the early 1900s, we adopted the identity theory of ademption,

which was a rigidly applied rule. Id. at 23. Under the identity rule, if a

piece of specifically bequeathed property was not in the estate at the time

of the testator’s death, the bequest was adeemed. Id. We continued to

apply this rule through the 1950s. Id.; see also In re Estate of Sprague,

244 Iowa 540, 546, 57 N.W.2d 212, 216 (1953); In re Estate of Keeler,

225 Iowa 1349, 1354–55, 282 N.W. 362, 365 (1938); In re Estate of

Bernhard, 134 Iowa 603, 603, 112 N.W. 86, 86 (1907).
                                    9

      In the early 1960s, we began to depart from the rigid application of

the identity rule and considered a number of cases under a “modified

intention” approach.   Anton, 731 N.W.2d at 23.     Under this modified-

intention approach, we considered the competence of the testator in our

ademption analysis. Id. at 23–24. In In re Estate of Bierstedt, a guardian

of an incompetent testator sold specifically bequeathed real estate

without the testator’s knowledge or consent.    254 Iowa 772, 774, 119

N.W.2d 234, 235 (1963). We held that there was a presumption of a lack

of testamentary capacity because Bierstedt was incompetent at the time

the land was sold.     Id.   Therefore, because he lacked testamentary

capacity to change the terms in his will, the sale did not demonstrate the

testator’s intent to modify the will and no ademption occurred.     Id. at

779, 119 N.W.2d at 238.

      However, we specifically noted that our previous rulings holding

that property was adeemed when competent testators sold or otherwise

disposed of specific bequests were sound and would continue to control.

Id.; see also Anton, 731 N.W.2d at 24.    While we will not continue to

apply the identity rule rigidly in all cases, the modified-intention

approach applies to cases where specifically devised property is removed

from a testator’s estate through an act that was involuntary on the part

of the testator. Anton, 731 N.W.2d at 24. Competency and voluntariness

are key considerations in a modified-intention approach. However, there

is no evidence that competency or voluntariness are in play here.

      In Anton, we also discussed the difference between our ademption

test and the tests contained in the UPC and the Restatement (Third) of

Property.   Id. at 25–26.    We noted that the identity rule has been

substantially altered in both the UPC and the Restatement (Third). Id. at

26; see also Unif. Probate Code § 2–606 (1997) (adopting the “intent
                                       10

theory” of ademption); Restatement (Third) of Prop.: Wills & Other

Donative Transfers § 5.2(c) (1999), at 348 (adopting the theory that a

specific devise fails if property is no longer in the estate “unless failure of

the devise would be inconsistent with the testator’s intent”). However, we

also noted that neither party in Anton asked us to abandon our identity

approach     or   modified-intention   approach    to   adopt   the   UPC   or

Restatement (Third) test. Anton, 731 N.W.2d at 26. We therefore applied

our long-standing principles discussed above to the case. Id.

      Under our prior caselaw, the Winnebago property is clearly

adeemed.      Neither party has alleged Clarine lacked capacity or

voluntariness at the time the Winnebago property was sold and the

Minnesota property purchased. The trust sold the Winnebago property

in 2008, five years before Clarine’s death and while Steven was a

cotrustee.   Clarine had five years between the sale of the Winnebago

property and her death to amend the trust to bequeath the Minnesota

property to Steven, but neither she nor Steven did this.

      Further, Steven’s argument that the Minnesota property was

exchanged for the Winnebago property for purposes of a bequest has

been rejected by this court in the past. The cases where we have found

an exchange are cases where the property was missing from the estate

due to either incompetence or involuntariness of the testator. In cases

where the property was found to have adeemed, we have not upheld an

exchange; rather, we only uphold exchanges where we have found that

property was not adeemed. See, e.g., In re Estate of Wolfe, 208 N.W.2d

923, 925–26 (Iowa 1973) (holding that, where an accident destroyed a

specifically bequeathed automobile, the vehicle was not adeemed and an

exchange could be made for the insurance proceeds); see also Sprague,

244 Iowa at 546, 57 N.W.2d at 216 (holding that a codicil adeemed
                                    11

property held in trust and a contract to sell real estate could not be

exchanged in its place); Keeler, 225 Iowa at 1354–55, 282 N.W. at 365

(finding that a specific bequest of a promissory note and mortgage was

adeemed and could not be exchanged for later acquired real estate).

      2. Uniform Probate Code.       Steven additionally argues that we

should adopt section 2–606(a)(5) of the UPC to address questions of

ademption. He argues that our current approach is unduly harsh. In

pertinent part, section 2–606(a)(5) of the UPC provides,

            (a) A specific devisee has a right to specifically devised
      property in the testator’s estate at the testator’s death and
      to:

            ....

            (5) any real property or tangible personal property
      owned by the testator at death which the testator acquired
      as a replacement for specifically devised real property or
      tangible personal property[.]

Unif. Probate Code § 2–606(a)(5) (amended 2010), 8(I) U.L.A. 262–63

(2013).

      In Anton, we addressed the concern that our identity rule is unduly

harsh.    731 N.W.2d at 23–24.       We noted that the purpose of the

modified-intention approach was to mitigate this perceived harshness.
Id. Our modified-intention approach finds no ademption if the testator

did not voluntarily sell or otherwise remove the property from the estate,

or if the specific property was destroyed simultaneously with the

testator’s death. Id. We find that this approach is consistent with our

rules of interpretation for trusts—the testator’s intent is paramount.

Spencer Mem’l Fund, 641 N.W.2d at 774–75.           Our current approach

analyzes the surrounding circumstances to determine if the property was

adeemed through the voluntary acts of the testator.
                                     12

      Further, the Iowa legislature has selectively adopted provisions of

the UPC, but notably has chosen not to adopt the provision regarding

ademption. Iowa Code chapter 633D, which governs transfers on death

security registration, contains similar provisions to Article VI, Part III of

the Uniform Probate Code.        Compare Iowa Code §§ 633D.1–.12, with

Unif. Probate Code §§ 6–301 to 6–311 (amended 2010), 8(III) U.L.A. 382–

91 (2013). The Iowa legislature has also adopted a provision from the

UPC that allows a surviving spouse to take assets in a revocable trust as

part of an elective share, in addition to a provision that allows wills to

incorporate written lists of specific bequests of tangible personal

property. See Freedom Fin. Bank v. Estate of Boesen, 805 N.W.2d 802,

813 (Iowa 2011) (discussing similarities between the Iowa Probate Code

and the UPC).

      The legislature’s decision to adopt some portions of a uniform act

but not others is significant.

      We can determine legislative intent from selective enactment
      or divergence from uniform acts. We presume the Iowa
      legislature was aware of, but declined to follow, the [Uniform
      Probate Code]’s dower provision because it chose to shield
      the dower interest in all real estate from the estate’s
      creditors.

In re Marriage of Thatcher, 864 N.W.2d 533, 541 (Iowa 2015) (quoting

Freedom Fin. Bank, 805 N.W.2d at 814 (citations omitted)). We similarly

conclude that the Iowa Legislature was aware of the UPC provision

regarding ademption but decided not to adopt it as part of the Iowa

Probate Code. We therefore decline to adopt the UPC section 2–606(a)(5)

approach.

      We agree with the decision of the district court and hold that the

bequest of the Winnebago property was adeemed.                  The proper

distribution of the Minnesota property is under Article 5, section C of the
                                     13

trust. The Minnesota property shall be divided equally between David

and Steven.

      B. Iowa    Property.     The   parties   also   disagree    as   to   the

interpretation of the provision regarding the Iowa property, specifically

that “Steven C. Steinberg shall be given the first right to purchase or rent

David L. Steinberg’s interest in the NW1/4NW1/4 Sec. 16-99-26 for

$1500.00 per acre and can exercise this right at any time.” (Emphasis

added.)   David argues the Iowa property was gifted to him without

limitation, and therefore, the subsequent provision giving Steven the

option to purchase was void. He asserts the $1500 price term applies

only to Steven’s option to rent the land while David owns it and not to

Steven’s right to purchase it.    Steven argues the trust gave him an

express purchase option that was not ambiguous or repugnant to a prior

bequest, and therefore it should not have been stricken.               In the

alternative, he argues the provision is ambiguous. David notes Steven

did not argue below that the option was ambiguous.               However, the

district court ruling on February 2 found the provision to be ambiguous,

even while acknowledging “[t]he parties seem to agree that the provision

. . . is not ambiguous.”

      As set forth earlier, we have a number of well-established rules

that guide our resolution of disputes over the provisions in trusts.

Killian, 459 N.W.2d at 499.       The overarching principle guiding our

interpretation of the language used in trusts is the intent of the testator.

Spencer Mem’l Fund, 641 N.W.2d at 774–75. We determine the testator’s

intent by examining the language of the instrument, the order of

distribution, and the facts and circumstances surrounding the execution

of the trust. Killian, 459 N.W.2d at 499. The meaning of the language

used is interpreted utilizing its usual and ordinary meaning.          Spencer
                                     14

Mem’l Fund, 641 N.W.2d at 775. When we determine the intent of the

testator, “the question is not what the testator meant to say, but rather

what is the meaning of what the testator did say.” Rogers, 473 N.W.2d at

39.

      When determining a testator’s intent, we consider the document as

a whole and give each part meaning and effect when possible. Id.; In re

Coleman’s Estate, 242 Iowa 1096, 1099, 49 N.W.2d 517, 519 (Iowa

1951).

      [T]he intention of the testator as expressed in the whole will
      is to be given effect, if possible, and . . . no part or provision
      of the will is to be rejected, unless so repugnant to a prior
      unequivocal devise or bequest as that they cannot both
      stand . . . .

Iowa City State Bank v. Pritchard, 199 Iowa 676, 678, 202 N.W. 512, 513

(1925).   Although we continue to recognize the repugnancy rule, we

“place increasing emphasis upon the consideration of the will as a whole

and the reconciliation, if reasonably possible, of all its provisions.”

Tague, 248 Iowa at 1264, 85 N.W.2d at 26.

      Our threshold question is whether the provision regarding the Iowa

property is ambiguous. Rogers, 473 N.W.2d at 39. There are two types
of ambiguity—patent ambiguity and latent ambiguity.           Id.   A term is

patently ambiguous when the provision is uncertain, doubtful, or

obscure on its face. Id. A term is latently ambiguous when the language

is clear on its face, but something outside the trust renders the meaning

uncertain, doubtful, or obscure. Id. at 39–40.

      Of significance to this case, extrinsic evidence can be considered in

resolving issues of ambiguity.     Id. at 39.    “Extrinsic evidence is not

admissible to vary, contradict or add to terms of the will or to show an

intention different from that disclosed by the language of the will.” Id.
                                     15

The district court found that the language of the trust as it relates to the

Iowa property was ambiguous. We agree in part.

      We think it is clear that the third sentence of Article 5, section B

qualifies the first sentence.   The first sentence leaves a specific gift to

David—the Iowa property. The third sentence then assumes David will

receive the property but gives Steven certain purchase and lease rights in

David’s interest in that property. Thus, the provisions are not repugnant

and can be reconciled to give both effect.

      However, the third sentence is ambiguous in the scope of the

rights that it confers on Steven. It is unclear from the language if the

parents intended the provision to be broken into two clauses, where

Steven had the “first right to purchase” at market value or the right to

rent the acres at $1500, to be exercised at any time or whether the

parents intended for Steven to have the right to purchase or rent the

property at the same price, at any time.

      If the provision were interpreted to mean Steven could purchase

the land gifted to David at the price of $1500, it would diminish the

amount of his bequest from approximately $380,000 to approximately

$60,000, while leaving the amount of land left to Steven undisturbed.

Because the trust provision is not repugnant but is ambiguous, a

genuine issue of material fact exists—specifically, the intent of the

testators regarding Steven’s rights with respect to the Iowa property.

Summary judgment was therefore improper.

      We remand the case for trial to allow the district court to hear and

consider extrinsic evidence and determine the meaning of the disputed

trust provision.
                                    16

      IV. Conclusion.

      For the foregoing reasons, we affirm the decision of the district

court to the extent it declared the Winnebago property that no longer

existed in the trust adeemed.     We likewise affirm the decision of the

district court and find that the Minnesota property shall be split equally

between David and Steven per Article 5, section C of the trust.       We

decline to adopt the UPC approach to analyzing questions of adeemed

property.   We find that the provision of the trust granting Steven the

right to purchase or rent the Iowa property at the rate of $1500 per acre

was ambiguous, and therefore summary judgment was improper. The

case is remanded to the district court for a trial on the disputed trust

provision and to enter further orders consistent with this opinion.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
