
    STATE of Missouri EX REL. SUMMIT NATURAL GAS OF MISSOURI, INC., Relator/Plaintiff-Appellant, v. The MORGAN COUNTY COMMISSION; James Bryant, Rodney Schad, and Wayne Kroeschen, in their official capacities as Morgan County Commissioners; Jim Anderson, in his official capacity as Morgan County Assessor; and Kathy Francis, in her official capacity as Morgan County Collector, Respondents/Defendants-Respondents.
    No. SD 34558
    Missouri Court of Appeals, Southern District, Division One.
    Filed: June 13, 2017
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 3, 2017
    Motion for Transfer to Supreme Court Denied October 5, 2017
    
      Attorneys for Appellant—Mark B. Leadlove of St. Louis, MO; Caleb P. Phillips of Kansas City, MO.
    Attorneys for Respondents—Michael L. McDorman of Lake Ozark, MO; Jill D. Parks of Versailles, MO; and Cody R. Holt of Vichy, MO.
   DON E. BURRELL, J.

Summit Natural Gas of Missouri, Inc. (“Summit”) appeals the judgment dismissing with prejudice its eight-count petition (“the petition”) against the Morgan County Commission and its individual members (“the Commission”), the Morgan County Assessor (“the Assessor”), and the Morgan County Collector (“the Collector”) (collectively, “Defendants”).

The petition sought judicial relief pursuant to section 536.150 and alleged, inter alia, that: Summit’s property was erroneously assessed for the 2015 tax year; Summit did not receive notice of the erroneous assessment until after the time period to appeal to the Morgan County Board of Equalization (“Board of Equalization”) had expired; and Summit had requested relief from the Commission pursuant to section 137.270, which the Commission ultimately denied.

Summit presents seven points on appeal that contend the trial court erred in granting Defendants’ motion to dismiss the petition (“the dismissal motion”). Two of those points, contending that “Summit did not fail to exhaust administrative remedies” (Point 3) and “Summit’s payment under protest did not deprive the Commission of the authority to act under section 137.270” (Point 4), are dispositive. We reverse the judgment (“the dismissal judgment”), do not reach Defendants’ remaining points, and remand the case for further proceedings consistent with this opinion.

Applicable Principles of Review

Our review of the decision to grant a motion to dismiss a petition is de novo. Gibbons v. J. Nuckolls, Inc., 216 S.W.3d 667, 669 (Mo. banc 2007). A motion to dismiss must assume that all averments in the petition are true. Nazeri v. Mo. Valley Coll., 860 S.W.2d 303, 306 (Mo. banc 1993). We do likewise, making no attempt to weigh those averments for credibility or persuasiveness. Rychnovsky v. Cole, 119 S.W.3d 204, 208 (Mo. App. W.D. 2003). “It is not the function of the trial court on a motion to dismiss or of this court on appeal from a judgment of dismissal ... to determine on the merits whether Appellant is entitled to relief.” Moore v. Mo. Highway & Transp. Comm’n, 169 S.W.3d 595, 599 (Mo. App. S.D. 2005) (quotation omitted). “Where the trial court does not state a basis for its dismissal, we presume that dismissal was based on the grounds stated in the motion to dismiss and will affirm if dismissal was appropriate on any ground- stated in the motion to dismiss.” State v. Carroll Care Ctrs. Inc., 11 S.W.3d 844, 849 (Mo. App. W.D. 2000). We “will not ... affirm the grant of a motion to dismiss on grounds not stated in the motion.” Breeden v. Hueser, 273 S.W.3d 1, 6 (Mo. App. W.D. 2008).

The Petition Averments

The following are the salient averments of the petition. Summit is a natural gas distribution company that owns property located within eight Morgan County taxing districts: Ambulance District 1, Ambulance District 2, Fire District 5, Fire District 6, R-I School District, R-II School District, Nursing District 1, and Nursing District 2 (“the Taxing Districts”). In February 2015, Summit filed its 2015 property tax return (“the tax return”) with the Assessor. The tax return included a form detailing Summit’s real and personal property located within each of Morgan County’s eight taxing districts. Each form included a “Total Value” figure and an “Assessed Value” figure for the property listed on the form.

In May 2015, the Assessor sent Summit a “ ‘notice of change of assessed value of real property.’ ” Tonya Heller,' Summit’s assistant controller, reviewed the notice and believed that the value listed for Summit’s property was too low. Ms. Heller believed that “the Assessor would calculate Summit’s property tax correctly if the notice of change of value reflected the sum of the ‘total value’ figures at the bottom of each page of Summit’s tax return pertaining to real property.”

Ms. Heller contacted the Morgan County Deputy Assessor (“the Deputy Assessor”) and filed a “‘Protective Notice of Appeal’ ” with the Board of Equalization. Following her discussion with the Deputy Assessor, Ms. Heller received a second notice of change of assessed value of real property (“the second notice”) that was consistent with what she believed was necessary for the Assessor to correctly calculate Summit’s property tax. She then withdrew Summit’s appeal, to the' Board of Equalization.

In November 2015, Summit received its 2015 tax bill (“the tax bill”). The tax bill listed $22,799,550 as the total assessed value of Summit’s property (“the total assessment”) and $1,011,362.55 as the amount of taxes due based on the total assessment. The Assessor calculated the total assessment by adding together the sixteen Assessed Values (two for each of eight Morgan County taxing districts) used by Summit in its tax return. However, because “each page of the return corresponded to a different taxing district, some of which overlapped, this [method] resulted in multiple assessments of the same property.” Applying the correct calculation would reveal that the “correct” amount of taxes due would have been $254,309, approximately one-fourth of the amount billed. The Collector also incorrectly calculated Summit’s taxes “based on a random assignment of assessed value to Summit’s property among different taxing districts.”

After receiving the tax bill, Summit contacted the Deputy Assessor. The Deputy Assessor advised Summit that the tax bill could not be corrected because Summit’s opportunity to appear before the Board of Equalization, which met July 2015, had already passed.

On December 30, 2015, Summit sent to the Collector: (1) a check for $1,011,362.55; (2) a letter stating that payment was being made “under protest” and that the protested funds should be impounded pursuant to section 139.031 (“the protest letter”); and (3) copies of a letter and affidavit that Summit contemporaneously sent to the Commission requesting relief (“the letter to the Commission”). Both the protest letter and the letter to the Commission stated that Summit believed the correct “true value in money” of its property was $16,909,720 (for its real property) and $1,184,477 (for its personal property), giving rise to property assessments of $5,411,110 and $394,826, respectively. Accompanying the letter to the Commission was an affidavit in which Laurie Rydwell, Summit’s corporate controller, stated that Summit had good cause for not attending the Board of Equalization meeting in July 2015 due to Summit’s understanding that the Assessor would calculate Summit’s taxes correctly following the second notice.

On February 23, 2016, the Commission held a hearing on Summit’s request for relief. Ms. Rydwell testified, the parties presented exhibits (including Summit’s exhibit showing its estimated correct tax calculation of $254,309), and counsel for the parties presented argument. The argument of Morgan County’s counsel prevailed, and the Commission denied any relief.

On March 22, 2016, Summit filed the petition in the Circuit Court of Morgan County.. The petition avers that the proceeding before the Commission “was not a contested case” because the Commission “was not- required by law to hold a hearing” and that judicial review is appropriate under section 536.150. In eight counts, the petition prays for writ of mandamus or declaratory and injunctive relief based on alleged violations of: section 137.270 (counts 1 through 4); sections 52.230 and 52.240 (counts 5 and 6); and due process of law (counts 7 and 8). As relief, the petition sought a refund of the impounded funds attributable to the erroneous multiple assessments.

Defendants responded with the dismissal motion, which presented the following three grounds: (1) Summit’s counts 1 through 4 are barred because Summit paid the tax bill in full; (2) Summit’s counts 5 through 8 are barred because Summit failed to exhaust all,administrative remedies; and, in the alternative, (3) Summit failed to join the Taxing Districts, which are necessary and indispensable parties to the lawsuit.

The trial court issued the dismissal judgment, which did not state the basis of the trial court’s decision, and this appeal timely followed. Because points 3 and 4 are dispositive, we begin our analysis with those claims.

Analysis

Point 3—Exhaustion of Administrative Remedies

The dismissal motion attacked counts 5 through 8 based upon Summit’s alleged failure to exhaust mandatory administrative remedies. The crux of the argument is that Summit failed to adhere to the following appeal process:

The assessor initiates the process by making a property asséssmerit, which may be appealed (1) to the county board of equalization; then (2) to the State Tax Commission if the dispute involves “assessment ..., the correct valuation ...; the method or fórmula used in determining the valuation ..., or the assignment of a discriminatory 'assessment;” ... and finally (3) to circuit court. §§ 137.335, 137.385, 138.110, 138.430.1. To receive'a refund, taxpayers must exhaust applicable administrative remedies.

Quaker Oats Co. v. Stanton, 96 S.W.3d 133, 137 (Mo. App. W.D. 2003) (quoting Bartlett v. Ross, 891 S.W.2d 114, 116 (Mo. banc 1995)) (internal footnote omitted).

. Point 3 argues that Summit was under no requirement to proceed, in order, through the Board of Equalization, .the State Tax Commission, and then the circuit court. Citing sections 137.270 and 52.240, Summit argues that it was free instead to seek relief from the Commission, and Summit attempted to do so. Additionally, Summit notes that the petition seeks judicial review pursuant to section 536.150, a statute Summit claims has no requirement that administrative remedies ■be exhausted before seeking judicial review. Finding merit in both arguments, wé agree that Summit was not required to follow the process for administrative appeals outlined in Quaker.

Section 137.270 provides:

The county commission of each county may hear.and determine allegations of erroneous assessment, or mistakes or defects in descriptions, of lands, at any term of the commission before the taxes are paid, on application of any person who, by affidavit, shows good cause for not having attended the county board of equalization for the purpose of correcting the errors or defects or mistakes. If any lot of land or any portion thereof has been erroneously assessed twice for the same year, the county commission shall release the owner or claimant thereof upon the payment of the proper taxes. Valuations placed on property by the assessor or the board of equalization shall not be deemed to be erroneous assessments under this section.

Section 52.240.4 provides:

Any taxpayer claiming that the county made an error or omission in determining taxes owed may submit a written request for a refund of penalties, interest, or taxes to the county commission or governing body of the county. If the county commission or governing body of the county approves the refund, then such penalties, interest, or taxes shall be refunded as provided in section 139.031. The county commission shall approve or disapprove the taxpayer’s written request within thirty days of receiving said request. The county collector shall refund penalties, interest, and taxes if the county made an error or omission in determining taxes owed by the taxpayer.

As relevant here, both statutes provide that county commissions may review certain claims relating to taxation, i.e., an “erroneous assessment” under section 137.270, and an “error or omission in determining taxes owed” under section 52.240.4.

In arguing that these statutes provide an independent method of review, Summit relies primarily on State ex rel. Pettis Cty. R-XII Sch. Dist. v. Kahrs, 258 S.W.3d 85 (Mo. App. W.D. 2008). The relevant portions of that opinion involve the appropriate construction of the terms “erroneous assessment” and “valuation” as used in section 137.270. Id. at 88. The Western District addressed and distinguished those terms from one another as follows.

While the case law is thin and the statutory context provides little guidance, we view an erroneous assessment as a technical error in assessing taxable property, such as a clerical or mathematical mistake. An assessment is a “[determination of the rate or amount of something, such as a tax or damages [or the] [imposition of something, such as a tax or fine, according to an established rate.” BLACK’S LAW DICTIONARY 111 (7th ed.1999). For example, if the assessor levies a tax on the same property twice, makes an error in adding the total amount of personal property, or taxes property not owned by the taxpayer, the error is one of assessment. Alternatively, the word “valuation” seems to connote intrinsic value—an inherently subjective determination involving judgment and discretion. A valuation is an error of judgment in evaluating the worth of particular property. For example, if an assessor determines that taxable business equipment is worth $100,000 rather than its actual worth of $50,000, then the error is one of valuation. See State ex rel. Gottlieb v. W. Union Tel. Co., 165 Mo. 502, 65 S.W. 775, 780 (1901) (difference in opinion as to worth of property owned in the state “is merely a case of overvaluation, and not an erroneous assessment”).

Id. at 88-89. The Pettis court further observed that in cases of erroneous assessment, section 137.270 “apparently operates to act as an additional means of appeal” separate from the ordinary procedure for challenging assessments. Id. at 90.

Here, the petition avers that the tax bill contained an erroneous assessment of Summit’s property. More specifically, it alleges that “the Assessor added figures together for an ‘assessed value’ pertaining to each page of [the] tax return. Because each page of the return corresponded to a different taxing district, some of which overlapped, this resulted in multiple assessments of the same property.” (Emphasis added.) Assuming that averment to be true, as we must, it would constitute “a tax on the same property twice”—i.e., an “erroneous assessment” reviewable under section 137.270. See Pettis, 258 S.W.3d at 88-89; cf. Quaker, 96 S.W.3d at 138. We also see no reason why Summit’s allegation would not additionally qualify as an “error or omission in determining taxes owed”— thus qualifying it for review under, section 52.240.4.

We disagree with Defendants’ argument that Quaker compels the opposite conclusion. In fact, the Quaker court specifically acknowledged, “ “when a taxpayer does not question the valuation of his property, but. asserts it is not subject to the tax, he need not appear before the Board of Equalization but may enjoin the enforcement of the tax.’” Quaker, 96 S.W.3d at 138 (quoting B & D Inv. Co. v. Schneider, 646 S.W.2d 759, 762 (Mo. banc 1983)) (emphasis added). As previously noted, Summit does not challenge the Assessor’s valuation of its property; it challenges an alleged erroneous assessment.

In any event, Defendants’ argument that Summit failed to appeal to the Board of Equalization (and beyond) ignores the fact that the petition seeks relief under section 586.150, a statute that provides for judicial review of non-contested cases with “no requirement of exhaustion of administrative remedies.” Strozewski v. City of Springfield, 875 S.W.2d 905, 907 (Mo. banc 1994).

As previously noted, Defendants’ argument is that Summit’s claims are barred because Summit failed to exhaust its administrative remedies—an assertion that misses the mark because there is no such requirement under section 536.150. The trial court erred in granting the dismissal motion on the ground that Summit failed to exhaust administrative remedies prior to seeking judicial review. Point 3 is granted.

Point k—Payment of Property Taxes under Protest

Defendants assert that Summit is precluded from claiming in counts 1 through 4 that the Commission violated section 137.270 because Summit paid the Collector $1,011,362.55—the full amount charged in the tax bill. This payment, Defendants argues, bars relief under section 137.270 because the Commission was only permitted to hear and determine Summit’s erroneous assessment allegation “at any term of the commission before the taxes are paid[.]” Id. (Italicized emphasis added.) Summit’s fourth point claims the trial court erred in granting the dismissal motion on this ground as Summit did not “pay its taxes” within the meaning of section 137.270 because it paid the disputed portion “under protest” pursuant to section 139.031. We agree.

Except for taxes collected by the Director of Revenue of Missouri, section 139.031 allows taxpayers to pay disputed taxes under protest and to seek a refund. Herky, LLC v. Holman, 277 S.W.3d 702, 705 (Mo. App. E.D. 2008). To do so, the taxpayer must “make full payment of the current tax bill before the delinquency date and file with the collector a written statement setting forth the grounds on which the protest is based.” Section 139.031.1. In addition, “[t]he statement shall include the true value in money claimed by the taxpayer if disputed.” Id. Upon receiving payment of taxes under protest, “the collector shall disburse to the proper official all portions of taxes not protested or not disputed by the taxpayer and shall impound in a separate fund all portions of such taxes which are protested or in dispute.” Section 139.031.2. After filing a protest, the taxpayer has ninety days to commence an action in circuit court against the collector. Id. If the taxpayer’ fails to commence an action within this timeframe, “such protest shall become null and void and of no effect, and the collector shall then disburse to the proper official the taxes impounded!.]” Id.

Whether a protest payment tendered under section 139.031 constitutes a payment of taxes under section 137.270 requires us to construe the meaning of these statutes. “The primary rule in statutory construction is to ascertain the intent of the legislature from the language used, to give effect to that intent if possible, and to consider words used in the statute in their plain and ordinary meaning.” Street v. Dir. of Revenue, 361 S.W.3d 355, 357-58 (Mo. banc 2012) (internal quotations and citations omitted). “In ascertaining legislative intent, the statute should be read in pan materia with related sections, and the taxing statutes should be construed in context with each other.” Id. at 358.

We begin this task by observing that sections 52.240.4 and 137.270 are taxing statutes with similar provisions as each authorizes county commissions to hear and determine allegations of error relating to taxation. Although a county commission is free to correct an erroneous assessment under section 137.270 “at any term of the commission before the taxes are paid,” section 52.240'.4 contains no such' time limitation. The latter statute does, however, state that “[i]f the county commission ... approves the'refund, then such penalties, interest, or taxes shall be refunded as provided in section 139.031.” Section 52.240,4 (emphasis added). A refund as provided by section 139.031 necessarily presumes that a payment has been made as provided by the same statute. Thus, Defendants’ construction of section 137.270 (that a protest payment under section 139.031 bars the county commission from hearing, and considering an allegation of erroneous assessment) would render that statute in conflict with section 52.240.4 to the extent the allegation is reviewable as “an error or omission in determining taxes owed[.]”

Construing sections 52.240 and 137.270 in pari materia, we conclude that the “before the taxes are paid” clause of section 137.270 must be interpreted in a manner that gives it a meaning consistent with the “taxes shall be refunded as provided in section 139.031” clause of section 52.240. As recognized in Pettis, the “before the taxes are paid” clause in section 137.270 “addresses the situation where the taxpayer would seek a refund from the county for money already paid and that the county may have already disbursed. Presumably, the legislature sought to prevent the situation where a county would be forced to refund money it no longer had.” 258 S.W.3d at 90 n.6.

' Because a county collector is required under section 139.031.2 to “impound in a separate fund all portions of such taxes which are protested or in dispute!,]” the county would not be forced to refund money it no longer had if faced with a claim under sections 52.240 or 137.270. Cf. State ex rel. SLAH, L.L.C. v. City of Woodson Terrace, 378 S.W.3d 357, 362 (Mo. banc 2012) (“[t]he essential purpose of section 139.031 is to furnish an adequate and sufficient remedy to the taxpayer, and at the same time to provide an expeditious method by which the various branches of government affected can obtain the revenue necessary for their maintenance without protracted delay”) (quotation omitted). For the foregoing reasons, we conclude that a protest payment properly tendered under section 139.031 does not bar a county commission from reviewing claims brought under section 137.270.

This conclusion, however, does not end our inquiry. As relevant to this analysis, Defendants have also asserted that Summit could not rely on section 139.031 because Summit’s protest payment was not in strict compliance with that statute. Specifically, Defendants claimed the protest letter did not indicate “the true value in money claimed by the taxpayer if disputed” as required by section 139.031.1. We disagree.

As relevant to Defendants’ argument, “[t]he requirements of section 139.031 must be strictly construed and enforced.” Pac-One, Inc. v. Daly, 37 S.W.3d 278, 281 (Mo. App. E.D. 2000). “A taxpayer’s failure to follow the mandate of [section 139.031.1] has consistently been held to bar his claim of impropriety of any part of the taxes he has paid.” Buck v. Leggett, 813 S.W.2d 872, 877 (Mo. banc 1991).

The relevant portion of the protest letter is as follows:

[Summit] believes thé true value in money of the property at issue to be a total for Parcel 400, Parcel 403 and personal property Accounts 120 and 121 of $18,094,197. The correct true value for the real property parcels (Parcel 400 and Parcel 403) is, in total for both parcels, $16,909,720 (equating to an assessed value for both Parcels in total of $5,411,110); and-the correct true value of the personal property accounts (Account 120 and Account 121) is, in total, $1,184,477 (equating to an assessed value of $394,826).

This portion of the protest letter was sufficient to state the “true value in money” claimed by Summit.

As Summit correctly points out, section 139.031 does not require the taxpayer to include the amount of .taxes “owed.” Rather, “true value,” for tax assessment purposes,' refers to “the market value of the property at fair. and bona fide sale at private contract, and-is in essence the value property has in exchange for money.” Black’s Law Dictionary 1508 (6th ed. 1990). Heres the protest letter indicated what Summit claimed to be the true value of its property for assessment purposes. Point 4 is granted.

Points 1, 2, 5, 6 and 7—Issues not . i. Relevant, to the Disposition of this Appeal

The third and final ground stated in the dismissal motion concerned the fact that Summit had not joined the Taxing Districts as parties in the suit. Although Summit challenges this dismissal ground in Point 7, we need not review it because Defendants concede that the dismissal judgment was not based on Summit’s failure to join the Taxing Districts. Defendants maintain in their brief that the issue was never submitted to or considered by the trial court by agreement of the parties. Consequently, Defendants ■ state the issue is moot for purposes of this appeal, and Summit adopts this concession in its reply brief. We thus view the parties’ stipulation as-though it were a part of the record. See New Madrid Cty. v. St. John Levee & Drainage Dist., 436 S.W.3d 573, 574 n.2 (Mo. App. S.D. 2013). Having never been addressed to the trial- court, Point '7 is moot. See Berger v. Emerson Climate Techs., 508 S.W.3d 136, 147 (Mo. App. S.D. 2016) (finding that, points were moot because “they do not address rulings made in the dismissal judgment”).

Summit’s remaining points argue that: “Section 137.270 does not require a showing of ‘good cause’ for not appealing to the Board of Equalization in cases of multiple assessments of the same property, and it is irrelevant whether the taxes are paid before the hearing” (Point 1); “even if section 137.270 does require a showing of ‘good cause’ for not appealing to the Board of Equalization, Summit’s petition alleges facts that constitute good cause for not appealing” (Point 2); “the Collector separately erred in preparing the tax bill in an arbitrary and capricious manner” (Point 5); and “due process concerns give rise to a viable challenge to both the assessments and the tax bill” (Point 6).

To the extent that points 1 and 2 claim Summit either had or need not show “good cause” for not attending the Board of Equalization meeting, those points raise issues outside the dismissal motion and are consequently not addressed by the dismissal judgment and are moot for that reason. See id. Points 5 and 6, along with the second prong of Point 1 (addressing the payment issue), appear to allege grounds for relief that are alternative to those raised in points 3 and 4. Having granted points 3 and 4—which alone warrant reversal and remand—we need not review Summit’s alternative grounds for relief. See O’Hare v. Permenter, 113 S.W.3d 287, 289 n.2 (Mo. App. E.D. 2003) (“Issues that are not essential to a disposition of the case should not be addressed.” (Internal quotation marks and citation omitted)).

The dismissal judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.

JEFFREY W. BATES, P.J.— CONCURS

MARY W. SHEFFIELD, C.J.— CONCURS 
      
      . All statutory references are to RSMo 2016.
     
      
      . The Supreme Court of Missouri has exclusive jurisdiction over the construction of the revenue laws of this state. Mo. Const, art. V, § 3. "To invoke the supreme court’s exclusive jurisdiction, the case must involve (1) the construction (2) of a revenue law (3) of this state.” Two Pershing Square, L.P. v. Boley, 981 S.W.2d 635, 637-38 (Mo. App. W.D. 1998), As relevant here, taxes imposed by and paid to a county do not involve the construction of a revenue law of the state. Id. at 638. This appeal is therefore not within our high court’s exclusive jurisdiction. -
     
      
      . After the petition was filed, the case was transferred to the Circuit Court of Camden County.
     
      
      . As set out in Chapter 536, the Missouri Administrative Procedures Act ("MAPA”) provides for judicial review of administrative decisions in both contested cases (§§ 536.100-.140) and non-contested cases (§ 536.150). Furlong Cos. v. City of Kansas City, 189 S.W.3d 157, 165 (Mo. banc 2006). A "contested case” is "a proceeding before an agency in which legal rights, duties or privileges of specific parties are required by law to be determined after hearing.” Id. (quoting § 536.010(4)) (internal quotations marks omitted). Conversely, a "non-contested case” has been defined by our supreme court as "a decision that is not required by law to be determined after a hearing.” Id.) see also State ex rel. Christian Health Care of Springfield, Inc. v. Mo. Dept. of Health & Senior Servs., 229 S.W.3d 270, 275 (Mo. App. W.D. 2007) ("[T]he issue in determining whether a case is contested is not whether a hearing was actually conducted, but whether one was required by law").
     
      
      . We note that the argument was located in the portion of the dismissal motion pertaining to the exhaustion of administrative remedies. Summit, however, responds to the argument in its fourth point as part of its discussion of sections 137.270 and 139.031.
     
      
      . In oral argument before this court, counsel for Defendants admitted that most of the $1,011,362:55 payment Summit made to the Collector has been “paid out” to the Taxing Districts. The section 139,031 implications of that action are not addressed in this appeal.
     