IN THE SUPREME COURT, STATE OF WYOMING

2015 WY 57

APRIL TERM, A.D. 2015

April 15, 2015

GREGORY D. LAVITT and DEBRA C. 

LAVITT,

Appellants

(Defendants),

v.

HARRY E. STEPHENS,

Appellee

(Plaintiff).

S-14-0190

Appeal from the District Court of Albany County

The Honorable Keith G. Kautz, Judge

Representing Appellants:

Mitchell H. Edwards, Nicholas & Tangeman, LLC, Laramie, Wyoming.

Representing Appellee:

Frank J. Jones, Wheatland, Wyoming.

Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.

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.
1

FOX, Justice.

[¶1] In an earlier proceeding which we affirmed on appeal, the district court 

determined that the appellee, Harry E. Stephens, forfeited a legally enforceable easement 

across the property of the appellants, Gregory D. Lavitt and Debra C. Lavitt (Lavitts). 

Thereafter, Mr. Stephens petitioned the district court to condemn a private road to his 

landlocked property, proposing a route crossing the Lavitts’ property identical to the 

easement that had been terminated. The district court dismissed the Lavitts from the

private road action, finding that Mr. Stephens had created his own lack of access. The 

Lavitts requested that the district court impose sanctions against Mr. Stephens and his 

attorney and award them costs and attorney’s fees for bringing a second private road 

action. The district court declined to do so. We affirm.

ISSUES

[¶2] 1. Did the district court abuse its discretion when it declined to award costs and 

attorney’s fees to the Lavitts pursuant to W.R.C.P. 41(d)?

2. Did the district court abuse its discretion when it declined to impose sanctions 

against Mr. Stephens and his attorney pursuant to W.R.C.P. 11?

FACTS

[¶3] We considered the first chapter of this road easement dispute in Stephens v. Lavitt, 

2010 WY 129, 239 P.3d 634 (Wyo. 2010). The Lavitts and Mr. Stephens own mountain 

property near one another in Albany County, Wyoming. Id. at ¶ 3, 239 P.3d at 636. In 

2007, Mr. Stephens filed a petition with the Board of County Commissioners of Albany 

County (Board) requesting that the Board condemn a private road to provide Mr. 

Stephens access to his land-locked property. In his petition, Mr. Stephens named the 

Lavitts as affected parties, and proposed a route traversing their property.

[¶4] Thereafter, Mr. Stephens commenced a declaratory judgment action in district 

court seeking a ruling that he held a valid easement across the Lavitts’ property.1 

Stephens, 2010 WY 129, ¶ 4, 239 P.3d at 636. The district court determined that Mr. 

Stephens did hold a valid easement, but imposed conditions on Mr. Stephens’ use of the 

easement. Id. at ¶¶ 6-7, 239 P.3d at 636. Mr. Stephens repeatedly violated these

conditions,2 which resulted in the district court finding that Mr. Stephens had forfeited

 

1 The Board stayed the private road proceedings until the district court ruled on the declaratory judgment 

action.

2 The district court found that Mr. Stephens had violated the conditions placed upon his use of the 

easement by cutting the lock off the gate used to protect the various properties from vandalism, and 

placing a combination lock on the gate, as ordered by the court, but stamping the combination on the lock 

allowing anyone to enter the gated area, thus defeating the purpose of the locked gate. Stephens, 2010 
2

the easement due to his own bad acts. Id. at ¶ 8, 239 P.3d at 637. In 2009, the district

court terminated Mr. Stephens’ easement, and on appeal, we affirmed. Id. at ¶¶ 8, 22, 

239 P.3d at 637, 640. 

[¶5] In the meantime, prior to the district court’s determination that Mr. Stephens 

forfeited the easement, the parties stipulated to a dismissal of the Lavitts from the private 

road action pending in front of the Board. After the district court’s termination of Mr. 

Stephens’ easement, the private road action before the Board continued for nearly four

years, until July 2013, when Mr. Stephens withdrew his application for a private road and

the Board dismissed the proceeding.

[¶6] Mr. Stephens then filed a complaint in district court pursuant to Wyo. Stat. Ann. 

§ 24-9-101 (LexisNexis 2013), requesting that the court condemn a private road allowing 

access to Mr. Stephens’ land-locked property. Mr. Stephens again named the Lavitts as 

affected parties and proposed a route traversing the portion of the Lavitts’ property where 

his former easement lay. The Lavitts moved to dismiss the complaint, arguing, among 

other things, that Mr. Stephens failed to bring the private road action in good faith. The 

Lavitts also filed a Rule 11 motion requesting that the district court impose sanctions 

against Mr. Stephens and his attorney. The Lavitts filed an additional motion requesting 

that the district court award them costs and attorney’s fees pursuant to W.R.C.P. 41(d). 

The district court held a hearing on the Lavitts’ motions. At its conclusion, the district 

court ruled from the bench, finding that Mr. Stephens had created his own lack of access, 

which precluded him from seeking a road across the Lavitts’ property. It therefore 

dismissed the Lavitts from the private road action. The district court then declined to 

award sanctions against Mr. Stephens or his attorney, stating: 

The court recognizes that there has been a prior action before 

the county commissioners in Albany County and that was 

dismissed and then the matter is raised in the district court. 

However, the change of process or procedure that the 

legislature enacted to the court’s way of thinking is sufficient 

to not make this just a repetitive, redundant procedure. The 

legislature was really concerned about bringing these private 

road actions in the county commissioners forum instead of 

with the courts. So, the court doesn’t find that this is just a 

redundant, repetitive action. The court also finds and 

recognizes that the remedy [terminating the easement] the 

court previously entered is a drastic, unique remedy and the 

 

WY 129, ¶ 8, 239 P.3d at 636-37. The district court also found that Mr. Stephens and his family members 

had physically threatened the Lavitts, harassed them by parking near the Lavitts’ cabin and pointing their 

headlights into the Lavitts’ bedroom window in the early morning hours, entered the Lavitts’ cabin 

without invitation or permission, and deposited cigarette butts near the Lavitts’ cabin, presenting an 

extreme fire hazard.
3

application or non-application of private road availability was 

unknown.

The Lavitts appealed the district court’s denial of their Rule 11 and Rule 41(d) motions.3

DISCUSSION

I. Did the district court abuse its discretion when it declined to award costs and 

attorney’s fees to the Lavitts pursuant to W.R.C.P. 41(d)?

[¶7] Because the award of costs4under Rule 41(d) is discretionary with the district 

court, we apply an abuse of discretion standard. Graus v. OK Invs., Inc., 2014 WY 166, 

¶ 10, 342 P.3d 365, 368 (Wyo. 2014). However, “[w]hile the award of costs itself is 

reviewed for an abuse of discretion, the question whether a particular costs provision 

applies requires construction of a court rule, which is a question of law that we review de 

novo.” Id. at ¶ 11, 342 P.3d at 369 (citing Stewart Title Guar. Co. v. Tilden, 2008 WY 

46, ¶ 7, 181 P.3d 94, 98 (Wyo. 2008)).

[¶8] In construing rules of procedure, we apply the same guidelines as those we use 

when interpreting statutes. Busch v. Horton Automatics, Inc., 2008 WY 140, ¶ 13, 196 

P.3d 787, 790 (Wyo. 2008). We first determine whether the statute or procedural rule is 

ambiguous. Id. If not, we interpret the plain language of the rule according to the 

“ordinary and obvious meaning of the words employed,” giving due regard to their 

arrangement and connection. Id.

[¶9] Rule 41(d) states:

If a plaintiff who has once dismissed an action in any court 

commences an action based upon or including the same claim 

against the same defendant, the court may make such order 

for the payment of costs of the action previously dismissed as 

it may deem proper and may stay the proceedings in the 

action until the plaintiff has complied with the order.

Rule 41 (d) provides that the dismissal must occur “in any court.” Mr. Stephens argues 

that the only case he voluntarily dismissed took place with the Board, which is an agency, 

 

3 Mr. Stephens also appealed the district court’s order dismissing his private road action, but after briefing 

by the parties, Mr. Stephens filed a motion to dismiss the appeal, which we granted.

4 Rule 41(d) provides for the award of costs, but does not explicitly provide for the award of attorney fees. 

There is a split in federal authority concerning whether Rule 41(d) encompasses attorney fees as well as 

costs. 9 Charles A. Wright et al., Federal Practice and Procedure § 2375 (3d ed. 2008). Our conclusion 

does not require us to determine whether W.R.C.P. 41(d) allows for the award of attorney fees as well as 

costs. We therefore refrain from resolving that issue in this case.
4

not a court; thus, Rule 41(d) is not applicable. The Lavitts argue that because a contested 

case hearing is similar to a judicial proceeding, the Board should be construed to be 

acting as a “court” during such proceedings, and the award of costs should be available 

under Rule 41(d). We find that the ordinary meaning of the word “court” as used in 

W.R.C.P. 41(d) does not include an agency, and that the provisions of that rule are not 

applicable to this case.

[¶10] Both parties agree that the Board is an “agency” as defined by the Wyoming 

Legislature. “‘Agency’ means any authority, bureau, board, commission, department, 

division, officer or employee of the state, a county, city or town or other political 

subdivision of the state, except the governing body of a city or town, the state legislature, 

the University of Wyoming and the judiciary[.]” Wyo. Stat. Ann. § 16-3-101(b)(i) 

(LexisNexis 2013) (emphasis added). This clearly indicates the legislature’s intent to 

distinguish between the judiciary and administrative agencies in Wyoming. See 

Worcester v. State, 2001 WY 82, ¶ 13, 30 P.3d 47, 52 (Wyo. 2001) (“This court interprets 

statutes by giving effect to the legislature’s intent.”).

[¶11] The nature of the judicial branch when compared with administrative agencies 

further solidifies our conclusion that the term “court” and “agency” cannot be considered 

coextensive. The courts of our state are created and maintained as a separate, 

independent branch of government in accordance with the mandates of the Wyoming 

Constitution. Wyo. Const. art. 5. An administrative agency, however, is an arm of the 

executive branch. Matter of Contempt Order Issued Against Anderson, 765 P.2d 933, 

935 (Wyo. 1988). To find that our judicial system and administrative agencies are one 

and the same would be to disrupt the delicate system of checks and balances on which 

our government relies. We decline to do so.

[¶12] The district court did not err in denying the Lavitts’ motion for costs and 

attorney’s fees pursuant to W.R.C.P. 41(d). Such an award is not available under Rule 

41(d) when the prior action voluntarily dismissed was one commenced in an 

administrative agency rather than in a judicial court.

II. Did the district court abuse its discretion when it declined to impose sanctions 

against Mr. Stephens and his attorney pursuant to W.R.C.P. 11?

[¶13] We review a district court’s decision on whether to impose Rule 11 sanctions 

under an abuse of discretion standard. Davis v. Big Horn Basin Newspapers, Inc., 884 

P.2d 979, 983 (Wyo. 1994) (citing LC v. TL, 870 P.2d 374, 381 (Wyo. 1994)). Our

touchstone inquiry in determining whether a court abused its discretion is whether the

trial court could have reasonably concluded as it did. Dewey v. Dewey, 2001 WY 107, 

¶ 18, 33 P.3d 1143, 1148 (Wyo. 2001); Vaughn v. State, 962 P.2d 149, 151 (Wyo. 1998).
5

[¶14] A Rule 11 analysis requires a two-step inquiry. First a court must determine 

whether there has been a violation of Rule 11(b). Only if such a violation occurs does 

the court consider whether sanctions should be imposed pursuant to Rule 11(c). 

W.R.C.P. 11(c) (“If . . . the court determines that subdivision (b) has been violated, the 

court may . . . impose an appropriate sanction.” (emphasis added)). Because we find that 

the district court did not abuse its discretion in determining that there was no violation of 

Rule 11(b), we need not consider whether sanctions were appropriate.

[¶15] W.R.C.P. 11(b) provides:

By presenting to the court (whether by signing, filing, 

submitting, or later advocating) a pleading, written motion, or 

other paper, an attorney or unrepresented party is certifying 

that to the best of the person’s knowledge, information, and 

belief, formed after an inquiry reasonable under the 

circumstances:

(1) It is not being presented for any improper 

purpose, such as to harass or to cause unnecessary delay 

or needless increase in the cost of litigation;

(2) The claims, defenses, and other legal contentions 

therein are warranted by existing law or by a 

nonfrivolous argument for the extension, modification, or 

reversal of existing law or the establishment of new law;

(3) The allegations and other factual contentions 

have evidentiary support or, if specifically so identified, 

are likely to have evidentiary support after a reasonable 

opportunity for further investigation or discovery; and

(4) The denials of factual contentions are warranted 

on the evidence or, if specifically so identified, are 

reasonably based on a lack of information or belief.

The Lavitts contend that Mr. Stephens and his attorney violated Rule 11(b) in two ways. 

They argue that the district court action was filed for improper purposes in violation of 

Rule 11(b)(1), and that Mr. Stephens’ claims are not warranted by existing law or 

nonfrivolous argument for the extension, modification, or reversal of existing law in 

violation of Rule 11(b)(2). The district court determined that, based on the change in the 

procedure for private road actions initiated by the legislature5and the drastic remedy the 

court imposed in terminating Mr. Stephens’ easement, there remained a question whether 

Mr. Stephens could apply for a private road, and there was therefore no Rule 11 violation.

 

5 Discussed infra ¶ 17.
6

[¶16] We analyze each of the Rule 11(b) elements independently as “violation of any of 

them triggers the sanctions provisions of the rule.” 5A Charles A. Wright et al., Federal 

Practice and Procedure § 1335 (3d ed. 2004); see also Whitehead v. Food Max of Miss., 

Inc., 332 F.3d 796, 802 (5th Cir. 2003). We begin with the Lavitts’ contention that Mr. 

Stephens and his attorney violated Rule 11(b)(2), which requires that the claims made are 

“warranted by existing law or by a nonfrivolous argument for the extension, 

modification, or reversal of existing law or the establishment of new law.” We must 

therefore examine the law pertaining to private roads in Wyoming at the time of these 

actions.

[¶17] The private road statutes, Wyo. Stat. Ann. § 24-9-101, et seq., have undergone 

significant revision over the years, with the most recent amendments enacted in 2013. 

Prior to 2013, an applicant for a private road was required to file his action with the board 

of county commissioners in the county where the applicant’s land was located. Wyo. 

Stat. Ann. § 24-9-101(a) (LexisNexis 2011). After the 2013 amendment, a private road 

action could only be commenced in district court. Wyo. Stat. Ann. § 24-9-101(a) 

(LexisNexis 2013). While the forum for filing a private road action changed, the 

substantive requirements for an application remained essentially the same. Compare

Wyo. Stat. Ann. § 24-9-101(a) (LexisNexis 2013) with Wyo. Stat. Ann. § 24-9-101(a) 

(LexisNexis 2011).

[¶18] One such substantive requirement, which remained unchanged with the 2013 

amendments, is that a private road action be commenced in good faith. In Mayland v. 

Flitner, 2001 WY 69, 28 P.3d 838 (Wyo. 2001), we found that good faith in bringing a 

private road action is an “essential prerequisite.” Id. at ¶ 13, 28 P.3d at 843. The logical 

reverse of this requirement is that an applicant who acts in bad faith is precluded from 

bringing a private road action. In Mayland, a respondent to a petition for a private road 

argued that the applicant had not brought the private road action in good faith because he 

had blocked a road to his land-locked property, thus causing his own lack of access. Id.

at ¶¶ 17-18, 28 P.3d at 845. We found that the county commissioners in that case 

implicitly determined that the applicant acted in good faith in bringing the private road 

action because the commissioners found that a private road was necessary. Id. at ¶ 19, 28 

P.3d at 846. 

Although the County Commissioners did not specifically find 

“good faith,” they likewise did not find “bad faith.” The 

requisite “good faith” is apparent and incorporated in the 

statutory language referenced in Finding No. 12, “[the 

applicant] has demonstrated that the private road for which 

this application is filed is necessary.” Had [the respondent] 

sufficiently established his claim of bad faith [based on the 

applicant causing his own lack of access], this finding could 

not have been made because it would not have been 
7

supported by the record. We conclude the record sufficiently 

demonstrates the “good faith” of the applicant as anticipated 

in Dunning [v. Ankney, 936 P.2d 61, 65 (Wyo. 1997)].

Id. We also recognized that an applicant acts in bad faith when he causes his own lack of 

access, and that bad faith precludes a person from petitioning for a private road. Id. at 

¶ 19. We have steadfastly adhered to our ruling that a private road action be commenced 

in good faith, despite numerous amendments to the private road statutes. Voss v. Albany 

Cnty. Comm’rs, 2003 WY 94, ¶ 25, 74 P.3d 714, 722 (Wyo. 2003); Wagstaff v. Sublette 

Cnty. Bd. of Cnty. Comm’rs, 2002 WY 123, ¶ 12, 53 P.3d 79, 82-83 (Wyo. 2002);

Mayland, 2001 WY 69, ¶ 13, 28 P.3d at 843; Martens v. Johnson Cnty. Bd. of Comm’rs, 

954 P.2d 375, 380 (Wyo. 1998); Dunning v. Ankney, 936 P.2d 61, 65 (Wyo. 1997); 

McGuire v. McGuire, 608 P.2d 1278, 1286 (Wyo. 1980). While we have not yet had the 

opportunity to address our good faith requirement in light of the 2013 amendments,

considering that these amendments were procedural rather than substantive, we find no 

reason to depart from our precedent.

[¶19] We turn to the question of whether Mr. Stephens or his attorney violated the 

provisions of Rule 11(b)(2) in commencing a second private road action in district court. 

According to Rule 11(b)(2), Mr. Stephens’ complaint in district court must be warranted 

by: (1) the existing substantive law; or (2) a nonfrivolous argument for the extension,

modification or reversal of the existing substantive law; or (3) a nonfrivolous argument 

for the establishment of new substantive law. W.R.C.P. 11(b)(2); see also 5A Wright, 

supra § 1335. Trial courts must apply an objective standard when determining whether a 

party has violated Rule 11(b)(2), asking whether the conduct was objectively reasonable

under the circumstances. Meyer v. Mulligan, 889 P.2d 509, 517-18 (Wyo. 1995); see 

also Fed.R.Civ.P. 11, 1993 Notes of Advisory Committee.6 Thus, our duty upon review

is to determine whether the district court could reasonably have concluded that Mr. 

Stephens and his attorney acted reasonably and based on a nonfrivolous argument. 

Meyer, 889 P.2d at 517-18.

[¶20] There is no question that Mr. Stephens caused his own lack of access in this case. 

Mr. Stephens admitted to as much in his complaint for a private road filed in district 

court. In Mayland we determined that good faith is an “essential prerequisite” to 

bringing a private road action, and a party acts in bad faith when he causes his own lack 

of access. Mayland, 2001 WY 69, ¶¶ 13, 19, 28 P.3d at 843, 845-46. Thus, Mr. 

Stephens’ claims are not supported by existing law because he was precluded 

from bringing a private road action by his own bad faith. See W.R.C.P. 11(b)(2) (“The 

 

6 Wyoming’s Rule 11 is identical to its federal counterpart, thus, relevant federal authority interpreting 

Rule 11 is persuasive. Bromley v. State, 2009 WY 133, ¶ 18, 219 P.3d 110, 115 (Wyo. 2009); Meyer, 889 

P.2d at 517.
8

claims . . . are warranted by existing law[.]”). However, the question is whether the filing 

party has presented a nonfrivolous argument to the court.

[¶21] The district court determined that the drastic remedy imposed in terminating Mr. 

Stephens’ easement created uncertainty in whether Mr. Stephens could petition for a 

private road, and that Mr. Stephens and his attorney acted reasonably and in a 

nonfrivolous manner in filing the complaint in district court. We cannot say that the 

district court acted unreasonably in coming to this conclusion. Vaughn, 962 P.2d at 151. 

Forfeiture of an easement based on misuse is a drastic remedy, and this case presents the 

Court with a unique circumstance. See Stephens, 2010 WY 129, ¶¶ 20, 21, 239 P.3d at 

640 (recognizing that forfeitures are generally abhorred, and that termination of the 

easement was an “onerous” remedy). We have a “long established public policy against 

land-locking property and rendering it useless.” In re Private Road ex rel. Cross, 2013 

WY 79, ¶ 24, 304 P.3d 932, 938 (Wyo. 2013). In Mr. Stephens’ appeal challenging the 

district court’s decision to terminate the easement, we recognized, in dicta, that Mr. 

Stephens’ property would not be land-locked, stating, “Mr. Stephens can still access his 

property by using the Mart Miller Road.” Stephens, 2010 WY 129, ¶¶ 21, 22, 239 P.3d at 

640. Additional proceedings following that appeal have revealed that Mr. Stephens does 

not, in fact, have another legally enforceable route to access his property. Thus, once the 

district court terminated Mr. Stephens’ easement, his property became land-locked. It 

was therefore, arguably, unclear which policy consideration—the reluctance to land-lock 

property or the requirement that applications be brought in good faith—would prevail in 

a situation such as this. The district court did not abuse its discretion in determining that 

there was uncertainty in the law under these circumstances. 

[¶22] The Lavitts also argued that Mr. Stephens and his attorney violated Rule 11(b)(1) 

because they brought the district court action for an improper purpose—to harass. 

“[G]enerally, district courts do not sanction attorneys [or parties] who make nonfrivolous 

representations. A district court may do so, however, where it is objectively ascertainable 

that an attorney [or party] submitted a paper to the court for an improper purpose.” 

Whitehead, 332 F.3d at 805. The district court made no independent findings on the issue 

of whether Mr. Stephens’ complaint was filed for an improper purpose. Instead, the court 

relied on its holding that the complaint was not frivolous. Ordinarily, a district court’s 

reliance on its finding that a filing was not frivolous is sufficient justification to decline 

imposing sanctions pursuant to Rule 11(b)(1). F.D.I.C. v. Calhoun, 34 F.3d 1291, 1300 

(5th Cir. 1994); New Alaska Dev. Corp. v. Guetschow, 869 F.2d 1298, 1305 (9th Cir. 

1989). A filing made for improper purposes is not immunized from Rule 11 sanctions 

simply because it is not frivolous; however only under “unusual circumstances” should 

such a filing constitute sanctionable conduct. Sheets v. Yamaha Motors Corp., 891 F.2d 

533, 538 (5th Cir. 1990). We are not convinced that this case presents such an “unusual 

circumstance.” While the record clearly demonstrates an animus between the parties, the 

Lavitts do not direct us to any specific evidence demonstrating that Mr. Stephens’ intent 

in filing the district court action was to “harass” the Lavitts. Mr. Stephens’ property was 
9

land-locked, and it is plausible that he was attempting to utilize every possible avenue to 

ensure that it did not remain so. We find that the district court did not abuse its discretion 

in relying on its finding that Mr. Stephens’ complaint was not frivolous.

[¶23] The district court determined that Mr. Stephens’ voluntary dismissal of his first 

private road action and commencement of a second in district court was not frivolous 

because “the change of process or procedure that the legislature enacted to the court’s 

way of thinking is sufficient to not make this just a repetitive, redundant procedure.” 

Again, we cannot find that the district court acted unreasonably in concluding as it did. 

The legislature did, indeed, change the forum in which a private road action could be 

commenced with its 2013 amendments to the private road statutes. Wyo. Stat. Ann. § 24-

9-101(a). The newly amended statutes provided no guidance on whether an action 

commenced prior to the amendment could be dismissed and refiled in district court 

following the amendment’s effective date. While we may have come to a different 

conclusion, under our abuse of discretion standard of review, we will not set aside a trial 

court’s decision merely because we may have reached another result. Roberts v. Vilos, 

776 P.2d 216, 217 (Wyo. 1989).

[¶24] The district court’s decision to not impose sanctions was based on its finding that 

the complaint filed by Mr. Stephens in district court was not frivolous, and as a result, 

there was no violation of Rule 11(b). We find that there was no abuse of discretion in the 

district court’s holding and affirm. Because there was no violation of Rule 11(b), we 

need not consider whether the imposition of sanctions was appropriate pursuant to Rule 

11(c). See W.R.C.P. 11(c) (“[T]he court may . . . impose an appropriate sanction upon 

the attorneys, law firms, or parties that have violated subdivision (b) or are responsible 

for the violation.”).

CONCLUSION

[¶25] We find that the district court did not abuse its discretion when it denied the 

Lavitts’ motion for costs and attorney’s fees pursuant to W.R.C.P. 41(d), and affirm. We 

also find there was no abuse of discretion in the district court’s decision to not impose 

Rule 11 sanctions against Mr. Stephens and his attorney. Affirmed.