RICK PARKER, ASSESSOR, REYNOLDS COUNTY, MISSOURI, Petitioner-Respondent,
DOE RUN COMPANY, Respondent-Appellant.
FROM THE CIRCUIT COURT OF REYNOLDS COUNTY Honorable Sidney T.
Pearson, III, Circuit Judge
Rahmeyer, P.J., Bates, J., and Scott, J.
Parker, the Assessor for Reynolds County
("Assessor"), appeals from the findings of the
State Tax Commission ("the Commission") regarding
the valuation of real property in Reynolds
County. The Commission found that the fair market
value on January 1, 2011, of a part of Taxpayer's real
property in Reynolds County was $105, 600, 000 for property
tax purposes. Assessor brings five points claiming the
Commission erred in determining the fair market value of the
real property at issue before the Commission. We disagree,
but first, we must address procedural issues.
and unexcused deficiencies in all of Assessor's points
warrant dismissal of this appeal. Assessor's disregard of
Rule 84.04(d) seriously impedes our review of his
complaints.Although blessed with talented and
experienced counsel, Assessor made no attempt to comply with
Rule 84.04(d)(2) in any of his points; offered no excuse,
explanation, or remedy when Taxpayer properly cited these
failings in its brief; and seemed not to fathom this
Court's requests for clarification during oral argument.
to properly state the points relied on indicates a lack of
understanding of the appellate function and process."
Thummel v. King, 570 S.W.2d 679, 686 (Mo. banc
1978). Here, we do not evaluate evidence and make an original
tax determination; rather, we consider assertions that the
Commission erred so as to entitle Assessor to relief from the
Commission's determination. See id. Thus,
"[t]he requirement that the point relied on clearly
state the contention on appeal is not simply a judicial word
game or a matter of hypertechnicality on the part of
appellate courts." Id.
84.04(d) compliance is particularly critical "in a case
such as this where the facts are complex." Id.
Because Assessor's briefs do not adequately advise this
Court of the contentions asserted or merit thereof, we face
the dilemma of deciding this case (and possibly establishing
future precedent) on the basis of inadequate briefing and
advocacy. Id. "In addition to being inherently
unfair to the other party to the appeal, it is unfair to
parties in other cases awaiting disposition because it takes
from them appellate time and resources which should be
devoted to expeditious resolution of their appeals."
violations here - every single point - are particularly
egregious because Rule 84.04(d) includes specific point
templates, so Assessor "simply ha[s] no excuse for
failing to submit adequate points relied on." Scott
v. King, 510 S.W.3d 887, 892 (Mo.App. E.D. 2017).
"Insufficient points relied on preserve nothing for
appellate review and constitute grounds for dismissal."
Parker v. Action Contracting Corp., 100 S.W.3d 168,
171 (Mo.App. W.D. 2003).
serious and unexcused Rule 84.04(d) violations warrant
dismissal. We decline to do so only because:
[t]his type of case is by its very nature impressed with a
public interest; substantial business and private interests
and investments are involved; and, this [C]ourt is reluctant
to forgo its judicial function to decide the matter on the
merits, because of a failure of counsel to obey the mandate
of the Rule.
State ex rel. Oliver v. Pub. Serv. Comm'n, 542
S.W.2d 595, 597 (Mo.App. K.C.D. 1976).
this grants Assessor only a fleeting reprieve because each of
his points ostensibly challenges the sufficiency or weight of
the evidence. No such challenge can succeed on appeal
unless it substantially tracks the rubric first set out in
Houston v. Crider, 317 S.W.3d 178, 186-87 (Mo.App.
S.D. 2010), and followed in scores of reported opinions
since. Assessor disregards the format for
asserting such complaints, which renders all such arguments
analytically and persuasively worthless. This means, in
turn, that for this Court to grant any of Assessor's
points, we would have to develop and support our
own Houston argument in Assessor's
favor, which "would thrust us into becoming an advocate
on [Assessor's] behalf; a role we are prohibited from
assuming." Id. at 189.
foregoing, of necessity, would end our inquiry in most cases.
But again, this case "is by its very nature impressed
with a public interest." Oliver, 542 S.W.2d at
597. For that reason alone, this Court has attempted to
overcome Assessor's otherwise-fatal deficiencies, address
each of his points on appeal below, and determine whether any
could properly merit relief.
grant Assessor relief only if the Commission's decision:
(1) is in violation of constitutional provisions; (2) is in
excess of the statutory authority or jurisdiction of the
agency; (3) is unsupported by competent and substantial
evidence upon the whole record; (4) is, for any other reason,
unauthorized by law; (5) is made upon unlawful procedure or
without a fair trial; (6) is arbitrary, capricious or
unreasonable; or (7) involves an abuse of discretion.
Bateman v. Rinehart, 391 S.W.3d 441, 444-45 (Mo.
banc 2013) (quotation and citations omitted); see
also section 536.140, RSMo Cum.Supp. 2005, and Mo.
Const. art. V, section 18. This Court is hesitant to
substitute its judgment for the Commission in matters of
property tax assessment. Bateman, 391 S.W.3d at 445.
"This Court will defer to the [Commission's]
judgment regarding factual matters; however, the
[Commission's] decision interpreting statutory law is
reviewed de novo and will be upheld only when its
decision is authorized by law and supported by competent and
substantial evidence upon the record." Id.
county board of equalization's valuation is presumed
correct; the presumption may be rebutted only if the taxpayer
presents substantial and persuasive evidence that the
valuation is erroneous. Snider v. Casino Aztar, 156
S.W.3d 341, 346 (Mo. banc 2005). The taxpayer has the burden
to establish the value that should have been placed on the
property. Id. Determining the true value in money is an
issue of fact for the Commission, Cohen v.
Bushmeyer, 251 S.W.3d 345, 348 (Mo.App. E.D. 2008), but
determining "[w]hether the appropriate standard of value
and approach to valuation were properly applied under the
particular facts and circumstances of the case is a question
of law." Snider v. Casino Aztar, 156 S.W.3d at
346. While the Commission has some discretion in deciding
which approach best estimates the value of a particular
property, its choice of valuation approaches must comply with
the law, and once the Commission decides to use a particular
approach, it must apply that approach properly and consider
all of the relevant factors. Id. at 348.
is a mining company that owns, or leases from the federal
Bureau of Land Management ("BLM") and other private
persons, 39, 221 acres in Reynolds County that are identified
as 234 separate parcels for ad valorem tax
purposes. The land is part of three separate mines -
Brushy Creek Mine, Fletcher West Fork Mine and Sweetwater
Mine. The mineral lease payments under
Taxpayer's leases are in the form of royalty payments.
The royalty payments are 5% of net smelter returns. Net
smelter returns are the net revenue from Taxpayer's sales
of lead, zinc and copper concentrates. The parties agreed
that the royalty payments are at market rate.
Commission determined an aggregate true value in money of
$105, 600, 000 for the five parcels at issue in the
proceedings before the Commission. The Commission further found
and concluded that mining properties are complex to value and
may not lend themselves to the development of a single
approach for valuing the property for ad valorem
purposes. Specifically, the cost approach could not be used
to value the property in its entirety because of the nature
of mineral leases. Because of the unique nature of mines and
quarries, which are seldom alike as they differ in ore,
reserves, size, geology, depth, costs, and location, the
sales comparison approach alone was not adequate. The
Commission noted caution should be exercised when valuing
mining property using the income approach as it may capture
income earned from the personal property or intangibles.
parties developed all three approaches to value; the parties
developed those approaches differently. For example, Taxpayer
developed a commercial property sales comparison approach to
value the land and improvements but used the royalty income
approach to value the mineral interest. Assessor utilized a
unitary income approach to value all of the property
belonging to Taxpayer. Assessor's income approach was
based upon income generated by the production of the
concentrates and therefore included income from the entire
mining operation - real property, personal property and
intangibles. The Commission found the most persuasive
approach as to the improvements was Taxpayer's approach
as it valued the improvements using the sales comparison
approach and cost approach. Taxpayer properly classified the
surface land owned by Taxpayer as commercial. Assessor's
evidence as to the market value of land in Reynolds County of
$700 per acre was substantial and persuasive. The market
valuation of the land using Taxpayer's acreage figure was
determined to be: $700 per acre times 20, 556.48 acres equals
$14, 390, 000 (rounded).
appraiser opined that the improvements had a value of $1,
272, 852 under the sales comparison approach and $1, 179, 890
under the cost approach. Assessor's appraiser countered
that at least a portion of the improvements had a value of
$13, 727, 912 under the cost approach.
Commission used Assessor's appraisal to review
Taxpayer's appraisal and noted Taxpayer's appraiser
did not include a valuation determination for all
improvements in his appraisal. As the appraiser testified,
many of the improvements would have been implicitly included
in his valuation. Those improvements would have included
roads to access buildings, etc. Some improvements such as
tailing ponds and dams were not valued. According to
Taxpayers' appraiser, the value of those improvements
would have been negated by the remediation costs. There were
improvements such as fixtures that were not valued and should
have been included. Further, the appraiser should have
included such items as the construction work in progress and
presented a supportable position as to their market value, or
stated why those item do not have a market value. These items
were not maintenance of the improvements, but betterment in
which the owner anticipated deriving a financial reward.
Assessor's appraiser made a determination of value for
the construction work in progress at each mine ($6, 058, 105,
$7, 200, 258, and $3, 007, 691, or a total of $16, 266, 054).
The Commission concluded Taxpayer failed to present evidence
to refute the determinations made by Assessor.
review of the appraisal approaches and the evidence presented
as to the improvement value as opined by Taxpayer's
appraiser and the construction work in progress values as
opined by Assessor's appraiser, the Commission determined