State Tax Commission of Missouri
THERESE TULLY KRISHNAN,
THOMAS COPELAND, ASSESSOR,
FRANKLIN COUNTY, MISSOURI,
ORDER AFFIRMING HEARING OFFICER DECISION UPON APPLICATION FOR REVIEW
On February 6, 2014, Senior Hearing Officer W. B. Tichenor entered his Decision and Order (Decision) affirming the assessment by the Franklin County Board of Equalization and setting the true value in money for Complainant’s property at $52,000, as vacant and unused agricultural land, assessed value of $6,240.
Complainant filed her Application for Review of the Decision on March 2, 2014. Respondent was given until and including April 3, 2014 to file a Response, if he so desired. No Response was filed.
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.
The Hearing Officer as the trier of fact may consider the evidence of the complainant (taxpayer) and respondent (assessor) or respondent’s expert witness and give it as much weight and credit as he may deem it entitled to when viewed in connection with all other circumstances. The Hearing Officer is not bound by the opinion of a witness, who testifies on the issue of value or other relevant matters, but may believe all or none of the testimony and accept it in part or reject it in part.
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.
Complainant took exception to the Decision and tendered documents that were not provided under the Orders on submission of evidence issued by the Hearing Officer during the course of the handling of the appeal. The Hearing Officer’s Order, dated November 7, 2013, set the deadline for submission of evidence on the part of both parties as on or before December 9, 2013. Accordingly, the additional documents submitted with the Application for Review are not part of the evidentiary record in the appeal and can be given no consideration.
Complainant’s ground for appealing the Decision is that she believed it to be biased and ignorant of facts. The Commission does not agree. A reading of the Decision and review of the evidence presented by both parties fails to establish any basis to conclude that the Hearing Officer was biased in his handling of the appeal. Nor does the record show ignorance of facts on the part of the Hearing Officer, to the contrary, the Decision sets forth in detail the review and analysis of each of Complainant’s exhibits and the reasons why the evidence was not sufficient to establish a prima facie case for the relief sought by Complainant. The Hearing Officer correctly affirmed the Board’s decision assessing the property as vacant and unused agricultural land to be assessed at 12% of its fair market value.
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.
The Hearing Officer did not err in his determinations as challenged by Complainant.
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 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.
SO ORDERED this 2nd day of June, 2014.
STATE TAX COMMISSION OF MISSOURI
Bruce E. Davis, Chairman
Randy B. Holman, Commissioner
Victor Callahan, Commissioner
 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).
 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).
 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).
 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).
DECISION AND ORDER
Decision of the Franklin County Board of Equalization sustaining the assessment made by the Assessor is AFFIRMED.Complainant failed to present substantial and persuasive evidence to rebut the presumption of correct assessment by the Board of Equalization.
True value in money for the subject property for tax years 2013 and 2014 is set at $52,000, vacant and unused agricultural land, assessed value of $6,240.
Complainant appealed Pro Se.
Respondent represented by Franklin County Counselor, Mark Vincent.
Case decided by Senior Hearing Officer W. B. Tichenor.
Complainant appeals, on the ground of overvaluation and misclassification, the decision of the Franklin County Board of Equalization, which sustained the Assessor’s valuation and assessment of the subject property.The Commission takes this appeal to determine the true value in money for the subject property on January 1, 2013, and the correct classification of the property.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.By Order dtd 11/7/13, parties were ordered to file and exchange exhibits and a Statement of Basis of Value/Classification.Both parties complied and documents were timely filed.Said Order also provided that on or before 12/30/13 parties were to inform the Hearing Officer if a waiver of the evidentiary hearing, and a decision rendered upon the exhibits and Statements of Basis of Value/Classification was acceptable.Complainant due to her living out of state requested to appear through a web cam video.She was informed the Hearing Officer was not equipped to conduct the hearing in such a fashion.
The Hearing Officer proposed the drafting of a Proposed Stipulation of Uncontested Material Facts for review by the parties.However, upon review of the documents filed, the Hearing Officer has determined as a matter of fact and law that Complainant did not make a prima facie case for the relief sought and the preparation of a Proposed Stipulation of Uncontested Material Facts would serve no useful purpose and the appropriate course of action is the issuance of the Decision based upon the documents submitted by both parties.See, Valuation and Assessment of Agricultural Land, Hearing Officer’s Determination on Evidentiary Hearing, Complainant Fails to Prove Value, Complainant Fails to Prove Misclassification, infra.
3.Identification of Subject Property.The subject property is identified by map parcel number 11-5-21.0-0-011-003,120, with a legal description of Lot 6, Campbellton Farm 2.It is located near the intersection of Highways KK and 185 in Campbellton, Missouri.
4.Description of Subject Property.The subject property consists of 5.2 acres of unimproved wooded land.
5.Assessment.The Assessor appraised the property at $52,000.It was assessed as vacant and unused agricultural land at 12% resulting in an assessed value of $6,240.The Board of Equalization sustained the assessment.
7.Complainant’s Evidence.Complainant offered into evidence the following:
Statement of Basis of Appeal
Information – Heritage Woods Program
Email to Complainant – Heritage Woods Project
Email to Complainant – Forest Thinning and Management
Invoice Hickory Ridge Forestry, dtd 7/16/13
PayPal Payment notice to Complainant, dtd 7/16/13
Estimate – cost to clear land for utilities – Roger Vedder
Email to Complainant – offer of acre to school
Emails – offer of land to school
Email – walnut seedlings
Email – PayPal payment
Exhibits A through K are received into evidence.
8.No Evidence of New Construction & Improvement.There was no evidence of new construction and improvement from January 1, 2013, to January 1, 2014, therefore the assessed value for 2013 remains the assessed value for 2014.
9.Presumption of Correct Assessment Not Rebutted.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 for the property or an agricultural use to warrant giving the property an agricultural land productivity value.See, Presumption In Appeal, Complainant Fails To Prove Value, and Complainant Fails to Prove Misclassification, infra.
10.Respondent’s Evidence.Respondent offered into evidence Exhibit 1 – Appraisal Report dtd 1/1/13 – Randy Roberts, Franklin County Field Appraiser & Lori Rae Ruby Wright, Franklin County Supervisor Real Estate – Agricultural Land.Exhibit 1 is received into evidence.
CONCLUSIONS OF LAW AND DECISION
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.
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.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.
Presumption In Appeal
There is a presumption of validity, good faith and correctness of assessment by the County Board of Equalization.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.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 or what the correct classification on the property should be.
Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.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.
The exhibits file by Complainant fail to meet the standard of substantial and persuasive evidence to rebut the presumption of correct assessment.The documents fail to establish any of the following: (1) that the property was, as of 1/1/13 & 1/1/14, anything other than vacant and unused land; or (2) a fair market value as of 1/1/13 for the property.See, Valuation and Assessment of Agricultural Land, Complainant Fails To Prove Value, and Complainant Fails to Prove Misclassification, infra.
Land which is used as agricultural or horticultural property (agricultural property) is to be given a true value in money based on the value the land has for agricultural use.In other words, where land is actually used for an agricultural purpose, it is to be assigned the appropriate agricultural land productivity grade or value. Land otherwise referred to as agricultural graded land.Once it is established that land is agricultural property it is to remain as agricultural graded land so long as it is continued to be used for an agricultural purpose.However, where land that might otherwise be agricultural property is vacant and unused, it is to be valued based upon its fair market value, not an agricultural land grade.
Complainant’s evidence failed to establish that the subject 5.2 acres, as of either 1/1/13 or 1/14 was being put to any agricultural or horticultural use that would justify it being given an agricultural land grade, as opposed to being valued at its fair market value and assessed at the agricultural ration of 12%, as was done by the Assessor and the Board of Equalization.
Hearing Officer’s Determination on Evidentiary Hearing
The Exhibits listed in FINDING OF FACT 7, supra, fail to make a prima facie case for the relief sought by the Complainant.The following review and analysis of the exhibits forms the basis for the Hearing Officer’s conclusion that an evidentiary hearing would serve no useful purpose.
Complainant’s statement outlines her desire, intention to put the subject property in the Heritage Woods Project.All of Ms. Krishnan’s activities in this regard were post-1/1/13.The statement asserts that the property is “being managed by a forest company (Hickory Ridge Forestry).”However, Exhibit E only shows that by Invoice dtd 7/16/13 that Hickory Ridge Forestry tendered a billing for supplies for tree thinning, labor and a consulting fee, in a total amount of $850.00.Exhibit A reports that “in the next few weeks maybe even before this letter arrives at its destination” that the management by Hickory Ridge” would commence.However, with the submission of exhibits on 12/9/13, there was no update that in fact the subject property had been cleared of underbrush, trees thinned and any seedlings of trees had been planted.
The Exhibit provides no opinion of the owner as to the fair market value of the property as of 1/1/13.No exhibit was tendered which would establish that value based upon the generally accepted and recognized appraisal methodology of a sales comparison approach, utilizing recent sales (near to 1/1/13) of similar property in Franklin County.Accordingly, there was no evidence on the record that in any form or fashion even addressed, or rebutted the conclusion by the Board of Equalization that $52,000 represented the appropriate fair market value of the property as of 1/1/13.
In short, Exhibit A fails to provide any evidence upon which the Hearing Officer could conclude that as of 1/1/13 or 1/1/14 the subject property was actually being put to an agricultural/horticultural use that would require it be value under a land production value.Furthermore, no evidence presents itself from the Exhibit as to a fair market value of an amount different than $52,000.
Exhibit B – Information – Heritage Woods Program
This document is a copy of an information sheet about the Heritage Woods Missouri Program (Program).The taxpayer did not establish that as of 1/1/13 or 1/1/14, her property was enrolled in this Program of the Missouri Department of Conservation.According to the information contained in Exhibit B, in order for a land owner to participate in the Program, and have their property recognized and posted as part of the Program there are several requirements.The requirements include that five activities from a minimum of two categories have to have been completed in the prior three years.The categories include: actively caring for wildlife, actively caring for trees, planting trees, woods management, stream restoration, advocacy, and annually completing a Forestkeepers tree observation form.The evidence fails first to demonstrate that Complainant actually submitted an application, and second, that her property qualified for the Program.
Be that as it may, the Commission has not determined that woodlands placed in the Heritage Woods Missouri Program is eligible under state statute and Commission rules to be given an agricultural production land value.The Hearing Officer is not required to reach the question due to the simple fact that Complainant’s evidence does not establish that as 1/1/13 or 1/1/14 her land was in the Program.
Exhibits C, D, F, H, I, J & K – Emails on Various Subjects
None of these emails establish any relevant information which addresses either an agricultural/horticultural use of the property as of 1/1/13 or 1/1/14, or what the fair market value of the property might have been as of 1/1/13.There is nothing probative contained within them on the only two issues that the Hearing Officer must address in this appeal.
Exhibit E – Invoice Hickory Ridge Forestry
The invoice establishes the cost for tree thinning and consultation to remove undesirable trees and brush to prepare the property for planting of walnut trees.There is no expense shown for the actual planting of walnut trees or seedlings.Since Exhibits F & K do establish that Ms. Krishnan paid this invoice.However, the record fails to establish that any of the clearing was done prior to 1/1/14.It is obvious none was done as of 1/1/13, since the invoice was dated 7/16/13 for work yet to be performed.
Complainant asserts that the work of Hickory Ridge Forestry constitutes management of the subject land.The Hearing Officer does not agree.Management is the act or manner of handling or controlling, conducting or directing affairs.The Hearing Officer finds that the work to be performed under the invoice was simply that labor to be performed.There is nothing to indicate that Hickory Ridge was to handle, control, conduct, or direct anything beyond on removing some trees and brush.There apparently is not a contract for timber management and development of the subject land by Hickory Ridge or any other entity.Complainant provided no management plan beyond simply some land clearance.Since no evidence was presented to establish that as of 1/1/14 any actual seeding/planting of trees has taken place on the property under appeal, the Hearing Office cannot reach the question of whether planting the subject land to walnut (or any other nut or fruit tree) would be sufficient to have it removed from the category of vacant and unused agricultural lang.
Exhibit G – Estimate Cost to Clear Land
To the extent that Exhibit G is an attempt to establish fair market value of the Complainant’s property is insufficient, if not irrelevant.This document is signed by Roger Vedder.Mr. Vedder offers his opinion that it would cost the taxpayer “close to $30,000 or more just to clear the land and provide it with water and electric.”If the issue where what the land would be worth to develop for a residential or commercial use, then this unsubstantiated option might have some small level of probative weight.
The valuation issue is simply what a willing buyer and seller would have agreed to as the purchase price of the property as it existed on 1/1/13.Assuming the most likely purchasers would be individuals who would want to put the property to some residential or commercial use, the cost of site preparation for such a use would; of course, factor into what a well informed buyer would offer to purchase the land.However, the Exhibit provides no basis upon which the Hearing Officer can make any determined of fair market value.
Summary & Conclusion
From all the foregoing, the Hearing Officer was left with the unalterable fact that an evidentiary hearing to permit Counsel for Respondent to cross-examine Complainant would serve no useful purpose.The Hearing Office could foresee that Counsel for Respondent would most likely offer very solid objections under the rules of evidence as to the foundation and relevance for each of the tendered exhibits.If such were done, the rules of evidence dictate sustaining of such objections and exclusion of the exhibits.Counsel for Respondent elected to simply forego cross- examination and allowing the exhibits to be submitted and a decision rendered accordingly.
By statute and Commission rule, the Hearing Officer has the responsibility to afford the parties “reasonable opportunity” for fair hearing.No useful purpose is achieved in having a hearing when the Complainant has not presented a prima facie case for the relief sought.The relief Complainant sought was to have her land reassigned an agricultural land grade or a reduction in its fair market value.As addressed in detail above, the documents submitted failed to establish that as of 1/1/13 or 1/1/14: (1) the land in question was anything other than vacant and unused agricultural land; or (2) what a willing buyer and seller would have agreement to as the purchase price as of 1/1/13.Therefore, no prima facie case was presented.
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.True value in money is defined in terms of value in exchange and not value in use.It is the fair market value of the subject property on the valuation date.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.
As previously stated, Complainant presented no evidence to establish the value of the subject property under the Standard For Value.
Complainant Fails To Prove Value
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, 2011.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.”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.
Complainant Fails to Prove Misclassification
Because Complainant filed to make a prima facie case it is unnecessary to review and analyze the evidence presented by Respondent as to fair market value as of January 1, 2013.The presumption of correct assessment having not been rebutted, that value and classification stands irrespective of the evidence tendered by Respondent.
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 AFFIRMED.
The assessed value for the subject property for tax years 2013 and 2014 is set at $6,240.
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.
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 this 6th day of February, 2014.
STATE TAX COMMISSION OFMISSOURI
W. B. Tichenor
Senior Hearing Officer
 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)
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 1201Substantial 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.
 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)
 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.
 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)