                IN THE SUPREME COURT OF THE STATE OF IDAHO
                               Docket No. 44927

MEDICAL RECOVERY SERVICES, LLC, )
an Idaho limited liability company,     )
                                        )                    Boise, April 2018 Term
      Plaintiff-Appellant,              )
                                        )                    2018 Opinion No. 47
v.                                      )
                                        )                    Filed: May 2, 2018
YVONNE UGAKI-HICKS,                     )
                                        )                    Karel A. Lehrman, Clerk
      Defendant-Respondent.             )
_______________________________________ )

       Appeal from the District Court of the Sixth Judicial District of the
       State of Idaho, Bannock County. Hon. Mitchell W. Brown, District
       Judge.

       The decision of the district court is affirmed. No costs or attorney
       fees are awarded.

       Smith, Driscoll & Associates, PLLC, Idaho Falls, for appellant.
       Brian Zollinger argued.
                                  _____________________

SCHROEDER, Justice pro tem

                                    I. NATURE OF THE CASE
        Medical Recovery Services, LLC (“MRS”), appeals a district court decision that
affirmed a magistrate court’s dismissal of an MRS complaint. MRS alleged a right to collect on a
debt from Yvonne Ugaki-Hicks, who did not respond to the complaint. MRS filed an application
for entry of default and default judgment. The magistrate court denied the request. MRS
appealed to the district court which determined default should have been entered but affirmed the
magistrate court’s denial of entry of default judgment. MRS appealed to this Court.

                        II. FACTUAL AND PROCEDURAL BACKGROUND
        MRS filed a complaint against Ugaki-Hicks to recover $1,416.63 alleged to be due for
medical services provided by SEI Anesthesia. MRS alleged that it was the assignee of the bill.
Ugaki-Hicks did not respond. MRS filed an application for entry of default and for entry of
                                           1
default judgment. In support of its application for default judgment, MRS filed the affidavit of
counsel which stated that an original instrument evidencing MRS’s claim was attached as
Exhibit A. However, Exhibit A was not included in the record filed with the district court and is
not present in the record before this Court.
       The magistrate court denied MRS’s request for entry of default because MRS failed to
provide sufficient proof of assignment of the debt as required by Idaho Rule of Civil Procedure
55(b)(2). MRS filed a motion for reconsideration, asserting that Idaho Rule of Civil Procedure
55(b)(1) applied, not Rule 55(b)(2). Subsequently, MRS filed a second affidavit of counsel in
support of the application which provided in pertinent part:

       6.     Pursuant to I.R.C.P. 55(b)(1) exhibit “A” is a true and correct copy of an
       “original instrument” evidencing Plaintiff’s claim sent with Reconsideration on
       December 12 [sic], 2015.
       7.      As the attorney for MRS I have personal knowledge of the contract(s)
       between the providers and MRS assigning the accounts in this case to MRS for
       collection. The applicable contract(s) designate the original service provider as
       “Assignor” and MRS as “Assignee.” The applicable contract(s) state, in relevant
       part: “Assignor desires, from time to time during the term of this agreement, to
       submit to Assignee for collection certain claims, accounts or other evidences of
       indebtedness.” Accordingly, the account(s) at issue in this case were assigned at
       the moment MRS received account information in this case from the provider for
       collection.
       8.      Each of the accounts identified in Exhibit “A” have been assigned to MRS
       because MRS has received the account information from the provider attached to
       this Affidavit.
Though referenced in the affidavit, Exhibit A does not appear as an attachment.
       The magistrate court denied MRS’s motion to reconsider. Thereafter, MRS filed a second
motion for reconsideration, arguing the new theory that because Ugaki-Hicks failed to respond,
MRS’s allegation in paragraph three of the complaint, i.e., that MRS had received assignment of
the claim, should be deemed admitted. The magistrate court entered a minute entry and order
denying MRS’s second motion for reconsideration and a judgment dismissing MRS’s complaint
without prejudice.
        MRS appealed to the district court, arguing that the magistrate court erred when it failed
to enter a default judgment under Idaho Rule of Civil Procedure 55(b)(1), because the case
involved a “sum certain” evidenced by Exhibit A attached to each affidavit of counsel. Further,

                                                2
MRS asserted that the complaint provided a well-pled factual allegation that an assignment had
occurred which should be deemed admitted based on Ugaki-Hicks’ failure to answer.
       The district court entered its memorandum decision and order on appeal, taking issue
with MRS’s failure to include Exhibit A with the record. In a footnote the district court held that
“regardless of this [c]ourt’s decision regarding the merits of the issues raised on this appeal, it
appears that the court must AFFIRM the trial court’s refusal to enter default judgment on
alternative grounds, M.R.S.’s failure to provide the ‘original instrument evidencing the claim’ as
required by I.R.C.P. 55(b)(1).” Reaching the issues raised on appeal, the district court
determined that the magistrate court erred when it applied Rule 55(b)(2). The amount claimed
was for a certain amount; thus, Rule 55(b)(1) was the applicable provision. However, the district
court determined that the phrase “original instrument evidencing the claim” was dispositive of
the issue on appeal, noting that Rule 55(b)(1) was drafted to require the instrument evidencing
the claim not just the instrument evidencing the underlying debt. The district court determined
that default should have been entered in favor of MRS but affirmed the magistrate court’s refusal
to enter default judgment pursuant to Rule 55(b)(1), because MRS failed to provide evidence of
the underlying debt and failed to provide evidence of the assignment of the claim. MRS appealed
to this Court.

                                       III. ISSUES ON APPEAL
1.     Whether the district court erred when it affirmed the magistrate court’s decision to deny
       entry of default judgment against Ugaki-Hicks.
2.     Whether MRS is entitled to attorney fees on appeal.
                                     IV. STANDARD OF REVIEW
       When reviewing the decision of a district court sitting in its capacity as an appellate court
                  [t]he Supreme Court reviews the trial court (magistrate) record to
                 determine whether there is substantial and competent evidence to support
                 the magistrate’s findings of fact and whether the magistrate’s conclusions
                 of law follow from those findings. If those findings are so supported and
                 the conclusions follow therefrom and if the district court affirmed the
                 magistrate’s decision, we affirm the district court’s decision as a matter of
                 procedure.
       Bailey v. Bailey, 153 Idaho 526, 529, 284 P.3d 970, 973 (2012) (quoting Losser v.
       Bradstreet, 145 Idaho 670, 672, 183 P.3d 758, 760 (2008)). “Thus, this Court
       does not review the decision of the magistrate court.” Pelayo v. Pelayo, 154 Idaho
       855, 859, 303 P.3d 214, 218 (2013). “Rather, we are ‘procedurally bound to

                                                  3
          affirm or reverse the decisions of the district court.’” Id. (quoting State v. Korn,
          148 Idaho 413, 415 n.1, 224 P.3d 480, 482 n.1 (2009)).
Portfolio Recovery Assocs., LLC. v. MacDonald, 162 Idaho 228, ___, 395 P.3d 1261, 1264
(2017).

                                             V. ANALYSIS
          It appears that the magistrate court treated MRS’s request for default and the request for
default judgment interchangeably, i.e., the form used by the magistrate court to deny MRS’s
request for entry of default utilized language pertaining to default judgments. Entry of default
and entry of default judgment are separate steps. In view of the district court’s determination that
the default should have been entered, the issue on appeal is solely whether the district court erred
when it affirmed the magistrate court’s denial of default judgment.

A.        The nature of this Court’s review.
          Ugaki-Hicks has never participated in this case. As a result, the arguments of MRS are
not tested by responses from opposing counsel or debate in a rules committee meeting with
different perspectives. This places some restraints on the Court’s willingness to speak broadly. A
contested case, e.g. a motion to set aside a default judgement, or a rules committee debate would
provide better venues to refine debatable rules governing default judgments.
          MRS makes multiple arguments on appeal. First, it argues that all well-pled allegations
in the complaint are deemed admitted on default and that the complaint contained a well-pled
factual allegation of an assignment to which Ugaki-Hicks admitted by failing to file an answer.
Second, MRS claims that the affidavit of counsel provided uncontradicted testimony that the
debt was assigned to MRS. Third, MRS argues that there is no requirement to provide evidence
of a written assignment. Fourth, MRS relies on the language of Rule 55(b)(1) to argue that the
rule does not require a plaintiff to attach an original instrument evidencing the claim; rather, the
plaintiff must provide “any” original instrument evidencing the claim “to the extent an original
instrument evidencing the claim exists.” Finally, MRS claims that the district court erred when it
held in a footnote that it was bound to affirm the magistrate court’s decision after it was unable
to locate the attachment in the record that purportedly provided an original instrument
evidencing the debt. MRS states that it does not know why Exhibit A was not included in the
record, but that it does not matter because there was no original instrument or written contract

                                                   4
between SEI Anesthesia and Ugaki-Hicks. Therefore, the district court could not require MRS
produce it.
B.     The standard of review.
       “The interpretation of the Idaho Rules of Civil Procedure is a matter of law over which
this Court has free review.” Dawson v. Cheyovich Family Tr., 149 Idaho 375, 380, 234 P.3d 699,
704 (2010) (citing Canyon Cnty. Bd. of Equalization v. Amalgamated Sugar Co., 143 Idaho 58,
60, 137 P.3d 445, 447 (2006)).
       Idaho Rule of Civil Procedure 55(b) pertains to the entry of a default judgment and
provides in pertinent part:

       (1) For Sum Certain. If a claim is for a sum certain or a sum that can be made
       certain by computation, the court, on the claimant’s request, with an affidavit
       showing the amount due, must order judgment for that amount and costs against
       the party who has been defaulted for not appearing . . . . The affidavit must show
       the method of computation, together with any original instrument evidencing the
       claim unless otherwise permitted by the court. . . .
I.R.C.P. 55(b)(1) (emphasis added).
       “The party appealing a decision of the district court bears the burden of ensuring that this
Court is provided a sufficient record for review of the district court’s decision.” La Bella Vita,
LLC v. Shuler, 158 Idaho 799, 805, 353 P.3d 420, 426 (2015) (citing Gibson v. Ada Cnty., 138
Idaho 787, 790, 69 P.3d 1048, 1051 (2003)). “In the absence of a record that is adequate to
review the appellant’s claims, we will not presume error below.” Western Cmty. Ins. Co. v.
Kickers, Inc., 137 Idaho 305, 306, 48 P.3d 634, 635 (2002) (citing Belk v. Martin, 136 Idaho 652,
39 P.3d 592 (2001)). Accordingly, “[w]hen a record or exhibit is unavailable [as] . . . part of the
record [on] appeal, it is incumbent on that party to move the district court, or petition this Court,
to order augmentation of the record on appeal with the relevant record(s) or exhibit(s).” La Bella
Vita, 158 Idaho at 805, 353 P.3d at 426.

C.     Analysis
       MRS contends that the failure of Ugaki-Hicks to appear and the affidavit of counsel
provide an uncontradicted record of the debt assigned to MRS. Nonetheless, MRS’s failure to
include Exhibit A in the record on appeal defeats its claim. La Bella Vita, 158 Idaho at 805, 353
P.3d at 426 (“The party appealing a decision of the district court bears the burden of ensuring
that this Court is provided a sufficient record for review of the district court’s decision”). One of

                                                 5
the bases for the district court’s decision was that it did not have Exhibit A which it was alleged
had been submitted to the magistrate court. The same defect follows the case to this Court. The
magistrate court apparently did not find Exhibit A adequate to meet the requirement of the rule.
Neither the district court nor this Court can reach a different conclusion without the attachment.
        The language “unless otherwise permitted by the court” of Idaho Rule of Civil Procedure
55(b)(1) grants the court discretion to determine what constitutes an original instrument
evidencing the claim and whether it will require such an instrument. When this Court reviews an
alleged abuse of discretion by a trial court the sequence of inquiry is:
        (1) [W]hether the trial court correctly perceived the issue as one of discretion; (2)
        whether the trial court acted within the outer boundaries of its discretion and
        consistently with the legal standards applicable to the specific choices available to
        it; and (3) whether the trial court reached its decision by the exercise of reason.

Hull v. Giesler, 163 Idaho 247, ___, 409 P.3d 827, 829–30 (2018).
        The district court did not abuse its discretion in requiring MRS to provide evidence of the
assignment of claim. Whether Exhibit A would have met the standard could not be determined
by either the district court or this Court. This Court is left to presume missing evidence supports
the lower courts’ findings. State v. Koch, 157 Idaho 89, 95, 334 P.3d 280, 286 (2014) (“When the
record on appeal does not contain the evidence taken into account by the district court, this Court
must necessarily presume that the evidence justifies the decision and that the findings are
supported by substantial evidence.”). The district court decision is affirmed.
D.      MRS is not entitled to attorney fees and costs on appeal.
        MRS requests attorney fees and costs on appeal under Idaho Appellate Rules 40 and 41,
and Idaho Code sections 12-120(1) and (3). MRS is not a prevailing party on appeal and not
entitled to costs or attorney fees.

                                         VI. CONCLUSION
        The decision of the district court is affirmed. No costs or attorney fees are awarded.
        Chief Justice BURDICK, Justices HORTON, BRODY and BEVAN, CONCUR.

                                                  6


599 S.W.2d 456 (1980)
COMMONWEALTH of Kentucky, Movant,
v.
Greg Allen IVEY, Respondent.
Greg Allen IVEY, Movant,
v.
COMMONWEALTH of Kentucky, Respondent.
Supreme Court of Kentucky.
May 13, 1980.
*457 Jack Emory Farley, Public Advocate, C. Thomas Hectus, Asst. Public Advocate, Frankfort, for Greg Allen Ivey.
Robert F. Stephens, Atty. Gen., Elizabeth E. Blackford, Asst. Atty. Gen., Frankfort, for Commonwealth of Kentucky.
LUKOWSKY, Justice.
Ivey was convicted in the Fayette Circuit Court of burglary, detaining a female, malicious striking and wounding, and armed robbery. Upon appeal, he complained that he was denied a speedy trial and that he was improperly tried as an adult rather than as a juvenile. The convictions were affirmed by the Court of Appeals in Ivey v. Commonwealth, Ky.App., 550 S.W.2d 185 (1977). No motion for discretionary review by this court was made.
The primary question presented is whether the public advocacy statutes require the appointment of counsel upon request of a "needy person" to represent him in RCr 11.42 proceedings. We hold that the legislature has so provided.
Ivey presented the principal issue in this case by way of a CR 60.02 motion to set aside or to amend the order in the RCr 11.42 proceeding on the ground that the circuit court had improperly refused to appoint counsel for Ivey when so requested pursuant to KRS 31.110. The circuit court had ruled it was unnecessary to appoint counsel for Ivey pursuant to RCr 11.42(5) because the pleadings did not raise a material issue of fact. However, the CR 60.02 motion and supporting memorandum raised the question of statutory requirement to provide counsel for needy persons in post-conviction proceedings upon request. To deny counsel to such a person was error.
KRS 31.110 provides:
"(1) A needy person who . . . is being detained under a conviction of a serious crime, is entitled:
(a) To be represented by an attorney to the same extent as a person having his own counsel is so entitled; . . .
. . . . .
(2) A needy person who is entitled to be represented by an attorney under subsection (1) is entitled:
. . . . .
(c) To be represented in any other post-conviction proceedings that the attorney and the needy person considers [sic] appropriate. However, if the counsel appointed in such post-conviction remedy, with the court involved, determines that it is not a proceeding that a reasonable person with adequate means would be willing to bring at his own expense, there shall be no further right to be represented by counsel under the provisions of this chapter." (emphasis added)
The provision for appointment of counsel found in RCr 11.42(5) was intended to set the minimum standard for post-conviction relief proceedings. The legislature could and did provide for a more generous policy of appointing counsel for indigents, an action which is entirely consistent with its control of the purse strings of the Commonwealth.
RCr 11.42(3) provides: "The motion shall state all grounds for holding the sentence invalid of which the movant has knowledge. Final disposition of the motion shall conclude all issues that could reasonably have *458 been presented in the same proceedings." This rule has been consistently interpreted to bar successive motions under 11.42. See, e. g., Butler v. Commonwealth, 473 S.W.2d 108 (1971); Case v. Commonwealth, 467 S.W.2d 367 (1971); Hampton v. Commonwealth, Ky., 454 S.W.2d 672 (1970). Without the assistance of counsel Ivey could be effectively precluded from raising valid grounds by failure to include such grounds at the time of his first motion. This inequity between the needy and the affluent is cured by the statute.
It is our opinion that KRS 31.110 and RCr 11.42 are complementary and clearly provide for appointment of counsel in the situation presented here.
This case is also before us on review of the Court of Appeals decision upholding the judgment of the Fayette Circuit Court denying Ivey post-conviction relief under RCr 11.42. The facts and applicable law were stated succinctly in the opinion of the Court of Appeals and we adopt portions of that opinion:
"In April, 1978, Ivey moved pro se, pursuant to RCr 11.42 to vacate his convictions on two grounds. First, appellant alleged that he was improperly waived from the juvenile court to the circuit court. Second, appellant claims that the circuit court was without jurisdiction to try him as the prosecution was in violation of the Interstate Agreement on Detainers. KRS 440.450. This motion was overruled, and this appeal results.
It is our opinion that Bronston v. Commonwealth, Ky., 481 S.W.2d 666, 667 (1972), is dispositive of both grounds which were the basis of this motion pursuant to RCr 11.42. That case states that an appellant cannot utilize such a motion to try or retry `issues which could and should have been raised in the original proceedings . . where the grounds of his motion are matters which must have been known to him at the time of trial.'
Additionally, in regard to the juvenile waiver, this issue was presented to the lower court in a motion to dismiss filed May 4, 1976, and ruled adversely to the appellant on May 7, 1976, prior to appellant's trial. This adverse ruling was not appealed to this Court on the first appeal. The court in Holt v. Commonwealth, Ky., 525 S.W.2d 660, 661 (1975), makes our course clear when it states: `Appellant litigated the alleged errors and did not raise the issues by a properly prosecuted appeal; therefore, he may not now be heard . . . .'
Although the issue in Holt, supra, was a waiver after hearing and it is alleged here that no hearing was held, the jurisdiction in this case was clearly brought into focus by the motion to dismiss and not properly raised on direct appeal.
Accordingly, the ruling of the Fayette Circuit Court pursuant to the motion under RCr 11.42 is affirmed."
The decision of the Court of Appeals is affirmed, the judgment of the Fayette Circuit Court is affirmed in part and reversed in part and the cause is remanded to the trial court with directions to appoint counsel for Ivey and permit him to present for adjudication supplementary grounds for RCr 11.42 relief.
All concur, except STEPHENS, J., who did not sit.


111 Cal.App.3d 855 (1980)
168 Cal. Rptr. 842
NUNES TURFGRASS, INC., Plaintiff and Respondent,
v.
COUNTY OF KERN, Defendant, Cross-complainant and Appellant; KENNETH CORY, as State Controller, Cross-defendant and Appellant. NUNES TURFGRASS, INC., Plaintiff and Appellant,
v.
COUNTY OF STANISLAUS, Defendant and Respondent.
Docket Nos. 4242, 4410.
Court of Appeals of California, Fifth District.
November 6, 1980.
*857 COUNSEL
Ralph B. Jordan, County Counsel, D.N. Reid, Assistant County Counsel, Ronald D. Wenkart and D. Sorensen, Deputy County Counsel, for Defendant, Cross-complainant and Appellant.
Evelle J. Younger and George Deukmejian, Attorneys General, Ernest P. Goodman, Assistant Attorney General, and Edward P. Hollingshead, Deputy Attorney General, for Cross-defendant and Appellant.
Richardson & Gaskill and Robert L. Jones, Jr., for Plaintiff and Appellant and Plaintiff and Respondent.
Gilbert W. Boyne, County Counsel, John F. Christensen, Assistant County Counsel, Carl O. Waggoner, Senior Deputy County Counsel, Harry P. Drabkin and Gerarde F. Imhoff, Deputy County Counsel, for Defendant and Respondent.
OPINION
ZENOVICH, Acting P.J.
The issue before us is whether the Legislature has the authority to extend the "growing crops" exemption from *858 taxation (Cal. Const., art. XIII, § 3, subd. (h)) to turf grasses grown for sale and transplanted as living plants. For the following reasons we conclude that the enactment (Rev. & Tax. Code, § 202.1) is an invalid exercise of the legislative authority.
The Superior Court of Kern County granted judgment for Nunes Turfgrass, Inc. (hereafter Nunes), finding that Nunes was entitled to a refund of the taxes assessed by the County of Kern (hereafter Kern) and that Revenue and Taxation Code section 202.1[1] was constitutional under the California Constitution.
The Superior Court of Stanislaus County, however, granted judgment against Nunes, determining that assessments by the County of Stanislaus (hereafter Stanislaus) were proper and that section 202.1 was an invalid exercise of the legislative authority under the California Constitution. A question of first impression is thus presented.
The oral testimony at both trials, as well as the findings of fact and conclusions of law by both courts, do not materially differ. Nevertheless, we summarize the facts in each case and examine the successive contentions in light of the applicable law.

THE KERN PROCEEDING
John Nunes, president of Nunes, testified that he grew a bluegrass blend of turf grass which is sold to wholesalers and then delivered to their customers by Nunes. He then outlined the manner in which turf grass is cultivated and harvested. The bare ground is prepared for cultivation by discing and leveling operations and is followed by seeding, irrigation, and fertilization. After an average period of 9 months,[2] the turf grass is "harvested" by means of a machine that severs the roots about one-quarter inch below the ground in rectangular pieces which are 18 inches wide and 72 inches long. The grass is then rolled up, stacked on pallets, and delivered to customers for transplanting as lawn. Some roots of the plant (the feeder or hair roots) remain after harvesting, but are destroyed when the land is subsequently disced; new turf grass is not grown from the feeder roots.
*859 Mr. Nunes testified that the turf grass is harvested within one year of planting, although it is only harvested "upon order from customers." He indicated that the general industrial practice is to harvest turf grass within one year because of economic factors. Specifically, Mr. Nunes noted that "It costs you [the turf grower] to maintain the grass, and if you keep it over a year, it would just cost you too much to maintain it. You couldn't compete in the marketplace." The bluegrass varieties grown by Nunes were classified as perennials. Mr. Nunes conceded that turf grass could be left in the ground indefinitely under proper maintenance. After harvesting in the summertime season, the grass must be transplanted within 24 hours. Bluegrass must be left in the ground awaiting orders or else it might perish. Once transplanted, bluegrass provides a lawn which will last "forever" if properly maintained.
Mr. Nunes also stated that turf grass left in the ground after peak maturity can become thatchy. In addition, the older grass is more susceptible to disease, insects, weeds, and other problems. These externalities, according to Mr. Nunes, were considerations in his decision to annually harvest.
Kenneth Hammons, senior auditor-appraiser with the Kern County Assessor's office, testified that the county had treated turf grass as nursery stock for sale since 1973. This effectively meant that the grass was characterized as personal property, which was then given the 50 percent business inventory exemption[3] rather than the 100 percent "growing crop" exemption by the county taxing authority. Hammons noted that these assessments were based upon the administrative construction recommended by the State Board of Equalization in an assessor's handbook and Attorney General's opinion. (See 57 Ops.Cal. Atty.Gen. 506, 516 (1974).)
Buddy Florence, senior auditor-appraiser for the State Board of Equalization, stated that nursery plants grown for resale are administratively treated as personal property falling outside the growing crop exemption. In the January 1974 assessor's handbook issued by the board, turf grass was characterized as nursery stock because it was in the taxable category of "plants that are cultivated and propagated for *860 sale."[4] In explaining why turf grass is regarded as nursery stock, Florence testified that the grass is grown for sale and transplanting "the same as rose cuttings of a rosegrower are grown for sale and transplanting." He noted that rose cuttings for sale have been treated as nursery stock by prior court decisions. Florence further indicated that turf grass is botanically a perennial and is grown as a perennial in California. He contrasted the grass with tomatoes, which is a perennial treated as an annual due to California weather conditions.[5] Nevertheless, Florence explained that chrysanthemums are one type of nursery stock regarded as growing crops; this is because the cut flowers are sold rather than the plant which produced the flowers. In fact, it was established that the plant is destroyed after the flowers have been severed. Florence concluded that turf grass is different from chrysanthemums, because the plant itself is sold for transplanting by customers. In contrast, only the cut flowers are saved from the chrysanthemum plant which is subsequently destroyed.
The parties stipulated that Nunes paid the $5,900 assessment on turf grass under protest and had received no reimbursement from the county. A declaration of an officer from the state Controller's office was admitted into evidence. The document related that the Controller informed all county auditors of his intention to not seek tax reimbursement for lost revenues because of the Attorney General's opinion stating that section 202.1 was invalid. (See 57 Ops.Cal.Atty.Gen 506, 516 (1974).)
The court concluded that Nunes was entitled to a tax refund and that section 202.1 was constitutional. In addition, it determined that Kern County was entitled to file a reinbursement claim for lost revenues against the state Controller.[6]

THE STANISLAUS PROCEEDING
Mr. Nunes and Auditor Florence also testified at the Stanislaus hearing, duplicating most of their earlier statements.
*861 Mr. Nunes stated that the implements used to prepare the land for turf grass planting are "identical to what I use in my farming operation." The bluegrass was sold to landscapers, developers, and homeowners for transplanting as lawn. Mr. Nunes indicated that "We will not harvest a square foot unless we have an order for it." He stated that the grass is harvested within one year because of economic necessity. In clarifying this justification for annual harvesting, Nunes indicated "but in our management, after being in the business for 15 years, as part of our management we plant at least 12 months out of the year and we try to project our sales and plant accordingly, so we don't have a lot of sod sitting there for several months." Nonetheless, it was admitted that the grass could be held indefinitely if properly maintained. Unless proper maintenance is undertaken, the turf grass can become infested with weeds and insects.
Florence reiterated the same testimony about the administrative interpretation given to turf grass by the State Board of Equalization. The crux of the administrative construction was revealed in the following line of questioning: "Q. You have here the testimony that turfgrass is as a matter of practice cut and removed for transplanting at least once each year. Is that in your opinion inconsistent with its characterization as nursery stock?
"A. No, it is not. There are other nursery stock items that are grown and sold within one year, but they're grown and sold as living plants.
"Q. I take it that the crucial consideration for you, then, is that the sale of the plant is a living plant?
"A. That is part of our conclusion, yes. That's what we rested on." He also noted that most counties throughout California were assessing turf grass in 1973 and that only Ventura County exempted it as a growing crop. Florence said some perennials were treated as annuals because of climatic conditions or because the product of such plants was the salable item.
The parties stipulated that Nunes had paid $5,800.38 in taxes for turf grass in the fiscal year 1975-1976 and $3,423.04 in the fiscal year 1976-1977. They also agreed that Nunes protested payment of $5,771.23 and $3,423 for the respective fiscal tax years. The Stanislaus County Board of Supervisors denied the claims for refund.
*862 The court denied relief to Nunes, ruling that section 202.1 was an invalid exercise of legislative authority under the California Constitution.[7]
(1a) Appellants Kern and state Controller contend that section 202.1 is invalid as an ultra vires attempt by the Legislature to include turf grass sold for transplanting within the "growing crop" exemption. Contradistinguished, appellant Nunes contends that the statutory provision is a valid legislative clarification of the status of turf grass. The resolution of this issue depends upon whether turf grass satisfies the definition of growing crop existing at the time the constitutional amendment was adopted. We do not believe it does.

DISCUSSION
Since 1879, the California Constitution (former art. XIII, § 1) has exempted "growing crops" from taxation.[8] In 1974, the Legislature added section 202.1, which provides that: "For purposes of the exemption from taxation specified in Section 1 of Article XIII of the Constitution and Section 202, `growing crops' includes turf grass which is cultivated and harvested for sale and transplanting."
(2) We believe clearly established rules of constitutional interpretation require that a term used in a constitutional amendment must be construed according to the meaning it had when the amendment was adopted. The Legislature cannot expand the meaning of the amendment by subsequent legislation, since such an expansion would be equivalent to a constitutional amendment. (See Forster Shipbldg. Co. v. *863 County of L.A. (1960) 54 Cal.2d 450, 456 [6 Cal. Rptr. 24, 353 P.2d 736]; Stribling's Nurseries, Inc. v. County of Merced (1965) 232 Cal. App.2d 759, 762 [43 Cal. Rptr. 211].) Although the Legislature can clarify constitutional amendments of doubtful or obscure meaning (Delaney v. Lowery (1944) 25 Cal.2d 561, 569 [154 P.2d 674]), it cannot transcend the meaning intended by the constitutional framers.
(1b) The exemption in article XIII, section 3, subdivision (h), of the Constitution was apparently spurred by the concern that assessment of growing crops might discourage planting and sowing. (See Stimson, Exemption From the Property Tax in California (1933) 21 Cal.L.Rev. 193, 206.) The meaning of "growing crops" under the constitutional exemption has been elucidated by a series of judicial precedents. Before deciding whether turf grass satisfies the constitutional definition, it is necessary to examine cases which are helpful in delineating the scope of a "growing crop."
The seminal test of the constitutional term "growing crop" was enunciated in Cottle v. Spitzer (1884) 65 Cal. 456 [4 P. 435]. Our Supreme Court decided that fruit trees were not within the definition of growing crop contained in former article XIII, section 1, of the Constitution. (Cottle, supra, at pp. 460, 464-465.) In so doing, the meaning of "growing crop" was clarified by the high court, which adopted the reasoning of Superior Court Judges Spencer and Belden. In Judge Spencer's opinion, "... it is at least doubtful if, under the common and restrictive acceptation of the term, anything more would be understood than products from annual plants, as cereals, maize, etc., ..." (Id., at pp. 457-458.) He also stated that "... in relation to the single term of `growing crops,' my conclusion is that it is in effect a declaration that it is not sufficiently tangible to be treated as property; it is in a transitory state, starting with the embryo and ending with the matured product, at no two consecutive points of time in the same condition. To attempt to place upon it any money value, would be to indulge in the merest guesswork." (Id., at p. 460.) Judge Belden's opinion contains the "growing crop" definition most frequently cited in subsequent precedents. He said that the term "`"includes only those crops which require an annual planting or sowing, or an annual harvesting."'" (Id., at p. 463.)[9] Judge Belden showed that this definition was the one prevailing at the time of the Constitution by penning that: "The members of this [constitutional] *864 convention could but have been aware of the growing importance of the vine and fruit interest of the State. It was reported to them that fifty millions of capital was then employed in grape culture alone, and yet in all the debates upon this question, both upon the part of those who favored, and by those who opposed this exemption, constant reference is made to a crop to be sown and harvested within the same year, and not even a suggestion that trees or vines of perennial growth were referred to." (Cottle v. Spitzer, supra, 65 Cal. at p. 463, italics added.) The Supreme Court also cited language from both judges which indicated that such tax exemptions should be construed narrowly. (Cottle, supra, at pp. 459-460, 464-465.)
In Miller v. County of Kern (1902) 137 Cal. 516 [70 P. 549 (second appeal 1907, 150 Cal. 797 [90 P. 119]), the Supreme Court determined that alfalfa was not within the "growing crop" exemption. The court reasoned that alfalfa is a perennial plant which, when properly maintained, produces annual hay crops for an indefinite number of years. (Id., 137 Cal. at pp. 524-525.) Relying upon Cottle, it was decided that alfalfa was not a growing crop: "As a hay crop, it is unlike wheat or barley, sown for hay, which produces but a single annual crop and no more." (Id., at p. 525.)[10]
Whether nursery stock for sale constituted a crop was considered by our high court in Story v. Christin (1939) 14 Cal.2d 592 [95 P.2d 925, 125 A.L.R. 1402], a case not directly concerned with the constitutional exemption. The plaintiff in Story defaulted on a lease agreement and, following dispossession, initiated a conversion action against the lessor for recovery of orange and walnut trees grown as nursery stock on the leased land. The trees were planted closely together in rows, were usually purchased through contracts for future delivery, and were sold for the purpose of planting in orchards. (Id., at pp. 593-594.) Plaintiff claimed that the trees were personal property and stock in trade for sale to the public in his nursery business; defendant lessor suggested that the trees were a growing crop properly regarded as realty. The superior court dismissed the conversion action for failure to state a claim, and the appellate court reversed. In overturning the lower court, Story held *865 that nursery trees more closely resembled stock in trade than a crop which requires annual sowing and harvesting. The court noted: "There is no annual sowing and reaping, the purpose of planting being that they may later be transplanted. Such trees are attached to the soil by roots because only in this manner may they be kept ready for sale." (Id., at p. 595.) Instead, it was found that the fruit and nut trees were personalty because of commercial realities  they were grown for resale to the public and severed in accordance with buyers' needs. Attachment to the land was considered inconsequential by the court, which observed that: "Nursery trees are attached to the land by their roots because, under the law of agriculture they must get their nourishment from the land. The ground is the only feasible storage place for this salable product and soil serves the dual purpose of maturing and preserving until a buyer is found for them." (Id., at p. 596, italics added.) Based on these considerations, the Supreme Court established that nursery stock for sale was not equivalent to a growing crop.
Further exploration of the correct classification of nursery stock was undertaken in Jackson & Perkins Co. v. Stanislaus County Board of Supervisors (1959) 168 Cal. App.2d 559 [335 P.2d 976]. Plaintiff corporation grew rose bushes and other plants for sale as nursery articles. The ground was leveled, subsoiled, and planted to rose cuttings taken from wild stock. The developing plants were irrigated and weeded, and then budded to the desired types of roses. Testimony established that it takes one to two years to complete the plants to the point where they are salable; one year for plants intended to be used for their cut flowers and two years for plants intended for open air planting. It was also shown that the plants became commercially valueless after these time periods, that they are not grown for the profit from the products of the plant, and that they require maintenance with farm-type procedures. (Id., at pp. 559-560.) The appellate court held that both the one- and two-year rose bushes raised by plaintiff were not entitled to the "growing crop" exemption. Relying upon Story, the court initially found that the nursery stock had the characteristics of personalty taxed as stock in trade. (Id., at p. 563.) Moreover, it also relied upon the Washington case of Miethke v. Pierce County, supra, 173 Wash. 381, which ruled that nursery stock sold for transplanting by customers did not constitute a growing crop. (Jackson & Perkins Co. v. Stanislaus County Board of Supervisors, supra, 168 Cal. App.2d at pp. 563-564.) Finally, the court noted that its characterization accorded with the administrative interpretation given to nursery stock since 1948. (Id., at p. 564.)
*866 In Stribling's Nurseries, Inc. v. County of Merced, supra, 232 Cal. App.2d 759, this court similarly addressed the proper classification of nursery stock in relation to the growing crop exemption. We initially determined that the Cottle definition is the correct meaning of "growing crop" as that term is used under former article XIII, section 1 of the California Constitution. (Stribling's Nurseries, Inc., supra, at p. 762.) This court then stated: "We find no case overruling either Cottle or Jackson & Perkins. Therefore the language `growing crops' in article XIII, section 1, of the Constitution does not include growing nursery stock unless it meets the Cottle test of annual planting or sowing or an annual harvesting. In this case, plaintiff [nursery] has not contended that nursery stock meets this requirement." (Ibid., italics added.) Based upon the fact that nursery stock did not constitute a growing crop, this court invalidated a statute attempting to impermissibly exempt such plants from taxation. (Id., at p. 763.)
In the case before us, we are called upon to address the question not examined in Stribling's Nurseries  whether turf grass satisfies the Cottle definition or more closely resembles taxable nursery stock. We are of the opinion that turf grass falls outside the "growing crop" exemption for the following reasons.
First, turf grass has no requirement that it be annually planted or harvested.[11] Uncontradicted testimony established that Nunes' bluegrass is a perennial. Nonetheless, the grass is harvested within one year because of economic and management practice. Although susceptibility to insects and weeds increases with time, Mr. Nunes conceded that grass can be maintained indefinitely if cared for in the proper manner. The annual harvesting is dictated by Nunes' attempt to manage production around the orders of its customers. These circumstances do not amount to the annual requirement specified in the decisional law.
At the request of the executive secretary of the State Board of Equalization, the annual requirement test was extensively discussed in a 1974 Attorney General's opinion. (See 57 Ops.Cal.Atty.Gen. 506 (1974).) This opinion analyzed the interrelationship between industry practice and annual planting/harvesting in the following manner: "It has been stated in the Assessors' Handbook AH 567, at page 2, that *867 `when, as an industry practice, a perennial plant is removed annually following the harvest of its crop, the plant should be exempted along with the crop.' This view would appear to be correct to the extent that the industry practice demonstrates the necessity for an annual planting or sowing, or an annual harvesting. Where a particular specie of plant must be treated as an annual by California farmers because of climatic conditions or the physical characteristics of the plant itself, we are of the view that it is a `growing crop' while growing on the grower's lands even though such plant is technically classified botanically as a perennial. For example, tomato vines are classified botanically as perennials and are so treated in other countries, but are regarded as annuals in California because of climatic conditions. Tomatoes are planted or sown annually and are destroyed at the end of the growing season since they do not last beyond the first hard frost in the fall. Moreover, such plants are usually physically spent after one season and must be destroyed in order that a new crop may be planted the following year. This reasoning does not apply, however, to plants which are not grown for harvesting at all but are grown for sale by nurseries as living plants for transplanting. Nor would it apply to perennial plants not grown for sale as living plants which are for convenience or economic reasons destroyed at the end of the season. The fact that there may be an industry practice to destroy the remaining plants and root stock, either because they were not seasonably sold or because the grower can more profitably start new plants from bulbs, seeds, or cuttings, which plants will be sold during the following year, would not serve to make the plants `growing crops' within the meaning of the Constitution. This is particularly true where there is no element of harvesting, or the plants are personal property held for sale as living plants, ..., or there is no necessity for destroying the plant other than the fact that it is no longer readily salable. In other words, just because the nursery industry finds it convenient or profitable to destroy a perennial plant at the end of the growing season does not mean that they have met the Cottle v. Spitzer test.
"This is not to say that the consistent practice of the California agricultural industry as a whole should not be examined in a particular case. Such practice may evidence the fact that a particular specie of plant must be treated as an annual because of its nature or because the environment requires an annual planting, sowing, or harvesting. If this is so, such plant should be exempted as a `growing crop' while growing on the grower's lands even though it may be botanically classified as a perennial." (Id., at pp. 506, 512 (1974), italics added.) Although we are *868 not bound by this interpretation  which treats perennials as annuals if climatic conditions or physical characteristics of the plant so mandate  we are of the view that it coincides with judicial guidelines. Both rationales adopted in Cottle expressed the opinion that perennial plants were probably not contemplated to be growing crops. As in Miller, turf grass resembles alfalfa which, under proper maintenance, can survive indefinitely. The grass is "harvested" annually because of managerial practice and carefully planned economic production, even though it is a perennial capable of longer growth. The Attorney General's opinion makes a rational demarcation  perennials should be classified as annuals only due to climatic or physical limitations. Turf grass does not require annual sowing or harvesting for either of these reasons. Although classification does not revolve solely upon the plant's botanical status, we do not believe economic demand and management techniques should dispositively determine satisfaction of the "annual requirement" test.
Nunes contends that turf grass' eligibility as a growing crop should be based upon the fact it is grown and harvested with the aid of conventional farm practices. In our view this circumstance is not determinative. The rose bushes in Jackson & Perkins were harvested by a tractor-like machine and still found to be personalty for taxation purposes. Further, turf grass is more accurately gathered so that the entire plant can be subsequently transplanted rather than harvested for its product (as with a crop of grain, grass, or cut flowers). (See Cottle v. Spitzer, supra, 65 Cal. at p. 462 (opn. of J. Belden) (crop is "`"that which in ordinary husbandry was to be severed from the land when utilized"'"); 57 Ops.Cal.Atty.Gen. 506, 513 (1974) ("`Harvesting is the time when crops of grain or grass are gathered, also the gathering of crops of any kind.'")) Thus, "harvesting" techniques are not dispositive of the classification of turf grass, since it must of biological necessity be attached to the land for nourishment. (Cf. Story v. Christin, supra, 14 Cal.2d at pp. 595-596.)[12]
*869 Second, turf grass is not a growing crop because of its similarity to nursery stock in trade which is taxable as personal property. Story, Jackson & Perkins, and Stribling's Nurseries stand for the proposition that nursery stock sold for subsequent transplanting does not constitute a growing crop. Story reasoned that the attachment of nursery plants to the land was inconsequential in light of the purpose to sell the stock to buyers. (Story v. Christin, supra, 14 Cal.2d at p. 596.) In Jackson & Perkins, both one- and two-year rose bushes grown as nursery stock were deemed to be personalty falling outside the growing crop exemption. (Jackson & Perkins Co. v. Stanislaus County Board of Supervisors, supra, 168 Cal. App.2d at pp. 559-560, 563.) Finally, Stribling's Nurseries articulated that nursery plants were not growing crops unless they satisfied the Cottle definition. (Stribling's Nurseries, Inc. v. County of Merced, supra, 232 Cal. App.2d at p. 762.) Mr. Nunes clearly testified that his bluegrass is sold for ultimate transplanting by customers who desire lawns. In fact, sowing and harvesting practices are centered around the demand of customers. Since only management practices dictate annual harvesting, the grass is in the same position as the nursery stock taxed as personalty under the case law.
This result is also supported by the conclusion from the 1974 Attorney General's opinion. After observing that turf grass is a perennial and gathered with its roots intact, the opinion noted: "While there is a shade of distinction between nursery plants grown by nurseries for sale and transplanting and turf grass which is grown for sale and transplanting, the distinction is in law without a difference. A turf grower is simply another kind of nursery grower. This is a relatively new industry, but ... [there is] no legal difference between a turf grower and a nursery grower." (57 Ops.Cal.Atty.Gen. 506, 516 (1974), italics added.) As we have indicated, although the Attorney General's opinion is not binding on this court, its analysis is cogent and applicable. We believe that turf growers more closely resemble merchants than farmers for taxation purposes; thus, they are not entitled to the benefit of the growing crop exemption.
Nunes then contends that the annual requirement is met because there is a yearly destruction of the root stock at harvesting. This argument is likewise answered by the Attorney General's opinion, which indicated that: "... the annual destruction of the root stock of perennial grasses by the turf grass farmer is not the deciding factor in determining whether the plant is an annual or a perennial .... turf grass is a perennial, both in the hands of the grower and in the hands of his customer *870 who buys it and transplants it to make a lawn. Indeed, if the purchaser of turf grass were to find that his lawn was an annual when he expected to have a permanent lawn, his disappointment would be great." (Id., at p. 517.)
Nunes finally contends that our decision in Stribling's Nurseries compels a recognition that some types of nursery stock (such as turf grass) can satisfy the Cottle test. While this court did indicate language to this effect, such dictum must be read carefully. The 1974 Attorney General's opinion did just that in the following passage: "The language of the Stribling's Nurseries case cannot be extended by implication to exempt nursery plants which are grown for sale, in view of the holding that they are not crops in Jackson & Perkins Co. v. Stanislaus County Board of Supervisors, supra, 168 Cal. App.2d 559 ... [this does not] imply that a growing crop can never be personal property in the hands of the grower ... when nursery plants are in the hands of the grower, held for sale by him for transplanting as living plants, they are not growing crops but are personal property which falls outside the `growing crops' exemption. Indeed, as personal property these plants become subject to the business inventory exemption (§§ 129 and 219, Rev. & Tax. Code...). While it has been argued that nurserymen are subject to many of the same problems as ordinary farmers, i.e., plant diseases, blights, droughts, etc., ... there is a reasonable basis for different classifications between them where the business of a nursery is raising the plants for sale, whereas the business of farmers and other growers is to plant, raise, and harvest the crops produced from the plants ... it is for this reason that section 219 includes the stock in trade of nurserymen as `business inventories,' whereas there is no reason to further exempt growing crops in the hands of the farmer since they are not taxable at all prior to harvest." (Id., at p. 515, italics added.) In Stribling's Nurseries, this court noted that Jackson & Perkins had continuing viability. We believe that the Attorney General's opinion correctly interprets our prior decision and points out justification for treating turf growers as merchants and that its analysis shows why Nunes' bluegrass should be treated as nursery stock.
Appellant state Controller and respondent Stanislaus finally contend that turf grass is not a "growing crop" because it has an ascertainable value on any given lien date (i.e., sales price set by the nurseryman or grower). These parties apparently rely upon Judge Spencer's opinion in Cottle, which suggests that a growing crop "is not sufficiently tangible *871 to be treated as property...." (Cottle v. Spitzer, supra, 65 Cal. 456, 460.) We do not believe the "ascertainable value" language is the proper standard for determining a growing crop under Cottle. Decisional law has established that the annual requirement test is the definition given imprimatur in Cottle. Moreover, if this were a prong of the test, turf grass might qualify in light of its intangible nature during maturation. Since most plants are somewhat intangible during their growth, we do not believe this to be the distinguishing factor in the legal definition of a "growing crop."
Although courts will attempt to sustain clarifying legislation, we conclude that section 202.1 attempts to inject a category of growth which is beyond that intended by the constitutional language in article XIII, section 3, subdivision (h). Turf grass does not satisfy the Cottle test and is remarkably similar to nursery stock falling outside the growing crop exemption.[13] For these reasons, we find section 202.1 invalid as an excessive exercise of legislative authority.
The judgments in 5 Civil No. 4242 against defendant Kern and cross-defendant Kenneth Cory, Controller of the State of California, are reversed.
The judgment in 5 Civil No. 4410 against Nunes is affirmed.
Hanson (P.D.), J., and Conn, J.,[*] concurred.
On December 3, 1980, the opinion was modified to read as printed above.
NOTES
[1]  All code references are to the Revenue and Taxation Code unless otherwise indicated.
[2]  Mr. Nunes stated that turf grass had been raised as quickly as four and one-half months in some instances. He also indicated that turf grass may not reach maturity in some states until around three years after planting.
[3]  Under section 219, subdivision (a) (3), 50 percent of the assessed value of business inventories is exempt from taxation for the inclusive period between the 1974-1975 and 1979-1980 fiscal years. However, for fiscal years after 1979-1980, business inventories are completely exempt from taxation. (§ 219, subd. (a) (4).) In contrast, growing crops were completely exempt from taxation during the fiscal years in question. (See 57 Ops.Cal.Atty.Gen. 506, 520 (1974).)
[4]  In the revised assessor's handbook issued in December 1974, nursery stock was defined as including (1) plants that are cultivated and propagated for sale, (2) plants that are cultivated and propagated to produce products which are sold, and (3) products of the producing plants. Turf grass was administratively interpreted as being in the first category.
[5]  Specifically, Florence testified: "Well, the tomatoes that were discussed in earlier testimony, I treated as an auual [sic] in California because of the climatic conditions. The weather that we have in California will kill a tomato plant after it has reached the first frost."
[6]  (See Stats. 1974, ch. 157, § 2(a), p. 303.)
[7]  We note the findings of fact in each of the cases, among other things, declared that: "[a] These turf grasses on the real property of [Nunes] are plants that are sown, cultivated and harvested by [Nunes] solely for the purpose of sale to and transplanting by customers of [Nunes].

"[b] The planting and sowing and harvesting of the turf grasses by [Nunes] all occur within a one year period as necessitated and required by the economics and commercial necessities of the production of such turf grass and as also required to control damage to and loss of quality of such turf grasses due to disease and noxious weed infestations.
"[c] Neither the botanical nature nor climatic conditions require turf grasses to be annually sown or planted.
"[d] Neither the botanical nature nor climatic conditions require turf grasses to be annually harvested.
"[e] The turf grasses grown by [Nunes] are held in the ground awaiting orders from customers, and upon such order are harvested.
"[f] Subsequent to harvesting the turf grass, [Nunes] plants a new crop of turf grass from seed, which is in turn harvested within a one year period.
"[g] Turf grasses grown for sale and transplanting by Nunes Turfgrass are botanically classified as perennials."
[8]  The exemption is presently found in article XIII, section 3, subdivision (h), which states: "The following are exempt from property taxation: ... (h) Growing crops."
[9]  For two other states which have also adopted the "annual requirement" definition for growing crop see Miethke v. Pierce County (1933) 173 Wash. 381 [23 P.2d 405]; Kuehn v. City of Antigo (1909) 139 Wis. 132 [120 N.W. 823].
[10]  Miller was subsequently utilized to sustain the conclusion that natural grasses used for grazing forage did not constitute a growing crop. (El Tejon Cattle Co. v. County of San Diego (1966) 64 Cal.2d 428, 431 [50 Cal. Rptr. 546, 413 P.2d 136].) The Supreme Court in El Tejon Cattle stated, "... `natural grasses,' does not require annual or seasonal planting; it may therefore be appropriately likened to alfalfa, a perennial plant considered in Miller ... and held not to fall within the constitutional exemption." (Id., at p. 431.)
[11]  We note that both courts found that neither the botanical nature nor climatic conditions required turf grasses to be annually sown, planted, or harvested.
[12]  It is noteworthy that the State Board of Equalization treats perennial plants grown for their products (rather than for their entire plant) as annuals for the "growing crop" exemption. For example, the board has stated: "The chrysanthemum is grown as a perennial plant in the home garden. However, in commercial cut-flower operations, the chrysanthemum is treated as an annual plant. The rooted cuttings mature in 12 to 14 weeks, at which time flowers are harvested and the plant is discarded. Chrysanthemums grown for cut-flower production in this manner qualify as exempt `growing crops,' i.e., both the unsevered flowers and the producing plants are exempt." (Cal. State Board of Equalization, Assessor's Handbook, Assessment of Nursery Stock, AH 567 (Jan. 1974) p. 12, italics added; see also 57 Ops.Cal.Atty.Gen. 506, 514 (1974).)
[13]  As noted earlier, all counties but Ventura have deemed turf grass to be taxable as personal property and as falling outside the growing crop exemption. The administrative treatment of turf grass adopted by the counties herein is entitled to great weight. (Stribling's Nurseries, Inc. v. County of Merced, supra, 232 Cal. App.2d at p. 763.) Since it was not an erroneous interpretation, there is no reason to not adhere to the administrative classification of turf grass as personal property.
[*]   Assigned by the Chairperson of the Judicial Council.


249 F.2d 318
W. F. SNAKARDv.MOORE OIL, Inc.MOORE OIL, Inc.,v.W. F. SNAKARD.
No. 5618.
No. 5619.
United States Court of Appeals Tenth Circuit.
September 6, 1957.

Appeal and cross-appeal from the United States District Court for the Western District of Oklahoma.
P. D. Erwin, Chandler, Okl., and J. B. Dudley and J. B. Dudley, Jr., Oklahoma City, Okl., for W. F. Snakard.
Paul Brown, Oklahoma City, Okl., for Moore Oil, Inc.
Before BRATTON, Chief Judge, and HUXMAN and BREITENSTEIN, Circuit Judges.
PER CURIAM.

1
Remanded to the District Court on joint motion of the parties. D.C., 150 F.Supp. 250.


216 F.2d 353
Edgar Lee RAWLS, Appellant,v.UNITED STATES of America, Appellee.
No. 4914.
United States Court of Appeals Tenth Circuit.
Oct. 12, 1954.

Edgar Lee Rawls, pro se.
Frank, D. McSherry, Muskogee, Okl.  (Harry G. Fender, Muskogee, Okl., on the brief), for appellee.
Before PHILLIPS, Chief Judge, MURRAH, Circuit Judge, and RITTER, District Judge.
PER CURIAM.

1
This is the third collateral attack by the appellant upon the sentences imposed upon him in the District Court of the Eastern District of Oklahoma.  See Rawls v. United States, 10 Cir., 162 F.2d 798; and Rawls v. Untied States, 10 Cir., 166 F.2d 532.  The sentences were imposed upon pleas of guilty to an information containing two counts charging violations of Section 588b, Title 12 U.S.C.A., 50 Stat. 749.

2
In this motion to vacate, appellant complains of denial of due process of law in that he was sentenced on the second count of the information without having entered a plea to such count.  A transcript of the record at the time of sentence introduced at the hearing on this motion to vacate showed that the appellant and his co-defendant appeared in open court, and after refusing aid of counsel, expressly consented to be charged and prosecuted by information.  Appellant stated to the court that he had read the information, and upon being asked if he desired time in which to plead, answered that he was ready.  When asked how he pleaded, he stated, 'I plead guilty.'

3
When the trial court sentenced appellant to ten years on the first count and five years on the second count 'to run consecutively', appellant inquired: 'Could you make that run concurrently?'  The court answered, 'I could'.  The court then stated in effect that he would sentence the appellant's younger co-defendant to ten years on each count to run concurrently, but that 'I wouldn't feel justified in letting yours run concurrently'.  Whereupon, the appellant stated, 'the boy (co-defendant) has been overseas and I would like to see him get off lighter, he is entitled to it, thank you.'

4
It is thus unmistakably plain that the appellant intelligently pleaded guilty to both counts to the indictment and the judgment of the trial court is affirmed.


                                                                                ACCEPTED
                                                                                04-15-00341-cv
                                                                              FOURTH COURT OF APPEALS
                                                                                SAN ANTONIO, TEXAS
                                                                                11/3/2015 10:22:28 PM
                                                                                KEITH HOTTLE
                                                                                CLERK

                                  NO. 04-15-00341-CV

                         IN THE COURT OF APPEALS            FILED IN
                                                     4th COURT OF APPEALS
                        FOURTH JUDICIAL DISTRICT SAN ANTONIO, TEXAS
                            SAN ANTONIO, TEXAS       11/3/2015 10:22:28 PM
        ______________________________________________________
                                                         KEITH E. HOTTLE
                                                                          Clerk
               BEXAR COUNTY CIVIL SERVICE COMMISSION

                                                        Appellants

                                          vs.

                             CARMELLA GUERRERO

                                                          Appellee
            ___________________________________________________

     APPELLEE’S UNOPPOSED MOTION FOR EXTENSION
                 OF TIME TO FILE BRIEF

TO THE HONORABLE COURT OF APPEALS:

      Comes now Appellee, Carmella Guerrero and pursuant to Tex. R. App. P.

38.6(a) and (d), 10.5(b) and moves this Court to modify the filing time for Appellee’s

Brief by extending the time within which such brief may be filed and in support thereof

would show the following:

                                          I.

      This is an appeal from a case styled Carmella Guerrero v. Bexar County Civil

Service Commission, Cause No. 2012-CI-08758, filed in the 225th Judicial District Court

of Bexar County, Texas.

                                          1
                                            II.

       Appellant, Bexar County Civil Service Commission, filed a Notice of Appeal on

May 29, 2015. This Court granted several unopposed motions for extension of time for

Appellant to file its brief. Appellant filed its brief on October 5, 2015. Based on the

filing of Appellant’s Brief, Appellee’s Brief in this appeal is due on November 4, 2015.

                                            III.

       This cause has not been set for submission. This is Appellee’s first motion for

extension of time to file its brief. No unreasonable delay will result by the granting of

this Motion. Appellee requests an extension of time of thirty (30) days within which to

file his brief. If granted, Appellee’s brief will be due on December 4, 2015.

                                            IV.

       This extension of time is necessary because of the heavy trial and appellate

workload of Appellee’s attorney of record, Robert W. Clore. The facts relied on by

Appellee to reasonably explain its need for an extension of time within which to file her

brief are as follows:

       1.     In addition to the specific matters set forth below, Counsel for Appellee has

multiple additional commitments which interfere with counsel’s ability to timely file

Appellee’s brief;

       2.     Counsel for Appellee is working on a summary judgment reply on behalf of

Alegis Revenue Group, LLC in Multi-District Litigation styled In re Fraudulent Hospital

Lien Litigation pending in the 430th Judicial District Court, Hidalgo County, Texas.

                                             2
       3.     Counsel for Appellee is working on an appeal in Jerry Haywood, Lillie

Piper, Geneva McMarion, Hulisher Haywood, James Haywood, Dorothy Haywood-

Dockery, Individually and as Representatives of the Estate of Margaret Haywood,

Deceased v. Regency Nursing Center Partners of Bastrop, Ltd. d/b/a Bastrop Lost Pines

Nursing and Rehabilitation Center on behalf of Regency Nursing Center Partners of

Bastrop, Ltd. d/b/a Bastrop Lost Pines Nursing and Rehabilitation Center in Case

Number 03-15-00653-CV before the 3rd Court of Appeals.

       4.     Counsel for Appellee is working on a presentation for the Corpus Christi

Bar Association on the Texas Supreme Court Update for November 6, 2015 at the

Solomon Ortiz Center.

                                            V.

       For the above and foregoing reasons, Appellee respectfully requests an extension

of time of thirty (30) days or until December 4, 2015 within which to file her brief. This

Motion is not sought for the purposes of delay but rather, so that justice may be done.

                                            VI.

       The undersigned communicated with Clarkson F. Brown, Attorney for Appellant

Bexar County Civil Service Commission, and he indicated Appellant does not oppose this

Motion.

       WHEREFORE, premises considered, Appellee, Carmella Guerrero, prays that

this Court modify the filing time for Appellee’s brief by granting an extension of time of

thirty (30) days or until December 4, 2015, within which to file her brief. Appellee prays

                                             3
for such other and further relief both in law and in equity to which she may be justly

entitled to receive.

                                       Respectfully submitted,

                                       /s/ Robert W. Clore_______
                                       Robert W. Clore
                                       State Bar No. 24012436
                                       15481 South Padre Island Drive
                                       Suite 101
                                       Corpus Christi, Texas 78418
                                       Telephone: (361) 558-3527
                                       Facsimile: (361) 949-0908
                                       rclore@robclorelaw.com

                                       Orlando Lopez
                                       Lopez Scott, L.L.C.
                                       State Bar No. 2401096
                                       3703 N. St. Mary’s Street, Suite 200
                                       San Antonio, Texas 78212
                                       Telephone: (210) 472-2100
                                       Telecopier: (210) 472-2101
                                       olopez@lopezscott.com

                                 ATTORNEYS FOR APPELLEE, CARMELLA
                                 GUERRERO

                                          4
                          CERTIFICATE OF CONFERENCE

      I, Robert W. Clore, certify that I communicated with Clarkson F. Brown, Attorney

for Appellant, Bexar County Civil Service Commission, and he indicated that Appellant does

not oppose this Motion.

                                            /s/ Robert W. Clore_______
                                            ROBERT W. CLORE

                            CERTIFICATE OF SERVICE

      This is to certify that the above and foregoing instrument has been forwarded to
counsel as indicated below on this the 3rd day of November, 2015.

      Clarkson F. Brown, Attorney for the Bexar County Civil Service Commission,
cbrown@bexar.org.

      VIA E-FILING

                                                /s/ Robert W. Clore_______
                                                Robert W. Clore

                                            5


                                                               November 13, 2014

                                 JUDGMENT

                 The Fourteenth Court of Appeals
                  BACM 2006-4 PARK ROW, LLC, Appellant

NO. 14-14-00651-CV                          V.

                          EZRA BEYMAN, Appellee
                     ________________________________

     Today the Court heard appellant’s motion to dismiss the appeal from the
judgment signed by the court below on May 14, 2014. Having considered the
motion and found it meritorious, we order the appeal DISMISSED.

      We further order that all costs incurred by reason of this appeal be paid by
appellant, BACM 2006-4 Park Row, LLC.
      We further order that mandate be issued immediately.
      We further order this decision certified below for observance.


27 Ill. App.3d 144 (1975)
326 N.E.2d 413
THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee,
v.
O.Z. MEEKS, Petitioner-Appellant.
No. 60504.
Illinois Appellate Court  First District (1st Division).
March 17, 1975.
*145 Kenneth N. Flaxman, of Chicago, for appellant.
Bernard Carey, State's Attorney, of Chicago (Patrick T. Driscoll, Jr., and Ricky L. Petrone, Assistant State's Attorneys, of counsel), for the People.
Judgment affirmed.
Mr. JUSTICE SIMON delivered the opinion of the court:
This is an appeal from the dismissal without an evidentiary hearing of the petition of O.Z. Meeks for post-conviction relief under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1973, ch. 38, § 122-1 et seq.) Petitioner was charged with rape, battery and deviate sexual assault. The victim had been intimate with petitioner for about a year. At the preliminary hearing, petitioner was represented by privately-employed counsel. Subsequently, he employed other counsel to replace his first attorney. Petitioner's second counsel advised him to go to trial, but on the day of trial the State offered a plea bargain. Petitioner, on the recommendation *146 of his second attorney, accepted the State's offer, pleaded guilty, and was sentenced to imprisonment for not less than 4 nor more than 6 years.
The starting place of the petition is the allegation that petitioner's first attorney abstained from cross-examining the complaining witness at the preliminary hearing, presenting instead what the petition characterizes, without further elaboration, as a "pseudo-affirmative defense." The petition charges that by refraining from cross-examining the complaining witness, petitioner's first attorney failed to take advantage of the preliminary hearing as a vehicle to discover how the complaining witness would behave under cross-examination. Petitioner claims that for this reason he lacked competent counsel at the preliminary hearing, and was, therefore, deprived of his constitutional right to due process and effective assistance of counsel. The prejudice asserted by petitioner is that the failure of his first counsel to cross-examine deprived his second counsel of the knowledge of how effective the complainant would be as a witness at the trial, a consideration important in evaluating petitioner's case and crucial to the decision whether to plead guilty. Although the petition does not attack the competence of the attorney who represented petitioner when he entered his guilty plea, it concludes that the incompetence of the first attorney tainted the plea of guilty so that its entry violated petitioner's constitutional rights.
The conduct of petitioner's first counsel at the preliminary hearing is the keystone of his petition. If the petition failed to allege sufficient facts to show counsel's incompetence, it did not set forth a substantial constitutional claim and petitioner was not entitled to an evidentiary hearing. The sole allegation of the petition with respect to the incompetence of the first attorney is that at the preliminary hearing there was no cross-examination of the complaining witness. To determine whether petitioner should have been granted an evidentiary hearing, this court must decide whether as a matter of law competent professional representation requires an attorney for one charged with rape and deviate sexual assault and who had a prior relationship with the complaining witness to cross-examine her at the preliminary hearing.
 1, 2 In deciding whether a person accused of crime had effective assistance of counsel, an attorney's competence is not to be appraised on the basis of his response to matters involving the exercise of judgment, discretion or trial tactics. (People v. Newell (1971), 48 Ill.2d 382, 387, 268 N.E.2d 17; People v. Wesley (1964), 30 Ill.2d 131, 136, 195 N.E.2d 708; People v. Bell, 25 Ill. App.3d 565; People v. Hall, 25 Ill. App.3d 555; People v. Walker (1974), 22 Ill. App.3d 711, 318 N.E.2d 111; People v. *147 Stokes (1974), 21 Ill. App.3d 754, 757, 316 N.E.2d 127.) This is so even though other counsel or reviewing judges might under the same circumstances exercise different judgment or discretion or adopt other tactics. It is also true where as a matter of hindsight it appears that an attorney should have handled his assignment in a different way. Even victorious lawyers, let alone those who lose, in reviewing their effort often see how they could have done better. The decision of a lawyer to refrain from making a motion or interposing an objection does not establish incompetence since this may be a matter of strategy, not evidence of incompetency. People v. Goerger (1972), 52 Ill.2d 403, 288 N.E.2d 416; People v. Walker (1974), 22 Ill. App.3d 711, 318 N.E.2d 111; People v. Barbour (1972), 5 Ill. App.3d 323, 326, 282 N.E.2d 175.
In this case, several considerations may have influenced counsel's decision to refrain from cross-examining the complaining witness. For example, he may have decided the proper course was to avoid any possibility of antagonizing her since this might cause her to be hostile if interviewed prior to trial. This could have been an important motivation because of the possibility her attitude would mellow as a result of the interview or with the passage of time, particularly in view of her prior intimacy with the accused. The situation presented here is unlike rape by a stranger where it is important to pin down the victim's basis for identifying her attacker before the identification can be tailored to the accused. The advantages of discovery at the preliminary hearing may be outweighed by the possibility of locking the victim into testimony unfavorable to the accused, which she might feel she could not recant at trial. Where counsel is unable to control the answers he receives from the complaining witness, he may decide to refrain from cross-examination to avoid producing answers inconsistent with or contradictory to an affirmative defense.
 3, 4 Privately-employed counsel representing a defendant in a criminal case will not be regarded as incompetent unless his representation was so poor that it turned the proceeding into a farce and a sham. (People v. Stanley (1972), 50 Ill.2d 320, 278 N.E.2d 792; People v. Garrett, 26 Ill. App.3d 786. In representation by court-appointed counsel, the standard of conduct the petitioner is required to establish is less stringent; the showing need be only that counsel was actually incompetent in carrying out his duties. (People v. Goerger (1972), 52 Ill.2d 403, 409, 288 N.E.2d 416; People v. Ashley (1966), 34 Ill.2d 402, 411, 216 N.E.2d 126.) A third test, even more favorable to a defendant, is whether counsel provided a minimum standard of professional representation. There were no facts alleged either in the petition or in the *148 certificate of counsel filed in compliance with Supreme Court Rule 651(c) (Ill. Rev. Stat. 1973, ch.. 110A, § 651(c)) which show petitioner's first attorney to have been incompetent under any of these tests.
The conclusion that the petitioner did not lack competent representation at the preliminary hearing destroys the contention that the advice of his second attorney to plead guilty and the entry of the guilty plea was in some way tainted by the lack of cross-examination at the preliminary hearing. In fact, the plea of guilty put to rest all claims of deprivation of constitutional rights based on occurrences prior to the entry of the guilty plea which were known to the petitioner except for a challenge to the competence of counsel's advice that the guilty plea be entered. (Tollett v. Henderson (1973), 411 U.S. 258, 266-267; People v. Dennis (1966), 34 Ill.2d 219, 221, 215 N.E.2d 218.) The petitioner does not complain of the advice given to him by his second counsel or of that attorney's conduct. Because of the failure of the petition to show that the first attorney was incompetent, any complaint about the second attorney relating in any way to the preliminary hearing would be to no avail.
The propriety of the dismissal of the petition without an evidentiary hearing is supported by still another reason. Illinois courts, in passing on the competency of court-appointed counsel where the standard applied is more favorable to a defendant by requiring only a demonstration of actual incompetence as compared with demonstrating the proceeding was turned into a sham and a farce, also require a showing that the defendant was prejudiced as a result of the claimed incompetency. (Compare People v. Stanley (1972), 50 Ill.2d 320, 323, 278 N.E.2d 792, with People v. Goerger (1972), 52 Ill.2d 403, 409, 288 N.E.2d 416, and People v. Newell (1971), 48 Ill.2d 382, 387, 268 N.E.2d 17.) Even though counsel here was employed rather than appointed and, therefore, it is unnecessary to determine whether there was prejudice, the record before this court does not contain a whisper of a suggestion that no matter how extensively, how ingeniously or how vigorously the complaining witness might have been cross-examined, her testimony would have given petitioner any comfort. It would be impossible for petitioner to establish or even allege that her testimony could have been helpful to him, because whether it would have changed or shifted or whether how she would have behaved under cross-examination would have affected the decision to plead guilty is completely speculative. This is particularly true because the petition does not even hint at what her testimony or her behavior might have been under cross-examination. In view of the speculative nature of petitioner's claim so far as prejudice he may have suffered is *149 concerned, the language of the court in People v. Thomas (1972), 51 Ill.2d 39, 44, 280 N.E.2d 433, is particularly appropriate:
"In proving a violation of his constitutional rights the defendant must establish that he suffered a substantial prejudice from the manner in which his counsel conducted his defense. [Citations.] A claim of prejudice cannot be based on mere conjecture."
The defendant has neither alleged nor would he be able to show that the outcome of his encounter with the legal process would have been different had his counsel cross-examined the complaining witness.
Were this court to accept petitioner's argument, it would be establishing a standard for testing competency of counsel which could never be fairly, equally or practically administered. If the failure of counsel to ask any questions at a preliminary hearing established incompetency as a matter of law, courts would next be faced with the contention that although some questions were asked, not enough were asked or that the questions which were asked were not the right ones. It might even be argued that counsel was incompetent for asking improper questions or too many. Conceding any merit to petitioner's position would open the door to a series of attacks upon attorneys which would make the administration of justice in criminal cases an impossible morass. See also People v. Fleming (1971), 50 Ill.2d 141, 145, 277 N.E.2d 872; People v. Stephens (1955), 6 Ill.2d 257, 259, 128 N.E.2d 731.
 5 Before a post-conviction petitioner is entitled to an evidentiary hearing, he must make a substantial showing based on allegations of fact that his rights have been violated. The petition does not allege facts which establish lack of effective assistance of counsel. Thus, no constitutional question is presented. People v. Hysell (1971), 48 Ill.2d 522, 272 N.E.2d 38; People v. Orndoff (1968), 39 Ill.2d 96, 98, 233 N.E.2d 378; People v. Ashley (1966), 34 Ill.2d 402, 216 N.E.2d 126; People v. Browry (1972), 8 Ill. App.3d 599, 605, 290 N.E.2d 650.
 6 The circuit court acted properly in sustaining the motion to dismiss the petition without an evidentiary hearing. The order of dismissal is affirmed.
Affirmed.
BURKE, P.J., and EGAN, J., concur.