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315 Nebraska Reports

PAW K. V. CHRISTIAN G.

Cite as 315 Neb. 781

Paw K., appellee, v. 

Christian G., appellant.

___ N.W.2d ___

Filed January 19, 2024. No. S-23-195.

1. Judgments: Appeal and Error. When a jurisdictional question does not 

involve a factual dispute, the issue is a matter of law. An appellate court 

reviews questions of law independently of the lower court’s conclusion.

2. Rules of Evidence. In proceedings where the Nebraska Evidence Rules 

apply, the admissibility of evidence is controlled by these rules; judicial 

discretion is involved only when the rules make discretion a factor in 

determining admissibility.

3. Judges: Words and Phrases. A judicial abuse of discretion exists when 

the reasons or rulings of a trial judge are clearly untenable, unfairly 

depriving a litigant of a substantial right and denying just results in matters submitted for disposition.

4. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings under the residual hearsay exception, an appellate court reviews 

for clear error the factual findings underpinning a trial court’s hearsay ruling and reviews de novo the court’s ultimate determination to 

admit evidence over a hearsay objection or exclude evidence on hearsay grounds.

5. Jurisdiction. One who invokes the power of the court on an issue other 

than the court’s jurisdiction over one’s person makes a general appearance so as to confer on the court personal jurisdiction over that person.

6. Jurisdiction: Pleadings: Parties. A party will be deemed to have 

appeared generally if, by motion or other form of application to the 

court, he or she seeks to bring its powers into action on any matter other 

than the question of jurisdiction over that party.

7. Judgments: Appeal and Error. An appellate court may affirm a lower 

court’s ruling that reaches the correct result, albeit based on different reasoning.

8. Appeal and Error. An appellate court is not obligated to engage in an 

analysis that is not needed to adjudicate the controversy before it.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

01/19/2024 09:08 AM CST
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Cite as 315 Neb. 781

9. Affidavits. Affidavits are ordinarily not considered competent evidence 

because they are not subject to cross-examination, they combine facts 

and conclusions, and they often omit or distort important facts.

10. ____. An affidavit is competent evidence where authorized by statute or 

where not objected to on proper grounds by the party against whom it 

is offered.

11. ____. Under Neb. Rev. Stat. § 25-1244 (Reissue 2016), an affidavit is 

admissible in motion practice, which includes the use of affidavits relating to preliminary, collateral, and interlocutory matters.

12. ____. A statute such as Neb. Rev. Stat. § 25-1244 (Reissue 2016) allowing an affidavit to be used upon a motion is general, and it leaves to 

the discretion of the trial judge whether it is appropriate to receive the 

affidavit into evidence.

13. Trial: Evidence: Appeal and Error. Because it is the proponent’s 

responsibility to separate the admissible and inadmissible parts when 

offering evidence, an appellate court will ordinarily uphold a court’s 

exclusion of an exhibit if the proponent did not properly limit its offer 

to the part or parts that are admissible.

Petition for further review from the Court of Appeals, 

Bishop, Arterburn, and Welch, Judges, on appeal thereto 

from the District Court for Lancaster County, Ryan S. Post, 

Judge. Judgment of Court of Appeals affirmed.

Matt Catlett, of Law Office of Matt Catlett, for appellant.

Courtney R. Ruwe, of Astley Putnam, P.C., L.L.O., for 

appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Cassel, J.

INTRODUCTION

The district court overruled Christian G.’s motion to vacate 

a domestic abuse protection order, and the Nebraska Court 

of Appeals affirmed. 1 On further review, he challenges the 

appellate court’s dispositions regarding personal jurisdiction 

1 See Paw K. v. Christian G., 32 Neb. App. 317, 997 N.W.2d 84 (2023).
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and an evidentiary ruling excluding an affidavit. We conclude 

that by filing a request for hearing, Christian made a general 

appearance. And because he did not offer the affidavit without its inadmissible portions, its exclusion was not reversible 

error. Although our reasoning differs from that of the Court of 

Appeals, we affirm its decision.

BACKGROUND

Domestic Abuse Protection 

Order Proceedings

Paw K. filed a petition and affidavit for a domestic abuse 

protection order in the district court for Lancaster County. 

She sought an order against Christian, the father of her child. 

Paw listed an address in Iowa for Christian.

The same day, the court entered an ex parte domestic 

abuse protection order. It provided notice to Christian that 

if he wished to appear and show cause why the order should 

not remain in effect, he needed to complete the provided 

“Request for Hearing” form and return it to the clerk of the 

district court within 10 business days. An information sheet 

included with the ex parte order stated that the court would 

schedule a hearing within 30 days after reviewing the request 

for a hearing.

Three days later, the court received Christian’s request for 

hearing form. Later that day, the court entered an order which 

set a hearing on Monday, January 30, 2023, at 10:30 a.m. 

The certificate of service showed that the order was sent to 

Christian via U.S. mail on January 24.

On January 30, 2023, Christian did not appear for the hearing. The same day, the court entered an order affirming the 

protection order.

Motion to Vacate Proceedings

Ten days later, Christian filed a motion to vacate the 

January 30, 2023, order. Christian stated that he was not 

served with the order setting the hearing date until after the 
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Cite as 315 Neb. 781

hearing had occurred. He also claimed that the district court 

lacked personal jurisdiction over him. He attached an affidavit 

to this motion. The affidavit included an exhibit purporting to 

be an email from the U.S. Postal Service.

During a hearing on the motion to vacate, Christian asserted 

that the court lacked personal jurisdiction to enter a final 

protection order against a nonresident respondent. The court 

inquired whether Christian submitted himself to the court’s 

jurisdiction when he requested a hearing. Christian argued 

that no one could know whether he requested a hearing 

for the purpose of challenging personal jurisdiction. Paw’s 

counsel “remind[ed]” the court that “in the parties’ paternity/custody case, [Christian was] ordered to come here to 

Nebraska to pick up his child to bring him back to Iowa every 

other weekend.”

During the hearing, Christian offered his own affidavit with 

a copy of an email attached to it. The copy of the email differed somewhat from the one attached to his earlier affidavit. Christian’s affidavit stated that he did not receive the 

court’s order for hearing until the afternoon of January 30, 

2023. He averred that the attached email had been transmitted from “‘USPS Informed Delivery’” to his email address at 

7:24 a.m. on January 30. The email included an image of the 

front of an envelope from the clerk of the district court. Paw 

objected based on foundation and hearsay. Christian argued 

that the rules of evidence do not apply during a hearing on a 

motion to vacate. Nonetheless, the court sustained Paw’s hearsay objection.

The court subsequently entered an order overruling the 

motion to vacate. With respect to personal jurisdiction, the 

court reasoned that “[t]he incidents of abuse occurred in 

Nebraska and were part of regular contact from [Christian] 

to [Paw] in Nebraska.” Although the bill of exceptions of 

the hearing on the motion to vacate did not show a ruling on 

Paw’s foundational objection, the order stated that the court 

sustained “the objections.” It further stated that Christian’s 
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argument asserting he did not receive notice of the hearing 

until after it occurred did not address the foundational issue 

with the attachment to the affidavit.

Appeal

Christian appealed. He alleged that the district court erred 

in (1) denying his motion to vacate when the district court 

did not have personal jurisdiction over him, (2) denying his 

motion to vacate when he was not served with the order containing the hearing date until after the hearing had occurred, 

and (3) refusing to receive his affidavit.

In a published opinion, 2 the Court of Appeals affirmed. It 

determined that Christian “waived personal jurisdiction” 3 and 

that the district court properly sustained Paw’s hearsay objection to Christian’s affidavit. The appellate court reasoned that 

“Christian’s affidavit was an out-of-court statement offered in 

evidence to prove the truth of the matter asserted, i.e., that he 

did not receive, or was not served, the order for hearing . . . 

until after the hearing had already occurred.” 4 Christian filed 

a timely petition for further review, which we granted.

ASSIGNMENTS OF ERROR

Christian assigns, reordered, that the Court of Appeals erred 

in (1) holding that Christian waived personal jurisdiction in 

the district court by not “‘fil[ing] a motion to dismiss for 

lack of personal jurisdiction’” and not “‘specifically stat[ing] 

in his request for hearing on the protection order that he was 

challenging personal jurisdiction’”; (2) holding that Christian 

forfeited the issue of personal jurisdiction on appeal by not 

requesting a bill of exceptions of the January 30, 2023, hearing; and (3) finding no error in the district court’s sustaining 

Paw’s hearsay objection to Christian’s affidavit.

2 Id.

3 Id. at 327, 997 N.W.2d at 92.

4 Id. at 331, 997 N.W.2d at 94.
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Cite as 315 Neb. 781

STANDARD OF REVIEW

[1] When a jurisdictional question does not involve a factual dispute, the issue is a matter of law. An appellate court 

reviews questions of law independently of the lower court’s 

conclusion. 5

[2,3] In proceedings where the Nebraska Evidence Rules 

apply, the admissibility of evidence is controlled by these 

rules; judicial discretion is involved only when the rules make 

discretion a factor in determining admissibility. 6 A judicial 

abuse of discretion exists when the reasons or rulings of a trial 

judge are clearly untenable, unfairly depriving a litigant of a 

substantial right and denying just results in matters submitted 

for disposition. 7

[4] Apart from rulings under the residual hearsay exception, an appellate court reviews for clear error the factual findings underpinning a trial court’s hearsay ruling and 

reviews de novo the court’s ultimate determination to admit 

evidence over a hearsay objection or exclude evidence on 

hearsay grounds. 8

ANALYSIS

Personal Jurisdiction

Christian maintains that the district court lacked personal 

jurisdiction over him. The Court of Appeals determined that 

Christian waived that defense because he did not file a motion 

to dismiss on that ground or specifically state in his request 

for hearing that he was challenging personal jurisdiction. The 

Court of Appeals further reasoned that even if Christian did 

not waive the defense, he forfeited the issue by not requesting 

a bill of exceptions of the January 30, 2023, hearing.

5 Nimmer v. Giga Entertainment Media, 298 Neb. 630, 905 N.W.2d 523 

(2018).

6 Brown v. Morello, 308 Neb. 968, 957 N.W.2d 884 (2021).

7 Id.

8 Id.
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We assume, without deciding, that the Nebraska Court 

Rules of Pleading in Civil Cases apply in a general sense to 

a proceeding involving a domestic abuse protection order. 

We further assume that because no responsive pleading was 

required, 9 a motion asserting lack of personal jurisdiction was 

not required. 10

But even with those assumptions and disregarding that 

Christian may have previously submitted himself to the 

court’s jurisdiction, he filed a request for hearing and thereby 

made a general appearance.

[5,6] One who invokes the power of the court on an issue 

other than the court’s jurisdiction over one’s person makes 

a general appearance so as to confer on the court personal 

jurisdiction over that person. 11 A party will be deemed to have 

appeared generally if, by motion or other form of application 

to the court, he or she seeks to bring its powers into action 

on any matter other than the question of jurisdiction over 

that party. 12 Here, Christian filed a form requesting a hearing 

concerning the ex parte domestic abuse protection order. The 

form responded to notice of the general issue—the merits of 

Paw’s petition. This was an application to the court, seeking 

to invoke the court’s powers on a matter other than personal 

jurisdiction. Through this filing, Christian made a general 

appearance that conferred jurisdiction over him.

Christian attempts to avoid this result by arguing that he 

had to use the form. Nothing in our statutes or rules precluded him from endorsing the form to limit his request to 

one addressing only jurisdiction. He did not do so, and his 

rationale lacks merit.

9 See, generally, Neb. Rev. Stat. § 42-925 (Cum. Supp. 2022); Neb. Ct. R. 

Pldg. § 6-1107.

10 See Neb. Ct. R. Pldg. § 6-1112(b).

11 In re Estate of Marsh, 307 Neb. 893, 951 N.W.2d 486 (2020).

12 Applied Underwriters v. Oceanside Laundry, 300 Neb. 333, 912 N.W.2d 

912 (2018).
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Cite as 315 Neb. 781

[7] The courts below concluded that the district court had 

personal jurisdiction over Christian, and we agree. Although 

our reasoning differs from that of the Court of Appeals, it 

reached the correct result. An appellate court may affirm a 

lower court’s ruling that reaches the correct result, albeit 

based on different reasoning. 13

[8] Because we have determined that the district court 

acquired personal jurisdiction over Christian, we need not 

address his assignment regarding the Court of Appeals’ alternative forfeiture reasoning. An appellate court is not obligated 

to engage in an analysis that is not needed to adjudicate the 

controversy before it. 14

Hearsay Objection

Christian argues that the Court of Appeals erred in finding that the district court properly sustained Paw’s hearsay 

objection to Christian’s affidavit. The Court of Appeals determined that Christian’s affidavit was hearsay because it constituted an out-of-court statement offered to prove that Christian 

was not served the order for hearing until after the hearing 

had occurred.

We start with the extreme positions advocated by the parties. On one side, Christian asserted in his appellate brief 

that “an affidavit . . . is always admissible in support of a 

motion.” 15 He backs away slightly from this absolutist view 

in his petition for further review, asserting that “an affidavit 

may always be used to impeach service and object to personal 

jurisdiction.” 16 On the other side, in connection with asserting that Christian’s affidavit failed to show lack of notice, 

Paw orally argued that Christian was served notice of the 

hearing when the clerk of the district court deposited the 

13 Schaeffer v. Frakes, 313 Neb. 337, 984 N.W.2d 290 (2023).

14 In re Estate of Walker, ante p. 510, 997 N.W.2d 595 (2023).

15 Brief for appellant at 18 (emphasis in original).

16 Brief for appellant in support of petition for further review at 6.
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order for hearing in the mail. She maintained that it made 

no difference if Christian ever received the order. We reject 

these positions.

[9,10] An affidavit is one mode by which testimony of witnesses may be taken. 17 But an affidavit is regarded as the least 

satisfactory mode of presenting testimony. 18 Affidavits are 

ordinarily not considered competent evidence because they are 

not subject to cross-examination, they combine facts and conclusions, and they often omit or distort important facts. 19 An 

affidavit is competent evidence where authorized by statute or 

where not objected to on proper grounds by the party against 

whom it is offered. 20 In the absence of statutory permission, 

an affidavit is not competent evidence, although made under 

oath, because it is hearsay. 21

[11] Nebraska authorizes use of an affidavit for certain 

purposes. A statute specifically provides that “[a]n affidavit 

may be used to verify a pleading, to prove the service of a 

summons, notice or other process, in an action, to obtain a 

provisional remedy, an examination of a witness, a stay of proceedings, or upon a motion, and in any other case permitted 

by law.” 22 This less satisfactory mode of presenting evidence 

is “‘specially provided for to meet considerations of convenience or necessity.’” 23 Over a century ago, we remarked 

that “[t]he long-established practice has been to prove facts 

17 See Neb. Rev. Stat. § 25-1240 (Reissue 2016).

18 2A C.J.S. Affidavits § 57 (2023).

19 See id.

20 Tanzola v. De Rita, 45 Cal. 2d 1, 285 P.2d 897 (1955). See, also, Vannier v. 

Superior Court, 32 Cal. 3d 163, 650 P.2d 302, 185 Cal. Rptr. 427 (1982); 

Rowan v. City and County of San Francisco, 244 Cal. App. 2d 308, 53 Cal. 

Rptr. 88 (1966).

21 In re Estate of Horman, 265 Cal. App. 2d 796, 71 Cal. Rptr. 780 (1968).

22 Neb. Rev. Stat. § 25-1244 (Reissue 2016).

23 Swigart v. Swigart, 115 N.E.2d 871, 875 (Ohio App. 1953), quoting State 

v. Budd, 65 Ohio St. 1, 60 N.E. 988 (1901).
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necessary for the determination of motions by affidavit . . . .” 24

More recently, we iterated that under § 25-1244, an affidavit 

is admissible in motion practice, which includes the use of 

affidavits relating to preliminary, collateral, and interlocutory matters. 25

As Christian observes, we have spoken on purposes for 

which an affidavit may be used. An affidavit may be used to 

attack or support the return of an officer on a summons in a 

revivor proceeding. 26 Thus, we have interpreted § 25-1244 to 

mean that an affidavit may be used to impeach an officer’s 

return on the service of a summons. 27 We authorized use of 

an affidavit in a hearing on a special appearance to prove 

or disprove the factual basis for a court’s assertion or exercise of personal jurisdiction over a defendant. 28 In doing so, 

we explained that a special appearance was preliminary and 

collateral to determining the merits of an action. 29 We also 

authorized use of an affidavit in connection with a motion for 

attorney fees under Neb. Rev. Stat. § 76-726 (Reissue 2018), 

stating that such a motion is a collateral matter. 30

Here, the bases of the motion to vacate—lack of service 

and lack of personal jurisdiction—are collateral and preliminary to whether Christian is an abuser as claimed in the 

underlying petition for a protection order. Thus, Christian was 

authorized to use an affidavit at the hearing on the motion.

24 Hamer v. McKinley-Lanning Loan & Trust Co., 52 Neb. 705, 707, 72 N.W. 

1041, 1041 (1897).

25 See, Cullinane v. Beverly Enters. - Neb., 300 Neb. 210, 912 N.W.2d 774 

(2018); TransCanada Keystone Pipeline v. Nicholas Family, 299 Neb. 276, 

908 N.W.2d 60 (2018).

26 See Johnson v. Carpenter, 77 Neb. 49, 108 N.W. 161 (1906).

27 See Erdman v. National Indemnity Co., 180 Neb. 133, 141 N.W.2d 753 

(1966).

28 Williams v. Gould, Inc., 232 Neb. 862, 443 N.W.2d 577 (1989).

29 See id.

30 TransCanada Keystone Pipeline v. Nicholas Family, supra note 25.
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But we do not understand this authority to mean that the 

rules of evidence do not apply to an affidavit submitted under 

§ 25-1244. That statute specifies that “[a]n affidavit may be 

used,” 31 but it does not mandate the affidavit’s admission 

into evidence. Nor does a statute exempt such an affidavit 

from the rules of evidence. Neb. Rev. Stat. § 27-101 (Reissue 

2016) provides that the Nebraska Evidence Rules “govern 

proceedings in the courts of [this state], except to the extent 

and with the exceptions stated in [Neb. Rev. Stat. §] 27-1101 

[(Reissue 2016)].” Relevant to the facts of this case, the latter statute instructs that the Nebraska Evidence Rules apply 

to district courts 32 and that they apply generally to all civil 

proceedings. 33 Section 27-1101(4), which identifies situations 

in which the rules of evidence do not apply, does not include 

a hearing on a motion to vacate.

[12] A statute such as § 25-1244 allowing an affidavit to be 

used upon a motion is general, and it leaves to the discretion 

of the trial judge whether it is appropriate to receive the affidavit into evidence. 34 Because we allow use of affidavits with 

respect to collateral matters and disallow their use to prove 

facts material to the issue in the case, the hearsay nature 

of the affidavit is typically of no import. In TransCanada 

Keystone Pipeline v. Nicholas Family,

 35 we upheld the admission of the affidavits with respect to attorney fees even 

though it was “‘beyond question’” that they contained hearsay. And we have explained that by allowing an affidavit to 

prove the service of a summons, notice, or other process in 

an action, § 25-1244 “avoids problems relating to same with 

31 § 25-1244.

32 See Neb. Rev. Stat. § 27-1101(1) (Reissue 2016).

33 See § 27-1101(2).

34 See Swigart v. Swigart, supra note 23 (interpreting statute now codified at 

Ohio Rev. Code Ann. § 2319.03 (Anderson 2001)).

35 TransCanada Keystone Pipeline v. Nicholas Family, supra note 25, 299 

Neb. at 283, 908 N.W.2d at 66.
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reference to the ‘hearsay’ rule.” 36 Thus, statements within an 

affiant’s personal knowledge generally should be admitted. 

But the inclusion of statements otherwise excludable may 

affect an affidavit’s admissibility. We cannot say that a trial 

court abuses its discretion by sustaining a hearsay objection 

to statements of third parties or to other averments not falling 

within a hearsay exception.

We recall the specific objection and ruling at the hearing on 

the motion to vacate. Paw objected to the entire exhibit—the 

affidavit and attachment—on the grounds of hearsay and foundation. She elaborated:

On the original affidavit that was filed with this Court, 

no email address is contained on this USPS alleged proof 

that he didn’t get service. And now, all of the sudden, 

he has an affidavit that shows that email address. He 

wouldn’t have foundation to testify to that. And it, certainly, is hearsay.

The court stated that it was unaware of any authority refusing 

to apply the rules of evidence to the proceeding and then it 

sustained the hearsay objection.

The district court’s corresponding written order expanded 

on the foundational objection. It stated that Paw objected that 

the affidavit was hearsay, that the affidavit did not lay foundation for the attachment, and that the attachment was altered 

and that the court “sustained the objections.” According to 

the order, Christian’s argument “did not address the foundational issue with the attachment to the affidavit (or [Paw’s] 

argument the attachment was altered)” and that “even if the 

affidavit was received, the most it could show was that when 

[Christian] checked his mail in the afternoon of January 30, 

2023, the order for hearing was in his mail.”

Thus, the critical question is whether the exhibit was partly 

admissible and partly inadmissible. Christian’s statements 

36 Anderson v. Autocrat Corp., 194 Neb. 278, 286, 231 N.W.2d 560, 565 

(1975).
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based on his personal knowledge could be properly admitted, 

but hearsay statements of another could be properly excluded.

Our case law demonstrates that the trial court has vast discretion in such a situation and that any error generally will not 

be reversible. Two rules exist, depending on whether the court 

overrules or sustains an objection.

Christian relies on the rules that it is not error to overrule 

an objection which is in part valid and in part invalid 37 and 

that an objection to an exhibit as a whole is properly overruled 

where a part of the exhibit is admissible. 38 But here, the court 

did not overrule the objection.

[13] Christian fails to cite the rule that when part of an 

exhibit is inadmissible, a trial court has discretion to reject the 

exhibit entirely or to admit the admissible portion. 39 Because 

it is the proponent’s responsibility to separate the admissible 

and inadmissible parts when offering evidence, an appellate 

court will ordinarily uphold a court’s exclusion of an exhibit 

if the proponent did not properly limit its offer to the part or 

parts that are admissible. 40

The portion of the email stating that it was transmitted 

on January 30, 2023, at 7:24 a.m. and that “[y]ou have mail 

and packages arriving soon” and depicting the image of an 

envelope from the clerk was hearsay. Hearsay is a statement, other than one made by the declarant while testifying 

at the trial or hearing, offered in evidence to prove the truth 

of the matter asserted. 41 It was a statement made by someone 

other than Christian. The affidavit stated that the email was 

attached “[a]s further proof that [Christian] did not receive [the 

notice of hearing] until it was too late.” Thus, it was offered 

37 State v. Merrill, 252 Neb. 736, 566 N.W.2d 742 (1997).

38 Id. See, also, State v. Matteson, 313 Neb. 435, 985 N.W.2d 1 (2023).

39 In re Guardianship of Jill G., 312 Neb. 108, 977 N.W.2d 913 (2022); 

Arens v. NEBCO, Inc., 291 Neb. 834, 870 N.W.2d 1 (2015).

40 In re Guardianship of Jill G., supra note 39.

41 Neb. Rev. Stat. § 27-801(3) (Cum. Supp. 2022).
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to prove the truth of the matters asserted in the email—the date 

and time of transmission, that Christian had mail arriving soon, 

and that the mail consisted in part of an envelope from the 

clerk of the district court. Christian cited no hearsay exception 

to the district court. On appeal, his initial brief cited to Neb. 

Rev. Stat. § 27-803(8) (Cum. Supp. 2022), which excepts,

[u]pon reasonable notice to the opposing party prior to 

trial, records, reports, statements, or data compilations 

made by a public official or agency of facts required to 

be observed and recorded pursuant to a duty imposed 

by law, unless the sources of information or the method 

or circumstances of the investigation are shown by the 

opposing party to indicate a lack of trustworthiness.

We are not persuaded that Christian’s affidavit established 

that the U.S. Postal Service was required by law to provide 

the email service of “‘USPS Informed Delivery.’” Thus, we 

cannot say that Christian met his burden of establishing the 

elements of the hearsay exception. It necessarily follows that 

this portion of the exhibit was inadmissible.

Because part of Christian’s affidavit was inadmissible, the 

burden rested on him to offer only the admissible portion. He 

did not do so. We find no reversible error.

We are not unmindful that Christian did not participate in 

the hearing at which the protection order was affirmed. But we 

also recognize that his posthearing affidavit did not attempt to 

show that he was prejudiced by the mailed notice—the affidavit wholly failed to set forth any of his personal knowledge 

regarding the events leading to the protection order. In the 

absence of any such showing, we limit our consideration to 

his assigned errors.

CONCLUSION

Our conclusion is based on somewhat different reasoning 

than that of the Court of Appeals. Nonetheless, we determine 

that the judgment of the appellate court—affirming the judgment of the district court—was correct.

Affirmed.