Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/17/2016 09:07 AM CDT




                                                      - 34 -
                               Decisions of the Nebraska Court of A ppeals
                                     24 Nebraska A ppellate R eports
                                             STEHLIK v. RAKOSNIK
                                              Cite as 24 Neb. App. 34




                     L. Joe Stehlik, Personal R epresentative of the Estate
                          of Joseph M. R akosnik, deceased, appellee, v.
                            Michael C. R akosnik et al., appellants.
                                                  ___ N.W.2d ___

                                        Filed May 17, 2016.    No. A-15-318.

                1.	 Agency: Principal and Agent. Nebraska law regarding power of attor-
                    ney is concerned with the potential for abuse and fraud that exists when
                    a fiduciary has broad powers to control another person’s property.
                2.	 Principal and Agent: Fraud: Gifts: Proof. A party establishes a prima
                    facie case of fraud by showing that an attorney in fact used the princi-
                    pal’s power of attorney to make a gift of the principal’s assets to himself
                    or herself or to make a gift to a third party with a close relationship to
                    the attorney in fact.
                3.	 Principal and Agent: Fraud: Gifts: Proof: Intent. Once a prima facie
                    case of fraud is established, the burden shifts to the fiduciary to dem-
                    onstrate that the gift was (1) made pursuant to power expressly granted
                    in the power of attorney document and (2) made pursuant to the clear
                    intent of the donor. The fiduciary also bears the burden of proving the
                    fairness of the transaction.
                4.	 Principal and Agent: Gifts. A blanket power to gift is not effective to
                    authorize self-dealing. Where a fiduciary argues that a power of attorney
                    allowed for self-dealing, that power must be specifically authorized in
                    the instrument.
                5.	 ____: ____. Where a power of attorney does not expressly permit
                    gratuitous self-dealing transfers, a principal’s oral authorization is not
                    effective to empower the agent to utilize broad powers in the power of
                    attorney instrument to make gifts.
                6.	 Trusts: Property: Title: Equity: Proof. A party seeking to establish a
                    constructive trust must prove by clear and convincing evidence that the
                    individual holding the property obtained title to it by fraud, misrepre-
                    sentation, or an abuse of an influential or confidential relationship and
                    that under the circumstances, such individual should not, according to
                                  - 35 -
           Decisions of the Nebraska Court of A ppeals
                 24 Nebraska A ppellate R eports
                         STEHLIK v. RAKOSNIK
                          Cite as 24 Neb. App. 34

     the rules of equity and good conscience, hold and enjoy the property
     so obtained.
 7.	 Summary Judgment. In the summary judgment context, a fact is mate-
     rial only if it would affect the outcome of the case.

   Appeal from the District Court for Pawnee County: Daniel
E. Bryan, Jr., Judge. Affirmed.
  David W. Watermeier and Andrew K. Joyce, of Morrow,
Poppe, Watermeier & Lonowski, P.C., for appellants.
  Jeffery W. Davis and Jeffrey A. Gaertig, of Smith, Schafer,
Davis & Gaertig, L.L.C., for appellee.
   Inbody, Pirtle, and R iedmann, Judges.
   R iedmann, Judge.
                       INTRODUCTION
   Michael C. Rakosnik, Linda I. Rakosnik, and Susan M.
Muell (collectively the Rakosniks) appeal from a summary
judgment order of the district court for Pawnee County con-
cerning transfers of real and personal property made to them
by their brother, Lewis D. Rakosnik, under a power of attorney
he held for their uncle, Joseph M. Rakosnik (Mike). On appeal,
the Rakosniks argue that two of the transfers were valid gifts
in accordance with their uncle’s intentions and the power of
attorney he executed. After review of the record, taking facts
in the light most favorable to the Rakosniks, we disagree and
affirm the judgment of the district court.
                        BACKGROUND
   The evidence offered and received at the summary judgment
hearing reveals the following events: Lewis and the Rakosniks
were the only nieces and nephews of Mike. In February 2011,
Lewis moved to Mike’s home at the request of Mike’s long-
time companion, Evelyn Doeschot (Evelyn), who lived with
Mike but could no longer take care of him alone. When Lewis
moved in with Mike and Evelyn, Mike was undergoing hospice
care and it was uncertain how long he would live.
                               - 36 -
         Decisions of the Nebraska Court of A ppeals
               24 Nebraska A ppellate R eports
                      STEHLIK v. RAKOSNIK
                       Cite as 24 Neb. App. 34

   In March 2011, Lewis obtained a power of attorney that
granted him broad powers over his uncle’s property. Mike’s
longtime attorney, L. Joe Stehilk, prepared the power of attor-
ney. The plenary power clause of the power of attorney docu-
ment gives Lewis “all powers over my estate and affairs which
I can or could exercise, including but not limited to the power
to make gifts.”
Transfers of Mike’s Property.
    Lewis utilized the power of attorney to make transfers of
Mike’s money and real property to himself and the Rakosniks.
In June 2011, he cashed his uncle’s Edward Jones account
and transferred some of the proceeds to the Rakosniks and
their spouses. In August 2011, Lewis transferred his uncle’s
farm property to himself and the Rakosniks, reserving a life
estate for his uncle. During this time period, Lewis also
utilized certain funds from his uncle’s checking account for
personal use.
    Lewis stated that these transfers were a “protective measure”
to prevent Stehlik and Evelyn from obtaining Mike’s property.
As the basis for these fears, Lewis cited a sale of 160 acres of
Mike’s land to a neighbor in January 2011. After conversations
with his uncle, Lewis believed that his uncle had not planned to
sell the land but had been influenced by Stehlik. He also found
it to be suspicious that Stehlik charged Mike for preparation of
a new abstract for the sale when Mike’s original abstract was
in Mike’s safe deposit box. The Rakosniks also argue that the
transfers were made in order to avoid probate.
    Lewis stated that he learned about an Edward Jones account
from a conversation with Evelyn and then utilized his power
of attorney to request information about that account from
Edward Jones. Lewis discussed the account with Mike and
came to the understanding that the money was “to go to
[Mike’s] kin,” that is, Lewis and the Rakosniks. In deposi-
tions, the Rakosniks testified that they never discussed their
uncle’s finances or estate planning with Mike before his death.
                               - 37 -
         Decisions of the Nebraska Court of A ppeals
               24 Nebraska A ppellate R eports
                      STEHLIK v. RAKOSNIK
                       Cite as 24 Neb. App. 34

However, Linda later submitted an affidavit stating that on
August 7, 2011, she sat with Mike at her parents’ house and
discussed transferring the farm property to her and her siblings
to avoid probate.
   Lewis consulted an attorney regarding how to avoid probate
for his uncle’s estate. The attorney prepared a warranty deed
transferring the farm property to Lewis and the Rakosniks and
reserving a life estate in Mike. Lewis testified in a deposition
that he had conversations with Mike prior to transferring the
farm property and that in particular, he discussed the deed with
Mike to explain it and “make sure . . . it was okay” the day
before Lewis signed it.
   In August 2011, Evelyn moved out of the farmhouse where
Mike lived and Lewis was staying. On January 31, 2012, Lewis
was arrested. Mike died on April 27. Following a jury trial,
Lewis was convicted of 39 counts of abuse of a vulnerable
adult and theft by deception. The victim was Mike.
Mike’s Wills.
   Beginning in 1988, Mike executed a series of wills leaving
the bulk of his estate to Lewis and the Rakosniks. Mike’s 2005
will, which was in effect at the time of the transfers at issue
in this case, devised Mike’s real property to Lewis and the
Rakosniks, subject to a life estate in the farmhouse to Evelyn,
and with the condition that the land must stay in the family
name and not be sold or mortgaged outside the family during
the lifetime of Lewis and his siblings.
   Lewis testified that he discussed the will with Mike in May
2011 and that Mike told him having the farm stay in the family
name was not really important to him.
   On March 1, 2012, Mike executed a new will that disinher-
ited Lewis and the Rakosniks. Stehlik testified that on March
1, Mike called him stating that his nieces and nephews were
a “bunch of crooks” who had betrayed him. Stehlik stated
that this telephone call was prompted by a newspaper article
Mike read about the criminal charges against Lewis. Stehlik
                               - 38 -
         Decisions of the Nebraska Court of A ppeals
               24 Nebraska A ppellate R eports
                      STEHLIK v. RAKOSNIK
                       Cite as 24 Neb. App. 34

understood that Mike was also upset upon learning that Lewis
had conveyed a remainder interest in all of Mike’s farmland to
himself and his siblings. Mike’s March 1 will makes no men-
tion of his farmland, unlike his previous wills. The will also
makes no mention of Lewis and the Rakosniks. The March 1
will devises a rolltop desk and chair to Evelyn, makes a series
of specific devises to other family members and charity, and
leaves the residuary of Mike’s estate to a charity. It also nomi-
nates Stehlik to serve as personal representative of the estate,
just as the prior wills did.
   After preparing the March 1, 2012, will, Stehlik asked
Steve Kraviec, an attorney, to prepare another will for Mike.
Stehlik had a poor relationship with the Rakosnik siblings and
felt it would be less contentious if the will effective at Mike’s
death had been prepared by another attorney. Stehlik provided
Kraviec with the March 1 will. On March 5, Kraviec met with
Mike and prepared an additional will, which Mike signed
on March 10. The only difference between the March 1 will
and the March 10 will was the insertion of an alternate per-
sonal representative in the event Stehlik was unable to serve.
Following a will contest, a jury determined that the March 10
will was the valid will of Mike.
   In July 2013, Stehlik filed an action alleging breach of
fiduciary duty, conversion, and civil conspiracy and seeking
to reclaim the farm property and other funds for the estate.
The parties filed cross-motions for summary judgment. After
a hearing, the district court granted summary judgment in
favor of the estate. The court ordered the farm property to
be placed in constructive trust and, following a further hear-
ing on damages, ordered Lewis and the Rakosniks to repay
money damages to the estate. The Rakosniks appeal from
those orders.
                  ASSIGNMENTS OF ERROR
   The Rakosniks assign on appeal, restated and reordered,
that the district court erred in (1) determining that no genuine
                               - 39 -
         Decisions of the Nebraska Court of A ppeals
               24 Nebraska A ppellate R eports
                      STEHLIK v. RAKOSNIK
                       Cite as 24 Neb. App. 34

issue of material fact exists on the issue of whether Lewis had
authority to transfer the farm property, (2) determining that
no genuine issue of material fact exists as to whether Lewis
breached his fiduciary duty by distributing the contents of the
Edward Jones account, (3) imposing a constructive trust on
the farm property, (4) finding there was no evidence that Mike
knew Lewis had transferred the farm property and Edward
Jones account, and (5) determining that the appellants were
collaterally estopped from litigating breach of fiduciary duty
related to the transfers.

                   STANDARD OF REVIEW
   An appellate court will affirm a lower court’s grant of sum-
mary judgment if the pleadings and admitted evidence show
that there is no genuine issue as to any material facts or as
to the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a mat-
ter of law. Grammer v. Lucking, 292 Neb. 475, 873 N.W.2d
387 (2016). When reasonable minds can differ as to whether
an inference can be drawn, summary judgment should not
be granted. Zornes v. Zornes, 292 Neb. 271, 872 N.W.2d 571
(2015). In reviewing a summary judgment, an appellate court
views the evidence in the light most favorable to the party
against whom the judgment was granted and gives that party
the benefit of all reasonable inferences deducible from the
evidence. Id. Summary judgment proceedings do not resolve
factual issues, but instead determine whether there is a mate-
rial issue of fact in dispute. Latzel v. Bartek, 288 Neb. 1, 846
N.W.2d 153 (2014).

                          ANALYSIS
Constructive Fraud.
   As an initial matter, we note that the events in this case
occurred before the effective date of the new provisions of the
Nebraska Uniform Power of Attorney Act, which includes new
statutory requirements for gifts made via power of attorney.
                               - 40 -
         Decisions of the Nebraska Court of A ppeals
               24 Nebraska A ppellate R eports
                      STEHLIK v. RAKOSNIK
                       Cite as 24 Neb. App. 34

See Neb. Rev. Stat. §§ 30-4024 & 30-4040 (Cum. Supp. 2014).
Undoubtedly, the standard for interpreting gifting powers in
future powers of attorney will be impacted by the requirements
of this act. Therefore, this case should be understood to reflect
analysis under the previously existing law before the enactment
of the Nebraska Uniform Power of Attorney Act.
   The Rakosniks’ first two assignments of error involve
whether genuine issues of material fact existed that precluded
the district court from finding on summary judgment that
Lewis’ transfer of farm property and the Edward Jones account
proceeds to his siblings breached his fiduciary duties.
   [1-3] Nebraska law is concerned with the potential for
abuse and fraud that exists when a fiduciary has broad pow-
ers to control another person’s property. See In re Estate of
Hedke, 278 Neb. 727, 775 N.W.2d 13 (2009). Because of
this concern, the Nebraska Supreme Court has held that a
party establishes a prima facie case of fraud by showing that
an attorney in fact used the principal’s power of attorney to
make a gift of the principal’s assets to himself or herself or
to make a gift to a third party with a close relationship to the
attorney in fact. Id. Whether the fiduciary acted in good faith
or had actual intent to defraud is immaterial; when these cir-
cumstances are shown, the law presumes constructive fraud.
Id. Once a prima facie case of fraud is established, the burden
shifts to the fiduciary to demonstrate that the gift was (1)
made pursuant to power expressly granted in the power of
attorney document and (2) made pursuant to the clear intent of
the donor. The fiduciary also bears the burden of proving the
fairness of the transaction. Eggleston v. Kovacich, 274 Neb.
579, 742 N.W.2d 471 (2007).
   The evidence presented at the summary judgment hearing
indisputably establishes that Lewis used Mike’s power of attor-
ney to make gifts to himself and his siblings, the Rakosniks.
This established a prima facie case of fraud. We therefore
address whether there is a genuine issue of material fact as
to whether the gifts were made pursuant to power expressly
                               - 41 -
         Decisions of the Nebraska Court of A ppeals
               24 Nebraska A ppellate R eports
                      STEHLIK v. RAKOSNIK
                       Cite as 24 Neb. App. 34

granted in the power of attorney and were made pursuant to
Mike’s clear intent.

Lewis’ Transfer of Farm Property.
  We first consider whether the Rakosniks have met their bur-
den to demonstrate that Lewis’ transfer of the farm property
was authorized by the power of attorney and made pursuant to
Mike’s clear intent.

Power Granted in Power
of Attorney.
   [4] The power of attorney granted Lewis “all powers over
my estate and affairs which I can or could exercise, including
but not limited to the power to make gifts.” A blanket power
to gift is not effective to authorize self-dealing. Where a fidu-
ciary argues that a power of attorney allowed for self-dealing,
that power must be specifically authorized in the instrument.
Crosby v. Luehrs, 266 Neb. 827, 669 N.W.2d 635 (2003). A
long line of Nebraska Supreme Court cases have held that “no
gift may be made by an attorney in fact to himself or herself
unless the power to make such a gift is expressly granted in
the instrument and there is shown clear intent on the part of
the principal to make such a gift.” Archbold v. Reifenrath,
274 Neb. 894, 901, 744 N.W.2d 701, 707 (2008) (emphasis
supplied). See, also, Cheloha v. Cheloha, 255 Neb. 32, 582
N.W.2d 291 (1998); Mischke v. Mischke, 247 Neb. 752, 530
N.W.2d 235 (1995).
   Further, courts in other jurisdictions have held based upon
the same policy concerns that the broad power to gift in a
power of attorney is ineffective to empower a fiduciary to
make a self-dealing gift without a specific statement that self-
dealing is permissible. For example, in Bienash v. Moller,
721 N.W.2d 431, 436 (S.D. 2006), the South Dakota Supreme
Court upheld summary judgment against fiduciaries who uti-
lized a power of attorney that contained a power to “make
gifts” to make changes to the principal’s financial instruments
                                - 42 -
          Decisions of the Nebraska Court of A ppeals
                24 Nebraska A ppellate R eports
                       STEHLIK v. RAKOSNIK
                        Cite as 24 Neb. App. 34

that benefited themselves. Citing Crosby v. Luehrs, supra, the
South Dakota court held that the power to gift did not authorize
self-dealing gifts.
   Even if a transaction is not a direct gift, but indirectly pro-
motes the fiduciary’s interest, it is still considered self-dealing.
See id. (finding funds that eventually pass through principal’s
estate to fiduciary constitute unauthorized self-dealing).
   [5] Additionally, where a power of attorney does not
expressly permit gratuitous self-dealing transfers, a principal’s
oral authorization is not effective to empower the agent to uti-
lize broad powers in the power of attorney instrument to make
gifts. See, Cheloha v. Cheloha, supra (oral authorization to
make gifts to agent’s wife and child were ineffective because
power of attorney did not contain power to make gifts);
Fletcher v. Mathew, 233 Neb. 853, 448 N.W.2d 576 (1989)
(adopting rule that power to make any gift must be expressly
granted in power of attorney instrument itself; oral authoriza-
tion to gift is ineffective).
   Mike’s power of attorney authorized Lewis to “make gifts.”
However, the power of attorney did not authorize Lewis to
self-deal; therefore, Lewis had no authority to effectuate a
self-interested transfer of the farm property. See Crosby v.
Luehrs, supra.
   Although the Rakosniks attempt to distinguish Lewis’ trans-
fer of farm property to them from his transfer of farm property
to himself, it is not possible to divide the transaction in this
manner. Lewis transferred all of the farm property via a single
warranty deed from Mike to himself and the Rakosniks as
tenants in common each enjoying an undivided interest in the
property, subject to a life interest in Mike. Lewis effectuated
the transaction by affixing a single signature on the warranty
deed. The power of attorney, therefore, either did or did not
grant him the power to sign that deed and effectuate that
transfer; any attempt to partition the farm property transfer
into separate transfers to Lewis and to each of his siblings is
an inaccurate description of the manner in which Lewis and
                                - 43 -
         Decisions of the Nebraska Court of A ppeals
               24 Nebraska A ppellate R eports
                       STEHLIK v. RAKOSNIK
                        Cite as 24 Neb. App. 34

the Rakosniks chose to structure the transfer and would at
most be legal fiction.
   We find that the warranty deed, which transfers an undi-
vided interest in the farm property to Lewis and the Rakosniks
equally in a single transaction, involves gratuitous self-dealing
that is not authorized by the power of attorney. See Crosby
v. Luehrs, 266 Neb. 827, 669 N.W.2d 635 (2003) (holding
that where fiduciary argues that power of attorney allowed
for self-dealing, that power must be specifically authorized
in instrument). Although the power of attorney contains the
power to gift, the farm property transfer inextricably involves
self-dealing, which must be explicitly authorized in a power
of attorney. Because the power of attorney did not authorize
self-dealing, Lewis did not have the power to sign the warranty
deed as prepared. We agree with the trial court’s determination
that the transfer was void ab initio. Because the defendants
cannot show that the power of attorney authorized Lewis to
sign the warranty deed transferring property to himself and his
siblings, we affirm the district court’s grant of summary judg-
ment regarding the farm property transfer without reaching the
intent prong of the analysis.
Transfer of Edward Jones Account.
   As to the Edward Jones account, our analysis differs. As
noted above, Stehlik has established a case for constructive
fraud by showing that Lewis had a power of attorney and used
that power of attorney to make gifts of Mike’s property to his
siblings. See In re Estate of Hedke, 278 Neb. 727, 775 N.W.2d
13 (2009). We note that Lewis did not directly take a share of
the investment account, but, rather, put “his share” into Mike’s
account, from which Lewis made unauthorized withdrawals
for his own benefit. Because the transfers of the Edward Jones
account proceeds are separable from any self-dealing gifts to
Lewis himself, we find that the gifting power in the power of
attorney is sufficient to authorize these gifts and we turn to the
intent prong of the analysis. See Eggleston v. Kovacich, 274
Neb. 579, 742 N.W.2d 471 (2007).
                               - 44 -
         Decisions of the Nebraska Court of A ppeals
               24 Nebraska A ppellate R eports
                      STEHLIK v. RAKOSNIK
                       Cite as 24 Neb. App. 34

   Given the gifting power in the power of attorney, the propri-
ety of this transfer rests upon whether evidence in the record,
when viewed in the light most favorable to the Rakosniks,
could support a finding that Mike clearly intended to trans-
fer the Edward Jones account funds to Lewis’ siblings before
his death.
   The Rakosniks argue that the gifting power in the power
of attorney, Lewis’ conversations with Mike, and the fact that
the 2005 will left the Rakosniks the residuary of Mike’s estate
together create an inference that Mike authorized the transfer.
We disagree.
   Lewis testified in a deposition that he learned about the
Edward Jones account through a conversation with Evelyn and
that he then utilized his power of attorney to telephone Edward
Jones and learn the specifics of the account. He discussed
the account with Mike and gained the understanding that the
money was “to go to [Mike’s] kin.” This testimony does not
establish that Mike instructed Lewis to disburse the Edward
Jones account immediately rather than waiting for the money
to pass via the will after Mike’s death.
   Additionally, the fact that Lewis and the Rakosniks were
the remainder beneficiaries of Mike’s 2005 will does not dem-
onstrate Mike’s clear intent to give them the contents of his
Edward Jones account during his lifetime. A will is evidence
only of a person’s plan for the disposition of his property upon
his death and does not establish donative intent for an inter
vivos gift.
   Because there is no evidence in the record that Lewis dis-
tributed the Edward Jones account pursuant to the clear inten-
tion of Mike, the district court did not err in granting summary
judgment to Stehlik on this issue.

Constructive Trust.
   The Rakosniks next argue that the district court erred in
imposing a constructive trust over the farm property because
the transfer was valid and not procured by fraud.
                                - 45 -
         Decisions of the Nebraska Court of A ppeals
               24 Nebraska A ppellate R eports
                       STEHLIK v. RAKOSNIK
                        Cite as 24 Neb. App. 34

   [6] A party seeking to establish a constructive trust must
prove by clear and convincing evidence that the individual
holding the property obtained title to it by fraud, misrepresen-
tation, or an abuse of an influential or confidential relationship
and that under the circumstances, such individual should not,
according to the rules of equity and good conscience, hold and
enjoy the property so obtained. Eggleston v. Kovacich, 274
Neb. 579, 742 N.W.2d 471 (2007).
   As discussed above, we disagree with the Rakosniks that the
farm transfer was proper. The deed involved self-dealing by
Lewis, and the power of attorney does not expressly allow for
self-gifting. Accordingly, Lewis cannot rebut Stehlik’s prima
facie case of constructive fraud. See id. Given our above analy-
sis and following a de novo review of the record taking all facts
in the light most favorable to the Rakosniks, we hold that the
district court did not err in finding that the Rakosniks’ title to
the farm property was procured by fraud and that they should
not equitably be allowed to enjoy the property. Accordingly,
this assignment of error is without merit.
Knowledge of Transfers.
   [7] The Rakosniks next assign that the district court erred
in finding that there was no evidence on the record that Mike
knew of the transfers. Mike’s knowledge of the transfers,
however, would not defeat summary judgment. The question
on summary judgment is whether there are genuine issues of
material fact. Amanda C. v. Case, 275 Neb. 757, 749 N.W.2d
429 (2008). A fact is material only if it would affect the out-
come of the case. Id. The relevant inquiry is not whether Mike
knew of the transfers but whether Mike clearly intended for
Lewis to make the transfers. Eggleston v. Kovacich, supra.
We have determined, on de novo review, that Lewis pre-
sented no evidence that Mike clearly intended him to trans-
fer the Edward Jones account during Mike’s lifetime. And
because the farmland transfer involved self-dealing which
was not expressly authorized in the power of attorney, Mike’s
                                - 46 -
         Decisions of the Nebraska Court of A ppeals
               24 Nebraska A ppellate R eports
                       STEHLIK v. RAKOSNIK
                        Cite as 24 Neb. App. 34

knowledge of this transfer is also not material. Accordingly,
the district court’s finding of fact regarding his knowledge of
the transfers is not an issue of material fact.
Issue Preclusion.
   The Raksoniks finally assign that the district court erred in
finding that they were precluded by Lewis’ prior criminal con-
victions from litigating whether Lewis’ transfers were breaches
of his fiduciary duties. Given our determination above that
Lewis’ transfers breached his fiduciary duties, we need not
reach the issue of whether the Rakosniks’ arguments also fail
because they are precluded by collateral estoppel. An appellate
court is not obligated to engage in an analysis that is not neces-
sary to adjudicate the case and controversy before it. Facilities
Cost Mgmt. Group v. Otoe Cty. Sch. Dist., 291 Neb. 642, 868
N.W.2d 67 (2015).
                        CONCLUSION
   We determine that the district court did not err in determin-
ing on the merits of the issues that Stehlik was entitled to sum-
mary judgment as a matter of law. Accordingly, we affirm the
judgment of the district court.
                                                      A ffirmed.
