                                                                                April 16 2013

                                            DA 12-0378

                   IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2013 MT 100

 CHS, INC.,

               Plaintiff and Appellant,

          v.

 MONTANA STATE DEPARTMENT OF REVENUE,

               Defendant and Appellee.

APPEAL FROM:          District Court of the Thirteenth Judicial District,
                      In and For the County of Yellowstone, Cause Nos. DV 10-133, DV 10-2080
                      Honorable Susan P. Watters and Honorable Gregory R. Todd, Presiding
                      Judges

 COUNSEL OF RECORD:

                 For Appellant:

                        Jared M. Le Fevre, Jon Dyre, James P. Site, Crowley Fleck PLLP, Billings,
                        Montana

                 For Appellee:

                        Derek R. Bell, Brendan R. Beatty, Special Assistant Attorneys General,
                        Montana Dept. of Revenue, Helena, Montana

                                                      Submitted on Briefs:   February 6, 2013
                                                                 Decided:    April 16, 2013

 Filed:

                         __________________________________________
                                           Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1    CHS, Inc., asked the Thirteenth Judicial District Court, Yellowstone County, for a

declaratory judgment that the Montana Department of Revenue (DOR) used improper or

illegal methods of assessing CHS’s Montana properties for property tax purposes in 2009

and 2010. The court granted summary judgment for DOR on CHS’s claims, ruling that

the substantive arguments must be presented to the appropriate administrative tax appeal

boards. CHS appeals. We affirm.

¶2    CHS sets forth three issues on appeal:

¶3    1. Is the CHS challenge to the methods and procedures of assessment used by

DOR to assess CHS’s property within the scope of declaratory judgment actions that may

be brought directly in a Montana district court under § 15-1-406, MCA, without first

appealing to administrative tax appeals boards?

¶4    2. Is the CHS claim that DOR violated state law when it failed to equalize its

valuation of CHS’s property with similar properties within the scope of declaratory

judgment actions that may be brought directly in a Montana district court under § 15-1-

406, MCA, without first appealing to administrative tax appeal boards?

¶5    3. Was DOR’s assessment of CHS’s property made too late for tax year 2009?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶6    CHS is a Minnesota corporation licensed to do business in Montana. This case

relates to state property taxes assessed on CHS’s coking refinery in Laurel, Montana, and

on its petroleum marketing terminals in Gallatin and Missoula Counties.

                                           2
¶7     As part of Montana’s state property tax appraisal process, CHS must submit an

annual Property Reporting Form to DOR.            In 2009, CHS requested two separate

extensions of time to return its Property Reporting Form, and DOR granted those

extensions. On May 29, 2009, two months after the second agreed-upon extension

deadline, CHS notified DOR that certain figures it had reported were in error and

required adjustment.

¶8     DOR issued its original 2009 assessment of CHS’s property on or about August

22, 2009. CHS requested an informal review of the 2009 assessment notice, which is the

first step in protesting a tax assessment under § 15-7-102(3), MCA. Following the

informal review, DOR issued a revised assessment in January of 2010.

¶9     CHS remained dissatisfied with the 2009 assessment of its property. An aggrieved

taxpayer who is not satisfied by the results of informal review with DOR may continue

the administrative appeal process by appealing to the county tax appeal board, the State

Tax Appeal Board (STAB), and, eventually, petitioning for judicial review of the

administrative decisions. See §§ 15-2-301 through -303, 15-7-102(3) and (6), and 15-15-

101 through -104, MCA. In addition, § 15-1-406(1)(a), MCA, allows an aggrieved

taxpayer to bring a declaratory judgment action directly in a district court to establish that

an administrative rule or method or procedure of assessment or imposition of tax adopted

or used by DOR is “illegal or improper.”

¶10    CHS paid its 2009 property taxes under protest and then pursued both

administrative review and the declaratory judgment option for challenging its property

tax assessment. It filed this declaratory judgment action and, contemporaneously, filed
                                              3
appeals with the county tax appeal boards in Yellowstone, Gallatin, and Missoula

Counties.     In 2010, CHS again requested an informal review of its property tax

assessment with DOR, and then later filed a second declaratory judgment action,

challenging DOR’s assessment of its property taxes for tax year 2010.                          The two

declaratory judgment actions are consolidated for purposes of this appeal. The county tax

appeal boards have stayed the administrative proceedings before them, pending the

outcome of this action.

¶11     DOR filed a motion asking the District Court to grant it summary judgment. DOR

argued that CHS had failed to present facts stating a claim under § 15-1-406, MCA, and

that the types of challenges being made by CHS must first be presented to the

administrative tax appeal boards provided for under Montana statutes. In addition, DOR

requested summary judgment on CHS’s claims that DOR had failed to equalize CHS’s

properties with similar properties or to timely assess the property under the statutory

deadline contained in § 15-8-201, MCA.

¶12     In support of its motion for summary judgment, DOR filed a 10-page affidavit by

its appraiser, Seth Carlson. Carlson averred that he used a cost approach to valuation of

the property, making substantial deductions for physical depreciation and functional

obsolescence, but that he could not identify any economic obsolescence. He considered

performing an income approach to valuation, but ultimately did not do so because he

lacked the necessary income and expense information from CHS.1                            Carlson also

1
 The Property Reporting Form did not require disclosure of income or expense information, and CHS declined
DOR’s requests that it provide such information.
                                                    4
considered employing a market data approach to valuation, but he did not identify any

particular sales that were comparable or useful. Carlson stated that, upon CHS’s request

for informal review with DOR, he reviewed and considered information that CHS

provided from its outside appraisers, Duff and Phelps. However, “[f]or a variety of

reasons,” Carlson determined the Duff and Phelps analysis could not serve as a legitimate

basis to modify or adjust the market value of CHS’s property.

¶13    In response to the motion for summary judgment, CHS provided the District Court

with an affidavit from a new outside consultant, Michael Remsha, who had analyzed the

values of CHS’s properties for purposes of this action. Remsha opined that DOR had not

taken into account all items of depreciation and obsolescence, resulting in an excessive

assessment. Remsha further stated that he had identified sales of comparable refineries

and used them to value the Laurel refinery, and that he also had identified applicable

revenues, expenses, and capitalization and discount rates to appraise the refinery under

the income approach.

¶14    Following briefing and a hearing, the District Court granted summary judgment

for DOR as to all of the CHS claims. The court determined that DOR had established the

nonexistence of material facts as to the illegality of the tax imposed on CHS, and that

CHS then had failed to meet its burden of presenting evidence that the method or

procedure of assessment was illegal or improper. The court ruled that Remsha’s affidavit

went to valuation, and not to illegal taxation. The court deferred to the appropriate tax

appeal boards the merits of the equalization argument, and it ruled that CHS had

established no prejudice as a result of the “late” assessment notice in 2009.
                                             5
                               STANDARDS OF REVIEW

¶15     We review de novo a district court’s grant of summary judgment. In re Estate of

Harmon, 2011 MT 84, ¶ 14, 360 Mont. 150, 253 P.3d 821. In so doing, we apply the

same standards used by the district court under M. R. Civ. P. 56: summary judgment

should be rendered if the pleadings, discovery, and other materials on file with the court

establish that there is no genuine issue as to any material fact and the moving party is

entitled to judgment as a matter of law.

¶16     The interpretation and application of a statute to a particular set of circumstances

are questions of law subject to de novo review for correctness. Ramsey v. Yellowstone

Neurosurgical Assocs., 2005 MT 317, ¶ 18, 329 Mont. 489, 125 P.3d 1091.

                                      DISCUSSION

¶17 Issue One: Is the CHS challenge to the methods and procedures of assessment
used by DOR to assess CHS’s property within the scope of declaratory judgment actions
that may be brought directly in a Montana district court under § 15-1-406, MCA, without
first appealing to administrative tax appeals boards?

¶18     As indicated above, § 15-1-406, MCA, allows an aggrieved taxpayer to bring a

declaratory judgment action seeking a declaration that a “method or procedure of

assessment” is “illegal or improper.” Section 15-1-406(4)(a), MCA, further provides

that:

        The remedy authorized by this section may not be used to challenge the . . .
        market value of property under a property tax unless the challenge is to the
        legality of a particular methodology that is being applied to similarly
        situated taxpayers[.]

The parties agree that Albright v. State, 281 Mont. 196, 933 P.2d 815 (1997), is the

foundation for discussion of which “methods or procedures of assessment” may be
                                             6
challenged directly in a district court under § 15-1-406, MCA.

¶19    Albright was a challenge to the constitutionality of the statewide reappraisal of all

residential and commercial property in Montana between 1987 and 1992, pursuant to

§ 15-7-111, MCA. The case involved application of two statutory requirements. Section

15-8-111(1)-(2)(a), MCA, required that “[a]ll taxable property must be assessed at 100%

of its market value except as otherwise provided. Market value is the value at which

property would change hands between a willing buyer and a willing seller[.]” Section

15-7-112, MCA, required that “[t]he same method of appraisal and assessment shall be

used in each county of the state to the end that comparable property with similar true

market values and subject to taxation in Montana shall have substantially equal taxable

values at the end of each cyclical revaluation program[.]”

¶20    In Albright, we concluded the legislature intended DOR to use both the cost

approach and the market data approach to valuation of property, depending on the

available market data. We also concluded that DOR’s use of various approaches to

valuation does not contravene the mandate that appraisals be done by the same “method”

statewide.

       [T]he term “method” refers to a consistent process for arriving at market
       value, the details of which may vary from place to place, depending on
       available data, and which will necessarily include a number of different
       approaches—e.g., the market data approach, the income approach, the cost
       approach—or some combination of these approaches, depending on the
       market in the area where appraisals occur.

Albright, 281 Mont. at 208-09, 933 P.2d at 823. Ultimately, we concluded that DOR’s

market-based method utilizing a combination of approaches--the market data approach,

                                             7
the income approach, and the cost approach--did not violate Article VIII, Section 3, of

the Montana Constitution. We went on to advise property owners who feel that fair,

accurate, and consistent valuations have not been achieved to avail themselves of the

administrative property tax appeal process set forth at §§ 15-15-101 through -104, MCA.

Albright, 281 Mont. at 213-14, 933 P.2d at 826.

¶21   Acknowledging that Albright is a controlling precedent, CHS relies on Devoe v.

Department of Revenue, 263 Mont. 100, 866 P.2d 228 (1993), to argue that using the cost

approach to valuation alone, without consideration of any market factors, is inadequate as

a matter of law because it does not take into account market influences on property

values. CHS also cites Devoe and Albright for the holding that DOR is obliged to assess

property at 100% of its market value and that the courts have the power to determine

whether the methods used by DOR are adequate to meet that obligation. CHS’s position

is that Albright and Devoe require that all three ways of determining market value--cost

approach, income approach, and comparable sale or market data approach--can and

should be used, depending on the context, rather than only the cost less depreciation

approach.

¶22   “Depending on the context” is key. The clear language of Albright set forth above

indicates that, while the “method” of appraisal requires consideration of more than one

approach to valuation, use of these approaches may be limited by “available data” and the

“market in the area where appraisals occur.” Albright, 281 Mont. at 209, 933 P.2d at

823; see also PacifiCorp v. State, 2011 MT 93, ¶ 48, 360 Mont. 259, 253 P.3d 847.

                                            8
¶23    CHS asserts repeatedly that it is not asking the courts to make detailed findings of

valuation of its property, but instead is asking them to rule on how to assess property.

But method of assessment necessarily varies with the situation.         See Albright and

PacifiCorp. Where, as here, the record reveals that the property owner is unwilling to

provide DOR with income information, DOR will not be able to use the income

approach. Where DOR is unable to locate comparable sales, and the property owner

offers DOR no evidence of any, DOR will be unable to use the comparable sales or

market data approach.

¶24    DOR appraiser Carlson stated in his affidavit to the District Court that he

considered using an income approach to value in 2009 and 2010, and that he asked CHS

for the type of information he needed to come up with a valuation using an income

approach, and explained why it was necessary. CHS did not, however, provide the

information necessary for Carlson to perform an income approach to value using

generally acceptable appraisal principles.

¶25    Carlson further averred that he had tracked developments in the oil and gas

industry and researched whether sales of comparable properties might have occurred

during the relevant time period.      In Carlson’s opinion, there simply did not exist

sufficiently comparable sales to calculate an opinion of value under that approach.

Notably, CHS has not identified any particular sale that it believes should be considered

under a market data approach.

¶26    As stated above, CHS presented to the District Court an affidavit of its appraisal

expert Michael Remsha concerning the proper methods to insure that a refinery is
                                             9
assessed properly at market value. CHS contends Remsha’s affidavit states a valid

challenge to the “method or procedure of assessment” under § 15-1-406(1)(a), MCA.

The District Court, however, largely disregarded Remsha’s affidavit, correctly

concluding that “the only subject matter to which an expert appraiser may speak with any

expertise are matters of valuation; not the legality or impropriety of the method under

Montana law.” And, to the extent that Remsha’s affidavit contains opinions regarding

valuation, those opinions are speculative and conclusory, such as “the Department of

Revenue did not take into account all items of depreciation and obsolescence,” and do not

create a genuine issue of material fact to survive summary judgment.

¶27    CHS contends it is proper for a court to make a legal ruling on DOR’s method of

assessment. In Department of Revenue v. Grouse Mountain Dev., 218 Mont. 353, 707

P.2d 1113 (1985), owners of golf course property near Whitefish, Montana, sought

judicial review of STAB’s valuation of their property. The only issue on review was

whether a district court may reverse a STAB valuation determination if there was

substantial evidence in the record to support STAB’s decision. CHS states this Court did

not defer to STAB’s findings in Grouse Mountain, and gave no deference to its method

of assessment. That is something of a misstatement. We did affirm the district court’s

finding, based on the administrative record, that STAB had abused its discretion in

approving an appraisal based on a cost of replacement approach only, without

consideration of the effect on the property’s value of a public use restriction. But we also

stated, “[t]ax appeal boards are particularly suited for settling disputes over the

appropriate valuation of a given piece of property, and the judiciary cannot properly
                                            10
interfere with that function.” Grouse Mountain, 218 Mont. at 355, 707 P.2d at 1115.

Notably, we remanded the case to STAB with instructions. Grouse Mountain, 218 Mont.

at 358, 707 P.2d at 1116.

¶28    In his affidavit, Remsha opined that the one method of assessment used by DOR

was done improperly, because DOR failed to take into account all items of depreciation

and obsolescence, resulting in an improper or illegal method of assessment. But § 15-8-

111(2)(b), MCA, does not require DOR’s appraisers to simply accept a taxpayer’s

assertions concerning depreciation or obsolescence. See PacifiCorp, ¶¶ 37-48.

¶29    CHS cites PacifiCorp and Department of Revenue v. Burlington N., Inc., 169

Mont. 202, 545 P.2d 1083 (1976), for the proposition that “[a] taxpayer’s right to submit

new information on appeal is well-established.” Those cases involved appeals of STAB

decisions, and the reference was to STAB’s statutory authority to hold a de novo hearing

and receive new evidence. That procedural posture is very different from a declaratory

judgment action such as this one.

¶30    This issue can be decided based on the undisputed material facts and the

applicable law. Our review convinces us that DOR established that there are no genuine

issues of material fact regarding illegal or improper methods or procedures of valuation.

CHS did not meet its burden of establishing a genuine issue of material fact as to whether

DOR used an illegal or improper method or procedure to assess CHS’s property. The

District Court was correct in ruling that CHS’s claims of material issues of fact go to

valuation, not illegal taxation, and thus must be raised in administrative proceedings.

                                            11
¶31 Issue Two: Is the CHS claim that DOR violated state law when it failed to
equalize its valuation of CHS’s property with similar properties within the scope of
declaratory judgment actions that may be brought directly in a Montana district court
under § 15-1-406, MCA, without first appealing to administrative tax appeal boards?

¶32    Article VIII, Section 3, of the Montana Constitution requires the state of Montana

to “appraise, assess, and equalize the valuation of all property which is to be taxed in the

manner provided by law.” CHS states DOR’s appraised market value of CHS’s refinery

is higher than those of refineries owned by Phillips 66 and ExxonMobil in Yellowstone

County. CHS cites Department of Revenue v. State Tax Appeal Bd. (DOR v. STAB), 188

Mont. 244, 613 P.2d 691 (1980), for the idea that a taxpayer is entitled to relief if he can

show that his property was assessed at a higher proportion of its actual value than the

ratio existing between the assessed and actual valuations of similar and comparable

properties.

¶33    DOR v. STAB involved a request for judicial review of a STAB decision. In that

case, we adopted the six-factor “Maxwell test” as a basis for determining equalization

among like properties. The factors are: (1) that there are other similar properties within a

reasonable area; (2) the amount of assessments on those properties; (3) the actual values

of those properties; (4) the actual value of the subject property; (5) the assessment

complained of; and (6) by comparison, the subject property is assessed at a higher portion

of its actual value than the ratio existing between the assessed and actual values of the

similar properties. The Maxwell test thus requires several valuation-related findings of

fact. In DOR v. STAB, we remanded to allow the state tax appeal board to hold a hearing

at which evidence of the true and assessed values of commercial and residential property

                                            12
could be introduced.     We also noted that the burden is on the taxpayer to establish

DOR’s failure to equalize. DOR v. STAB, 188 Mont. at 250, 613 P.2d at 694.

¶34   The affidavit filed by DOR appraiser Carlson in the present case states Carlson

relied on the cost approach to estimating value, in an identical manner for the three

Yellowstone County refineries. DOR thus established its entitlement to judgment as a

matter of law on the equalization question; according to the affidavit, each was treated

the same. At that point CHS was required to meet its burden of establishing a genuine

issue of material fact as to whether DOR acted illegally or improperly by failing to

equalize its valuation of CHS’s property with similar properties. CHS’s submission of

Remsha’s affidavit, with a conclusory statement that DOR failed to equalize, did not

suffice to meet CHS’s burden of establishing a genuine issue of material fact.

¶35   Thus, we conclude the District Court was correct in granting DOR summary

judgment on this claim, which was not within the scope of a declaratory judgment action.

¶36 Issue Three: Was DOR’s assessment of CHS’s property made too late for tax year
2009?

¶37   Section 15-8-201(1), MCA, provides that, “between January 1 and the first

Monday of August in each year, [DOR shall] ascertain the names of all taxable

inhabitants and assess all property subject to taxation in each county.” The third claim in

CHS’s complaint for declaratory judgment is that DOR’s 2009 assessment of its property

was not timely.

¶38    In Albright, 281 Mont. at 218, 933 P.2d at 829, we ruled that a statutory

requirement that property be “assessed” by a date certain did not equate to a requirement

                                            13
that assessment notices be sent out by the date specified. The statutory language has been

amended since our Albright decision, but a requirement that property be “assessed” by a

date certain remains. See § 15-8-201(1), MCA.

¶39    In the present case, the District Court ruled that “there still remains no evidence

that DOR failed to ‘assess’ CHS’s property by the statutorily prescribed deadline.” As

CHS points out, however, DOR appraiser Carlson admitted by affidavit that DOR’s 2009

assessment occurred shortly after the first Monday in August. Thus, the situation here is

a step beyond that presented in Albright.

¶40    In applying the date certain requirement to the circumstances of this case, we

observe the rule that we must adopt a statutory construction, if possible, that will give

effect to all statutes the legislature has enacted on the subject. See § 1-2-101, MCA. We

observe that §§ 15-7-102 (appeals) and 15-8-601 (assessment revision), MCA, address

situations in which DOR is required to issue assessments after the conclusion of events

that fall after the first Monday in August. Nothing in § 15-8-201, MCA, explicitly or

implicitly grants an extension of time to accommodate revised assessments that must

issue at the conclusion of revision or appeals under §§ 15-7-102 or 15-8-601, MCA. Yet

CHS is not arguing that those assessments are invalid.

¶41    In addition, § 15-8-308, MCA, provides that “[n]o assessment . . . is illegal . . .

because the same was not completed within the time required by law.” CHS says this

statute applies only to DOR’s internal deadlines, not to substantive statutory deadlines.

But the language of § 15-8-308, MCA, contains no such limitation. In addition, we

observe that, for the year 2009, Chapter No. 483, Section 12, L. 2009, provided that “[a]s
                                            14
a result of the changes . . . it may not be possible to comply with certain statutory

deadlines relating to appraisals . . . . Therefore, for tax year 2009, all deadlines are

extended as necessary and reasonable . . . .”

¶42    Finally, CHS claims DOR’s reasons for missing the statutory assessment deadline

raise issues of fact, and therefore summary judgment on this issue was improper. But

Albright created a prejudice test for invalidating a “late” assessment:        absent the

possibility that a late assessment may impede a taxpayer’s ability to appeal a changed

property valuation, missing the statutory deadline does not render those assessments

invalid. See Albright, 281 Mont. at 217-18, 933 P.2d at 828-29. In the present case, as

the District Court noted, CHS has raised no genuine issues of material fact that would

demonstrate any prejudice it has suffered as a result of the assessment notice being issued

to it on August 22 instead of by the first Monday in August in 2009.

¶43    We conclude the District Court did not err when it granted DOR summary

judgment on CHS’s claim that the 2009 assessment of its property was “illegal or

improper” because it was not completed by the first Monday in August of that year.

                                     CONCLUSION

¶44    The CHS challenges to the methods and procedures of assessment used by DOR to

assess CHS’s property must be raised through the administrative tax appeal process.

Similarly, the CHS claim that DOR failed to equalize its valuation of CHS’s property is

the type of challenge that must be pursued administratively. As a result, the District

Court did not err in granting DOR summary judgment on those claims. Finally, the court

did not err when it granted DOR summary judgment on the CHS claim that the 2009
                                                15
assessment of its property was illegal or improper because it was “late.”

¶45    Affirmed.

                                                 /S/ MIKE McGRATH

We concur:

/S/ MICHAEL E WHEAT
/S/ LAURIE McKINNON
/S/ PATRICIA COTTER
/S/ BETH BAKER

                                            16


915 F.2d 1579
Brown (Dwight)v.Schweitzer (Gordon)
NO. 90-1514
United States Court of Appeals,Eighth Circuit.
AUG 29, 1990

1
Appeal From:  E.D.Mo.

2
AFFIRMED.


46 F.3d 65
U.S.v.Byars*
NO. 94-10723
United States Court of Appeals,Fifth Circuit.
Jan 10, 1995
Appeal From:  N.D.Tex., No. 3:94-CV-947-R

1
AFFIRMED.

*
 Fed.R.App.P. 34(a);  5th Cir.R. 34.2


                                                                              FILED
                                                                  United States Court of Appeals
                          UNITED STATES COURT OF APPEALS                  Tenth Circuit

                                 FOR THE TENTH CIRCUIT                 January 29, 2018
                             _________________________________
                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
CHAMBER OF COMMERCE OF THE
UNITED STATES OF AMERICA;
NATIONAL FEDERATION OF
INDEPENDENT BUSINESS; TULSA
REGIONAL CHAMBER; PORTLAND
CEMENT ASSOCIATION; STATE
CHAMBER OF OKLAHOMA,

       Plaintiffs - Appellants,                             No. 16-5038
                                                (D.C. No. 4:15-CV-00386-CVE-PJC)
v.                                                          (N.D. Okla.)

UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY; E. SCOTT
PRUITT, in his official capacity as
Administrator of the United States
Environmental Protection Agency;
UNITED STATES ARMY CORPS OF
ENGINEERS; JO-ELLEN DARCY, in her
official capacity as Assistant Secretary of
the Army (Civil Works),

       Defendants - Appellees.

------------------------------

PACIFIC LEGAL FOUNDATION; CATO
INSTITUTE; SOUTHEASTERN LEGAL
FOUNDATION; STATE OF ALABAMA;
STATE OF ALASKA; STATE OF
ARIZONA; STATE OF ARKANSAS;
STATE OF COLORADO; STATE OF
FLORIDA; STATE OF GEORGIA;
STATE OF IDAHO; STATE OF
INDIANA; STATE OF KANSAS; STATE
OF KENTUCKY; STATE OF
LOUISIANA; STATE OF MICHIGAN;
STATE OF MISSISSIPPI; STATE OF
MISSOURI; STATE OF NEBRASKA;
NEW MEXICO STATE ENGINEER;
NEW MEXICO ENVIRONMENT
DEPARTMENT; STATE OF NEVADA;
NORTH CAROLINA DEPARTMENT OF
ENVIRONMENTAL QUALITY; STATE
OF NORTH DAKOTA; STATE OF
OHIO; STATE OF SOUTH CAROLINA;
STATE OF SOUTH DAKOTA; STATE
OF TENNESSEE; STATE OF TEXAS;
STATE OF UTAH; STATE OF WEST
VIRGINIA; STATE OF WISCONSIN;
STATE OF WYOMING; AMERICAN
ROAD AND TRANSPORTATION
BUILDERS ASSOCIATION; THE
AMERICAN FARM BUREAU
FEDERATION; AMERICAN FOREST &
PAPER ASSOCIATION; AMERICAN
PETROLEUM INSTITUTE; GREATER
HOUSTON BUILDERS ASSOCIATION;
LEADING BUILDERS OF AMERICA;
NATIONAL ALLIANCE OF FOREST
OWNERS; NATIONAL ASSOCIATION
OF HOME BUILDERS; NATIONAL
ASSOCIATION OF
MANUFACTURERS; NATIONAL
ASSOCIATION OF REALTORS;
NATIONAL CATTLEMEN’S BEEF
ASSOCIATION; NATIONAL CORN
GROWERS ASSOCIATION; NATIONAL
MINING ASSOCIATION; NATIONAL
PORK PRODUCERS COUNCIL;
NATIONAL STONE, SAND & GRAVEL
ASSOCIATION; PUBLIC LANDS
COUNCIL; TEXAS FARM BUREAU;
U.S. POULTRY & EGG ASSOCIATION,

    Amici Curiae.

–––––––––––––––––––––––––––––––

STATE OF OKLAHOMA EX REL. MIKE
HUNTER, in his official capacity as

                                      2
Attorney General of Oklahoma,

       Plaintiff - Appellant,                                  No. 16-5039
                                                  (D.C. No. 4:15-CV-00381-CVE-FHM)
v.                                                             (N.D. Okla.)

UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY; UNITED
STATES ARMY CORPS OF
ENGINEERS; E. SCOTT PRUITT, in his
official capacity as Administrator of the
United States Environmental Protection
Agency; JO-ELLEN DARCY, in her
official capacity as Assistant Secretary of
the Army for Civil Works,

       Defendants - Appellees.

------------------------------

PACIFIC LEGAL FOUNDATION; CATO
INSTITUTE; SOUTHEASTERN LEGAL
FOUNDATION; STATE OF ALABAMA;
STATE OF ALASKA; STATE OF
ARIZONA; STATE OF ARKANSAS;
STATE OF COLORADO; STATE OF
FLORIDA; STATE OF GEORGIA;
STATE OF IDAHO; STATE OF
INDIANA; STATE OF KANSAS; STATE
OF KENTUCKY; STATE OF
LOUISIANA; STATE OF MICHIGAN;
STATE OF MISSISSIPPI; STATE OF
MISSOURI; STATE OF NEBRASKA;
NEW MEXICO STATE ENGINEER;
NEW MEXICO ENVIRONMENT
DEPARTMENT; STATE OF NEVADA;
NORTH CAROLINA DEPARTMENT OF
ENVIRONMENTAL QUALITY; STATE
OF NORTH DAKOTA; STATE OF
OHIO; STATE OF SOUTH CAROLINA;
STATE OF SOUTH DAKOTA; STATE
OF TENNESSEE; STATE OF TEXAS;
STATE OF UTAH; STATE OF WEST

                                              3
VIRGINIA; STATE OF WISCONSIN;
STATE OF WYOMING; AMERICAN
ROAD AND TRANSPORTATION
BUILDERS ASSOCIATION; THE
AMERICAN FARM BUREAU
FEDERATION; AMERICAN FOREST &
PAPER ASSOCIATION; AMERICAN
PETROLEUM INSTITUTE; GREATER
HOUSTON BUILDERS ASSOCIATION;
LEADING BUILDERS OF AMERICA;
NATIONAL ALLIANCE OF FOREST
OWNERS; NATIONAL ASSOCIATION
OF HOME BUILDERS; NATIONAL
ASSOCIATION OF
MANUFACTURERS; NATIONAL
ASSOCIATION OF REALTORS;
NATIONAL CATTLEMEN’S BEEF
ASSOCIATION; NATIONAL CORN
GROWERS ASSOCIATION; NATIONAL
MINING ASSOCIATION; NATIONAL
PORK PRODUCERS COUNCIL;
NATIONAL STONE, SAND & GRAVEL
ASSOCIATION; PUBLIC LANDS
COUNCIL; TEXAS FARM BUREAU;
U.S. POULTRY & EGG ASSOCIATION,

      Amici Curiae.
                        _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before LUCERO, PHILLIPS, and MORITZ, Circuit Judges.
                  _________________________________

      Plaintiffs filed these actions in the United States District Court for the

Northern District of Oklahoma to challenge a regulation issued by the Environmental

      *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                           4
Protection Agency defining the term “waters of the United States” for purposes of the

Clean Water Act. The district court dismissed both cases, concluding that such

challenges must be brought in the United States Circuit Court of Appeals pursuant to

33 U.S.C. § 1369(b)(1). We consolidated the subsequent appeals.

      Following oral argument, the Supreme Court granted certiorari in a case

raising the same issue. Nat’l Ass’n of Mfrs. v. Dep’t of Def., 137 S. Ct. 811 (2017).

We abated these appeals pending the Court’s decision in that case. The Supreme

Court has now held that the regulation at issue “falls outside the ambit of

§ 1369(b)(1), and any challenges to the Rule therefore must be filed in federal district

courts.” Nat’l Ass’n of Mfrs. v. Dep’t of Def., ___ U.S. ___, No. 16-299, 2018 WL

491526, at *4 (Jan. 22, 2018).

      We accordingly LIFT the abatement, REVERSE, and REMAND to the

district court for further proceedings.

                                            Entered for the Court
                                            Per Curiam

                                           5


1 Cal.App.3d 856 (1969)
82 Cal. Rptr. 147
THE PEOPLE, Plaintiff and Respondent,
v.
NORMAN ARLEE MAUGH, Defendant and Appellant.
Docket No. 16056.
Court of Appeals of California, Second District, Division One.
November 19, 1969.
*859 COUNSEL
Belan M. Wagner, under appointment by the Court of Appeal, for Defendant and Appellant.
Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, and Mark Leicester, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
LILLIE, J.
Charged with a violation of section 288, Penal Code, and incest, the charges were reduced to, and defendant was found guilty of *860 annoying and molesting a child under the age of 18 (§ 647a, subd. (1), Pen. Code), a misdemeanor. On April 15, 1968, defendant was certified by the municipal court to the superior court for hearing to determine if he is a mentally disordered sex offender. On April 18, 1968, the superior court appointed Doctors Mace and Vogeler to examine defendant. A hearing was had on April 30, 1968, reports of the two examining psychiatrists were admitted in evidence, report of the probation officer was read and considered and Judge Ruffner committed defendant to Atascadero State Hospital for observation and diagnosis for a period not to exceed 90 days.
A month later defendant stated in writing he did not wish to remain at Atascadero State Hospital for treatment. Thereafter on June 25, 1968, the superintendent reported his diagnosis  "Personality pattern disturbance, cyclothymic personality, with sexual deviation, (incest and female pedophilia)," his opinion that defendant "is a mentally disordered sex offender, but he will not benefit by care or treatment in a state hospital and is a danger to the health and safety of others" and not amenable to hospital treatment, and his recommendation that he be returned to the criminal court and if charged with a misdemeanor committed to the Department of Mental Hygiene for an indeterminate period. Defendant was returned to the superior court which certified him to the municipal court which recertified him to the superior court to determine whether he is a mentally disordered sex offender. Thus, on August 5, 1968, Judge Ruffner ordered another examination and appointed Doctors Vogeler and Sheel to examine defendant. On September 6, 1968, a hearing was had; after considering the evidence,[1] Judge Willard found "that defendant is suffering from a mental defect, disease or disorder to such a degree that he is a danger and is predisposed to committing sexual offenses" but that he is amenable to and would benefit from hospital treatment, and ordered him committed to the Department of Mental Hygiene for placement at Atascadero State Hospital for an indeterminate period. Immediately defendant demanded a trial by jury; the jury found that defendant "is a mentally disordered sex offender and would not benefit by care and treatment in a state hospital." Motion for new trial was denied and Judge Willard ordered defendant be committed to the State Department of Mental Hygiene for an indeterminate period of placement with the Department of Corrections. He appeals from the order.
*861 (1) Appellant's claim that the probation report shows two prior felony convictions of grand theft auto, thus he was ineligible for probation and excluded from the operation of the mentally disordered sex offender law[2] (§ 5500.5, Welf. & Inst. Code)[3], and the court had no jurisdiction to determine that he is a mentally disordered sex offender is without merit. The record fails to show that he was convicted of two felonies and defendant knows that he was not. The entries in the probation report[4] do not show two grand theft auto felony convictions; they do show one grand theft on January 8, 1950, not therein designated a felony, and therefor defendant was in custody of two separate agencies, the juvenile court having placed him first in the Senior Forestry Camp, later with the Clarement Youth Authority at Preston Reformatory from which he was subsequently paroled. It is clear from the record that defendant was convicted of only one grand theft auto, then as a juvenile. Information obtained by Dr. Vogeler from defendant himself reveals only one conviction and that "while a juvenile he was arrested for car theft and served a sentence at the Preston Reformatory after running away from the youth authority camp." A juvenile conviction may be either a misdemeanor or felony depending on the type of sentence imposed; when the court has discretion to impose a sentence either in the county jail or in state prison the offense is deemed a misdemeanor (§ 17, Pen. Code). Grand theft (§ 487, Pen. Code) is punishable by imprisonment either in the county jail or the state prison (§ 489, Pen. Code), thus is deemed to be a misdemeanor.
(2) Citing People v. Washington, 269 Cal. App.2d 246 [74 Cal. Rptr. 823], appellant claims it was reversible error for two judges  Judge Ruffner and Judge Willard  to hear the evidence. Upon defendant's return from the state hospital and recertification to the superior court, Judge Ruffner set the matter for hearing and appointed the public defender and two psychiatrists; he heard no evidence. Thereafter, the hearing was *862 had before Judge Willard who made a determination and ordered defendant's commitment to Atascadero. However, dissatisfied with this, defendant immediately requested a jury trial and again Judge Willard presided at the trial and made the subsequent order for an indeterminate period of placement with the Department of Corrections. In each instance the evidence was heard by the same judge who made the order of commitment. This is not the situation condemned in People v. Washington, 269 Cal. App.2d 246 [74 Cal. Rptr. 823], in which the evidence was heard by one judge sitting in a civil department and the commitment was made by another sitting in a criminal court (p. 249).
(3, 4) Appellant claims that those sections of the Welfare and Institutions Code relating to indeterminate commitment are unconstitutional as violative of the Fourteenth Amendment in that the right to trial by jury is granted to one class of persons, i.e., those who are committed to a state hospital, but make no such provision for those committed to the Department of Mental Hygiene. Having asked for and received a trial by jury, the rule permitting a person to attack a statute only on constitutional grounds applicable to himself precludes appellant from raising this point. (In re Davis, 242 Cal. App.2d 645, 666 [51 Cal. Rptr. 702].) "The rule is well established ... that one will not be heard to attack a statute on grounds that are not shown to be applicable to himself and that a court will not consider every conceivable situation which might arise under the language of the statute and will not consider the question of constitutionality with reference to hypothetical situations. [Citations.] Petitioner has not shown that the statute is being invoked against him in the aspects or under the circumstances which he suggests, and hence may not be heard to complain." (In re Cregler, 56 Cal.2d 308, 313 [14 Cal. Rptr. 289, 363 P.2d 305]; People v. Buese, 220 Cal. App.2d 802, 806 [34 Cal. Rptr. 102].)
(5) Appellant argues that on April 30, 1968, Judge Ruffner made the finding he "is a mentally disordered sex offender" instead of finding "there is sufficient cause to believe that the person is a mentally disordered sex offender" (§ 5512, Welf. & Inst. Code) thus the court's determination was in excess of its jurisdiction, citing People v. Good, 223 Cal. App.2d 298, 301 [35 Cal. Rptr. 825],[5] and "[t]he vice of this finding is that no one can really determine how much it affected all subsequent proceedings." Under the circumstances herein, this alone hardly sustains his burden to establish *863 that the error was prejudicial and we have found nothing in the record from which it would appear reasonably probable that ultimately a more favorable result would have been reached had the order been correctly worded. (People v. Watson, 46 Cal.2d 818, 836 [299 P.2d 243]; art. VI, § 13, Cal. Const.)
(6a) In a late closing brief appellant claims he was denied due process for failure of the court-appointed psychiatrists to testify at the April 30 hearing which rendered void the order committing him to Atascadero for a period not to exceed 90 days. (7) Due process in proceedings for commitment of a convicted person as a mentally disordered sex offender requires that he be present with counsel, have an opportunity to be heard, be confronted with witnesses against him and have the right to cross-examine and offer evidence of his own (Specht v. Patterson, 386 U.S. 605, 610 [18 L.Ed.2d 326, 330, 87 S.Ct. 1209]); the same applies to temporary commitment for observation. (People v. Succop, 67 Cal.2d 785, 789 [63 Cal. Rptr. 569, 433 P.2d 473].) (8) A waiver of any such requirements must be express, and will not be implied. (In re Cruz, 62 Cal.2d 307, 312-313 [42 Cal. Rptr. 220, 398 P.2d 412] [commitment for narcotic addiction]; In re Jones, 61 Cal.2d 325, 329-330 [38 Cal. Rptr. 509, 392 P.2d 269] [commitment for narcotic addiction]; In re Kramer, 257 Cal. App.2d 287, 289-291 [64 Cal. Rptr. 686] [mentally disordered sex offender proceeding].) People v. Thomas, 260 Cal. App.2d 196 [67 Cal. Rptr. 234], heavily relied upon by appellant, held that an order committing defendant to Atascadero for a period not to exceed 90 days is void if the prescribed procedural steps are not followed, including the giving of testimony by the psychiatrists. "While that latter requirement may be waived, the waiver must be express and will not be implied." (P. 201.) In Thomas there was no waiver by stipulation or otherwise and the transcript revealed that although two psychiatrists were sworn they did not testify, the hearing having been immediately dispensed with. (6b) That is not the situation here. While the court-appointed psychiatrists were not examined at the hearing there was an express waiver by stipulation of counsel. On April 18, 1968, upon defendant's certification from the municipal court (§ 5501.5, Welf. & Inst. Code) Judge Ruffner advised defendant of his legal rights in mentally disordered sex offender proceedings, appointed the public defender to represent him, set a date for the hearing and appointed two psychiatrists to examine him. The minute order of April 18, 1968, recites, "Respective counsel stipulate that the doctors are duly qualified psychiatrists, that their reports may be received in evidence subject to cross examination, and that the doctors need not appear as witnesses at the hearing provided their reports are received at least 48 hours prior to the hearing, or unless counsel have requested their appearance at least 24 hours prior to the hearing."
*864 Appellant complains that there was no waiver on his part because he did not personally join in the foregoing stipulation. (9) Mentally disordered sex offender proceedings are similar to criminal prosecutions, and the standards of due process applicable to the latter are equally applicable to the former. (Specht v. Patterson, 386 U.S. 605, 609 [18 L.Ed.2d 326, 329, 87 S.Ct. 1209].) (10) Thus, inasmuch as counsel in a criminal case has the authority to stipulate to the determination of an issue solely on the basis of a written record in lieu of oral testimony and defendant need not himself expressly enter into the stipulation or otherwise expressly waive his rights, and the stipulation is binding when entered into by his counsel while defendant is present and without objection by him (People v. Foster, 67 Cal.2d 604, 606 [63 Cal. Rptr. 288, 432 P.2d 976] [sanity issue]), it would seem that the authority of counsel to enter into stipulations under the same circumstances applies as well to commitment proceedings. (See People v. Succop, 67 Cal.2d 785, 789 [63 Cal. Rptr. 569, 433 P.2d 473].)[6] (6c) Absent in the record is any suggestion that defendant objected to or asked to be relieved of the stipulation which was entered into in his presence, that either he or his counsel ever requested the appearance of the psychiatrists at the hearing or that at any time he complained to the court that they did not appear and testify. Under the terms of the stipulation defense counsel could have requested the appearance of the psychiatrists after reading their reports but he did not do so and his reason for submitting the matter on the doctors' reports is apparent  one psychiatrist recommended observation in the state hospital, the other did not and evidence of defendant's danger to others was extensive. Counsel no doubt felt that the reports would better serve his client than the doctors' testimony detailed at a full-blown hearing. Our examination of the procedures followed discloses that defendant was accorded full procedural due process.
(11) Likewise, appellant says his certification by the superior court to the municipal court upon his return from Atascadero is in excess of the court's jurisdiction because in its order it purported to act under section 5518, Welfare and Institutions Code. While it appears that the superior court did incorrectly cite section 5518 as its authority, the court's action in returning defendant to the municipal court for further proceedings was nevertheless proper. The superintendent had reported to it that defendant is a mentally disordered sex offender who would not benefit from care and treatment in a state hospital. "When such a report is made, the sexual *865 psychopathy proceedings are at an end and the specific direction of the code is that the person is returned to the court in which he was convicted...." (People v. Bachman, 130 Cal. App.2d 445, 449 [279 P.2d 77]; People v. Schaletzke, 239 Cal. App.2d 881, 886 [49 Cal. Rptr. 275].) Thus, defendant was returned to the superior court which, in accord with the provisions of section 5512, properly certified him to the municipal court which, satisfied that defendant is a mentally disordered sex offender who would not benefit by care or treatment in a state hospital and is a danger to the health and safety of others, recertified him to the superior court where ultimately defendant had a jury trial. Appellant says the certification order assumes that he had already been committed to the Department of Mental Hygiene as a mentally disordered sex offender under section 5517, subdivision (b), has not recovered and is still a danger, and but for this language the municipal court could very well have sentenced him on the misdemeanor charge and that would have ended the matter. Not as speculative is the answer that after reading the entire file, including the psychiatrists' reports, probation report and report and recommendation of the superintendent at Atascadero, the municipal court could have done nothing other than recertify defendant to the superior court.
(12) Over defendant's objection the jury was given the question whether he would benefit from hospital treatment and it found that he would not. Relying on a brief comment in a footnote in People v. Washington, 269 Cal. App.2d 246 [47 Cal. Rptr. 823][7], he claims this was error for the only issue was whether he is a mentally disordered sex offender, the prejudice occurring when he was placed with the Department of Corrections instead of Atascadero State Hospital. On the first hearing after defendant's recertification to the superior court Judge Willard found defendant to be a sexual psychopath but amenable to and would benefit from hospital treatment, and ordered him placed in Atascadero State Hospital for an indeterminate period. Defendant was dissatisfied with this finding and order and demanded a jury. The jury also found him to be a mentally disordered sex offender but that he would not benefit by treatment in a state hospital. Appellant seeks to avoid the commitment by resort to the argument that the issue whether he would benefit from hospital treatment having been submitted to the jury erroneously, he is entitled to take advantage of Judge Willard's previous finding that he would benefit from hospital treatment, the fallacy of which is that when he was granted a jury trial the issues were determined anew. Section 5512, Welfare and Institutions *866 Code clearly authorizes the superior court to make a finding on the issue of whether he would benefit by care or treatment in a state hospital. Respondent claims that a reasonable interpretation of this section would also permit a jury, a proper finder of fact, to make the same finding if the trial is by jury.
Even if submission of the issue to the jury was error, it was not prejudicial for the record shows that subsequent to the jury verdict the judge did in fact make an independent finding that defendant would not benefit by hospital treatment, and his subsequent order of commitment was based thereon. Judge Willard's finding and commitment order are based on the evidence that all of the doctors agreed that defendant is a mentally disordered sex offender, is a danger to the health and safety of others, does not have the full capacity of controlling his abnormal desires toward young girls and is very likely to repeat a similar offense, denies he has a sexual problem, does not wish and is not interested in treatment at Atascadero State Hospital, will not benefit from hospital treatment and is not amenable and should not be returned thereto. Thus, the jury's finding in accordance with the foregoing could hardly have been prejudicial. While prior to the jury trial Judge Willard found defendant would benefit from hospital treatment it is apparent from his comments on the motion for new trial that after hearing the testimony of the doctors and other witnesses on the jury trial he changed his mind. He readily admitted that at first he gave defendant "a break," but that after listening to the testimony adduced at the jury trial he, too, "came to the conclusion that [defendant] at this time would not benefit by treatment in a state hospital."[8]
The order is affirmed.
Wood, P.J., and Thompson, J., concurred.
NOTES
[1]  Dr. Vogeler's report concluded that defendant "is a mentally disordered sex offender but not presently dangerous while also not likely to benefit from further treatment at Atascadero State Hospital." Dr. Sheel reported that defendant "continues to show evidence of a mental disorder and that he continues to be a danger to the health and safety of others and I feel therefore, that he is a mentally disordered sex offender within the meaning of the law. It is my feeling that since he is unwilling to be involved in treatment, he is not a suitable candidate for hospitalization at this time."
[2]  Effective July 1, 1969, Welfare and Institutions Code, sections 5500-5522 were repealed. The subject matter is now covered by section 6300 et seq., Welfare and Institutions Code.
[3]  Section 5500.5, Welfare and Institutions Code, provides "This article shall not apply to any person sentenced to death nor to any person ineligible for probation under the Penal Code...."
[4]      DATE          AGENCY           CHARGE            DISPOSITION
     3-6-47        Hawthorn PD      Susp. 288 PC      Juv. Prob. on chg.
                                                      of 311.5 PC
     1-8-50        Hawthorn PD      GTA & 503         Pet. req. in J. court
                                                      1-3-50: Placed in
                                                      Senior Forestry Camp
                                                      Case cont. 10-30-50
     4-22-50       Needles PD        Susp. GTA        Rel to Claremont P.D.
     7-7-50        CYA Preston       GTA              Paroled 12-50

[a] Advance Report Citation: 269 A.C.A. 253.
[5]  In People v. Good, 223 Cal. App.2d 298 [35 Cal. Rptr. 825], a similar preliminary order was made and the court modified the same to conform to section 5512, Welfare and Institutions Code (p. 302); in that case appeal was taken directly from the order.
[6]  "The court-appointed psychiatrists did not testify (see Welf. & Inst. Code, §§ 5505, 5506), and defendant was not afforded any opportunity to produce evidence in his own behalf (see Welf. & Inst. Code, §§ 5503, 5508). The parties did not stipulate that the question be submitted on the reports of the court-appointed psychiatrists and instead defendant made it clear that he desired a hearing." (People v. Succop, 67 Cal.2d 785, 789 [63 Cal. Rptr. 569, 433 P.2d 473].)
[7]  This question was not before the court in People v. Washington, 269 Cal. App.2d 246 [74 Cal. Rptr. 823]. See page 252, footnote 3.
[8]  The court continued: "Very frankly, I had a feeling that if he had gotten on this witness stand and said, `I want to go back. I'll cooperate. I think I have a problem. I'll work with you people,' that we would have had a unanimous opinion of all five doctors that he would benefit and I would have followed that opinion. One after another got on the stand here and said, `He doesn't recognize he has a problem. He isn't interested in the program. He isn't going to benefit.' and I don't see that there was anything on which  I don't see there was any evidence to the contrary and I don't know how in good conscience I could make a finding to the contrary.

"And, therefore, in the event that the correct procedure would be for the Judge to make the determination, ... I would make the determination of no benefit, after having listened to the uncontradicted evidence that there was no benefit.... So under the circumstances I can't see that there was any error committed. If there was error, I don't think it was prejudicial error or that it would have resulted in any different ultimate result."


127 Ariz. 177 (1980)
619 P.2d 5
John C. EVANS, M.D., Appellee,
v.
VALLEY RADIOLOGISTS, LTD., an Arizona Corporation, Appellant.
No. 14673.
Supreme Court of Arizona, In Division.
October 8, 1980.
*178 Rubin, Rubin & Cronin by Richard J. Rubin, Michael F. Ziegler, Phoenix, for appellee.
Gust, Rosenfeld, Divelbess & Henderson by Richard A. Segal, Phoenix, for appellee.
STRUCKMEYER, Chief Justice.
Appellee, John C. Evans, M.D., commenced this action against Valley Radiologists, Ltd. for compensation allegedly due him under an employment contract. Appellant counterclaimed for damages caused by the diverting of patients from it. After trial to the Superior Court, judgment was entered in favor of appellee on both the complaint and the counterclaim with damages fixed at $60,997.42. Appellant moved to amend the judgment or for a new trial, and, after the denial of its motions, appealed. Jurisdiction of the appeal was accepted pursuant to Rule 19(e), Rules of Civil Appellate Procedure, 17A A.R.S. Affirmed.
Appellant's complaint is that the evidence does not support the court's judgment on either the complaint or counterclaim.
The facts show that appellee was hired by appellant in June of 1974 to perform radiation oncology, the treatment of cancer by radiation. They entered into an employment contract on a form which had been used by appellant for nearly ten years. The one and one-quarter page contract had a paragraph containing two blanks, in which the appellee's compensation was entered. That paragraph read:

*179 "Compensation: During the term of this agreement, Employer agrees to compensate Employee in the amount of $4,584 monthly for the first year of service, then in the amount of $5,000 monthly for the second year of service."
Paragraph 7 of the contract provided:
"* * * Employee may declare this agreement to be terminated upon giving Employer 60 days notice. Employee shall not be entitled to any compensation beyond termination date."
Appellee began working on September 3, 1974, giving radiation therapy in two Phoenix hospitals then under contract with appellant. All patients treated by appellee were referred to him by doctors who were not associated with appellant. In July of 1975, appellee met with two other doctors associated with appellant. At this meeting, it was agreed that appellee's salary would be modified to equal all money received by appellant for services performed by appellee, less expenses attributable to his services. The arrangement was made, according to appellee's testimony, because:
"I was told * * * that they were very pleased with the growth of the practice that they felt that the growth of the practice was due to my efforts, not the efforts of Valley Radiologists, and that I should be compensated proportional to the amount of work I was doing, that they didn't feel they should make a profit from my practice."
The new salary became effective September 1, 1975. Thereafter, appellee received twice monthly checks totaling $5,000 a month, and at certain intervals he was paid by check the balance due under the new arrangement.
In the spring of 1976, appellee and appellant disagreed as to whether a linear accelerator for appellant's private office should be purchased. Appellant opposed this, because it could strain its relationship with the Phoenix hospitals which already owned such a device. The disagreement culminated in a letter of April 30, 1976, in which appellee notified appellant that he was terminating his employment with it effective May 1. In the letter, appellee agreed to act as a "locum tenens" for sixty days to "complete the radiation therapy of those patients now under my care." For these services, appellee stated:
"My salary will consist of the professional charge for all patient treatments given during these 60 days, payable on receipt from the patient, or his insurance carrier."
Appellant's witnesses testified that they construed this letter as the sixty-day notice of termination required by paragraph 7, and no response was written to appellee's communication and nothing was said to him about the letter.
Appellee continued working for appellant until June 30, 1976, during which time he received his regular twice monthly checks and an advance of $8,000. Appellee, with the consent of appellant, started to bill patients directly for services rendered. Prior to this time, the appellant had billed for all services.
Shortly after June 30, 1976, appellee brought this action, claiming that appellant owed him compensation for services which had been rendered before May 1, in the amount of $60,997.42, of which $9,002.69 was collected by appellant prior to June 30, 1976. Appellant's position is that the balance of $51,994.73 was not owed, since that amount was collected after June 30th, the termination date of the contract. Appellant relies on paragraph 7 of the contract, which provides that appellee is not "entitled to any compensation beyond termination date." The trial judge found against the appellant and awarded appellee judgment for $60,997.42.
Neither party requested the trial court to make findings of fact and conclusions of law. Accordingly, the Court will view the evidence and all reasonable inferences therefrom in the light most favorable to the prevailing party. Jerger v. Rubin, 106 Ariz. 114, 471 P.2d 726 (1970).
Appellant does not dispute the foregoing principle of appellate court review. Rather, it contends that the rule has no application *180 here, because where all material facts are undisputed, the appellate court must determine whether the trial court properly applied the law to the facts. See Hansen v. Oakley, 76 Ariz. 307, 263 P.2d 807 (1953). All material facts are, however, not beyond dispute.
The appellant's position is that paragraph 7 of the written agreement, which provided that appellee would not be entitled to any compensation beyond termination of his employment, continued in force after the oral modification, thus preventing appellee from recovering on the receivables. But we think the parties differ as to the meaning and context of the modified contract.
Before appellee left the appellant's firm, he spoke with William Cook, M.D., appellant's treasurer, about outstanding billings for radiation therapy. Dr. Cook told appellee that appellant "had not had any specific discussion of that, there was no provision for it and he was not even prepared to discuss it with him. If he [appellee] wanted to lay claim to that money, he would have to bring it to the Board of Directors of the Company." Appellee testified by deposition, which was read at the trial, that Dr. Cook told him "as far as he was concerned I could collect them [the accounts receivable] as they came in but he could not speak for the corporation and he would have to discuss it with other members of the firm."
Appellee argues that Cook's testimony and the fact that he received his salary plus an $8,000 advance in May and June, which could only be attributed to receivables, shows that appellant's present construction of the modified contract was an afterthought. In this respect, the original agreement provided for a fixed monthly compensation unrelated to income generated by the employee's work. In the light of that scheme of compensation, the salary termination provision made sense. But when the contract was amended to provide for payment of compensation on a percentage or commission basis, the termination provisions obviously became inconsistent with the modification. In an action on a contract, the question whether one contract has been cancelled and a new contract entered into is a question of fact. Meyer v. Killingsworth, 73 Ariz. 143, 238 P.2d 1097 (1951). The court could therefore find that in the light of the inconsistency it was the intention of the parties that paragraph 7 was revoked.
Appellant urges that the judgment should be at least reduced. It bases this on the facts that the new salary became effective on September 1, 1975, that appellant receives payments from patients usually two to three months after services are rendered, and that appellee received a salary based on all payments collected from September to December of 1975. Since such payments include payments for services performed prior to September 1, appellant argues that it should be credited for any payment made for those prior services.
Before trial, appellant was aware of the interpretation placed on the modified agreement by appellee. It had the records of billings and collections in its control; thus, even if it did not, it should have realized that an issue of overpayment existed. Instead of raising the issue, appellant entered into a joint pretrial statement, framing the issue of compensation as "Is plaintiff entitled to the sum of $51,994.73 under a contract with the defendant?"[1] No evidence was offered at trial concerning the fact of or the amount of any overpayment. The first time any claim was made was in appellant's post-judgment motion. We hold that appellant's failure to raise the issue before judgment was entered waived any right to a reduction in the amount of the judgment or to a new trial predicated thereon. Deer Valley Industrial Park D & L Co. v. State, 5 Ariz. App. 150, 153, 424 P.2d 192 (1967).
Appellant contended in its counterclaim that appellee breached a duty of loyalty to *181 it. Witnesses testified that appellee in May and June of 1976 told referring doctors and patients that any radiation therapy for new cancer patients should be delayed until after appellee left appellant's employment. Appellee acknowledged that he informed referring physicians that he was opening his own office after June 30th. He also conceded that after June 30th he treated former Valley patients.
Appellee points out, however, that referrals to doctors were made according to the patients' best interests, based on factors which included the qualification of the consulting radiologist. Since appellee was the only radiologist performing radiation oncolgy full-time for appellant, appellee argues that he had a right, if not a duty, to tell the referring physician or patient that he was leaving appellant and that a patient might be faced with a change in therapist during treatment. If the evidence is viewed in the light most favorable to the prevailing party, the trial court could have found that appellee had at least the right to disclose the information and did not breach a duty owed to appellant. See Crane Co. v. Dahle, 576 P.2d 870, 872 (Utah 1978).
The doctor who took over the radiation oncology practice testified that the practice was "very low" and "completely a shambles" after appellee departed. Appellant, however, did not present evidence showing that appellee did anything during May or June which prevented referrals to appellant after he left. While appellee owed a duty of loyal and conscientious service to appellant during his employment, he was not obliged to refuse business based on good will which was developed with referring physicians or patients. Crane Co. v. Dahle, supra. Appellee is not liable if doctors and patients preferred him over appellant without his services.
Appellant also presented evidence showing that the number of the month-long treatments started in May and June was substantially lower than prior months. Under the court's interpretation of the contract, however, appellee would be the only one to suffer if he diverted patients away during those months, since appellant was not to share in any income generated by appellee's work. Hence, even assuming appellee breached a duty of loyalty, the court could find that appellant suffered no damage.
Judgment of the trial court affirmed.
HAYS and CAMERON, JJ., concur.
NOTES
[1]  At this time, appellant agreed that it owed appellee at least $9,002.69 out of the $60,997.42.


202 P.3d 108 (2009)
STATE
v.
EVERETT.
No. 98871.
Court of Appeals of Kansas.
March 6, 2009.
Decision without published opinion. Reversed and remanded with directions.


           OFFICE OF THE ATTORNEY GENERAL OF TEXAS
                            AUSTIN

iionoreble Ir'la. YelCerman
ACLing County Attorney
XraVIII COunLY
Austin, Texas
Deer Sirs            Opinion No. O-6210
                     Rer Authority

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                                            e of parks and
                                            8 of 640 acres
    i                                        purchaee or

                              s Artlole  6081-D prohibit
                               of any lncorporatod   city
                              r the purpose of parks and
        outsida of 1~s oity     limits,   by purchese   or
        condemnation? *-
                     ‘,3. Do tliose artioles mean that the
        govcmlng body of an incorporated       city may own
        end hold more ihan o40 acre4 outelde of ihe
        city llcaics,    LO be used for the purpoee of
        parks and play grounds, but that they can never
                                                                        38

Hen. Wm. Yeldeman           - Page 2

     acquire more than 640 acre@ at any           01x4    time, by
     purchase        or oondemuati on?
            “4.   Do Articles 6081-B and 6081-D llmlt
     the riqh;s conferred upan Uonc !?ule ol-vies by
     Art:ele    1175, Bection 15, uith reference  to
     aoqtirLng property ouisldo of the c:ry ltnits
     fop parks end playgrounds?”

             The ahsver is your flrsi    question is that ANi-
ale 608lb, Verna~~n Annotated Civil Statutes,        is a bracket
lav applicable    only to cftiea   of a certain populetloh by the
1923 census.     Austin doeo not come vithlh the ola~sslfleatlon
bewwe      It bed 144s than 43,000    Inhabitants by the 1920 oeneus.
Therefore,    the ansveP to your question     Is no.
           Artiole 60816, Vernon’9 Annotated   Civil Btatutss,
which you lnqulm about in your seeond question.      oohtaina pro-
vlsionn vhiah are similar to thoee aontainod In Artlele      6081b,
except that it la not a bracket lav.    Section 1 0r that article
prov%des:
             “SOC.     1.   That   Ma   govemlng body of any
     incorporated   alty In ‘thfs state ney mcelve
     end hold through @it      or mador ded%oatian, and
     1s hereby lnpover4d    to oondemu or to pumhase
     land& vlthout   its terrltorUtl    1iast.s and vlthLn
     the county in vhioh such city is situated for
     the pux’posa of establlsbixrg    and sbaiata~      t&r+
     on pubI& rocreatlonal      parks end playgrounds,
     either or both, no one of such parka or playgrounds
     vhlch may be acquired by purchaee or thxough oon-
     domnatlon to exaeed 320 acres in aPoa and the
     total acroage outslde of the lidts        of the city
     vb%ah may bs acqulreo by purch484       and through
     oondmnatfon   procecdlngs,    either or both, shall
     not 4xo4cct 640 acroe.”
             Section 6 of ~riicls   6C@ld 1imUs the sp?lPcation
of Section    1 co those titles   that do not h6vs contrary   pmvi-
don5 ln tholr ohertare. SoOtioR             6 pPOVid84s

           ‘Nothing here- contained rhall be
     cone~rued 86 repoallng My provisions    oi My
     special charter or any inaorporated  oity, but
Hon. Urn. Yalderman - Page 3

       the powers, teram end provisions    hereof shall
       exS8t an altematlve     powers, terms aad provlslons
       af any such special    charter and any alty which
       shall hereafter   adopt oc eaend ito own oharter
       under the terms of the Rams Rule provision8      of
       the ConatituLion may provide In any suoh charter
       or amendment8 thereto provlslcum on the subject
       aovsred hereby other than eml differing    froa those
       herein provlded.”
           Section 1 of Artiole X%VI of the oharter of the
City of Austin (19%) authoriaer    the City Couuoil to acquire
land outaide the altg litits   for parka end playgrouuds, an
follows,
             “The City Uouncll shall have pciwer
      to aequlre land inside OP outride of the cor-
      porate boundaribrr~ or the City or Austin, by
      puramas or aondeanation,      r0l the purpose of
      establlahing    or enlar@ng any park, parkway or
      pla;ygzvund, and to improve, equip, prllltaln
      mad regulate the use or @ma, aad the applloa-
      ble provisions    or the laws 0r the state or Texas
      relating   to emlneat domain are adopted snd made
      a part or thl8 Artlole     and rhall apply in uon-
      demmtlon proceeding8 hereunder, but the City
      of Austin shall not be required to exeaute the
      bon& referred    to fn raid law8.’
           Article  60816, therefore,-   does not limit  the
amount of land which the City of Austin may 6oqulre by con-
deauation end purohase outside the city llalte       for park8
and playgrounda under Artlcls    XXVI or the City Charter. Thiis
is a speolal oharttr opd it is not repealed by Article       6081d.
Also, Austin 1s a Hose Rule City and it; la exprersly      authorized
by Section  6 of Article  6Oiosld to “provide ln any ruah charter
or amendments thereto provS.slons on the subject covered’hereby
other thau aud diiiering   Prom those herein provided.”      We,
thesefore,  answer your second question no.
            In view 0r our answera to your first two qusrtions,
it   becomee unnsaesaery to answer your third qusrti3R.
          your Question Ro. 3 is an abstract queetlon aa
far ae the City of Au8ti.n is conaerued.  Article 608lb, in
                                                                         40

Zion. Wm. Yeldarmn   - Pqa   4

Section 6 and Article    60816, lu Seotion 6 (OOpied above) each
provide that *nothing oontalned In this act ah811 be ion-
swued as repealing anx pmvlalona       of any special charter of
any inoorporated   oity.    The City of Austin baa in Arclcle
XXVI a apeolal provlalon on parka and playgrouuda which
gives it greater powers than Artlole     6081d.   It    la true thOt
Section 15 of Artlale    1175, Revised Civil Statutes,      1925,
confers  the sane8 powers cm the City of Auatln      as to acquiring
parka and playgrounds outside the city limlta as doen Arti-
cle XXVI of the City Wrter.       It is not necessary,      however,
to pass on whether Artlole    60816 ll&ta    the powers aonfarred
on Home Rule Cities by Seation 15 of Artiole      1175 because
Article  60&J, by its OYLIDrOViSiMS, is not applltable           to
cliLaa llka Austin which have l apeclal charter provision           on
the subject of parka and playgrounds whleh is other titan and
differs  rr0a Axtiole 6081d. No, accordiqgly,        find no neceea-
ity r0P anawedng    your rowth question.
                 Trusting that the foregoing    gives   you the
lnfomatlon   desired,   we are
                                        Yours very truly
                                   ATTORURY
                                          CamRAL OF TEXAS

                                   BY          Fe&an Dlckaon
                                                   Assistant
FDIBT