State Tax Commission of Missouri
MARY O’GORMAN,)
)
Complainant,)
)
v. ) Appeal No.11-57000
)
TOM COPELAND, ASSESSOR,)
FRANKLIN COUNTY, MISSOURI,)
)
Respondent.)
DECISION AND ORDER
HOLDING
Decision of the Franklin County Board of Equalization sustaining the assessment made by the Assessor is SET ASIDE.
Complainant failed to present substantial and persuasive evidence to rebut the presumption of correct assessment by the Board of Equalization.
Respondent presented substantial and persuasive evidence to rebut the presumption of correct assessment by the Board of Equalization and prove true value in money as of 1/1/11.
True value in money for the subject property for tax years 2011 and 2012 is set at $210,000, residential assessed value of $39,900.
Complainant appeared pro se.
Respondent appeared by County Counselor, Mark Vincent.
Case decided by Senior Hearing Officer W. B. Tichenor.
ISSUE
Complainant appeals, on the ground of overvaluation, misclassification and discrimination, the decision of the Franklin County Board of Equalization, which sustained the valuation and classification of the subject property.The Commission takes this appeal to determine the true value in money, the correct classification for the subject property on
January 1, 2011, and whether there was an intentional plan by the Assessor and/or the Board to assess the subject property at a higher assessment ratio than residential property in general in Franklin County.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 Franklin County Board of Equalization.
2. Submission on Documents.
a. By Order, dated 1/18/12, the appeal was set for an evidentiary hearing on February 28, 2012.
b. By Letter, dated 1/25/12, Complainant requested that the hearing be continued until June, 2012.
c. By Order, dated 1/31/12, evidentiary hearing was cancelled upon Complainant’s request.
d. By Order, dated 3/7/12, the appeal was reset for evidentiary hearing on
June 12, 2012.
e. By Letter, dated 5/26/12, Complainant requested that the hearing be continued until July, 2012.
f. By Order, dated 6/5/12, the appeal was ordered to be submitted on exhibits and written direct testimony, in lieu of an evidentiary hearing.The parties were order to file and exchange exhibits and written direct testimony on or before August 1, 2012.Either party could at the time of filing their exhibits and written direct testimony state any objections to having the appeal submitted on documents in lieu of an evidentiary hearing.Parties were advised that if neither party objected, it would be deemed that the parties had waived the evidentiary hearing, and consented to the case being submitted on the exhibits and written direct testimony filed.Neither party filed objection to the procedure.See, Submission on Documents, infra.
3.Subject Property.The subject property is identified by map parcel number 17-2-1-12-20.600.The property is located at 138 Willow Creed Rd, Franklin County, Missouri, in the Clearview Manor subdivision.The property consists of 2.81 acres.[1]The tract is improved by a one story, wood framed residential dwelling.The home was construction in or around the year 2005 and contains approximately 2,612 square feet of above ground living space.The residence appears to be of fair quality construction and in average condition for a typical structure of comparable age and quality.The house has seven rooms, including three bedrooms and three full bathrooms.The house is on a slab.There is an attached two car garage, an in-ground swimming pool, surrounded by a concrete patio area.There is a wooden deck and utility shed next to the pool/patio area.[2]The subject lot is sloped and mostly wooded.[3]
4.Assessment.The Assessor appraised the subject at $199,590, a residential assessed value of $37,922.The Board of Equalization sustained the assessment.[4]
5.Complainant’s Evidence.Complainant filed with the Commission the following exhibits which are received into evidence.
|
EXHIBIT |
DESCRIPTION |
|
A |
Spreadsheet – Assessor’s Listing of properties on Willow Creek Road |
|
B |
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.[6]
Complainant’s evidence was not substantial and persuasive to rebut the presumption of correct assessment by the Board as of January 1, 2011, or to establish an intentional plan of discrimination against Complainant’s property by the assessing officials.
6.Respondent’s Evidence.Respondent filed with the Commission the following exhibits which are received into evidence.
|
EXHIBIT |
DESCRIPTION |
|
1 |
|
|
2 |
Written Direct Testimony – Donald Dwain Dodd |
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.[8]
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.[9]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.[10]In an appeal claiming overvaluation and misclassification, the valuation and classification for the property being appealed must be determined based upon the evidence on the record that is probative on the issue of the true value in money and actual use 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.[11]This presumption is a rebuttable rather than a conclusive presumption.It places the burden of going forward with some substantial evidence on the taxpayer – Complainant.
In a case of overvaluation, the presumption of correct assessment is rebutted when the taxpayer presents substantial and persuasive evidence to establish that the Board’s valuation is erroneous and what the fair market value should have been placed on the property.[12]Likewise, when misclassification is claimed, the Complainant must present substantial and persuasive evidence as to what the correct classification should be to establish that the Board’s classification is in error.As will be addressed below, Complainant failed to carry her burden of proof on either the valuation or classification claims, as well as the claim of discrimination.The presumption that the Board correctly valued and classified the subject property was not rebutted and the Board assessment must be affirmed.
Submission on Documents
The appeal is submitted on the exhibits and written direct testimony filed herein.The Hearing Officer was obligated to give the parties opportunity for an evidentiary hearing.[13]Said opportunity was provided in this proceeding.The parties by their failure to object to the procedure established by the Order, dtd 6/5/12, waived the evidentiary hearing and consented to the rendering of a decision based upon the documents filed and received into evidence.
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.[14]True value in money is defined in terms of value in exchange and not value in use.[15]It is the fair market value of the subject property on the valuation date.[16]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.[17]
Respondent’s appraiser valued the property under appeal relying on the Standard For Valuation.[18]
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.[19]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.[20]Mr. Dodd developed by the cost and sales comparison approaches to value, based upon reliable data.Complainant did not present any opinion of value for the property under appeal, much less one that was the result of the development of one or more of the accepted appraisal methods.
Complainant’s Burden of Proof
In an overvaluation case, 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.[21]In a misclassification case, the taxpayer must present an opinion as to the correct classification for the property under appeal and the basis for it, i.e. the actual use of the property.There is no presumption that the taxpayer’s opinion as to valuation or classification 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.”[22]
Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[23]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.[24]
Owner’s Opinion of Value
Ms. O’Gorman failed to present any opinion of value for the subject property in Exhibits A and B.The opinion of the true value in money for the property given on the Complaint for Review of Assessment was $181,793, with an assessed value of $34,519.A quick calculation establishes that this is a 19% assessment.Therefore, the opinion of value given on the Complaint was a value as a residential property.
The owner of property is generally held competent to testify to its reasonable market value.[25]The owner’s opinion is without probative value however, where it is shown to have been based upon improper elements or an improper foundation.[26]However, there is no evidence on the record from which the Hearing Officer can conclude that the true value in money as of 1/1/11 was $181,793.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.”[27]The taxpayer in this appeal has left the Hearing Officer with nothing but speculation, conjecture and surmise as to how a value of $181,793 was concluded.Accordingly, the owner’s opinion as stated on the Complaint has not been established to be based upon proper elements or a proper foundation.Therefore, the owner’s opinion has no probative weight on the issue of the fair market value of her property.
Classification of Complainant’s Property
Land which is used for agricultural purposes and devoted primarily to the raising and harvesting of crops, the feeding, breeding and management of livestock, to dairying, or devoted to and qualifying for payments under a soil conservation or agricultural assistance program under an agreement with an agency of the federal government is to be classified as agricultural land.[28]Agricultural land is to be assessed based upon its land productive value(s)[29] and assessed at 12% of such values.[30]Complainant presented no evidence that the subject property was used for anything other than a residence.There is no evidence that there is any agricultural or horticultural activity taking place on the subject land which would qualify it for an agricultural classification.Accordingly, the subject property in whole or in party cannot be reclassified so as to value the land as agricultural land to be assessed at 12% of a land productive value.The subject property cannot be classified as agricultural and given an agricultural land productive value simply because some few other properties might have been classified agricultural in error.
Claim of Discrimination
Required Elements to Prove Discrimination
In order to obtain a reduction in assessed value based upon discrimination, the Complainant must (1) prove the true value in money of her property on January 1, 2011; and (2) show an intentional plan of discrimination by the assessing officials resulting in an assessment of that property at a greater percentage of value than other property, generally, within the same class within the same taxing jurisdiction.[31]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.[32]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.[33]No other methodology is sufficient to establish discrimination.[34]
Complainant’s evidence fails to meet the required standard to establish the claim of discrimination based upon an inequitable assessment.To prove discrimination Complainant needed to prove the average level of assessment for residential property in Franklin County for 2011.This would have been done by (a) independently determining the market value of a representative sample of residential properties in Franklin County; (b) determining the assessed value placed on the property by the assessor’s office for the relevant year; (c) dividing the assessed value by the market value to determine the level of assessment for each property in the sample; and (d) determining the mean and median of the results.
The difference between the actual assessment level of the Complainant’s property and the average level of assessment for all residential property, taken from a sufficient representative sample in Franklin County must demonstrate a disparity that is grossly excessive.[35]There is simply no evidence that satisfies the required elements to establish that the average residential assessment for Franklin County is anything other than 19% as required by statute and which is the ratio applied to the O’Gorman property.
Complainant’s Claim and Evidence
Complainant’s claim of discrimination can be summarized as the per acre land value of neighboring properties being less than the subject property’s land value and that some neighboring properties which have an agricultural classification on a portion of their land should not benefit from an agricultural classification.This claim is based upon information contained in Exhibit A.This document consists of a spreadsheet that lists the 24 properties on Willow Creek Road.Based on Exhibit A, 9 of the properties have a portion of their land under an agricultural assessment and part under a residential assessment.Four of the 9 agriculturally assessed properties also have an agricultural assessment on some agricultural buildings.
Agricultural Assessments
Since the document does not provide the necessary information as to how many acres of the total land area is classified as agricultural, it is not possible to calculate the residential per acre value for these properties.Complainant contends that 6 of the 9 properties do not have agricultural use and therefore should not be classified as agricultural.The Hearing Officer finds this non persuasive with regard to a claim of discrimination, since there is no underlying data to support Complainant’s claim.Furthermore, even assuming without finding, that six of the nine properties were erroneously given an agricultural assessment by the Assessor, that will not permit the classification of all or part of Complainant’s property to be so classified, since it has in effect been admitted there is no agricultural use of the property under appeal.The fact that the Assessor may have made a mistaken classification on a few properties, does not establish that in general the agricultural property in Franklin County is misclassified.Therefore, Complainant having failed to so establish that point, reclassification of part of the subject as agricultural with a land productive value is not permissible under the statute or case law.
Residential Assessments
The 15 totally residential properties on Willow Creek Road have the following acreage, total land values and per acre land values (properties are listed from the smallest to largest acreage):
|
ADDRESS |
ACREAGE |
VALUE |
|
|
117 |
2.8 |
$35,000 |
$12,500 |
|
138* |
2.81 |
$35,100 |
$12,491 |
|
122 |
3 |
$22,500 |
$7,500 |
|
112 |
3.6 |
$43,000 |
$11,944 |
|
114 |
3.8 |
$45,000 |
$11,842 |
|
145 |
3.86 |
$45,600 |
$11,813 |
|
123 |
4.01 |
$47,100 |
$11,746 |
|
120 |
4.3 |
$50,000 |
$11,628 |
|
143 |
5.06 |
$57,600 |
$11,383 |
|
139 |
5.13 |
$58,300 |
$11,365 |
|
136 |
5.18 |
$58,800 |
$11,351 |
|
137 |
5.2 |
$59,000 |
$11,346 |
|
142 |
6.47 |
$71,700 |
$11,082 |
|
No # |
8.6 |
$64,500 |
$7,500 |
|
133 |
10.2 |
$93,700 |
$9,186 |
*subject
From the foregoing one can readily ascertain that these 15 parcels have generally been valued on a per acre basis with a higher per acre value for the smaller tracts and the per acre value decreasing as the acreage increases.The only anomaly is the 3 acre tract at 122 and the 8.6 acre tract with no address number.These two tracts have the same owner, it appears.It also is reasonable to assume that the tracts adjoin in some fashion, so that the combined acreage is 11.6 acres.The combined values for the two 11.6 acre tracts would be $87,000, or a per acre value of $7,500.It appears to the Hearing Officer that this explains how the 122 – 3 acre parcel was only valued at $7,500 per acre.
The general rule of thumb is that, all other things being equal, smaller parcels of land sell on a higher per acre or per square foot basis then larger tracts.As the size of the lot increases, the unit value will generally decrease and the converse is generally recognized to also be true, i.e. as size decreases, the unit value increases.[37]What the above chart demonstrates is not that the Assessor discriminated against Complainant in the valuation of her land.Rather, the Assessor was consistent in valuing the land along Willow Creek Road and placing the higher unit values on the smaller lots and the lower unit values on the larger tracts.The subject lot being the next to smallest among the 15 properties was the next to largest unit value of the 15 properties.Complainant’s claim that her land value should be higher than any of the other properties on Willow Creek Road is not supported or validated by any evidence.
Summary and Conclusion
Complainant’s evidence failed to establish the fair market value of the property as of January 1, 2011.Complainant’s evidence failed to establish any agricultural use of the property so as to warrant classification as agricultural land and an assessment based on productive land value.Complainant’s evidence failed to establish that in general agricultural land in Franklin county is misclassified and should be classified as either residential or commercial.The presumption of correct assessment by the Board was not rebutted by Complainant.
Respondent’s Evidence
When a taxpayer appeals the valuation on their property, the Respondent is permitted to present evidence on that issue.Although, Respondent did not tender evidence directly addressing Complainant’s misclassification/discrimination claims, the Highest and Best Use analysis provided in the Dodd appraisal did establish that a residential use of the property under appeal whether vacant or as improved constituted the highest and best use for the property.[38]
The appraisal was performed in accordance with the Uniform Standards of Professional Appraisal Practice.Mr. Dodd’s appraisal met the standard of substantial and persuasive evidence.The appraisal rebutted the presumption that the Board’s determination of value of $199,950 was correct.The appraisal established the true value in money for the Complainant’s property as of January 1, 2011, to be $210,000.In accordance with both the constitutional and statutory mandate, the Hearing Officer must set the assessed value based upon the true value in money of $210,000.
ORDER
The assessed valuation for the subject property as determined by the Assessor and sustained by the Board of Equalization for Franklin County for the subject tax day is SET ASIDE.
The assessed value for the subject property for tax years 2011 and 2012 is set at $39,900.
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 for this Decision.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 Franklin 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 August 15, 2012.
STATE TAX COMMISSION OFMISSOURI
_____________________________________
W. B. Tichenor
Senior Hearing Officer
Certificate of Service
I hereby certify that a copy of the foregoing has been mailed postage prepaid on this 15thday of August, 2012, to:Colleen O’Gorman, 138 Willow Creek Rd., Union, MO 63084, Complainant; Mark Vincent, Franklin County Counselor, P.O. Box 439, Union, MO 63084, Attorney for Respondent; Tom Copeland, Assessor, 400 E. Locust, Suite 105A, Union, MO 63084; Debbie Door, Clerk, Franklin County Courthouse, 400 E. Locust, Suite 201, Union, MO 63084; Linda Emmons, Collector; Franklin County Courthouse, 400 E. Locust, Suite 103, Union, MO 63084.
___________________________
Barbara Heller
Legal Coordinator
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
[2] Exhibit 1 – Description of Subject Property Improvements, p. 12; Subject Property Sketch, p. 13; Subject Property Photographs, p. 14
[4] BOE Decision Letter, dated 7/12/11, attached to Complaint for Review of Assessment; Exhibit 1 – Property Assessment, p. 6
[5] The Hearing Officer believes C. S. O’Gorman to be the daughter of Complainant based upon files made by Complainant with the Commission indicating that her daughter would be assisting her with the appeal.
[11] 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)
[12] Hermel, supra; Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959)
[13] Section 138.431.5. (RSMo) Unless an appeal is voluntarily dismissed, a hearing officer, after affording the parties reasonable opportunity for fair hearing, 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.
[14] 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).
[15] 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).
[17] 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.
[19] 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).
[20] 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).
[22] 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).
[23] See, Cupples-Hesse, supra.
Substantial and persuasive evidence is not an extremely high standard of evidentiary proof.It is the lowest of the three standards for evidence (substantial & persuasive, clear and convincing, and beyond a reasonable doubt).It requires a small amount of evidence to cross the threshold to rebut the presumption of correct assessment by the Board.The definitions, relevant to substantial evidence, do not support a position that substantial and persuasive evidence is an extremely or very high standard.
“Substantial evidence: Evidence that a reasonable mind would accept as adequate to support a conclusion; evidence beyond a scintilla.”Black’s Law Dictionary, Seventh Edition, p. 580.
The word scintilla is defined as “1. a spark,2. a particle; the least trace.” Webster’s New World Dictionary, Second College Edition.Black’s definition at 1347 is “A spark or trace <the standard is that there must be more than a scintilla of evidence>.”There must be more than a spark or trace for evidence to have attained the standard of substantial.Once there is something more than a spark or trace the evidence has reached the level of substantial.Substantial evidence and the term preponderance of the evidence are essentially the same.“Preponderance of the evidence.The greater weight of the evidence; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”Black’s at 1201.Substantial evidence is that a reasonable mind would accept as adequate to support the conclusion.Preponderance is sufficient to incline a fair and impartial mind to one side of the issue rather than the other, i.e. support the proposed conclusion.
[25] 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).
[26] 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).