State Tax Commission of Missouri
LESTER WILLIAMSON,)
)
Complainant,)
)
v.)Appeal No.11-33003 – 11-33019
)
RICK KESSINGER, ASSESSOR,)
GREENE COUNTY, MISSOURI,)
)
Respondent.)
ORDER
AFFIRMING HEARING OFFICER DECISION
UPON APPLICATION FOR REVIEW
On February 29, 2012, Hearing Officer Maureen Monaghan entered her Decision and Order (Decision) affirming the assessments by the Greene County Board of Equalization.
Complainant filed his Application for Review of the Decision.[1]Respondent filed his Response.[2]Complainant filed his Reply.[3]
CONCLUSIONS OF LAW
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.[4]
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.[5]
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.[6]
DECISION
Complainant raises a sole point of alleged error on the part of the Hearing Officer in the application of the correct law to the facts.Complainant assets the Hearing Officer erred in her conclusion that a presumption of correct assessment rests upon the Board’s assessment.Specifically, the Decision concluded:
“Presumption In Appeals
There is a presumption of validity, good faith and correctness of assessment by the County Board of Equalization.[7]It places the burden of going forward with substantial evidence on the taxpayer – Complainant.The presumption of correct assessment is rebutted when the taxpayer presents substantial and persuasive evidence to establish that the Board’s valuation is erroneous.The Complainant will then present evidence as to what the fair market value should have been placed on the property.[8]Complainant failed to present substantial and persuasive evidence to rebut the presumption of correct assessment by the Board and failed to establish the fair market value of the properties under appeal as of January 1, 2011.”
Complainant’s argument is that the cases cited in support of this Conclusion of Law predate the current provision of Section 138.431, RSMo which states in relevant part, “There shall be no presumption that the assessor’s valuation is correct.”Complainant’s line of reasoning is that because the assessed value concluded by the Board is the same as the assessed value concluded by the Assessor in his original assessment that the presumption of correct assessment does not apply.Complainant seeks a new hearing so that the “appropriate standard” can be applied.However, there is no statutory or case law cited to support whatever Complainant believes the “appropriate standard” might happen to be.
Complainant’s point is not well taken.The Hearing Officer did not err in affirming the assessed valuation of the subject properties, as determined by the BOE.It is well-settled that the taxpayer, as the moving party seeking affirmative relief, bears the burden of proving the vital elements of his case, i.e., the assessments were “unlawful, unfair, improper, arbitrary or capricious.”[9]“This is true regardless of the existence or non-existence of the challenged presumption.”[10]To prevail, Complainant was required 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.”[11]Complainant failed to present substantial and persuasive evidence probative on the issue of value of the property under appeal as of January 1, 2011.Complainant failed to meet his burden of proof.
Complainant’s argument that the presumption of correctness of the Board’s assessment was legislatively abolished by §138.431.4, RSMo is in error.Missouri Courts have recognized that the presumption continues to exist.[12]The presumption of correctness in favor of the assessed valuation as fixed by the Board remains unaffected by the legislative abolition of the presumption in favor of the assessor’s valuation.In reaffirming the presumption in favor of the assessed valuation fixed by the Board, the Eastern District Court of Appeals recently stated:
“[T]he presumption of correctness in favor of an assessor’s valuation was legislatively abolished in 1992 in Section 138.060.1.Section 138.060.1 specifically states that ‘[t]here shall be no presumption that the assessor’s valuation is correct.’The statute does not address the presumption in favor of the BOE.”[13]
Although the Cohen Court was analyzing section 138.060.1 relating to appeals of an assessor’s valuation to the BOE, the court’s analysis applies with equal force to the above-quoted provision from Section 138.431.4, which is the basis for Complainant’s argument.In point of fact the language that was added to Section 138.060.1 was added to Section 138.431.3 at the same time in C.C.S.H.C.S.S.B. 630.[14]
“The legislature is presumed to know the existing law when enacting a new piece of legislation.”[15]Prior to 1992, there was a “presumption of validity and good faith in the actions of taxing officials, and the correctness of assessment.”[16]This presumption attached “to the actions of the county and state boards of equalization, as well as to the valuations of assessors.[17] In 1992, the Legislature amended Sections 138.060 and 138.631 to both state, “There shall be no presumption that the assessor’s valuation is correct.”Although the Legislature knew the presumption of correctness also applied to the actions of boards of equalization, it did not mention or act to alter the case law presumption as it applied to boards.The application of the well-established cannon of statutory construction – expressio unius est exclusio alterius[18] – is especially applicable in this instance.Specifically, the clear expression of the abolition of the case law presumption of correctness of the assessor’s assessment excludes the case law presumption of correctness of the board’s assessment form the 1992 enactment.Complainant’s argument that Section 138.431 does not authorize the use of the board presumption simply misses the mark.The statute need not authorize what the case law has already mandated.
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.[19]
The Hearing Officer did not err in her conclusion of law to apply the presumption of correct assessment by the Board as challenged by Complainant.To have done otherwise would have resulted in reversible error.
ORDER
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, exemption is denied.The Decision and Order of the hearing officer, including the findings of fact and conclusions of law therein, is incorporated by reference, as if set out in full, in this final decision of the Commission.
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 mailing date set forth in the Certificate of Service for this Order.
If judicial review of this decision is made, any protested taxes presently in an escrow account in accordance with this appeal shall be held pending the final decision of the courts unless disbursed pursuant to Section 139.031.8, RSMo.
If no judicial review is made within thirty days, this decision and order is deemed final and the Collector of Greene 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.
SO ORDERED June 28, 2012.
STATE TAX COMMISSION OF MISSOURI
Bruce E. Davis, Chairman
Randy B. Holman, Commissioner
DECISION AND ORDER
HOLDING
Decision of the Greene County Board of Equalization sustaining the assessments made by the Assessor is AFFIRMED.
Complainant appeared in person and by Counsel, Richard Muenks.
Respondent appeared in person and by Counsel, Theodore Johnson III.
Case heard and decided by Hearing Officer Maureen Monaghan.
ISSUE
Complainant appeals, on the ground of overvaluation, the decision of the Greene County Board of Equalization, which sustained the valuation of the subject properties.The Commission takes this appeal to determine the true value in money for the subject property on January 1, 2011.
Parties agreed to consolidate the hearing to include all parcels under appeal owned by taxpayer located at 4112 W. Madison to 4215 W. Madison, Springfield, Missouri.
Complainant’s Evidence.Complainant presented the testimony of Judi Samuel and testified in his own behalf and offered into evidence the following exhibits:
|
Exhibit |
Description |
Ruling |
|
A |
Photographs of 3 of the parcels and improvements |
Admitted |
|
B |
Aerial View of parcels |
Admitted |
|
C |
Rent and Expenses 2010 |
Admitted |
|
D |
Rent and Expenses 2011 |
Admitted |
Judi Samuels testified that she is a real estate agent and manages rental property.She manages the subject properties.Ms. Samuels testified as to the rents and expenses for 2010 and 2011.Ms. Samuels testified that the properties are located in an area surrounded by single family owner occupied homes.
Complainant testified that he built the properties in the late 1990s.The properties are one of four floor plans with similar layouts, square footage and finishes.He built the properties as rentals.Complainant stated his opinion of value to be $71,000.Complainant stated that his opinion of value is based upon what he would pay for property based upon the monthly rental rates of an investment property.
There was no evidence of new construction and improvement from January 1, 2011, to January 1, 2012, therefore the assessed value for 2011 remains the assessed value for 2012.[20]
Respondent’s Evidence.Respondent presented the testimony of staff appraiser David Stidham and the following exhibits[21]:
|
Exhibit |
Description |
Ruling |
|
1 |
Appraisal Report |
Admitted |
|
2 |
Property Record Card |
Admitted |
|
3 |
Appraiser Qualifications |
Admitted. |
|
4 |
2011/2012 Rental Survey |
Admitted |
|
5 |
Gross Rent Multiplier |
Admitted |
The appraiser determined the highest and best use of the property would be residential, single family dwelling.He developed all three approaches (sales, income and cost) to value.
The appraiser’s three comparable sales were located within 6 blocks of the subject property and the sales occurred in November 2009 to December 2010.The properties sold from $95,000 to $109,000.Two of the properties were owner occupied.The appraiser made adjustments for location, square footage, size of garage, and basement finish.
The appraiser used Marshall & Swift to develop the cost approach.
The appraiser developed the income approach.The appraiser estimated the market rent to be $675 and used a gross rent multiplier of 145.The gross rent multiplier was based upon the sale prices of four properties and a potential monthly gross income.The PMGI used by the appraiser was not necessarily the PGMI of the sale property.Some of the sale properties were owner occupied properties.
The appraiser placed the most weight on sales comparison approach. The appraiser concluded on values of $96,000, $97,000, $99,630 and $105,000,
The appraiser’s value was used to support the County’s valuation.
The Hearing Officer, having considered all of the competent evidence upon the whole record, enters the following Decision and Order.
FINDINGS OF FACT
1.Jurisdiction.Jurisdiction over this appeal is proper.Complainant timely appealed to the State Tax Commission from the decision of the Greene County Board of Equalization.A hearing was conducted on February 22, 2012, at the Greene County Historic Courthouse, Springfield, Missouri.
2.Subject Property.The subject properties are located at 4112 W Madison to 4215 W Madison, Springfield, Missouri.The properties are identified by map parcel number 1320302026-1320302031, 1320302033-1320302034, and 1320302036-1320302044 .
The properties consist of single-family dwellings ranging in square footage of 1,296 –1,435.The houses have five rooms, three bedrooms, two bathrooms, two-car garage with porch/patio and fireplace.
3.Assessment.The Assessor appraised the properties at $88,900 to $100,600.The Board of Equalization sustained the value.
4.Valuation.Complainant’s evidence was not substantial and persuasive to rebut the presumption of correct assessment by the Board and establish the true value in money as of January 1, 2011, to be $71,000 – $80,000.
CONCLUSIONS OF LAW AND DECISION
Jurisdiction
The Commission has jurisdiction to hear this appeal and correct any assessment which is shown to be unlawful, unfair, arbitrary or capricious.The hearing officer shall issue a decision and order affirming, modifying or reversing the determination of the board of equalization, and correcting any assessment which is unlawful, unfair, improper, arbitrary, or capricious.[22]
Basis of Assessment
The Constitution mandates that real property and tangible personal property be assessed at its value or such percentage of its value as may be fixed by law for each class and for each subclass.[23]The constitutional mandate is to find the true value in money for the property under appeal. By statute real and tangible personal property is assessed at set percentages of true value in money.[24]In an overvaluation appeal, true value in money for the property being appealed must be determined based upon the evidence on the record that is probative on the issue of the fair market value of the property under appeal.
Presumption In Appeals
There is a presumption of validity, good faith and correctness of assessment by the County Board of Equalization.[25]It places the burden of going forward with substantial evidence on the taxpayer – Complainant.The presumption of correct assessment is rebutted when the taxpayer presents substantial and persuasive evidence to establish that the Board’s valuation is erroneous.The Complainant will then present evidence as to what the fair market value should have been placed on the property.[26]Complainant failed to present substantial and persuasive evidence to rebut the presumption of correct assessment by the Board and failed to establish the fair market value of the properties under appeal as of January 1, 2011.
Standard for Valuation
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 bought by one who is willing or desirous to purchase but who is not compelled to do so.[27]True value in money is defined in terms of value in exchange and not value in use.[28]It is the fair market value of the subject property on the valuation date.[29]Market value is the most probable price in terms of money which a property should bring in competitive and open market under all conditions requisite to a fair sale, the buyer and seller, each acting prudently, knowledgeable and assuming the price is not affected by undue stimulus.
Implicit in this definition are the consummation of a sale as of a specific date and the passing of title from seller to buyer under conditions whereby:
1.Buyer and seller are typically motivated.
2.Both parties are well informed and well advised, and both acting in what they consider their own best interests.
3.A reasonable time is allowed for exposure in the open market.
4.Payment is made in cash or its equivalent.
5.Financing, if any, is on terms generally available in the Community at the specified date and typical for the property type in its locale.
6.The price represents a normal consideration for the property sold unaffected by special financing amounts and/or terms, services, fees, costs, or credits incurred in the transaction.[30]
Methods of Valuation
Proper methods of valuation and assessment of property are delegated to the Commission.It is within the purview of the Hearing Officer to determine the method of valuation to be adopted in a given case.[31]Missouri courts have approved the comparable sales or market approach, the cost approach and the income approach as recognized methods of arriving at fair market value.[32]Complainant did not provide an opinion of value derived from any accepted appraisal methodology for valuing property for ad valorem tax purposes.One opinion of a purchaser, Complainant, of the price he is willing to pay for property with a monthly rental of $650-$695 has not been accepted by the Courts of Missouri or the Commission as a proper approach to determining fair market value.
Complainant Fails To Prove Value
In order to prevail, Complainant must present an opinion of market value and substantial and persuasive evidence that the proposed value is indicative of the market value of the subject property on January 1, 2011.[33]There is no presumption that the taxpayer’s opinion is correct. The taxpayer in a Commission appeal still bears the burden of proof.The taxpayer is the moving party seeking affirmative relief.Therefore, the Complainant bears the burden of proving the vital elements of the case, i.e., the assessment was “unlawful, unfair, improper, arbitrary or capricious.”[34]A valuation which does not reflect the fair market value (true value in money) of the property under appeal is an unlawful, unfair and improper assessment.
Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[35]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.[36]
The owner of property is generally held competent to testify to its reasonable market value.[37]The owner’s opinion is without probative value however, where it is shown to have been based upon improper elements or an improper foundation.[38]
In this instance, Complainant tendered his opinion of value of $71,000 – $80,000 based upon what he would be willing to pay for property with monthly rental of $650 to $695.Since this is not a valid method for the appraisal of real property, the owner’s opinion is not based upon proper elements or a proper foundation.Accordingly, the owner’s opinion had no probative value.Therefore, the presumption of correct assessment by the Board was not rebutted and the assessed value must be affirmed.
Respondent’s Evidence
Complainant having failed to carry his burden of proof, there is no need to perform a review and analysis of Respondent’s evidence.Respondent had no burden of proof in the appeal.
ORDER
The assessed valuation for the subject property as determined by the Board of Equalization for Greene County for the subject tax day is AFFIRMED.
The assessed value for the subject property for tax years 2011 and 2012 is set at:
|
Appeal Number |
Parcel |
Address |
Assessed Value |
|
11-33003 |
1320302026 |
4112 W Madison Street |
$18,110 |
|
11-33004 |
1320302027 |
4118 W Madison Street |
$16,900 |
|
11-33005 |
1320302028 |
4124 W Madison Street |
$19,120 |
|
11-33006 |
1320302029 |
4130 W Madison Street |
$17,750 |
|
11-33007 |
1320302030 |
4136 W Madison Street |
$17,120 |
|
11-33008 |
1320302031 |
4142 W Madison Street |
$19,120 |
|
11-33009 |
1320302033 |
4204 W Madison Street |
$19,080 |
|
11-33010 |
1320302034 |
4210 W Madison Street |
$17,830 |
|
11-33011 |
1320302036 |
4215 W Madison Street |
$19,080 |
|
11-33012 |
1320302037 |
4209 W Madison Street |
$19,120 |
|
11-33013 |
1320302038 |
4203 W Madison Street |
$17,120 |
|
11-33014 |
1320302039 |
4147 W Madison Street |
$17,830 |
|
11-33015 |
1320302040 |
4141 W Madison Street |
$17,770 |
|
11-33016 |
1320302041 |
4135 W Madison Street |
$17,120 |
|
11-33017 |
1320302042 |
4129 W Madison Street |
$19,120 |
|
11-33018 |
1320302043 |
4123 W Madison Street |
$18,320 |
|
11-33019 |
1320302044 |
4115 W Madison Street |
$17,120 |
Application for Review
A party may file with the Commission an application for review of this decision within thirty days of the mailing date set forth in the Certificate of Service.The application shall contain specific facts or law as grounds upon which it is claimed the decision is erroneous.Said application must be in writing addressed to the State Tax Commission of Missouri, P.O. Box 146, Jefferson City, MO65102-0146, and a copy of said application must be sent to each person at the address listed below in the certificate of service.
Failure to state specific facts or law upon which the application for review is based will result in summary denial. [39]
Disputed Taxes
The Collector of Greene County, as well as the collectors of all affected political subdivisions therein, shall continue to hold the disputed taxes pending the possible filing of an Application for Review, unless said taxes have been disbursed pursuant to a court order under the provisions of Section 139.031.8, RSMo.
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 February 29, 2012.
STATE TAX COMMISSION OFMISSOURI
Maureen Monaghan
Hearing Officer
Contact Information for State Tax Commission:
Missouri State Tax Commission
301 W. High Street, Room 840
P.O. Box 146
Jefferson City, MO 65102-0146
573-751-2414
573-751-1341 Fax
[4] 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).
[5] 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).
[6] 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).
[7] Hermel, Inc. v. STC, 564 S.W.2d 888, 895 (Mo. banc 1978); Chicago, Burlington & Quincy Railroad Co. v. STC, 436 S.W.2d 650, 656 (Mo. 1968); May Department Stores Co. v. STC, 308 S.W.2d 748, 759 (Mo. 1958)
[8] Hermel, supra; Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959)
[12] See, Rinehart v. Bateman, — S.W. 3d —, 2012, WL 538954 at 7 (Mo. Ct. App. W.D., 2/21/12), citing Cohen v. Bushmeyer, 251 S.W.3d 345 (Mo. Ct. App. E. D. 2008) – “A presumption exists that the assessed value fixed by the Board of Equalization is correct.
[19] 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.2d 403 (Mo. App. E.D. 1995); Phelps v. Metropolitan St. Louis Sewer Dist., 598 S.W.2d 163 (Mo. App. E.D. 1980).
[25] Hermel, Inc. v. STC, 564 S.W.2d 888, 895 (Mo. banc 1978); Chicago, Burlington & Quincy Railroad Co. v. STC, 436 S.W.2d 650, 656 (Mo. 1968); May Department Stores Co. v. STC, 308 S.W.2d 748, 759 (Mo. 1958)
[26] Hermel, supra; Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959)
[27] 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).
[28] Daly v. P. D. George Company, et al, 77 S.W.3d 645, 649 (Mo. App E.D. 2002), citing, Equitable Life Assurance Society v. STC, 852 S.W.2d 376, 380 (Mo. App. 1993); citing, Stephen & Stephen Properties, Inc. v. STC, 499 S.W.2d 798, 801-803 (Mo. 1973).
[30] Real Estate Appraisal Terminology, Society of Real Estate Appraisers, Revised Edition, 1984; See also, Real Estate Valuation in Litigation, J. D. Eaton, M.A.I., American Institute of Real Estate Appraisers, 1982, pp. 4-5; Property Appraisal and Assessment Administration, International Association of Assessing Officers, 1990, pp. 79-80; Uniform Standards of Professional Appraisal Practice, Glossary.
[31] See, Nance v. STC, 18 S.W.3d 611, at 615 (Mo. App. W.D. 2000); Hermel, supra;Xerox Corp. v. STC, 529 S.W.2d 413 (Mo. banc 1975).
[32] St. Joe Minerals Corp. v. STC, 854 S.W.2d 526, 529 (App. E.D. 1993); Aspenhof Corp. v. STC, 789 S.W.2d 867, 869 (App. E.D. 1990); Quincy Soybean Company, Inc., v. Lowe, 773 S.W.2d 503, 504 (App. E.D. 1989), citing Del-Mar Redevelopment Corp v. Associated Garages, Inc., 726 S.W.2d 866, 869 (App. E.D. 1987); and State ex rel. State Highway Comm’n v. Southern Dev. Co., 509 S.W.2d 18, 27 (Mo. Div. 2 1974).
[34] See, Westwood Partnership v. Gogarty, 103 S.W.3d 152 (Mo. App. E.D. 2003); Daly v. P. D. George Co., 77 S.W.3d 645 (Mo. App. E.D. 2002); Reeves v. Snider, 115 S.W.3d 375 (Mo. App. S.D. 2003).Industrial Development Authority of Kansas City v. State Tax Commission of Missouri, 804 S.W.2d 387, 392 (Mo. App. 1991).
[37] Rigali v. Kensington Place Homeowners’ Ass’n, 103 S.W.3d 839, 846 (Mo. App. E.D. 2003); Boten v. Brecklein, 452 S.W.2d 86, 95 (Sup. 1970).
[38] Cohen v. Bushmeyer, 251 S.W.3d 345, (Mo. App. E.D., March 25, 2008); Carmel Energy, Inc. v. Fritter, 827 S.W.2d 780, 783 (Mo. App. W.D. 1992); State, ex rel. Missouri Hwy & Transp. Com’n v. Pracht, 801 S.W.2d 90, 94 (Mo. App. E.D. 1990); Shelby County R-4 School District v. Hermann, 392 S.W.2d 609, 613 (Sup. 1965).