State Tax Commission of Missouri
ROBERT & DONNA BATEMAN,)
)
Complainants,)
)
v.)Appeal Nos.09-32008 & 09-32009
)
CATHY RINEHART, ASSESSOR,)
CLAY COUNTY, MISSOURI,)
)
Respondent.)
ORDER
AFFIRMING HEARING OFFICER DECISION
UPON APPLICATION FOR REVIEW
On December 22, 2009, Senior Hearing Officer Luann Johnson entered her Decision and Order (Decision) setting aside the assessments by the Clay County Board of Equalization.[1]
Respondent filed her Application for Review of the Decision.Complainants filed their Response.Respondent filed her Reply.
CONCLUSIONS OF LAW
Standard Upon Review
The relative weight to be accorded any relevant factor in a particular case is for the Hearing Officer to decide.[2]The Hearing Officer as the trier of fact may consider the testimony of witnesses 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 testimony of witnesses but may believe all or none of their testimony and accept it in part or reject it in part.[3]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.[4]
DECISION
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 his discretion as the trier of fact and concluder of law in this appeal.[5]
Respondent asserts that the only issue in the case is whether the subject property[6] is “vacant and unused land” within the meaning of Section 137.017.4, RSMo, or is “used for agricultural purposes” within the meaning of Section 137.016 RSMo.The Decision provides the simple answer to the issue.The evidence established that the subject parcels had been used for hay production in 2007, 2008 and 2009.A fact not disputed by Respondent.
Respondent’s argument essentially rests upon claim that agricultural use is not permitted in the commercial zoning on the property.That was not a fact established at the evidentiary hearing.No copy of any applicable zoning ordinances were introduced into evidence at the hearing to establish what were or were not permitted uses and activities on the two parcels by the respective municipalities.Respondent’s Reply for the first time by way of two Affidavits dated more than four months after the close of the evidentiary hearing raises this issue.
The Hearing Officer could not have erred on this point, as she had no evidence in the record to establish what, if any, impact the zoning of the subject parcels might have on the harvesting of hay.Nor does the Commission have any evidence from the record on this point.The best evidence on this issue is not the interpretation of city ordinances by two city employees. The best evidence would have been a complete copy of the existing zoning ordinances applicable to the properties under appeal as of the applicable times when hay was harvested and submitted at the evidentiary hearing.The two affidavits tendered after the close of the evidentiary record as exhibits to Respondent’s Reply are not now permitted to come into the evidentiary record.The Commission’s review of the Decision must be based upon the evidence in the record, not additional evidence that one party seeks to present without benefit of objection or cross-examination by the opposing party.
Whatever the actual zoning ordinance may mandate, it does not alter the fact that hay has been harvested from the subject properties during 2007, 2008 and 2009.The plain language of the controlling statute[7] mandates for assessment purposes real property “…devoted primarily to the raising and harvesting of crops; …” is to be classified as agricultural property.Cutting of hay constitutes the raising and harvesting of a crop.Even if the use of the properties in 2007, 2008 and 2009 was contradictory to a municipal ordinance, there is no provision in the assessment statutes which establishes that classification is to be denied based upon an allegation of ordinance violation by a taxpayer.
Respondent’s argument as to an agricultural activity versus an agricultural use is not well taken.Because the subject property meets the statutory definition of agricultural property, it
must be assigned to the appropriate agricultural grade.[8]The parties did not dispute that agricultural land productive grade 7 was the proper valuation for the subject tract.[9]
Respondent’s reliance on the Decision in Giddens v. Kessinger[10] is misplaced for two reasons.There was no argument advanced in Giddens that the property should not be valued at its commercial fair market value, as opposed to being placed in the proper agricultural land productive grade.Complainant in Giddens conceded to the market value of the property for commercial development but sought the 12% assessment.Such is not the case in the present appeals.In the second place, the Hearing Officer in Giddens should have sua sponte investigated[11] as to the proper agricultural land grade and applied it in order to properly assess the property.
Finally, the argument under the heading – BROAD IMPLICATIONS OF THIS DECISION presents nothing of substance in this case.A hearing officer is required to apply the appropriate law to the facts in the record.That is what was correctly done in this instance.The undisputed and controlling fact is that on the assessment date of January 1, 2009, the subject property had been in use for two years harvesting a hay crop and that use continued in 2009.Based upon that fact, the subject tracts must be valued under the agricultural land productive value and not at a commercial market value.
The Hearing Officer did not err in her determinations as challenged by Respondent.The subject tracts meet the statutory requirements to be valued at the agricultural land productive value and assessed at 12% of that value.
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.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 Clay 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 April 13, 2010.
STATE TAX COMMISSION OF MISSOURI
Bruce E. Davis, Chairman
Jennifer Tidwell, Commissioner
DECISION AND ORDER
HOLDING
Decision of the Clay County Board of Equalization sustaining the assessment made by the Assessor in Appeal Number 09-32008 is SET ASIDE.Hearing Officer finds Complainants did rebut the presumption of correct assessment by the Board. The correct classification of the subject parcel on January 1, 2009, was agricultural.The correct agricultural grade is 7.The correct productive use value is $75 per acre.Productive use value for Appeal Number 09-32008for tax years 2009 and 2010 is set at $150, agricultural (2 acres at $75/acre) assessed value of $20.
Decision of the Clay County Board of Equalization sustaining the assessment made by the Assessor in Appeal Number 09-32009 is SET ASIDE.Hearing Officer finds Complainants did rebut the presumption of correct assessment by the Board. The correct classification of the subject parcel on January 1, 2009 was agricultural.The correct agricultural grade is 7.The correct productive use value is $75 per acre.Productive use value for Appeal Number 09-32009for tax years 2009 and 2010 is set at $97, agricultural (1.3 acres at $75/acre) assessed value of $10.
Complainant appeared pro se.
Respondent appeared by Counsel, Patricia Hughes.
Case heard and decided by Senior Hearing Officer Luann Johnson.
ISSUE
The Commission takes these appeals to determine the true value in money for the subject properties on January 1, 2009, and January 1, 2010.
SUMMARY
These two parcels are contiguous and are only treated as separate parcels because they are separated by municipal boundary lines.The parcel in Appeal Number 09-32008 is located in the City of Kansas City while the parcel in Appeal Number 09-32009 is located in the City of Gladstone.For the purposes of hearing and decision, these two parcels will be subject to the same findings of fact and conclusions of law.
Complainants appeal the decision of the Clay County Board of Equalization, which sustained the valuation of the subject properties.The Assessor determined an appraised value of $233,000 (assessed value of $27,960) on Appeal Number 09-32008.The Assessor determined an appraised value of $141,500 (assessed value of $16,980) on Appeal Number 09-32009.At hearing Respondent’s appraiser asserted an appraised value of $575,000.Complainants propose a value of $200.A hearing was conducted on November 17, 2009, at the Clay County Administration Building, Courthouse Square, Liberty, Missouri.
The Hearing Officer, having considered all of the competent evidence upon the whole record, enters the following Decision and Order.
Complainants’ Evidence
|
Exhibit 1 |
A summary of similar cases with Complainants’ analysis |
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Exhibit 2 |
A packet of pictures and miscellaneous documents demonstrating that the subject parcels were being used for hay production during 2007 |
|
Exhibit 3 |
A packet of pictures and miscellaneous documents demonstrating that the subject parcels were being used for hay production during 2008 |
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Exhibit 4 |
A packet of pictures and miscellaneous documents demonstrating that the subject parcels were being used for hay production during 2009 |
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Exhibit 5 |
A letter from Sandra Reeves, Collector |
Respondent’s Evidence
Respondent placed into evidence the testimony of Mr. Gary E. Maurer, appraiser for Clay County.The appraiser testified as to his appraisal of the subject property.The Appraisal Report, Exhibit A, of Mr. Maurer was received into evidence.Mr. Maurer arrived at an opinion of value for the subject property of $575,000 based upon a sales comparison approach to value.In performing his sales comparison analysis, the appraiser relied upon the sales of properties deemed comparable to the subject properties.
FINDINGS OF FACT
1.Jurisdiction over these appeals is proper.Complainants timely appealed to the State Tax Commission from the decisions of the Clay County Board of Equalization.
2.The subject properties are located at Northwest 68th Street and North Broadway Avenue.Appeal Number 09-32008 is located in Kansas City, Missouri.The property is identified by parcel number 13-516-00-04-006.00.The property consists of an unimproved two acre tract.Appeal Number 09-32009 is located in Gladstone, Missouri.The property is identified by parcel number 13-516-00-04-005.00.The property consists of an unimproved 1.3 acre tract.
3.Complainants presented evidence which established that the subject parcels had been used for hay production in 2007, 2008 and 2009. (Complainants’ Exhibits 2, 3, 4).Complainants’ evidence is substantial and persuasive to rebut the presumption of correct assessment by the Board and to establish agricultural use of the property.
4.Complainants and Respondent agree that the proper grade for this property is grade 7.(Complainants’ Exhibit 1, Respondent’s Exhibit A, page 32).Grade 7 carries a productive use value of $75.(Respondent’s Exhibit A, page 32, 12 CSR 30-4.010).
5.Correct true value for AppealNumber 09-32008 is $150.(2 acres at $75/acre.)
6.Correct true value for AppealNumber 09-32009 is $97.(1.3 acres at $75/acre.)
7.Respondent’s evidence is not substantial and persuasive.Respondent’s appraiser testified that he was prohibited from assigning agricultural grades to the properties because of a Tax Commission directive prohibiting the use of productive use valuations on parcels smaller than 5 acres which do not adjoin agricultural parcels or which have a grade of 6 or higher.(Respondent’s Exhibit A, page 32, pages 68-71).To the best of this Hearing Officer’s knowledge, based upon nearly 20 years of service with the State Tax Commission, these “Logic Tables” were not created by the State Tax Commission.Nor are these “Logic Tables” anywhere identified, on their faces, as creations of the State Tax Commission.(Respondent’s Exhibit A, pages 68-71).Further, these “Logic Tables” are nowhere supported by statute or case law.
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.[12]
Official and Judicial Notice
Agencies shall take official notice of all matters of which the courts take judicial notice.[13]
Courts will take judicial notice of their own records in the same cases.[14]In addition, courts may take judicial notice of records in earlier cases when justice requires[15] or when it is necessary for a full understanding of the instant appeal.[16] Courts may take judicial notice of their own records in prior proceedings involving the same parties and basically the same facts.[17]
Presumptions In Appeals
There is a presumption of validity, good faith and correctness of assessment by the CountyBoardof Equalization.[18]
The presumption in favor of the Board is not evidence.A presumption simply accepts something as true without any substantial proof to the contrary.In an evidentiary hearing before the Commission, the valuation determined by the Board, even if simply to sustain the value made by the Assessor, is accepted as true only until and so long as there is no substantial evidence to the contrary.
The presumption of correct assessment is rebutted when the taxpayer, or respondent when advocating a value different than that determined by the Board, 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.[19]
Agricultural Land
Under Missouri statutory law, property shall be classified as agricultural and horticultural property when “real property [is] used for agricultural purposes and devoted primarily to the raising and harvesting of crops . . .”Section 137.016.1(2), RSMo.The classification is determined by the actual use put to the property.[20]Cutting hay is an agricultural activity and such activity is sufficient to cause real property to be classified as “agricultural property”.[21]
Standard for Valuation
Section 137.017.1, RSMo provides “For general property assessment purposes, the true value in money of land which is in use as agricultural and horticultural property, as defined in Section 137.016, shall be that value which such land has for agricultural or horticultural use. . .”
Land Grades
Section 137.021.1, RSMo provides “ . . . .the state tax commission shall promulgate by regulation and publish a value based on productive capability for each of the several grades of agricultural and horticultural land. . . .”
Most Suitable Economic Use
The eight point analysis to determine the “most suitable economic use” [under Section 137.016.5, RSMo] is only appropriate for property “for which a determination as to its classification cannot be made under the definitions set out in subsection 1.”In cases where the actual use of the property – raising and harvesting hay – dictates the classification, there is no need to resort to a subsection 5 analysis.[22]
Duty to Investigate
In order to investigate appeals filed with the Commission, the Hearing Officer has the duty to inquire of the owner of the property or of any other party to the appeal regarding any matter or issue relevant to the valuation, subclassification or assessment of the property.The Hearing Officer’s decision regarding the assessment or valuation of the property may be based solely upon its inquiry and any evidence presented by the parties, or based solely upon evidence presented by the parties.[23]
Weight to be Given Evidence
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.[24]
Trier of Fact
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.[25]
Complainants’ Burden of Proof
In order to prevail, Complainants 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, 2009.[26]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.”[27]
Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[28]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.[29]
Owner’s Opinion of Value
The owner of property is generally held competent to testify to its reasonable market value.[30]The owner’s opinion is without probative value however, where it is shown to have been based upon improper elements or an improper foundation.[31]“Where the basis for a test as to the reliability of the testimony is not supported by a statement of facts on which it is based, or the basis of fact does not appear to be sufficient, the testimony should be rejected.”[32]
A taxpayer does not meet his burden if evidence on any essential element of his case leaves the Commission “in the nebulous twilight of speculation, conjecture and surmise.”[33]
Decision
Complainants have met their burden of proof.They established that the subject parcels had been used for hay production since at least 2007 up to and including the tax day.Once agricultural use is established, the only remaining issue is the appropriate land grade.In this instance, both parties agree that the appropriate grade for the subject property is grade 7.Grade 7 land is valued at $75 per acre.
Respondent’s evidence fails because Respondent’s appraiser read more into the law than actually exists.By using “Logic Tables,” Respondent’s appraiser excludes small acreages from agricultural classification if they are not adjacent to other agricultural parcels or if they are at grade 6 or higher.However, nothing in the statutes allows for exclusion of small acreages.
We frequently hear it said that property should be valued “in exchange” rather than “in use.”However, our statutes require that classification be based upon actual use, if that use if readily ascertainable.Thus Section 137.016.1(1) provides that property being used for residential living should be classified as residential.Section 137.016.1(2) provides that property used for agricultural purposes should be classified as agricultural.Section 137.016.1(3) provides that property used for commercial, industrial, manufacturing, and so forth, should be classified as commercial.Only when a determination as to classification cannot be made under the definitions in the above subsections, is the assessor authorized to conduct a Section 137.016.5 “most suitable economic use” analysis.
ORDER
The assessed valuations for the subject parcels as determined by the Assessor and sustained by the Board of Equalization for Clay County for the subject tax day is SET ASIDE.
The assessed value for the subject property in Appeal Number 09-32008 for tax years 2009 and 2010 is set at $20.The assessed value for the subject property in Appeal Number 09-32009 for tax years 2009 and 2010 is set at $10.
A party may file with the Commission an application for review of this decision within thirty (30) days of the mailing date shown in the Certificate of Service.The application shall contain specific 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 appeal is based will result in summary denial. [34]
The Collector of Clay County, as well as the collectors of all affected political subdivisions therein, shall continue to hold the disputed taxes pending a filing of an Application for Review, unless said taxes have been disbursed pursuant to a court order under the provisions of 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 December 22, 2009.
STATE TAX COMMISSION OFMISSOURI
Luann Johnson
Senior Hearing Officer
[1] Hearing Officer found properties were incorrectly assessed at 12% of fair market value as vacant and unused property.Valuation was corrected to a agricultural grade 7 for land actually used for an agricultural purpose and assessed at the 12% agricultural assessment.
[2] 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).
[3] 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).
[4] 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).
[5] 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).
[6] The “property” consists of two parcels because there is a portion in Gladstone, Missouri and another portion in Kansas City, Missouri.
[8] 137.017. 1.For general property assessment purposes, the true value in money of land which is in use as agricultural and horticultural property, as defined in section 137.016, shall be that value which such land has for agricultural or horticultural use.
[14] State ex rel. Horton v. Bourke, 129 S.W.2d 866, 869 (1939); Barth v. Kansas City Elevated Railway Company, 44 S.W. 788, 781 (1898).
[15] – Burton v. Moulder, 245 S.W.2d 844, 846 (Mo. 1952); Knorp v. Thompson, 175 S.W.2d 889, 894 (1943); Bushman v. Barlow, 15 S.W.2d 329, 332 (Mo. banc 1929)
[16] State ex rel St. Louis Public Service Company v. Public Service Commission, 291 S.W.2d 95, 97 (Mo. banc 1956).
[17] In re Murphy, 732 S.W.2d 895, 902 (Mo. banc 1987); State v. Gilmore, 681 S.W.2d 934, 940 (Mo. banc 1984); State v. Keeble, 399 S.W.2d 118, 122 (Mo. 1966).
[18] 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).
[19] Hermel, supra; Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959).
[20] Northtown Village v. Don Davis, Assessor, Jasper County. Mo., Appeal Nos. 03-62558 (May 27, 2004) providing that the definitions in Section 137.016 (2000) illustrate that “the classification turns on the actual use put to the property.”
[21] Dickerson v. Curtis Koons, Assessor, Cass County, Mo. Appeal Number 01-49004 (June 11, 2002); Ernest W. Giddens, Trustee v. Rick Kessinger, Assessor, Greene County, MO., Appeal No. 05-33000 (Commission Decision April 19, 2007).
[22] Ernest W. Giddens, Trustee v. Rick Kessinger, Assessor, Greene County, Mo., Appeal No. 05-33000(Hearing Officer Decision January 10, 2007).
[24] 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).
[25] 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).
[27] 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).
[30] 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).
[31] 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).