Loeffler v. Loeffler

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/21/2022 01:05 AM CDT
- 93 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
LOEFFLER v. LOEFFLER
Cite as 31 Neb. App. 93Lawrence E. Loeffler and Patricia K. Loeffler,
appellants and cross-appellees, v.
Robert J. Loeffler, appellee
and cross-appellant.
___ N.W.2d ___
Filed June 14, 2022. No. A-21-546.
1. Actions: Trusts: Equity: Judgments: Appeal and Error. Actions to
declare a resulting trust are in equity. In an appeal in an equity action,
it is the duty of an appellate court to try issues of fact de novo upon the
record and to reach an independent conclusion thereon without reference
to the findings of the district court.
2. Trusts: Property: Title: Equity: Proof. A court, sitting in equity, will
not impose a constructive trust and constitute an individual as a trustee
of the legal title for property unless it be shown, by clear and convinc-
ing evidence, that the individual, as a potential constructive trustee, had
obtained title to property by fraud, misrepresentation, or an abuse of an
influential or confidential relationship.
3. Trusts: Conveyances: Presumptions: Intent: Words and Phrases. A
resulting trust is one raised by implication of law and presumed always
to have been contemplated by the parties; the intention of the resulting
trust is to be found in the nature of their transaction, but not expressed
in deed or instrument of conveyance.
4. Trusts: Property: Consideration. Where a transfer of property is made
to one person and the purchase price or consideration is paid by another
person, a resulting trust arises in favor of the person who made the pay-
ment or provided consideration.
5. Trusts: Proof. A resulting trust will not be declared upon doubtful and
uncertain grounds; and the burden is upon the one claiming the exis-
tence of the trust to establish the facts upon which it is based by clear
and satisfactory evidence.
- 94 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
LOEFFLER v. LOEFFLER
Cite as 31 Neb. App. 936. Trusts: Words and Phrases. Where the alleged trust relationship is
just as consistent with that of a gift or loan, courts will not ordinarily
impress a resulting trust.
7. 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 Boone County: Rachel
A. Daugherty, Judge. Affirmed.
David A. Domina, of Domina Law Group, P.C., L.L.O., for
appellants.
Jennifer D. Tricker and Spencer R. Murphy, of Baird Holm,
L.L.P., for appellee.
Riedmann and Welch, Judges.
Riedmann, Judge.
INTRODUCTION
Lawrence E. Loeffler (Larry) and Patricia K. Loeffler appeal
the order of the district court for Boone County which denied
their claim for quiet title, partition, constructive trust, conver-
sion, and accounting. Robert J. Loeffler cross-appeals. For the
reasons that follow, we affirm the district court’s decision.
BACKGROUND
Larry and Patricia, the appellants, filed a complaint on
February 1, 2019, alleging that Larry and Robert formed a
land purchasing joint venture in 1999 in order to purchase the
family farm from their mother. According to the complaint,
Larry’s name was not included on purchase documents or the
mortgage so that Robert would be in the best position to buy
Larry’s interest in the event of Larry’s death, without Robert’s
having to do business with Patricia. Regardless, the farm
would be owned by Larry and Robert as tenants in common,
each owning a one-half interest. Larry and Patricia asserted
that Robert held their portion of the land in a constructive
trust and sought an order from the court directing him to
- 95 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
LOEFFLER v. LOEFFLER
Cite as 31 Neb. App. 93convey their portion to them, quieting title in their names, and
thereafter partitioning the land.
Robert filed an answer, asserting that he was the sole owner
of the farm and that Larry had no ownership interest in the
property. He also asserted various affirmative defenses, includ-
ing the statute of frauds. Trial was held on February 9, 2021,
and the following evidence was adduced.
Undisputed Evidence.
Walter Loeffler and Lenore Loeffler had five children; in
birth order, they are Marcine Jacobson, Larry, Robert, Marla
Loeffler, and Mark Loeffler. The land in dispute is farmland
located in Boone County, Nebraska. It has been in the Loeffler
family since 1886. Walter predeceased Lenore, leaving her as
the sole owner of the farm. Sometime after Walter died, Lenore
expressed a desire to sell the land.
Lenore sold the farm in 1999, and Robert’s name was on
all the closing documents. Lenore retained a life estate, con-
tinuing to live on the farm until approximately 2010. Both
prior to and after the sale, the farmland was leased to a tenant
who paid cash rent. In 2012, Robert began farming approxi-
mately 70 acres of the farm, and the other half became part
of the U.S. Department of Agriculture’s Conservation Reserve
Program (CRP).
Robert maintained a ledger in which he kept track of farm-
ing expenses. According to the ledger, in years that the farm
operated at a deficit, from approximately 1999 through 2011,
Larry paid half of the operating deficit and Robert paid the
other half. In years there was a profit, Robert wrote “I owe” in
the ledger.
Other undisputed facts include that Larry and Patricia were
married at the time Lenore sold the land in 1999, although they
did eventually divorce in 2006. Lenore passed away in 2013.
Robert’s Version of Events.
According to Robert, he purchased the farm from his
mother, Lenore, in 1999, with the intent to pass it on to his
- 96 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
LOEFFLER v. LOEFFLER
Cite as 31 Neb. App. 93son. Larry did not offer to purchase the farm with Robert, nor
would Robert have accepted such an offer. The farm’s pur-
chase price was $134,000, with a $10,000 downpayment paid
by Robert. He described a document written by Lenore prior
to her passing that stated, “‘Bob bought. Signed papers July
31st, 1999.’”
Since 1999, Robert has managed the farm. He was the one
who dealt with the farm tenants and negotiated the agreements
with them. He also has been the one responsible for upkeep
on the farm, including fixing fences, placing tin on the roof of
the house, jacking up the foundation, adding a stair rail on the
house stairs, removing trees, mowing the grass, and removing
the snow. Larry did not help with any of this. Robert was also
the one responsible for making all payments on the land, which
included paying the mortgage, insurance, and taxes.
Regarding the deficit payments received from Larry, Robert
stated that those payments were loans. According to Robert,
prior to selling the farm, Lenore asked Robert if his two
brothers, Larry and Mark, would be willing to loan Robert
money if the farm operated at a deficit. Mark declined to loan
Robert the money because Mark had just bought an acreage.
Larry, however, agreed that he would loan Robert one half of
each year’s deficit. Larry agreed to this because he could get
better interest from Robert than he could at the bank and he
did not want Patricia to know he had that money. No interest
rate was agreed to by Larry and Robert, nor was a promissory
note signed, but the agreement was to pay back 100 percent
of the loans with a reasonable interest rate. The loan became
due once the farm was paid for in full; the farm was paid off
in 2020.
Robert maintained a ledger for three reasons: to show prof-
its and losses, for tax purposes, and to track how much
Larry had loaned him. Robert started the ledger in September
1999, and the final year accounted for was 2015. The first
page indicates “Pd 10,000 down - July - 1999.” The ledger
tracked loan payments, taxes, insurance, rental income from
- 97 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
LOEFFLER v. LOEFFLER
Cite as 31 Neb. App. 93the tenant, farm repair receipts, et cetera. After calculating
expenses and income, Robert determined what the deficit or
profit would be for the year. For example, in 2000, the farm
operated at a deficit of approximately $4,361. Larry loaned
him $2,200 to help pay expenses on the farm, including the
mortgage. Robert was responsible for the ledger, and he kept it
at his house. In the ledger, Robert used words such as “Larry
paid,” “Larry owes,” “[a]piece,” and “I owe” regarding how
much each brother would be responsible for that year.
Regarding the CRP, Robert testified he got the idea to enroll
in the program after attending a party. Robert sat across the
table from the manager of the office that “control[s] the CRP
and . . . grasses.” The manager explained the benefits of the
CRP, and she invited Robert to the office to fill out paper-
work and see the price per acre that Robert could get under
the program. After filling out the paperwork, the price per
acre was $134. To comply with the CRP, Robert had to sow
the land with specific seeds, and Larry helped procure those
seeds through his lawn care business connections. According
to the ledger, Robert repaid Larry $5,125 for purchased CRP
seed. Robert rented the equipment necessary to plant the seed
and proceeded to do so. It was necessary for Robert, instead
of the previous tenant, to start farming the other section of
land because otherwise half of the CRP proceeds would go to
that tenant.
The first time Robert became aware that Larry was claiming
an ownership interest in the farm was in 2014 when Robert
was advised by the CRP office staff that Larry had called,
demanding that his name be added to the CRP contract. That
began a series of conversations between Larry and Robert in
which Robert tried to repay the loan. When that failed, Robert
made some settlement offers in order to avoid litigation.
Larry’s Version of Events.
According to Larry, he purchased the farm with Robert as
co-owners. Robert had requested the farm be in his name,
- 98 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
LOEFFLER v. LOEFFLER
Cite as 31 Neb. App. 93so Robert signed the closing statement, the promissory note,
and the mortgage and he received the deed. Larry was pres-
ent at the closing. Larry paid half of the downpayment, but
was unable to state in his deposition how he paid the $5,000;
however, at trial, he testified that he recalled paying $5,000 in
cash to Robert days after the closing. Robert never asked Larry
to loan him money, nor did he discuss an interest rate, repay-
ment terms, repayment date, or any particulars of a loan. In
contrast, in 2006, Larry loaned between $28,000 and $30,000
at 6 percent interest to Lenore, with the remaining balance paid
by Lenore’s estate upon her death.
Larry testified that he performed maintenance work on the
farm and house, repairing the foundation on the barn, rebuild-
ing the cellar door, cleaning up trees on the property, screwing
down the tin roof on the barn, fixing the roof on the house, and
laying linoleum in the kitchen. Sometimes this work was done
with Robert, and sometimes Larry completed it by himself.
Both prior to and after the 1999 sale, Larry stored personal
property in the barn.
Larry determined that the rent paid by the cash tenant was
low and that the farm could make more money by participating
in the CRP. Larry “did the foot work” on the CRP to identify
the requirements to participate in the program. Larry’s hand-
writing is throughout exhibit 29, a series of documents involv-
ing enrollment in the CRP, even though Robert is the one who
signed the documents. Larry purchased approximately $5,000
worth of seed to comply with the requirements of the CRP, and
he was paid back by the farm. Half of the farm was placed in
the CRP, and half was farmed by Robert by agreement between
the brothers. Robert agreed to pay the same rent as the CRP
allowed per acre, resulting in the farm paying for itself.
When the farm started making money, Larry stated, “I
asked to get — to be paid back for it for what the extra money
that was coming in, and [Robert] always had a reason. He
didn’t have his checkbook with him.” The first time Larry
heard of a loan versus a partnership was when he received
- 99 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
LOEFFLER v. LOEFFLER
Cite as 31 Neb. App. 93a letter from Robert’s attorney offering to pay him $20,000 for
the money he had loaned Robert.
The brothers engaged in a series of email communication
in 2016, in which they discussed the price of the farm for
purposes of one of them “buying the other one out.” Despite
Larry’s claim of ownership, when he took out a mortgage on
an acreage in 2013, he did not list the farm as an asset in his
application materials, nor did he include it as owned property
during his divorce proceedings in 2006.
Marla’s Testimony.
The only other witness to testify was Marla, called by
Robert’s attorney. She testified that after their father, Walter,
passed away, Robert helped manage the farm and house. She
referred to him as “Mom’s right-hand man.” According to
Marla, around the time that Robert purchased the farm, Larry
told her that he was loaning money to Robert. She was uncer-
tain of the amount, but stated Larry’s reason for doing so was
because he could get better interest from Robert and he did
not want Patricia to know he had that money. The better inter-
est rate was the same reason that Larry loaned Lenore money
while she was alive. The first time Marla heard Larry claim
ownership in the farm was in 2015.
District Court Decision.
Following the trial, the district court issued an order finding
that Larry and Patricia “failed to prove by clear and convinc-
ing evidence that [Robert] obtained the title to the property
by fraud, misrepresentation, or an abuse of an influential or
confidential relationship.” The district court, therefore, denied
Larry and Patricia’s request for the imposition of a construc-
tive trust.
The court further noted in its order that Larry and Patricia
argued in their written closing argument that the parties
intended to create a resulting trust. It rejected this argu-
ment, stating that “[a]s to the allegation of a resulting trust,
even if the [c]ourt were to accept Larry’s version of events,
- 100 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
LOEFFLER v. LOEFFLER
Cite as 31 Neb. App. 93the evidence is that the brothers had an oral agreement to
transfer property. Under the circumstances, this oral agree-
ment does not withstand the statute of frauds.” Based on the
district court’s findings that no trust, constructive or resulting,
should be imposed and that Larry and Patricia have no owner-
ship interest in the farm, the remaining causes of action were
denied. Larry and Patricia timely appealed.
ASSIGNMENTS OF ERROR
The appellants assign that the district court erred in (1) fail-
ing to recognize that fraud at the outset is not required to prove
a resulting trust and failing to find that a resulting trust was
proved, (2) disregarding Patricia’s interrogatory answer testi-
mony without a basis to do so, (3) dismissing the complaint,
and (4) failing to award rents and profits to the appellants.
Robert cross-appeals, assigning that the district court erred in
failing to dismiss the case because the allegations in the com-
plaint are time barred by the statute of limitations.
STANDARD OF REVIEW
[1] Actions to declare a resulting trust are in equity. Malousek
v. Meyer, 309 Neb. 803, 962 N.W.2d 676 (2021). In an appeal
in an equity action, it is the duty of this court to try issues of
fact de novo upon the record and to reach an independent con-
clusion thereon without reference to the findings of the district
court. Id.ANALYSIS
Oral Contract for Land and Resulting Trust.
The appellants assign that the district court erred in failing
to recognize that fraud at the outset is not required to prove a
resulting trust and in failing to find a resulting trust was proved.
In their complaint, the appellants proceeded under a theory
of constructive trusts. However, following trial, but before
written closing arguments were due, the Nebraska Supreme
Court released Dreesen Enters. v. Dreesen, 308 Neb. 433, 954
N.W.2d 874 (2021).
- 101 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
LOEFFLER v. LOEFFLER
Cite as 31 Neb. App. 93[2] In Dreesen Enters. v. Dreesen, supra, the Supreme Court
held that a court, sitting in equity, will not impose a construc-
tive trust and constitute an individual as a trustee of the legal
title for property unless it be shown, by clear and convincing
evidence, that the individual, as a potential constructive trustee,
had obtained title to property by fraud, misrepresentation, or an
abuse of an influential or confidential relationship. Because the
movant in Dreesen Enters. knew that the property would not
be titled in her name and voiced no objection, she was unable
to meet her burden of proof and the court refused to impose a
constructive trust.
Apparently recognizing the obstacle that the Dreesen Enters.
opinion posed, the appellants argued in their written closing
argument that a resulting trust was formed. The district court’s
order addressed constructive trusts, resulting trusts, and oral
contracts for land. The district court found that the appellants
failed to prove by clear and convincing evidence that Robert
obtained the title to the property by fraud, misrepresentation,
or an abuse of an influential or confidential relationship. Thus,
a constructive trust was not formed.
As to the allegations of a resulting trust, the district court
found that even if it accepted Larry’s version of the events, the
evidence established an oral agreement to transfer the prop-
erty, which would be precluded by the statute of frauds. To
the extent that the district court viewed the statute of frauds
as a bar to a resulting trust, we disagree with its analysis. See
Reetz v. Olson, 146 Neb. 621, 20 N.W.2d 687 (1945) (resulting
trusts are exempt from statute of frauds). However, in our de
novo review of the record, we determine that Larry failed to
establish the existence of a resulting trust by clear and convinc-
ing evidence.
As an initial matter, we find that the appellants have aban-
doned their claim regarding constructive trusts, and we do
not address the district court’s order in regard to this claim.
Additionally, we find no merit in the appellants’ assertion
that the district court required fraud at the outset to prove
- 102 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
LOEFFLER v. LOEFFLER
Cite as 31 Neb. App. 93a resulting trust. The district court’s discussion of fraud is
clearly relating to its analysis of constructive trusts and is an
accurate application of Dreesen Enters. v. Dreesen, supra. We
now turn to the issue of a resulting trust.
[3-6] A resulting trust is one raised by implication of law
and presumed always to have been contemplated by the par-
ties; the intention of the resulting trust is to be found in the
nature of their transaction, but not expressed in deed or instru-
ment of conveyance. Malousek v. Meyer, 309 Neb. 803, 962
N.W.2d 676 (2021). Where a transfer of property is made to
one person and the purchase price or consideration was paid
by another person, a resulting trust arises in favor of the per-
son who made the payment or provided consideration. Id. The
court will impose a resulting trust when the circumstances sur-
rounding a conveyance make it clear that the parties intended
such a result. Id. A resulting trust will not be declared upon
doubtful and uncertain grounds; and the burden is upon the
one claiming the existence of the trust to establish the facts
upon which it is based by clear and satisfactory evidence.
Biggerstaff v. Ostrand, 199 Neb. 808, 261 N.W.2d 750 (1978).
Where the alleged trust relationship is just as consistent with
that of a gift or loan, courts will not ordinarily impress a
resulting trust. Id.In Malousek v. Meyer, supra, the trial court found that an
estate’s special administrator had not met his burden of show-
ing a resulting trust for a boat. On appeal, the Supreme Court
reversed, recognizing its duty to try issues of fact de novo to
reach a conclusion independent of that of the trial court. The
evidence was undisputed that the decedent had paid for the
boat, that she had another person sign the purchase agree-
ment, and that she had a third person sign the title. The trial
court found that the special administrator failed to establish
the elements of a resulting trust and had not rebutted the pre-
sumption that it was a gift to the title owner. On appeal, the
Supreme Court explained that the decedent titled the boat in
the name of another for reasons that benefited her and that she
- 103 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
LOEFFLER v. LOEFFLER
Cite as 31 Neb. App. 93paid all the major expenses associated with boat ownership.
Id. Consequently, the court determined that the title owner
held the boat in a resulting trust for the decedent’s estate.
Conversely, here, the appellants failed to prove by clear
and satisfactory evidence that Larry and Robert intended to
­create a resulting trust. Unlike Malousek v. Meyer, supra, Larry
produced no evidence that having the land titled in Robert’s
name was beneficial to Larry. Rather, Larry testified that he
and Robert decided they would put the farm in Robert’s name
“as [Robert] requested” and that they would “move forward
from there.” Larry later explained that Robert did not want to
have to deal with Patricia in the event something happened to
Larry. Furthermore, there is no clear and satisfactory evidence
that Larry paid half of the downpayment. Robert contends that
Larry did not pay any of the downpayment, and the ledger does
not reflect any part of the downpayment being made by Larry.
Larry testified in his deposition that he paid half of the down-
payment, but he could not remember if it was paid by cash or
check; however, at trial, he testified that he remembered pro-
ducing cash.
Larry relies heavily upon the notations Robert made in his
ledger to prove that each brother paid half of the funds neces-
sary to buy the farm; however, equal contributions also support
Robert’s position that Larry agreed to loan him half of each
year’s deficit and the ledger was a method of keeping track of
this amount. Keeping in mind that the intention of the result-
ing trust is to be found in the nature of the transaction, we find
the nature of this transaction does not support a finding that a
resulting trust was intended. See, e.g., Malousek v. Meyer, 309
Neb. 803, 962 N.W.2d 676 (2021) (resulting trust found where
decedent had boat titled in name of another for purposes bene­
ficial to decedent and decedent continued to pay costs associ-
ated with boat); Reetz v. Olson, 146 Neb. 621, 20 N.W.2d 687(1945) (resulting trust found in favor of person paying cost of
school lease where lease was put in name of another because
payor was ineligible to bid on lease).
- 104 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
LOEFFLER v. LOEFFLER
Cite as 31 Neb. App. 93Resulting trusts arise most frequently in situations in which
one party pays the consideration for a purchase and title is
taken in the name of another. Reetz v. Olson, supra. Here,
however, there is no dispute that Robert paid consideration
for the purchase of the land and title was taken in his name.
The question is whether Larry’s financial contributions were
intended to be an investment or a loan. The burden was on
Larry to produce clear and satisfactory evidence that a result-
ing trust was intended. Putting aside the conflicting testimony
of Larry and Robert, our de novo review of the record does
not provide clear and satisfactory evidence that the parties
intended a resulting trust. The alleged reason for placing the
property in Robert’s name, Robert’s management of the farm,
Larry’s failure to include his ownership interest as an asset on
subsequent financial documentation, and Marla’s testimony all
cast doubt on whether Larry and Robert intended to create a
resulting trust. Consequently, Larry failed to produce clear and
satisfactory evidence that a resulting trust was created. The dis-
trict court did not err in denying the appellants’ claim, although
we reach that determination on a basis other than relied upon
by the district court. See Doe v. Board of Regents, 283 Neb.
303, 809 N.W.2d 263 (2012) (appellate court will affirm lower
court’s ruling that reaches correct result, albeit based on differ-
ent reasoning).
Patricia’s Interrogatory Answers.
The appellants assign that the district court erred when it
disregarded Patricia’s interrogatory answers without a basis
to do so. The district court’s order states, “Patricia . . . neither
appeared at trial nor testified. Written discovery signed by
Patricia was offered and received as Exhibit 11, but the Court
has no ability to judge Patricia’s credibility by these documents
and gives them little to no weight.”
The appellants argue that State ex rel. Wagner v. Amwest
Surety Ins. Co., 274 Neb. 121, 738 N.W.2d 813 (2007), sup-
ports their assertion that “[o]n de novo review, an appellate
- 105 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
LOEFFLER v. LOEFFLER
Cite as 31 Neb. App. 93court appraises the credibility of affidavit evidence in the light
of other evidence but does not disregard it because it was not
given as live testimony.” Brief for appellants at 25. Our reading
of State ex rel. Wagner, however, supports the district court’s
decision to give little to no weight to this evidence.
In State ex rel. Wagner, the court determined that the affida-
vit in question was not credible and was “simply too lacking
in specificity and foundation” and untimely to contradict the
other evidence. 274 Neb. at 130, 738 N.W.2d at 820. Although
Patricia’s interrogatory answers were not untimely, they do
lack in specificity and foundation to weigh equally to the
live, cross-examined testimony of Larry, Robert, and Marla.
Patricia, a named party to the case, was not present at trial and
did not testify. The answers to the interrogatories did not iden-
tify the foundation upon which Patricia’s answers were made.
And if, in fact, the purpose of omitting Larry’s name on the
deed was to preclude Patricia from having any interest in the
land, we find it curious that she would have firsthand knowl-
edge of the transaction. Furthermore, the discovery responses
offered only self-serving affirmations of evidence already pre-
sented at trial by Larry; therefore, even if any error was com-
mitted, it was harmless. We find no merit in the appellants’
assigned error.
Remaining Assignments of Error
and Cross-Appeal.
The appellants assign that the district court erred when it
dismissed their complaint. The assignment references and reit-
erates arguments addressed under the previous two sections.
For the reason set forth above, we reject this argument.
The appellants assign that the district court erred in failing
to award rents and profits to them. Based upon our determina-
tion that the appellants do not have an ownership interest in the
farm, they are not entitled to its rents and profits.
[7] Based on our disposition of the above assignments of
error, we need not address the error raised on cross-appeal.
- 106 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
LOEFFLER v. LOEFFLER
Cite as 31 Neb. App. 93An appellate court is not obligated to engage in an analysis
that is not necessary to adjudicate the case and controversy
before it. Doty v. West Gate Bank, 292 Neb. 787, 874 N.W.2d
839 (2016).
CONCLUSION
The appellants failed to prove their claim for a resulting
trust by clear and satisfactory evidence. We therefore affirm the
district court’s order, albeit for a different reason.
Affirmed.
Moore, Judge, participating on briefs.