Claudette Gremminger v. Overschmidt (Franklin)

March 14th, 2008

State Tax Commission of Missouri






v.)Appeal Number 07-57043












On March 14, 2008, Hearing Officer Maureen Monaghan entered her Decision and Order (Decision) affirming the assessment by the Franklin County Board of Equalization.

Complainant timely filed her Application for Review of the Decision, received by the Commission on March 31, 2008.Respondent was given until and including May 2, 2008, to file his Response; none was filed.


Standard Upon Review

The Hearing Officer is not bound by any single formula, rule or method in determining true value in money, but is free to consider all pertinent facts and estimates and give them such weight as reasonably they may be deemed entitled.The relative weight to be accorded any relevant factor in a particular case is for the Hearing Officer to decide.St. Louis County v. Security Bonhomme, Inc., 558 S.W.2d 655, 659 (Mo. banc 1977); St. Louis County v. STC, 515 S.W.2d 446, 450 (Mo. 1974); Chicago, Burlington & Quincy Railroad Company v. STC, 436 S.W.2d 650 (Mo. 1968).

The Hearing Officer as the trier of fact may consider the testimony of an expert witness and give it as much weight and credit as she may deem it entitled to when viewed in connection with all other circumstances.The Hearing Officer is not bound by the opinions of experts who testify on the issue of reasonable value, but may believe all or none of the expert’s testimony and accept it in part or reject it in part.St. Louis County v. Boatmen’s Trust Co., 857 S.W.2d 453, 457 (Mo. App. E.D. 1993); Vincent by Vincent v. Johnson, 833 S.W.2d 859, 865 (Mo. 1992);Beardsley v. Beardsley, 819 S.W.2d 400, 403 (Mo. App. 1991); Curnow v. Sloan, 625 S.W.2d 605, 607 (Mo. banc 1981).

The Commission will not lightly interfere with the Hearing Officer’s Decision and substitute its judgment on the credibility of witnesses and weight to be given the evidence for that of the Hearing Officer as the trier of fact.Black v. Lombardi, 970 S.W.2d 378 (Mo. App. E.D. 1998); Lowe v. Lombardi, 957 S.W.2d 808 (Mo. App. W.D. 1997); Forms World, Inc. v. Labor and Industrial Relations Com’n, 935 S.W.2d 680 (Mo. App. W.D. 1996); Evangelical Retirement Homes v. STC, 669 S.W.2d 548 (Mo. 1984); Pulitzer Pub. Co. v. Labor and Indus. Relations Commission, 596 S.W.2d 413 (Mo. 1980); St. Louis County v. STC, 562 S.W.2d 334 (Mo. 1978); St. Louis County v. STC, 406 S.W.2d 644 (Mo. 1966).


A review of the record in the present appeal provides support for the determinations made by the Hearing Officer.There is competent and substantial evidence to establish a sufficient foundation for the Decision of the Hearing Officer.A reasonable mind could have conscientiously reached the same result based on a review of the entire record. The Commission finds no basis to support a determination that the Hearing Officer acted in an arbitrary or capricious manner or abused her discretion as the trier of fact and concluder of law in this appeal.Hermel, Inc. v. STC, 564 S.W.2d 888 (Mo. 1978); Black v. Lombardi, 970 S.W.2d 378 (Mo. App. E.D. 1998); Holt v. Clarke, 965 S.W.2d 241 (Mo. App. W.D. 1998); Smith v. Morton, 890 S.W.2d403 (Mo. App. E.D. 1995); Phelps v. Metropolitan St. Louis Sewer Dist., 598 S.W.2d 163 (Mo. App. E.D. 1980).

Complainant’s letter setting forth her Application for Review was essentially an arguing of items related to the Respondent’s Appraisal.Complainant failed to set forth any legal claim or basis as a ground to find the Hearing Officer had abused her discretion or acted in an arbitrary or capricious manner.The evidence presented by Complainant failed to establish the true value in money of the subject property or establish discrimination in the assessment process against the property under appeal.The taxpayer failed to meet her burden of proof on the issue of overvaluation and discrimination.See, Taxpayer has Burden of Proof and Case Law Standards for Inequitable Assessment, Decision, p. 5 & p. 7.The failure of Complainant to meet her burden of proof requires that the Hearing Officer Decision be affirmed.


The Commission upon review of the record and Decision in this appeal, finds no grounds upon which the Decision of the Hearing Officer should be reversed or modified.Accordingly, the Decision is affirmed.

Judicial review of this Order may be had in the manner provided in Sections 138.432 and 536.100 to 536.140, RSMo within thirty days of the date of the mailing of this Order.

The Collector of Franklin County shall continue to hold the disputed taxes pending an Order from the Commission as to whether a Petition for Judicial Review of the Order has been filed.

SO ORDERED May 29, 2008.


Bruce E. Davis, Chairman

Jennifer Tidwell, Commissioner

Charles Nordwald, Commissioner









The decision of the Board of Equalization sustaining the Assessor’s value at $99,050 residential (assessed value $18,820) is AFFIRMED.


The issues in this case is the true market value of the residential real property on January 1, 2007 and discrimination.


The subject property is a one story, masonite sided single-family structure of fair quality construction on a .310 acre site.The Assessor valued the property at $99,050 residential.The Board of Equalization sustained the valuation by the Assessor.Complainant appealed.The evidentiary hearing was held on March 7, 2008 in the Assessor’s Conference Room, Union, Missouri. Complainant Claudette Gremminger appeared in person.Assessor Bill Overschmidt appeared in person and bycounsel Mark Vincent.Complainant proposed a value of $82,460.Evidence was heard and the case was taken under advisement.


Complainant offered the following evidence:

Exhibit A

Photograph of 17 Madison Court

Exhibit B

Photograph of 17 Madison Court

Exhibit C

Photograph ofSubject Property – roof, guttering, window

Exhibit D

Photograph of Subject Property – unfinished basement, pump

Exhibit E

Photograph ofSubject Property – cracks in basement

Exhibit F

Photograph of Subject Property – deck and roof

Exhibit G

Photograph of Subject Property – driveway

Exhibit H

Photograph of Subject Property – wall

Exhibit I

Photograph of Subject Property – guttering


Testimony of Complainant and Joan York.

Respondent offered the following evidence:

Exhibit 1:Narrative Appraisal

Testimony of Lori Ruby, State Certified Residential Appraiser


1.Jurisdiction is proper.Complainant timely filed their appeal from the decision of the Franklin County Board of Equalization.

2.The subject property is a one story, masonite sided single-family structure of fair quality construction on a .310 acre site.The residence has five rooms, including three bedrooms, 1 bath and contains 1,200 square feet of living area.There is an unfinished basement.The property is identified as parcel number 18-5-22.0-1-003-051.000, more commonly known as 9 Madison Court, Villa Ridge, Missouri.

3.Complainant testified that the true value of the property is $82,460; the value placed on the property by the Assessor in 2005 reassessment. Complainant testified her residence is in poor condition.The basement and driveway have cracks in the concrete, window seals are poor, and the walls are buckling.She had the roof replaced in 2007.

4.Respondent presented the appraisal of Lori Ruby, a certified residential appraiser.Respondent developed a cost approach to determine market value.The appraiser determined a site value of $32,000.Using Marshal & Swift, the appraiser determined the value of the improvements after depreciation is $84,300.

5.Respondent’s appraiser also developed a sales comparison approach to determine market value.She located three properties within five miles of the subject property which sold from August 2005 to July 2006 for prices ranging from $121,500 to $132,000.The comparable properties ranged in size from 960 square feet to 1,040 square feet.The appraiser made adjustments for size, age, basement finish, garage space, and the number of fireplaces.The net adjustments ranged from -4.86% to 3.44% resulting adjusted sale prices of $115,600 to $130,100.

6.Appraiser testified that Comparable 2 was found to be the most comparable to the subject.Comparable 2 is a one story masonite residence of fair quality construction.It was built in 1984 and appears to be in poor condition.It is 240 square feet smaller than the subject property.The comparable has a carport; it does not have a deck or a fireplace. The property sold in October 2005 for $124,900.The appraiser made $4300 in adjustments making an adjusted sales price of $129,000.

7.Complainant questioned Respondent’s appraiser regarding her sales comparison.Appraiser had Comparable three located at 17 Madison (subject property is located at 9 Madison) with masonite siding.The comparable property sold for $121,000 in August 2005.Complainant testified that the property now has vinyl siding in good or above average condition.Complainant also testified that the comparable property has eight rooms.Appraiser had the property having 5 rooms.Complainant testified that Comparable 1 located at 362 Rock Bridge Road was not built in 1987 as listed in the sales grid.Joan York, a witness called by the Complainant, testified that she did not believe the comparable house existed in 1987.

8.Respondent stated that the appraisal is being used to support the Board’s valuation of $99,050 and not to advocate a market value of $129,000.

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The Commission has jurisdiction to hear this appeal and correct any assessment which is shown to be unlawful, unfair, arbitrary or capricious.Article X, section 14, Mo. Const. of 1945; Sections 138.430, 138.431, RSMo.The hearing officer shall issue a decision and order affirming, modifying or reversing the determination of the Assessor, and correcting any assessment which is unlawful, unfair, improper, arbitrary, or capricious.Section 138.431.4, RSMo.

True Value in Money

Section 137.115, RSMo, requires that property be assessed based upon its true value in money which is defined as the price a property would bring when offered for sale by one willing or desirous to sell and purchased by one who is desiring to purchase but who is not compelled to do so.St. Joe Minerals Corp. v. State Tax Commission, 854 S.W.2d 526, 529 (Mo. App. E.D. 1993); Missouri Baptist Children’s Home v. State Tax Commission, 867 S.W.2d 510, 512 (Mo. banc 1993).It is the fair market value of the subject property on the valuation date.Hermel, Inc. v. State Tax Commission, 564 S.W.2d 888, 897 (Mo. banc 1978).

Taxpayer has Burden of Proof

In Westwood Partnership v. Gogarty, 103 S.W.3d 152 (Mo. App. E.D. 2003), the court of appeals stated:

There is no longer an automatic presumption regarding the correctness of an assessor’s valuation. Section 138.431.3. This statutory change from the previous situation in which the assessor’s valuation was presumed to be correct does not mean that there is now a presumption in favor of taxpayer. The taxpayer in a Commission tax appeal still bears the burden of proof and must show by a preponderance of the evidence that the property was improperly classified or valued. Industrial Development Authority of Kansas City v. State Tax Commission of Missouri, 804 S.W.2d 387, 392 (Mo. App.1991).

In Reeves v. Snider, 115 S.W.3d 375 (Mo. App. S.D. 2003), the court of appeals described the taxpayer’s burden as follows:

Taxpayers were the moving parties seeking affirmative relief, and as such, they bore the burden of proving the vital elements of their case, i.e., the assessments were “unlawful, unfair, improper, arbitrary or capricious.” Cupples Hesse Corp. v. State Tax Comm’n, 329 S.W.2d 696, 702 (Mo.1959); Westwood P’ship v. Gogarty, 103 S.W.3d 152, 161[8] (Mo. App. 2003); 84 C.J.S. Taxation §§710, 726.This is true regardless of the existence or non-existence of the challenged presumption. As the Supreme Court of Missouri explained, “even were we to hold that it [the presumption] has been overcome, the burden of proof on the facts and inferences would still remain on petitioner, for it is the moving party seeking affirmative relief.”Cupples, 329 S.W.2d at 702[16].See also 84 C.J.S. Taxation §710, which states: “Even where there is no presumption in favor of the assessor’s ruling, if no evidence is offered in support of the complaint, the reviewing board is justified in fixing the valuation complained of in the amount assessed by theassessor.”
To prevail, Taxpayers had to “present an opinion of market value and then … present substantial and persuasive evidence that the proposed value is indicative of the market value of the subject property on tax day.” Daly v. P.D. George Co., 77 S.W.3d 645, 651 (Mo. App. 2002).

Substantial and Persuasive Evidence

Substantial evidence is that evidence which, if true, has probative force upon the issues, i.e., evidence favoring facts which are such that reasonable men may differ as to whether it established them, and from which the Commission can reasonably decide an appeal on the factual issues.Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959).

Persuasive evidence is that evidence which has sufficient weight and probative value to convince the trier of fact.The persuasiveness of evidence does not depend on the quantity or amount thereof but on its effect in inducing belief.Brooks v. General Motors Assembly Division, 527 S.W.2d 50, 53 (Mo. App. 1975).

Comparable Sales Approach

The comparable sales approach uses prices paid for similar properties in arms-length transactions and adjusts those prices to account for differences between the properties. The adjustments are based upon market data.Comparable sales consist of evidence of sales reasonably related in time and distance and involve land comparable in character.This approach is most appropriate when there is an active market for the type of property at issue such that sufficient data is available to make a comparative analysis.Snider v. Casino Aztar/Aztar Missouri Gaming Corp., 156 S.W.3d, 341, 347-348 (Mo. 2005). (citations omitted).

Case Law Standards for Inequitable Assessment

In order to obtain a reduction in assessed value based upon a claim of inequitable assessment, the Complainant must establish that his property has been assessed at a greater percentage of value than other property, generally, within the same class within the taxing jurisdiction (Franklin County) for the 2007 assessment cycle.Koplar v. State Tax Commission, 321 S.W.2d 686, 690, 695 (Mo. 1959).Evidence of value and assessments of a few properties does not prove discrimination.Substantial evidence must show that all other property in the same class, generally, is actually undervalued.State ex rel. Plantz v. State Tax Commission, 384 S.W.2d 565, 568 (Mo. 1964).The difference in the assessment ratio of the subject property the average assessment ratio in the subject county must be shown to be grossly excessive.Savage v. State Tax Commission of Missouri, 722 S.W.2d 72, 79 (Mo. banc 1986).No other methodology is sufficient to establish discrimination.Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696 (Mo. 1958).A taxpayer does not meet his burden if evidence on any essential element of his case leaves the Hearing Officer “in the nebulous twilight of speculation, conjecture and surmise.”See, Rossman v. G.G.C. Corp. of Missouri, 596 S.W.2d 469, 471 (Mo. App. 1980).



Complainant has failed to present substantial and persuasive evidence tending to demonstrate that her property would sell for no more than $82,460 on January 1, 2007.Testifying that the Assessor valued your property at $82,460 in 2005-2006 and the value has not increased is not substantial and persuasive proof of value.Complainant pointed out errors or deficiencies in the appraiser’s report but failed to present any market evidence for adjustments.Values and adjustments are based upon market data.

Complainant failed to present any evidence to make a claim of a discriminatory or inequitable assessment of her property.The value of $82,460 proposed by the taxpayer as the appraised value to be placed on her property was not established under the claim of a discriminatory assessment.

Therefore, the valuation determined by the Assessor and sustained by the Board of Equalization has not been rebutted and the property under appeal must be valued at $99,050 and assessed as residential property.

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The assessed valuation for the subject property as determined by the Assessor for Franklin County and sustained by the Board of Equalization for the subject tax day is AFFIRMED.

The assessed value for the subject property for tax years 2007 and 2008 is set at $18,820.

A party may file with the Commission an application for review of a hearing officer decision within thirty (30) days of the mailing of such decision.The application shall contain specific detailed grounds upon which it is claimed the decision is erroneous.Failure to state specific facts or law upon which the appeal is based will result in summary denial.

If an application for review of a hearing officer decision is made to the Commission, any protested taxes presently in an escrow account in accordance with this appeal shall be held pending the final decision of the Commission.If no application for review is received by the Commission within thirty (30) days, this decision and order is deemed final and the Collector of Franklin County as well as the collectors of all affected political subdivisions therein, shall disburse the protested taxes presently in an escrow account in accord with the decision on the underlying assessment in this appeal.If any protested taxes have been disbursed pursuant to Section 139.031(8), RSMo, either party may apply to the circuit court having jurisdiction of the cause for disposition of the protested taxes held by the taxing authority.

Any Finding of Fact which is a Conclusion of Law or Decision shall be so deemed.Any Decision which is a Finding of Fact or Conclusion of Law shall be so deemed.

SO ORDERED March 14, 2008.


Maureen Monaghan

Hearing Officer