Cain v. Lymber

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09/18/2020 09:07 AM CDT
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
CAIN v. LYMBER
Cite as 306 Neb. 820Donald V. Cain, Jr., appellant, v.
Lana Lymber, in her official
capacity as Custer County
assessor, appellee.
___ N.W.2d ___
Filed August 14, 2020. No. S-19-807.
1. Summary Judgment: Appeal and Error. An appellate court will affirm
a lower court’s grant of summary judgment if the pleadings and admit-
ted 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 matter of law.
2. ____: ____. An appellate court reviews the district court’s grant of sum-
mary judgment de novo, viewing the record in the light most favorable
to the nonmoving party and drawing all reasonable inferences in that
party’s favor.
3. Declaratory Judgments: Appeal and Error. In an appeal from a
declaratory judgment, an appellate court, regarding questions of law, has
an obligation to reach its conclusion independently of the conclusion
reached by the trial court.
4. Declaratory Judgments. The function of a declaratory judgment is
to determine justiciable controversies which either are not yet ripe for
adjudication by conventional forms of remedy or, for other reasons, are
not conveniently amenable to the usual remedies.
5. ____. An action for a declaratory judgment will not lie where another
equally serviceable remedy is available.
6. Mandamus: Words and Phrases. Mandamus is a law action and is
defined as an extraordinary remedy, not a writ of right, issued to com-
pel the performance of a purely ministerial act or duty, imposed by law
upon an inferior tribunal, corporation, board, or person, where (1) the
relator has a clear right to the relief sought, (2) there is a correspond-
ing clear duty existing on the part of the respondent to perform the act,
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CAIN v. LYMBER
Cite as 306 Neb. 820and (3) there is no other plain and adequate remedy in the course of
the law.
7. Mandamus. An act or duty is ministerial only if there is an absolute
duty to perform in a specified manner upon the existence of cer-
tain facts.
8. Courts: Judgments: Appeal and Error. A lower court has an unquali-
fied duty to follow the mandate issued by an appellate court and must
enter judgment in conformity with the opinion and judgment of the
appellate court.
9. Judgments: Appeal and Error. No judgment or order different from, or
in addition to, the appellate mandate can have any effect.
10. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy
before it.
Appeal from the District Court for Custer County: Karin L.
Noakes, Judge. Affirmed.
David A. Domina, of Domina Law Group, P.C., L.L.O., for
appellant.
Steven R. Bowers, Custer County Attorney, and Kayla C.
Clark for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Papik, J.
Donald V. Cain, Jr., filed an action in district court against
the Custer County assessor (Assessor) and the Tax Equalization
and Review Commission (TERC) in which he alleged that the
Assessor and the TERC failed to adhere to our mandate in a
prior appeal and that, as a result, the Assessor recorded the
taxable value of his property incorrectly. He sought an order
declaring the meaning of our prior opinion and directing the
Assessor to record the taxable value he understood our prior
opinion to require. The district court dismissed the TERC as
a party and concluded that it did not have authority to enter a
declaratory judgment. We affirm.
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CAIN v. LYMBER
Cite as 306 Neb. 820BACKGROUND
This is the third time the subject of Cain’s 2012 property tax
obligation has come before this court. We summarize how we
have reached this point in the sections below.
Cain I.
Cain owns several parcels of land in Custer County, Nebraska.
In 2012, after the Assessor increased the assessed value of
Cain’s property, Cain challenged the valuation increase with
the TERC pursuant to Neb. Rev. Stat. § 77-1507.01 (Reissue
2018). The TERC affirmed the increased valuations, and Cain
appealed to this court. See Cain v. Custer Cty. Bd. of Equal.,
291 Neb. 730, 868 N.W.2d 334 (2015) (Cain I).
On appeal, we found the TERC plainly erred by reviewing
Cain’s protests under an incorrect standard. The TERC applied
a standard applicable in appeals, but we explained it should
have applied a different standard applicable to cases like Cain’s
seeking initial review under § 77-1507.01. We reversed the
decision of the TERC and remanded the cause with instructions
for the TERC to reconsider the matter on the record using the
correct standard. Cain I, supra.
Cain II.
After remand, the TERC reviewed the record and, without
an additional hearing, considered Cain’s protests. The TERC
issued a new order which reversed in part the Assessor’s
determination with respect to some parcels of Cain’s land and
affirmed the Assessor’s valuations as to others. Cain again
appealed. See Cain v. Custer Cty. Bd. of Equal., 298 Neb. 834,
906 N.W.2d 285 (2018) (Cain II).
In Cain II, Cain contended, among other things, that the
TERC erred in affirming the Assessor’s valuations. Before
reaching that issue, we explained that under Neb. Rev. Stat.
§ 77-201(1) (Reissue 2009), all real property, unless expressly
exempt, is subject to taxation and is to be valued at its actual
value. We also noted that while most real property is valued
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CAIN v. LYMBER
Cite as 306 Neb. 820for taxation purposes at 100 percent of its actual value, “the
Legislature has determined that agricultural and horticultural
land shall be valued at 75 percent of its value.” Cain II, 298
Neb. at 843, 906 N.W.2d at 294. We stated that “the ultimate
issue of fact in this case is the actual value of Cain’s subject
property in 2012.” Id. at 846, 906 N.W.2d at 295.
After summarizing the evidence and analyzing Cain’s argu-
ment, we found the TERC erred in affirming the Assessor’s
valuations. We concluded that the TERC erred by failing to
find that Cain carried his burden to prove that the Assessor’s
value of his irrigated grassland property was grossly excessive
and the result of arbitrary or unreasonable action. In conclud-
ing our opinion, we stated:
We conclude that Cain has shown by a preponder-
ance of the evidence that the valuation of the property at
issue for the tax year 2012 is $870 per acre, for a total
of $951,719.10. We remand the matter to the TERC with
directions that it direct the Assessor to set the valuation of
the property at such amount for the tax year 2012, upon
which amount taxes for such year shall be determined
and paid.
Cain II, 298 Neb. at 854, 906 N.W.2d at 300.
Present Appeal.
This brings us to the lawsuit at issue in this appeal. On
September 21, 2018, Cain filed a lawsuit in the district court
for Custer County against the Assessor and the TERC. In the
lawsuit, he alleged that a dispute had arisen about the meaning
of our opinion in Cain II. He sought a declaratory judgment to
determine and resolve that dispute.
In his complaint, Cain referred to our decisions in Cain I
and Cain II. With respect to Cain II, he alleged that our opin-
ion decided that the actual value of his property for 2012 was
$951,719.10. He alleged that our opinion did not determine the
taxable or assessed value of Cain’s property for 2012.
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CAIN v. LYMBER
Cite as 306 Neb. 820Cain went on to allege that “TERC did not adhere to the
mandate of the Supreme Court.” Instead, according to Cain, it
issued an order to the Assessor directing that the taxable value
of Cain’s properties for 2012 was $951,719.10. This, Cain
asserted, was incorrect. According to Cain, the TERC should
have directed that the actual value was $951,719.10, to which
the Assessor would apply the statutory discount for agricultural
land to determine a taxable value of $713,789.33. Cain alleged
that the Assessor recorded $951,719.10 as the taxable value.
In his requests for relief, Cain sought an order declaring
that Cain II determined the actual value of his property to be
$951,719.10 and an order directing the Assessor to use this
number as the actual value, to apply the statutory discount, and
to record an assessed value of $713,789.33.
Early in the case, the TERC filed a motion to dismiss and
the district court granted the motion and dismissed the TERC
as a defendant. Cain and the Assessor later filed cross-motions
for summary judgment.
At the summary judgment hearing, the parties offered and
the court received evidence. Among the evidence received was
a certified copy of a TERC order dated February 27, 2018, and
entitled “Decision and Order on Remand from the Nebraska
Supreme Court.” It is a two-page document, the body of which
provides in full:
The Nebraska Tax Equalization and Review Commission
(“the Commission”) finds and determines as follows:
FINDINGS OF FACT
1. The Nebraska Supreme Court issued its Opinion in
the case captioned Cain, Jr. v. Custer Cty. Bd. of Equal,
S-17-370 on February 2, 2018 (The Opinion).
2. The Court thereafter issued its Mandate on February
20, 2018. The Mandate specifically directs that the
Commission shall “proceed to enter judgment in conform­
ity with the judgment and opinion of this court.” See
Attached.
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CAIN v. LYMBER
Cite as 306 Neb. 8203. The judgment and opinion referred to in the Mandate
concludes: “. . . the valuation of the property at issue
for the tax year 2012 is $870 per acre for a total of
$951,719.10. We remand the matter to the TERC with
directions that it direct the Assessor to set the valuation of
the property at such amount for the tax year 2012, upon
which amount taxes for such year shall be determined and
paid.” Opinion at p. 14.
4. The Commission, based on the Mandate and Opinion,
therefore orders the Custer County Assessor to set the
valuation of the property at issue at $870 per acre for a
total of $951,719.10 for tax year 2012.
ORDER
IT IS THEREFORE ORDERED, ADJUDGED,
AND DECREED:
1. The Decision[] of the Custer County Board of
Equalization determining the value of the Subject
Properties for tax year 2012 is reversed.
2. That the taxable value of the Subject Properties for
tax year 2012 is $870 per acre for a total of $951,719.10[.]
(Emphasis in original.)
No indication appears on the face of the TERC’s February
27, 2018, order as to whether it was provided to Cain or his
counsel. Cain alleged in his complaint and argues on appeal
that the TERC did not provide the order to him or his counsel.
The Assessor also offered and the district court received
another order of the TERC. It is dated September 5, 2018. The
order describes a motion filed by Cain on August 29 request-
ing that the TERC issue an order nunc pro tunc, correcting its
February 27 order because it was inconsistent with our opinion
in Cain II. In the September 5 order, the TERC denied the
motion, stating that no correction was necessary.
On July 25, 2019, the district court entered an order on
the parties’ summary judgment motions. The district court
initially stated that it appeared to it that Cain was correct that
our opinion in Cain II determined the actual value of Cain’s
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CAIN v. LYMBER
Cite as 306 Neb. 820property. The district court went on to say, however, that
before granting the relief sought, it was obligated to determine
if it had authority to enter a declaratory judgment. The district
court concluded it did not. It reasoned that Cain was making a
collateral attack on the TERC’s February 27, 2018, order and
that a complaint for declaratory relief cannot be used as a sub-
stitute for a timely appeal. It concluded Cain’s “proper remedy
was to appeal the TERC Order on the mandate.”
Cain timely appealed.
ASSIGNMENTS OF ERROR
Cain assigns three errors on appeal. He contends that the
district court erred (1) when it concluded that Cain’s action for
declaratory judgment is a collateral attack on the TERC order
and that such collateral attack cannot be substituted for a direct
appeal, (2) when it concluded Cain’s remedy was to appeal the
TERC order directed to the Assessor, and (3) when it dismissed
the TERC as a defendant.
STANDARD OF REVIEW
[1] An appellate court will affirm a lower court’s grant of
summary 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
matter of law. Pitts v. Genie Indus., 302 Neb. 88, 921 N.W.2d
597 (2019).
[2] An appellate court reviews the district court’s grant of
summary judgment de novo, viewing the record in the light
most favorable to the nonmoving party and drawing all reason-
able inferences in that party’s favor. Id.[3] In an appeal from a declaratory judgment, an appellate
court, regarding questions of law, has an obligation to reach its
conclusion independently of the conclusion reached by the trial
court. Ray Anderson, Inc. v. Buck’s, Inc., 300 Neb. 434, 915
N.W.2d 36 (2018).
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CAIN v. LYMBER
Cite as 306 Neb. 820ANALYSIS
Threshold Issue: Is Declaratory
Judgment Action Proper?
Much of Cain’s argument in this appeal is focused on his
contention that our opinion in Cain II determined the actual
value of his property for 2012 but the Assessor has incorrectly
recorded that number as the taxable value. He contends that the
district court could and should have remedied this problem by
issuing an order declaring the correct meaning of Cain II. The
district court, however, determined that before it could grant
the relief Cain requested, it was required to determine whether
it was proper to enter a declaratory judgment in this case. The
district court was correct to begin with that question, and our
analysis must begin there as well.
Cain argues that the district court erred by finding that he
was making an impermissible collateral attack on the TERC’s
February 27, 2018, order and by finding that his “proper rem-
edy” was to appeal that order. He argues that an appeal of the
February 27 order would have been premature. According to
Cain, up until the time that the Assessor made it clear that
taxes would be levied based on a taxable value of $951,719.10,
he was not aggrieved because, he claims, it was not clear until
then that the Assessor would follow the TERC’s February 27
order rather than Cain’s understanding of our opinion in Cain
II. Cain also argues that he could not have appealed because
the TERC did not provide him or his counsel with a copy of
the February 27 order.
We find that is not necessary for us to decide whether Cain
was making an impermissible collateral attack on the TERC’s
February 27, 2018, order or whether he was precluded from
seeking declaratory relief because he failed to take advantage
of an available appeal. We reach this conclusion because even
if we assume that Cain is correct that he was not making an
impermissible collateral attack on the TERC order and that
he could not have timely appealed it, we still find that the
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CAIN v. LYMBER
Cite as 306 Neb. 820district court correctly declined to enter a declaratory judg-
ment. We explain our reasoning below.
Another Serviceable Remedy:
Application for Writ
of Mandamus.
This declaratory judgment action was initiated pursuant to
Neb. Rev. Stat. § 25-21,150 (Reissue 2016), a provision within
the Uniform Declaratory Judgments Act, which provides:
Any person interested under a deed, will, written con-
tract or other writings constituting a contract, or whose
rights status or other legal relations are affected by a
statute, municipal ordinance, contract or franchise, may
have determined any question of construction or validity
arising under the instrument, statute, ordinance, contract,
or franchise and obtain a declaration of rights, status or
other legal relations thereunder.
[4,5] Although declaratory judgment actions are permitted by
statute, our cases have held that there are some circumstances
in which a declaratory judgment is not available. We have said
that the function of a declaratory judgment is to determine
justiciable controversies which either are not yet ripe for adju-
dication by conventional forms of remedy or, for other reasons,
are not conveniently amenable to the usual remedies. Ryder
Truck Rental v. Rollins, 246 Neb. 250, 518 N.W.2d 124 (1994).
Thus, we have noted that an action for declaratory judgment
will not lie where another equally serv­iceable remedy is avail-
able. Galyen v. Balka, 253 Neb. 270, 570 N.W.2d 519 (1997).
See, also, Sandoval v. Ricketts, 302 Neb. 138, 922 N.W.2d 222(2019) (affirming dismissal of declaratory judgment action
on ground that equally serviceable remedies were available
for plaintiffs). We have also said that a court should enter a
declaratory judgment only where such judgment would termi-
nate or resolve the controversy between the parties. Hoiengs v.
County of Adams, 245 Neb. 877, 516 N.W.2d 223 (1994). See,
also, Neb. Rev. Stat. § 25-21,154 (Reissue 2016).
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CAIN v. LYMBER
Cite as 306 Neb. 820Even assuming that Cain’s declaratory judgment action
was not an impermissible collateral attack and that he could
not have appealed the TERC’s February 27, 2018, order, we
believe these principles would still preclude declaratory relief.
As we will explain, Cain had another serviceable remedy: an
application for a writ of mandamus.
[6] Mandamus is a law action and is defined as an extraordi-
nary remedy, not a writ of right, issued to compel the perform­
ance of a purely ministerial act or duty, imposed by law upon
an inferior tribunal, corporation, board, or person, where (1)
the relator has a clear right to the relief sought, (2) there is a
corresponding clear duty existing on the part of the respondent
to perform the act, and (3) there is no other plain and adequate
remedy in the course of the law. See Huff v. Brown, 305 Neb.
648, 941 N.W.2d 515 (2020). While an extraordinary remedy,
we believe that in this situation, a writ of mandamus issued to
the TERC was not just equally serviceable, but a superior rem-
edy to Cain’s action for declaratory judgment.
[7-9] Cain alleges in his declaratory judgment complaint
that the TERC did not adhere to our mandate in Cain II.
Assuming Cain’s reading of Cain II is correct, the TERC had a
ministerial duty to comply with that reading. The general rule
is that an act or duty is ministerial only if there is an absolute
duty to perform in a specified manner upon the existence of
certain facts. State ex rel. Parks v. Council of City of Omaha,
277 Neb. 919, 766 N.W.2d 134 (2009). Compliance with an
appellate mandate meets this test. Our cases hold that an infe-
rior tribunal lacks any authority to take actions contrary to
an appellate mandate. We have said that a lower court has an
unqualified duty to follow the mandate issued by an appellate
court and must enter judgment in conformity with the opinion
and judgment of the appellate court. See State v. Payne, 298
Neb. 373, 904 N.W.2d 275 (2017). We have also said that
no judgment or order different from, or in addition to, the
appellate mandate can have any effect. Id. For essentially the
same reasons, if Cain is right about our opinion in Cain II, he
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Cite as 306 Neb. 820would have a clear right to have the February 27, 2018, order
of the TERC modified, and the TERC would have a clear duty
to modify it.
This leaves only the question of whether there is some other
plain and adequate remedy in the course of the law. For the
purposes of this analysis, we are already assuming that Cain
could not have appealed the February 27, 2018, order, so we
need not consider whether that is a plain and adequate remedy
that would preclude mandamus relief.
A question remains, however, as to whether the declaratory
judgment action Cain filed is a plain and adequate remedy
that would bar mandamus relief or if mandamus is an equally
serviceable remedy that bars the declaratory judgment action.
On this question, we acknowledge that some Nebraska cases
have held in other contexts that parties could not seek manda-
mus relief because declaratory relief was available. See, e.g.,
State ex rel. PROUD v. Conley, 236 Neb. 122, 459 N.W.2d 222(1990); Larson v. City of Omaha, 226 Neb. 751, 415 N.W.2d
115 (1987). But it has also been held in other circumstances
that a writ of mandamus was available because declaratory
relief was inferior to mandamus relief. See, e.g., Dozler v.
Conrad, 3 Neb. App. 735, 532 N.W.2d 42 (1995).
For multiple reasons, we believe mandamus is also a supe-
rior remedy to declaratory judgment in this situation. First,
we are mindful of mandamus writs’ long history in this state
as the remedy traditionally used to correct an inferior tribu-
nal’s misconstruing of an appellate mandate in the absence
of any other remedy. See, e.g., State v. Dickinson, 63 Neb.
869, 89 N.W. 431 (1902); State v. Norris, 61 Neb. 461, 85
N.W. 435 (1901); State v. Omaha Nat. Bank, 60 Neb. 232,
82 N.W. 850 (1900). We are aware of nothing in the Uniform
Declaratory Judgments Act suggesting actions for declaratory
judgments supplanted mandamus as the traditional remedy in
this situation.
Indeed, we note that courts in several other states have
concluded that statutes authorizing courts to enter declaratory
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Cite as 306 Neb. 820judgments did not supplant the traditional function of the writ
of mandamus. For example, in State ex rel. Edmisten v. Tucker,
312 N.C. 326, 323 S.E.2d 294 (1984), the North Carolina
Supreme Court affirmed the dismissal of an action that essen-
tially sought to obtain review of lower court decisions regard-
ing the constitutionality of a statute through a declaratory
judgment action. It explained that North Carolina’s declaratory
judgment statute “may not be used to obtain review of lower
court rulings” and that the “remedies for those rare instances
of judicial abuse and derogation of duty, or for actions taken
which are outside the authority of the judge, or for failure to
perform a ministerial duty of the office remain the extraordi-
nary writs of mandamus or prohibition.” Id. at 356, 323 S.E.2d
at 313. See, also, State ex rel. King v. Lyons, 149 N.M. 330,
338, 248 P.3d 878, 886 (2011) (reading prior case to hold that
“declaratory judgment actions are not intended to substitute for
remedies such as mandamus”); Mitchell v. Hammond, 252 Ala.
81, 39 So. 2d 582 (1949) (concluding declaratory judgment
could not be used as substitute for mandamus); Molnar v. Ohio
Liquor Control Comm., 79 Ohio App. 3d 318, 320, 607 N.E.2d
112, 114 (1992) (“[a]n action for declaratory judgment is not a
substitute for an action in mandamus”).
Further, we believe a writ of mandamus to the TERC would
be more effective at resolving the parties’ dispute than the
declaratory judgment Cain sought. As we have noted, Cain
requested an order from the district court declaring that in
Cain II, we determined that $951,719.10 was the actual value
of his property for the 2012 tax year and an order directing
the Assessor to use that amount as the actual value in cal-
culating the taxable value. Even if the district court granted
the relief Cain sought, the Assessor might be uncertain about
what should be done next. The Assessor would have a district
court order declaring that our opinion in Cain II requires that
$951,719.10 be recorded as the actual value, but the Assessor
would also still have an order from the TERC ordering that
$951,719.10 be recorded as the taxable value. Moreover,
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CAIN v. LYMBER
Cite as 306 Neb. 820Neb. Rev. Stat. § 77-1311(3) (Reissue 2018), a provision
within a statute setting forth the duties of county assessors,
states that county assessors shall “[o]bey all . . . orders sent
out by the [TERC].”
Even a successful declaratory judgment action would thus
run the risk of leading to uncertainty rather than resolving
it. See Hoiengs v. County of Adams, 245 Neb. 877, 899, 516
N.W.2d 223, 239 (1994) (“a court should enter a declara-
tory judgment only where such judgment would terminate
or resolve the controversy between the parties”); Dozler v.
Conrad, 3 Neb. App. 735, 743, 532 N.W.2d 42, 49 (1995)
(concluding mandamus was superior remedy to declaratory
judgment because declaratory judgment “would only be the
first step” to obtaining the relief sought).
If, on the other hand, Cain obtained a writ of mandamus
directing the TERC to modify its order to conform to his
understanding of our opinion in Cain II, all would be clear. The
TERC would be obligated to modify its order, and the Assessor
would be obligated to follow the TERC’s modified order.
For these reasons, we conclude that, even assuming Cain is
correct that his declaratory judgment action was not an imper-
missible collateral attack on the February 27, 2018, TERC
order and that he could not have appealed the TERC’s order,
another serviceable remedy was available to him. The district
court thus did not err in dismissing his declaratory judg-
ment action.
Dismissal of the TERC as Party.
[10] Cain also assigned as error that the district court erred
by dismissing the TERC from the declaratory judgment action.
He makes clear, however, that this error was only assigned as
a precautionary measure and argues only that the dismissal of
the TERC should be reversed if we determine the presence of
the TERC was necessary to grant Cain the relief requested.
Because our disposition of this appeal does not depend on the
district court’s dismissal of the TERC, it is not necessary for us
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CAIN v. LYMBER
Cite as 306 Neb. 820to decide whether that decision was correct. An appellate court
is not obligated to engage in an analysis that is not necessary to
adjudicate the case and controversy before it. Seldin v. Estate
of Silverman, 305 Neb. 185, 939 N.W.2d 768 (2020).
CONCLUSION
We conclude the district court did not err in dismissing the
declaratory judgment action and thus affirm.
Affirmed.