Catherine Meyer, as Beneficiary of the 1999 Carlsen Family Living Trust , 2014 Wyo. LEXIS 101 ( 2014 )

IN THE SUPREME COURT, STATE OF WYOMING
2014 WY 91APRIL TERM, A.D. 2014
July 22, 2014
CATHERINE MEYER, as beneficiary
of the 1999 Carlsen Family Living
Trust,
Appellant
(Plaintiff),
S-13-0227
v.
SARA MILLER, Trustee of the 1999
Carlsen Family Living Trust,
Appellee
(Defendant).
Appeal from the District Court of Park County
The Honorable Steven R. Cranfill, Judge
Representing Appellant:
M. Jalie Meinecke of Meinecke & Sitz, LLC, Cody, Wyoming
Representing Appellee:
Tracy J. Copenhaver of Copenhaver, Kath, Kitchen & Kolpitcke, LLC, Powell,
Wyoming
Before BURKE, C.J., and HILL, KITE*, DAVIS, and FOX, JJ.
* Chief Justice at time of oral argument
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
DAVIS, Justice.
[¶1] Appellant Catherine Meyer is a beneficiary of her parents’ trust, and she brought
an action against the trustee challenging the validity of certain amendments to it after her
mother Evelyn Carlsen died. Mrs. Carlsen, who was a settlor and also served as trustee,
amended the trust on two separate occasions before she passed away, as she was
permitted to do by its terms. Appellant, who will receive less upon her mother’s death
because of these amendments, contends they are invalid for two reasons. First, the
amendments were intended to collect a debt and therefore violate the Statute of Frauds.
Second, Mrs. Carlsen was unduly influenced to amend the trust by her other daughters.
The district court granted the Appellee successor trustee summary judgment. We find no
disputed issues of material fact and that the trustee was entitled to judgment as a matter of
law, and we therefore affirm.
ISSUES
[¶2] 1. Were the amendments to the trust invalid because they violated the Statute
of Frauds?
2. Are there disputed issues of material fact as to whether Mrs. Carlsen’s
daughters procured the amendments through the exercise of undue influence?
FACTS
[¶3] In 1999, Mr. and Mrs. Carlsen established the 1999 Carlsen Family Living Trust,
naming their five daughters, Appellant Catherine Meyer, Sara Miller, Carol Carlsen, Jean
Cedarquist, and Roberta Nemeth, as beneficiaries. 1 However, the trust reserved extensive
powers to Mr. and Mrs. Carlsen during their lives. They had the right to use the trust
assets as they chose, and the power to amend or revoke the trust if they elected to do so.2
The remaining trust assets were to be distributed to the five daughters in equal shares by
Sara Miller, the successor trustee, when both of the Carlsens had died.
[¶4] The trust was drafted by the Carlsens’ attorney Dick Kahl, who was also their
friend and neighbor. The trust remained unchanged for ten years after the Carlsens
executed it. Mr. Carlsen passed away during this time frame, and Mrs. Carlsen became
the sole trustee and surviving settlor.
[¶5] At some point during the ten years after the trust was executed, Appellant
convinced her mother to invest approximately $40,000.00 of its assets with a broker
1
As the caption to this opinion indicates, Sara Miller is the trustee who was appointed to carry out the
express terms of the trust after the death of Mrs. Carlsen.
2
It is somewhat unclear whether they held those powers as settlors, beneficiaries, or trustees, but there is
no doubt that they possessed them.
1
friend, and unfortunately, that investment shrank to approximately $20,000.00. As early
as 2006, Mrs. Carlsen began telling others that she had expressed her frustration about the
loss to Appellant, who would be responsible for it.
[¶6] In the summer of 2008, Mrs. Carlsen visited three daughters who lived in Illinois.
She visited Appellant for several days first, and then she stayed with her other daughter,
Jean. Mrs. Carlson told Jean and another daughter Roberta that Appellant had said that
the loss could be dealt with through inheritance. Jean and Roberta told their mother that
it was not an issue they could address, and that she would have to deal with it through her
attorney. Mrs. Carlsen asked the two to help her prepare notes reflecting her thoughts to
share with attorney Kahl. Roberta put the notes in a letter to Mr. Kahl, which Mrs.
Carlsen signed. Jean and Roberta told Mrs. Carlsen that she did not have to make any
changes to the trust and could just leave it as originally drafted as far as they were
concerned. Whether their mother wanted to follow up with her attorney was entirely up
to her, in their view.
[¶7] Mrs. Carlsen returned to her home in Powell, Wyoming after the Illinois visit. She
did not discuss amending the trust with her daughters again before she met with Mr. Kahl
and executed the first amendment half a year later. Before meeting with Mr. Kahl, Mrs.
Carlsen was seen by her medical doctor Terry Reisner on January 26, 2009, for a checkup
related to her diabetes. During this checkup, Mrs. Carlsen did not show any signs of
mental confusion, and Dr. Reisner did not have any concerns about her mental faculties.
[¶8] In February 2009, Mrs. Carlsen met with Mr. Kahl to discuss changes to the trust,
and that meeting resulted in the First Amendment to Declaration of Trust: 1999 Carlsen
Family Living Trust dated February 27, 2009. This first amendment modified the trust’s
terms so that “[p]rior to any other distribution under the terms of the Trust, my daughter,
Catherine Meyer, shall pay to the Trust, the sum of $20,000.00, an amount owed by her
to my Trust.” Mr. Kahl confirmed by a later affidavit that Mrs. Carlsen was alert and
mentally sharp in the meetings concerning the first amendment to the trust.
[¶9] Shortly thereafter, Appellant came to see her mother in Wyoming.3 On April 20,
2009, she accompanied her mother to a follow-up visit with Dr. Reisner. She expressed
apprehension about Mrs. Carlsen’s ability to drive and alleged forgetfulness. Prompted
by these concerns, Dr. Reisner first addressed the physical aspect of Mrs. Carlsen’s
driving abilities, which took the remainder of the time allotted for that appointment. He
scheduled a mental evaluation two days later, at which time he performed a Folstein Mini
Mental State Examination that consisted of several questions relating to orientation,
registration, attention, calculation, recall, and language. Mrs. Carlsen obtained a perfect
score of 31 out of 31. Based upon the test and his interactions with her, Dr. Reisner
perceived Mrs. Carlsen to be a mentally sharp eighty-two year-old.
3
Appellant was unaware that Mrs. Carlsen had made the first amendment to her trust.
2
[¶10] A few months later, in July of 2009, Mrs. Carlsen fell and fractured her pelvis and
was hospitalized. When she was released in August of 2009, three daughters from
Illinois—Carol, Roberta and Jean—came to Wyoming to visit and help their sister Sara,
who lived in Powell, care for their mother. Appellant did not come to Wyoming at that
time. For a while after her injury, Mrs. Carlsen used a walker, needed oxygen at times,
and was not medically cleared to drive until September of 2009.
[¶11] In August of 2009, Mrs. Carlsen and the four daughters who were in Powell met
with Mr. Kahl to discuss how the amended terms of the trust would be carried out if
Appellant did not pay the $20,000.00 that Mrs. Carlsen perceived Appellant was to blame
for losing. Mr. Kahl advised Mrs. Carlsen and her daughters that she could amend the
trust to include language authorizing the trustee to reduce the Appellant’s trust
distributions if she failed to reimburse it, which would effectively address her concerns.
Mrs. Carlsen directed Mr. Kahl to draft a second amendment adding that provision. On
August 17, 2009, Mrs. Carlsen returned to his office alone and executed the Second
Amendment to Declaration of Trust: 1999 Carlsen Family Living Trust. It provides as
follows:
Prior to any other distribution under the terms of the Trust,
my daughter, Catherine Meyer shall pay to the Trust, the sum
of Twenty thousand and no/100 Dollars ($20,000), an amount
owed by her to my Trust. In the alternative, if my daughter,
Catherine Meyer, refuses to repay the sum, the Successor
Trustee [Sara Miller] shall reduce the share of the trust estate
of Catherine Meyer by the sum of Sixteen thousand and
no/100 Dollars ($16,000).4
[¶12] In March of 2012, Mrs. Carlsen passed away without making any further changes
to the trust. Her daughter Sara then became the successor trustee. Appellant filed a
petition challenging the validity of the two amendments on June 18, 2012. The parties
filed cross-motions for summary judgment, which the district court resolved in a clear
and succinct decision letter dated July 3, 2013. It denied Appellant’s motion for
summary judgment and granted the trustee’s motion, finding as follows:
 The $20,000.00 at issue was not a “debt,” but was instead a “loss.” Therefore, no one,
including Appellant, had a legal duty to repay the trust. The term “owes” as used by
4
The reduction was only $16,000 because Appellant would have been entitled to $4,000 if she had paid
the full $20,000. Also, we note that the first amendment is expressly revoked by the second amendment.
However, neither the district court nor the parties raised this fact (before the district court or on appeal).
We conjecture that Appellant has challenged the validity of the former in case we were only to set aside
the latter. Because the appeal is postured in this fashion, we will address the validity of both
amendments.
3
Mr. Kahl in drafting the amendments was merely stylistic, and did not suggest that
Mrs. Carlsen was seeking repayment of a debt.
 Because the terms of the trust did not seek repayment of a debt, Appellant’s statute of
frauds argument failed. Mrs. Carlsen had the right to dispose of the trust property as
she wished, and she properly did so by the amendments to the trust.
 The evidence presented by Appellant was insufficient as a matter of law to constitute
clear proof of undue influence. The facts that Mrs. Carlsen’s daughters helped
prepare notes in the summer of 2008 concerning the first amendment and that she
suffered a fractured pelvis in July 2009 did not raise a genuine issue of material fact
as to whether she was subjected to undue influence. The court concluded that
“[u]ltimately, even if M[r]s. Carlsen consulted her daughters about the amendments,
there is no evidence to suggest that she was not in full possession of her mental
faculties,” as evidenced by scoring a perfect 31 out of 31 on her mental capacity
exam.
[¶13] This appeal was timely perfected.
STANDARD OF REVIEW
[¶14] To the extent that the issues presented by Appellant raise questions of law, our
review is de novo. Parkhurst v. Boykin, 2004 WY 90, ¶ 15, 94 P.3d 450, 457 (Wyo.
2004) (“The determination that a given agreement is within the statute of frauds is a
question of law which we review de novo.”).
[¶15] Our standard of review for orders granting summary judgment is well established:
We review a summary judgment in the same light as the
district court, using the same materials and following the
same standards. We examine the record from the vantage
point most favorable to the party opposing the motion, and we
give that party the benefit of all favorable inferences that may
fairly be drawn from the record. A material fact is one which,
if proved, would have the effect of establishing or refuting an
essential element of the cause of action or defense asserted by
the parties. If the moving party presents supporting summary
judgment materials demonstrating no genuine issue of
material fact exists, the burden is shifted to the non-moving
party to present appropriate supporting materials posing a
genuine issue of a material fact for trial. We review a grant
of summary judgment deciding a question of law de novo and
afford no deference to the district court’s ruling.
4
Estate of Dahlke ex rel. Jubie v. Dahlke, 2014 WY 29, ¶ 26, 319 P.3d 116, 123-24 (Wyo.
2014) (citations omitted); DiFelici v. City of Lander, 2013 WY 141, ¶ 7, 312 P.3d 816,
819 (Wyo. 2013).
DISCUSSION
Amendments to the Trust
[¶16] Appellant asserts that the two amendments to the trust improperly attempt to
collect a debt from her. That is, because there was never a written agreement signed by
Appellant to pay back the $20,000.00 that the trust lost by investing with Appellant’s
friend, she contends that the Statute of Frauds renders the amendments void.5 In her
brief, Appellant relies upon the portions of the statute that require a writing to be
subscribed by the party to be charged in the case of agreements which cannot be
performed in one year, and to charge any person for liability arising from a representation
that led to granting of credit, money or goods to another. Wyo. Stat. Ann. §§ 1-23-
105(a)(i) and (vi). During oral argument, counsel for Appellant also contended that the
section of the statute requiring a signed writing to hold a person responsible for the debt
of another applied to invalidate the amendments. § 1-23-105(a)(ii). We find Appellant’s
argument unavailing.
[¶17] The record belies the claim that the losses were a debt at all, much less a debt that
required a written and signed agreement under the Statute of Frauds. Indeed, Appellant
concedes in her brief before us that she “never discussed repayment of $20,000.00 with
5
Wyoming’s Statute of Frauds states in pertinent part:
(a) In the following cases every agreement shall be void unless such
agreement, or some note or memorandum thereof be in writing, and
subscribed by the party to be charged therewith:
(i) Every agreement that by its terms is not to be performed
within one (1) year from the making thereof;
(ii) Every special promise to answer for the debt, default or
miscarriage of another person;
. . .
(vi) To charge any person upon, or by reason of a representation or
assurance concerning the character, conduct, credit, ability, trade or
dealings of another, to the intent or purpose that such other may obtain
thereby, credit, money or goods.
Wyo. Stat. Ann. § 1-23-105 (LexisNexis 2013).
5
her mother, never promised to repay her mother $20,000.00 for any reason, and never
memorialized the notion of repayment in any manner in writing.” Consistent with her
argument, Appellant testified in her deposition:
There was not an issue between my mother and I
regarding any money. I don’t know where it’s really coming
from. I never borrowed money. She never loaned me any
money. And this would go back to my dad, into dad and
mother’s estate. I never borrowed or was loaned money from
any parent. I don’t know why I owe money. And there is no
explanation of that in the documents.
As the district court aptly found, Appellant’s “testimony is indicative of this
categorization” that the “monies in this case are not so much a ‘debt’ as they are a ‘loss.’”
[¶18] “The meaning of a trust is determined by the same rules that govern the
interpretation of contracts. In interpreting a trust, our primary purpose is to determine the
intent of the settlor.” Evans v. Moyer, 2012 WY 111, ¶ 21, 282 P.3d 1203, 1210 (Wyo.
2012). By the terms of the trust, Mrs. Carlsen had the absolute right as trustee or settlor
to dispose of its assets as she saw fit during her lifetime. Matter of Estate of Brosius, 683
P.2d 663, 665 (Wyo. 1984). The record reflects that she did so by changing the trust
distribution based upon her belief that it was fair to adjust Appellant’s share to restore the
portion of the trust assets lost to the other beneficiaries. The effect of the changes was to
give the four other daughters $4,000 each. The district court was correct when it
determined on the record before it that the term “owes” as used by Mr. Kahl was merely a
way of capturing Mrs. Carlsen’s belief as to the proper disposition to be made of the trust
assets. As Mr. Kahl’s uncontradicted affidavit explained:
6. I clearly understood that Evelyn Carlsen had not
loaned any money to Catherine Meyer or otherwise provided
money to Catherine Meyer for her personal use but rather,
Catherine Meyer had persuaded Evelyn Carlsen to make an
investment with a broker friend of Catherine Meyer, which
ultimately resulted in a financial loss to Evelyn Carlsen. This
was upsetting to Evelyn and it is in that context that Evelyn
Carlsen indicated Catherine Meyer had promised to repay to
Evelyn Carlsen $20,000.00 of the lost investment. Evelyn
Carlsen indicated that it was only fair to the remainder of the
children to require Catherine Meyer to pay the $20,000.00 she
had promised to pay and therefore she asked me to include
that provision in her Trust. Evelyn Carlsen was not confused
by this and gave me no indication that any other person was
in any way suggesting, recommending, encouraging or
6
influencing her to revise her Trust to require the repayment
from Catherine Meyer.
7. I drafted the First Amendment to Declaration of Trust .
. . . The documents states that “Catherine Meyer shall pay to
the trust the sum of $20,000.00, an amount owed by her to my
trust and the Successor Trustee is directed to collect such sum
. . .”. This terminology is terminology I selected and was
never intended to represent a legal debt owed by Catherine
Meyer, but rather, the $20,000.00, being an amount owed,
was in reference to the amount Catherine Meyer had indicated
she would repay as a result of the poor performing investment
she had persuaded Evelyn to make with Catherine’s broker
friend.
[¶19] The record presents no genuine issue of material fact which would implicate the
Statute of Frauds. We therefore need not consider the substance of the three sections of
the statute upon which Appellant relies. Mrs. Carlsen simply elected to amend the trust
to redistribute its assets as she thought fair and appropriate in light of the losses, as she
had the right to do. Brosius, 683 P.2d at 665 (“We have often said that a testator [or
settlor] who is legally qualified and who acts in accordance with the law has an absolute
right to dispose of h[er] property after death as [s]he sees fit.”). The district court did not
err in concluding that the amendments were valid because their terms did not constitute a
repayment of a debt which might arguably invoke the Statute of Frauds.
Undue Influence
[¶20] Under Wyo. Stat. Ann. § 4-10-407 (LexisNexis 2013), “a trust is void to the extent
its creation was induced by fraud, duress or undue influence.” Undue influence sufficient
to render a trust invalid must be such as to vitiate the settlor’s freedom and ability to
implement her own choices. Kelly v. McNeel, 2011 WY 79, ¶ 18, 250 P.3d 1105, 1110
(Wyo. 2011).
[¶21] In order to establish that the amendments to the trust were the result of undue
influence, Appellant had to establish: (1) the relations between the other daughters and
Ms. Carlsen afforded the former an opportunity to control disposition of the trust assets;
(2) that Mrs. Carlsen’s condition was such as to permit subversion of her freedom of will;
(3) that there was activity on the part of the other daughters; and (4) that the other
daughters unduly profited by receiving more from the trust. Retz v. Siebrandt, 2008 WY
44, ¶ 19, 181 P.3d 84, 91 (Wyo. 2008); Kelly, ¶ 18, 250 P.3d at 1110. Appellant
therefore bore the burden of proving undue influence by presenting evidence clearly
demonstrating that Mrs. Carlsen’s free agency was destroyed and that her volition was
replaced by that of her other daughters. Kelly, ¶ 18, 250 P.3d at 1110. In Wyoming,
7
estate planning documents “deliberately made by a person of sound mind will not be
lightly set aside.” Id.; see also In re Estate of McLean, 2004 WY 126, ¶ 11, 99 P.3d 999,
1004 (Wyo. 2004).
[¶22] Although Appellant had the burden of demonstrating undue influence, Appellee
bore the initial burden to make a prima facie showing that summary judgment was
appropriate. See Retz, ¶ 20, 181 P.3d at 91; see also McLean, ¶ 12, 99 P.3d at 1004. We
find that the trustee made a prima facie case through affidavits and deposition testimony:
 Attorney Kahl, who drafted Mrs. Carlsen’s trust and amendments, swore in his
affidavit that Mrs. Carlsen “was very alert and mentally sharp” during the meetings
concerning the amendments, and he “saw no signs of confusion, loss of memory or
hesitancy of any kind in the questions she asked and the changes she wanted to make
to her trust.” Mr. Kahl confirmed that she was very firm about her wishes and
“appeared to have a complete understanding of the changes she was requesting and
the basis for them.” He also stated that he was the one that advised Mrs. Carlsen of
the mechanism to reduce Appellant’s distribution under the trust and she “clearly
understood how the change would be implemented.” When Mrs. Carlsen executed
the amendments she was alone, and “there were no other persons who at any time
appear to have persuaded or influenced her to make the revisions she requested.” Mr.
Kahl averred that “[a]t no time during my meetings with Evelyn Carlsen did she ever
demonstrate any hesitancy in the changes she was making to the trust nor did she
express concerns of any kind that led me to believe she may be making the changes
for any reason other than of her own free and voluntary choice.” Simply put, Mr.
Kahl was “confident that the amendments to the 1999 Carlsen Family Living Trust
were the result of the voluntary and uninfluenced decision of Evelyn Carlsen.”
 In his deposition, Dr. Reisner, Mrs. Carlsen’s treating physician, stated that during his
visits with Mrs. Carlsen, he saw no indication that she was mentally infirm. He
explained that she scored a perfect 31 out of 31 on a mental examination, which
verified his assessment that she was not suffering from dementia or any other type of
mental impairment or disability. Dr. Reisner opined that she was mentally and
physically capable of making appropriate decisions concerning her estate, and that she
understood the significance of amending her trust as she did.
 In sworn affidavits, Mrs. Carlsen’s daughters—Carol, Roberta, Sara, and Jean—all
stated that their mother was not unduly influenced to make the first or second
amendments to her trust. They were not even aware that their mother had made the
first amendment until well after it was executed and plainly could not have
improperly influenced her to do so. All four daughters attended a meeting with Mrs.
Carlsen and her attorney in August 2009, and confirmed that in light of Mrs. Carlsen’s
concerns, Mr. Kahl recommended the second amendment to reduce Appellant’s
distributable share. After that meeting, Mrs. Carlsen again met with Mr. Kahl alone
8
and executed the second amendment. There is no indication in the record that the four
daughters accused of exercising undue influence took any action to cause her to return
to Kahl’s office and sign the amendment.
[¶23] This evidence more than satisfied the threshold requirement to establish the
nonexistence of any genuine issue of material fact with regard to Appellant’s claim of
undue influence. C.f., McLean, ¶¶ 12-16, 99 P.3d at 1004-05 (concluding that affidavits
from attorney, treating physician, and others who witnessed the execution of the
document established capacity and warranted summary judgment). The burden then
shifted to Appellant to present specific and substantiated evidence raising a genuine issue
of material fact. Retz, ¶ 26, 181 P.3d at 92; McLean, ¶ 15, 99 P.3d at 1004.
[¶24] After a comprehensive review of the record, we conclude that Appellant failed to
meet her burden. In reviewing an order granting a motion for summary judgment, courts
“must view the evidence presented through the prism of the substantive evidentiary
burden,” which in the instant case requires clear proof of undue influence. Retz, ¶ 30,
181 P.3d at 93. Rule 56(e) provides that “[w]hen a motion for summary judgment is
made and supported as provided in this rule an adverse party may not rest upon the mere
allegations or denials of the adverse party’s pleading, but . . . must set forth specific facts
showing that there is a genuine issue for trial.” W.R.C.P. 56(e). “A material fact is one
which, if proven, would have the effect of establishing or refuting an essential element of
the cause of action.” McLean, ¶ 15, 99 P.3d at 1004. “Further, we have held that
conclusory statements, mere opinions, or categorical assertions of ultimate facts without
supporting evidence are insufficient to establish some disputed issue of material fact.”
Id., ¶ 15, 99 P.3d at 1005.
[¶25] Appellant failed to submit evidence sufficient as a matter of law to clearly
demonstrate that Mrs. Carlsen’s free agency was destroyed and that her volition was
overborne by the will of her daughters. For starters, Appellant did not make any showing
that Mrs. Carlsen was in a condition that permitted subversion of her own free will.
Appellant offers general conclusory statements that her mother was “in frail health,” but
those claims are not supported by the record. Appellant provided no evidence to rebut
the sworn statements of Mr. Kahl, Dr. Reisner, and others, and thus did not raise a
genuine issue of material fact. The record reflects that the execution of both amendments
occurred when Mrs. Carlsen was alone with her attorney of many years, who had nothing
to gain from the transaction. We have previously cited respectable secondary authority as
to the significance of independent legal advice in disputes such as these:
Independent or disinterested advice is legitimate and
appropriate, and the testator’s receipt of independent
competent advice is relevant to determining whether there
was undue influence, including particularly independent
advice from attorneys or investment counselors. The lack of
9
advice from an independent attorney may also be a factor in
determining whether there was undue influence.
Kibbee v. First Interstate Bank, 2010 WY 143, ¶ 48, 242 P.3d 973, 989 (Wyo. 2010)
(quoting 79 Am.Jur.2d Wills § 390 (2002)).
[¶26] Although the record contains evidence that Mrs. Carlsen consulted with some of
her daughters concerning the amendments on isolated occasions, it does not contain
sufficient evidence to raise a genuine issue of material fact as to whether her daughters’
desires were substituted for hers, or that her free will was destroyed. It is not enough to
show that the other daughters may have had a motive and an opportunity to exert
improper influence; there must be evidence that they did in fact exert influence sufficient
to control Mrs. Carlsen’s actions and subvert her will to the extent that the instrument is
not the distribution that she intended. Retz, ¶ 30, 181 P.3d at 93. Even viewing the facts
in the light most favorable to Appellant, there are no disputed material facts which would
require a trial to determine whether Mrs. Carlsen was subjected to undue influence. The
district court correctly concluded that the trustee was entitled to judgment as a matter of
law.
CONCLUSION
[¶27] The district court correctly found that the terms of the trust’s amendments did not
violate the Statute of Frauds. Mrs. Carlsen had the right to dispose of the trust assets as
she did by its terms. The district court also properly determined that there were no
genuine issues of material fact with regard to Appellant’s undue influence claim, and that
Appellee was entitled to judgment as a matter of law. We therefore affirm in all respects.
10