author: PAUL M. SPINDEN, Judge.

text:
    Espire CONCEPCION, Respondent, v. LEAR CORPORATION, and Zurich North America Insurance Company, Appellants, and Treasurer of the State of Missouri, Respondent.
    No. WD 64871.
    Missouri Court of Appeals, Western District.
    Oct. 11, 2005.

      Stephen McManus, St. Louis, for appellant.
    Frank Eppright, Kansas City, for Es-pire Concepcion, respondent.
    Benita Marie Seliga, Office of Atty. General, for Treasurer of State of Missouri, respondent.
   PAUL M. SPINDEN, Judge.

Lear Corporation and its insurer, Zurich North America Insurance Company, appeal the Labor and Industrial Relations Commission’s award of workers’ compensation to Espire Concepcion. They complain that the Second Injury Fund should be contributing to the workers’ compensation awarded to Concepcion because, contrary to the commission’s finding, his permanent disability did not result solely from an injury suffered while working for Lear.

The commission’s decision awarding Concepcion workers’ compensation is supported by competent and substantial evidence and is not contrary to the overwhelming weight of the evidence. We affirm the decision.

Concepcion was working for Lear as a machine operator, when, on March 3, 1999, he injured his left ring finger. A physician splinted the finger and prescribed pain medication. Concepcion refused the doctor’s suggestion that a wire be inserted into the finger to keep it straight. As a result, Concepcion was unable to straighten the finger, and he suffered pain and weakness in his hand. Concepcion did not miss any work because of the injury. Concepcion performed his usual work duties by compensating with his right hand.

Concepcion’s psychiatrist opined that this injury triggered a chronic pain syndrome. In a separate workers’ compensation claim, the commission determined that Concepcion’s finger injury was a permanent partial disability of 20 percent.

Two months later, on May 3, 1999, Concepcion suffered a herniated disc in his lower back while lifting a heavy bag at work. He underwent a laminectomy and diskectomy. After missing three months’ work because of this injury, Concepcion returned to light duty at Lear. Lear terminated his employment three months later because he could not meet productivity expectations. He experienced severe back pain, which required him to lie down frequently, and could not perform most of his previous duties.

In addition to causing him pain, his back injury triggered severe depression. Although Concepcion had some pre-existing psychological conditions — including a dependent personality and chronic pain syndrome — which predisposed him to depression and heightened his complaints of pain, his back injury markedly increased these conditions. Sharp back pain prevented him from engaging in normal, daily activities such as driving his car, bathing, and playing with his grandchildren.

Concepcion filed for workers’ compensation benefits. After a hearing, the commission’s administrative law judge determined that Concepcion’s May 3 back injury totally and permanently disabled him. The administrative law judge did not rule on the issue of benefits for future medical treatment. Lear appealed to the commission, which ruled that the administrative law judge’s decision was supported by substantial and competent evidence, but it modified the award to add benefits for future medical treatment.

Lear and Zurich appeal the commission’s decision. They do not dispute that Concepcion is totally and permanently disabled, but they challenge the commission’s finding that Concepcion’s permanent and total disability resulted solely from his May 3 back injury. They argue that, because pre-existing conditions contributed to Concepcion’s disability, the Second Injury Fund should pay a portion of Concepcion’s disability. Lear also argues that the commission erred in awarding benefits for future medical treatment.

In reviewing Lear’s and Zurich’s appeal, we must examine the whole record and determine whether or not the commission’s award was supported by competent and substantial evidence. If it was, we must affirm the commission’s decision unless the award was contrary to the overwhelming weight of the evidence. Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003).

The Second Injury Fund compensates injured workers who are permanently and totally disabled by a combination of past disabilities and a primary work injury. The fund’s purpose is to encourage employers to hire individuals who have disabilities by relieving the employer of liability for an employee’s disabilities not attributable to an accident occurring while working for the employer. Loven v. Greene County, 63 S.W.3d 278, 282 (Mo.App.2001), overruled on other grounds, Hampton, 121 S.W.3d at 223. To impose liability on the Second Injury Fund, a claimant must have had a “pre-existing permanent partial disability [that] existed at the time the work-related injury was sustained and [that] was of such seriousness as to constitute a hindrance or obstacle to employment or re-employment.” Muller v. Treasurer of Missouri, 87 S.W.3d 36, 40 (Mo.App.2002), overruled on other grounds, Hampton, 121 S.W.3d at 223. The pre-existing disability:

[M]ust combine with a disability from a subsequent injury in one of two ways: (l)[T]he two disabilities combined result in a greater overall disability than that which would have resulted from the new injury alone ...; or (2) the pre-existing disability combined with the disability from the subsequent injury to create permanent total disability.

Karoutzos v. Treasurer of the State of Missouri, 55 S.W.3d 493, 498 (Mo.App.2001), overruled on other grounds, Hampton, 121 S.W.3d at 223.

“To determine whether a pre-exist-ing partial disability constitutes a hindrance or obstacle to the employee’s employment, the Commission should focus on the potential that the pre-existing injury may combine with a future work related injury to result in a greater degree of disability than would have resulted if there was no such prior condition.” E.W. v. Kansas City, Missouri, School District, 89 S.W.3d 527, 537 (Mo.App.2002), overruled on other grounds, Hampton, 121 S.W.3d at 223.

Lear and Zurich point to four injuries or conditions that, they argue, combined to cause Concepcion’s permanent and total disability: (1) his left hand injury from March 1999; (2) pre-existing psychiatric conditions; (3) limited intellectual capacity; and (4) his May 1999 back injury. We disagree.

Concepcion presented credible evidence that his back injury alone permanently and totally disabled him. His treating physician testified, “In my opinion, looking only at [Concepcion’s] failed back syndrome, he was permanently and totally disabled.” Relying only on Concepcion’s back injury, three vocational consultants testified that Concepcion was unemployable on the open labor market because back pain required him to recline during the day.

Because Concepcion’s disability resulted solely from his back injury, the Second Injury Fund is not liable unless Lear and Zurich establish that Concepcion had a pre-existing permanent disability that was an obstacle or hindrance to employment when he injured his back and that this disability combined with his back injury to create a permanent total disability or a greater overall disability than would have resulted from the back injury alone. Lear and Zurich did not do this. Although Concepcion’s finger injury was a permanent, partial disability, Concepcion’s permanent and total disability resulted solely from his back injury. That his finger was injured made no difference. The back injury alone was severe enough to disable him permanently and totally. Thus, Concepcion’s finger injury did not combine with his back injury to create a greater overall disability or to cause his permanent, total disability.

Lear and Zurich argue that Concepcion had psychological conditions, triggered by his linger injury, that caused him to experience above average pain and depression following his back injury. Thus, they argue, Concepcion’s pre-existing finger injury combined with his back injury to create a greater disability than that caused by his back injury.

Even if this were true, Lear and Zurich did not show that Concepcion’s psychological conditions were so severe as to constitute a hindrance or obstacle to employment when he injured his back. Muller, 87 S.W.3d at 40. After Concepcion injured his finger, he had a temporary adjustment disorder, minor depression, and the onset of chronic pain syndrome, but it did not rise to the level of a condition that was a disability. Concepcion testified that he became depressed only after injuring his back, and a psychiatrist who examined Concepcion four years after his back injury was unsure when Concepcion’s depression began. Concepcion was not treated for depression until 2001, two years after his back injury. The psychiatrist opined that Concepcion’s back injury sharply increased any psychological problems caused by the earlier finger injury. The Second Injury Fund is not liable when a work-related injury causes a change in a pre-existing condition, which is escalated in the work-related injury to a disability. Roller v. Treasurer of the State of Missouri, 935 S.W.2d 739, 745 (Mo.App.1996), overruled on other grounds, Hampton, 121 S.W.3d at 223.

Nor did Lear and Zurich establish that Concepcion’s intellectual capacity was a pre-existing disability or an obstacle or hindrance to employment. He was a high school graduate. He did not have a learning disability. He could read, write, and understand English, and he could solve problems and perform arithmetic at the post-high school level. Concepcion’s language problems were not a proper consideration in determining disability. Karout-zos, 55 S.W.3d at 499 (“[cjommission’s consideration of ... deficient English skills as a component of finding permanent total disability was improper”).

Concepcion’s back injury caused him to become permanently and totally disabled. We affirm the commission’s award in that regard.

Lear and Zurich next argue that the commission erred in finding them liable for future medical benefits. They assert that the commission did not have sufficient evidence to award future medical care as a result of his back injury.

A claimant is entitled to benefits for future medical treatment if he or she shows by a reasonable probability that future medical treatment is needed “to cure and relieve ... the effects of the injury.” Section 287.140.1, RSMo 2000; Dean v. Saint Luke’s Hospital, 936 S.W.2d 601, 603 (Mo.App.1997), overruled on other grounds, Hampton, 121 S.W.3d at 223. A doctor’s testimony, couched “in terms of likelihood rather than certainty,” can support an award, “particularly when coupled with other credible evidence of a nonmedical character.” Dean, 936 S.W.2d at 605 (award of future medical benefits supported by doctor’s testimony that claimant would “very likely” need future medical treatment and by claimant’s testimony that she still suffered pain although she took medication continuously and performed home physical therapy).

In the record before the commission was a psychiatrist’s statement in 2000 that Concepcion would need treatment for pain and depression “for at least one year.” Concepcion’s family doctor prescribed Prozac in 2001 to treat Concepcion’s depression, and as of April 2003, Concepcion was still taking several medications for pain, depression, and insomnia. This evidence was sufficient for Concepcion to meet his burden of establishing a likelihood of future medical treatment.

Hence, we affirm the commission’s decision to award benefits for permanent and total disability and for future medical treatment.

LISA WHITE HARDWICK, Presiding Judge, and PATRICIA BRECKENRIDGE, Judge, concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Delbert DYE, Respondent, v. FULTON STATE HOSPITAL; Treasurer of the State of Missouri-Custodian of the Second Injury Fund, Appellant.
    Nos. WD 64789, WD 64790.
    Missouri Court of Appeals, Western District.
    Oct. 11, 2005.
    Earl D. Kraus, Jefferson City, MO, for appellant.
    Thomas M. Dunlap, Fulton, MO, for respondent Dye.
    Daniel Cunningham, St. Louis, MO, for appellant Treasurer of the State of Missouri.
    Before SMART, P.J., HOLLIGER and HARDWICK, JJ.
   ORDER

PER CURIAM.

Fulton State Hospital appeals from the Labor and Industrial Relation Commission’s award of permanent partial disability benefits to Delbert Dye. Upon review of the record, we find no error and affirm the Commission’s final award. We have provided the parties with a memorandum explaining the reasons for our decision, because a published opinion would have no precedential value.

Affirmed. Rule 84.16(b).


author: RONALD R. HOLLIGER, Presiding Judge.

text:
    BHA GROUP HOLDING, INC., Respondent, v. Michael PENDERGAST, et al., Appellant.
    No. WD 64454.
    Missouri Court of Appeals, Western District.
    Oct. 11, 2005.

      Arthur Aaron Hogg, Kansas City, for Appellant.
    Aaron Gold March, Kansas City, for Respondent.
   RONALD R. HOLLIGER, Presiding Judge.

This is a case of first impression. Jackson County, Jackson County Collector Michael Pendergast, and the Jackson County Deputy Director of Assessment (collectively the “County”) appeal the trial court’s decision that the property tax abatement under Mo.Rev.Stat. Section 353.110.1 begins in the year a Chapter 353 redevelopment corporation acquires the property rather than the calendar year after the date of acquisition. The County argues that the abatement begins in the calendar year following the year in which the rede-veloper acquires the property. BHA claims that the abatement applies to the tax on improvements for the entire year of acquisition, even though the redevelopment corporation did not acquire the property until December 18.

Because the terms in the statute do not require a delay in initiating the partial statutory abatement, we affirm.

Facts

The parties stipulated to the operative facts and tried the case to the court. BHA Group Holdings, Inc. (“BHA”) owns property in Raytown, Jackson County, Missouri, and has owned that property at all relevant times except briefly on December 18, 2001. BHA sought to redevelop the property and formed a separate Chapter 353 redevelopment corporation (“RDC”) for that purpose. On May 1, 2001, the city of Raytown approved BHA’s redevelopment plan and contract, which provided that the property would not be subject to assessment or payment of general ad valo-rem taxes on improvements to the property for a period of ten years after the date the RDC should acquire the property, congruent with the terms of Section 353.110.1. The agreement also provided that the tax benefit would inure to a transferee of the property as long as the transferee complied with the provisions of the agreement. On December 18, 2001, the RDC acquired the property from BHA, triggering the acquisition date provision of the redevelopment plan, then promptly transferred it back to BHA.

At the time the redevelopment corporation acquired the property in December 2001, the County had already assessed the property, including its existing improvements, and billed BHA for 2001 taxes. BHA paid the taxes under protest and subsequently sued to recover for the amount of tax applicable to the improvements on the property. The trial court found for BHA, concluding that Section 353.110.1 prohibits the County from requiring payment of taxes on improvements to the land in the year of acquisition by the RDC, even though the taxes had already been assessed for the year. The County appeals.

Standard of Review

In a court-tried case, the trial court’s judgment will be affirmed on appeal unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

Jurisdiction

Preliminarily, we address our jurisdiction sua sponte. Riverside-Quindaro Bend Levee Dist. v. Intercontinental Eng’g Mfg. Corp., 121 S.W.3d 531, 533 (Mo. banc 2003). The Missouri Supreme Court has exclusive appellate jurisdiction over cases involving the construction of revenue laws of this state. Mo. Const. art. V, Section 3; Alumax Foils, Inc. v. City of St. Louis, 939 S.W.2d 907, 910 (Mo. banc 1997); Two Pershing Square, L.P. v. Boley, 981 S.W.2d 635, 637 (Mo.App.1998). A revenue law “of this state” means one “the proceeds of which are deposited in the state treasury.” Alumax Foils, 939 S.W.2d at 910; Two Pershing Square, 981 S.W.2d at 638. Because this case involves property taxes paid to the Jackson County treasury, not the state treasury, it does not involve the construction of a revenue law “of this state,” and appellate jurisdiction is proper in this court. Two Pershing Square, 981 S.W.2d at 638.

Discussion

The History and Purpose of Chapter S53 Redevelopment

Urban redevelopment under Chapter 353 has its roots in the new Constitution of 1945, which specifically allowed enactment of state and local laws to redevelop blighted property and authorized the use of eminent domain for that purpose. Mo. Const. art. VI, Section 21. The new constitution also specifically provided for partial relief from taxation to encourage redevelopment. Mo. Const, art. X, Section 7. From this constitutional authorization came first the statute authorizing the creation of Land Clearance for Redevelopment Authorities (LCRA’s), Section 99.300 et seq., and the far more uncommon Urban Redevelopment Corporations Law contained in Chapter 353. Atypically for its time, Chapter 353 looked not to public entities but to the private sector, induced by tax relief, as redeveloper of blighted areas. Redevelopment thus might not require direct public funds or even public bonds, and the public authority was permitted to lend its eminent domain power to private developers.

Despite its long history in Missouri law there has been little specific litigation and appellate analysis of the specifics of how tax abatement works under Chapter 353. We are advised by counsel, but without reference either to facts in the record or to legal authority, that the interpretation of when the abatement begins has been exactly opposite in Kansas City and St. Louis, with Kansas City delaying abatement until the year after the RDC’s acquisition, and St. Louis beginning abatement in the year of acquisition. Under Chapter 353, a blighted property which has been approved for private redevelopment by a private corporation receives a tax abatement for a specified number of years on the value of the improvements to the land. The property remains taxed, however, based upon the value of the land, exclusive of improvements such as buildings. In many cases, the year in which abatement begins may make little practical difference because there may be no existing improvements on the land, or any improvements that do exist may be so blighted as to have minimal assessed value. In this case, however, BHA had an existing office building of considerable value on the property, incurring about $80,000 per year in real estate taxes. Thus, whether the abatement begins in 2001 or 2002 is obviously of importance to the RDC, which seeks to use the 2001 tax savings immediately in the redevelopment, and to the County, which stands to lose substantial tax revenue.

We look to the legislature’s choice of language in the statute for the answer to the question whether abatement begins in the year of — or the year after — acquisition. The relevant portion of Section 353.110.1 reads as follows:

Once the requirements of this section have been complied with, the real property of urban redevelopment corporations acquired pursuant to this chapter shall not be subject to assessment or payment of general ad valorem taxes ... for a period not in excess of ten years after the date upon which such corporations become owners of such real property, except to such extent and in such amount as may be imposed upon such real property during such period measured solely by the amount of the assessed valuation of the land, exclusive of improvements....

I. Construction of Section 353.110.1

a. The “plain” language

In its first point on appeal, the County argues that the plain language of Section 353.110.1 requires delaying initial abatement until the next calendar year. In construing the statute, we seek to effectuate the legislature’s intent by applying the plain and ordinary meaning of statutory terms. Maudlin v. Lang, 867 S.W.2d 514, 516 (Mo. banc 1993). Furthermore, “significance and effect should, if possible, be attributed to every word, every phrase, sentence and part [of the statute], and words or phrases may be stricken out only in extreme cases.” State ex rel. Smith v. Atterbury, 364 Mo. 963, 270 S.W.2d 399, 404 (1954).

The County’s position, though we decline to adopt it, is better understood in light of the taxation process for real property in Missouri. The Missouri Supreme Court summarized that process in an opinion that merits extensive quotation:

The determination of the amount of tax liability that attaches to a particular parcel of real property consists of two processes: the assessment of the property and the levying of the tax.
Assessment is a process by which the assessor identifies property by parcel and owner, values it, classifies it[,] and lists it so that taxing authorities can apply their tax levies. [See Section 137.115.] Under [section 137.080], assessment is a continuing process “which commences on the first day of January.” The assessor has until May 31 of the tax year to submit the “assessor’s book” to the county governing body. [Section 137.245.] ...
The second part of the taxing process, the levy, is the method by which the specific amount of tax due becomes known. After the assessor submits the assessor’s book to the governing body of the county, the governing body of the county sets the annual tax levy rate.... [Section 137.055] requires the governing body to “fix the rate of taxes” after a public hearing “but not later than September twentieth of each year.”

Beatty v. State Tax Comm’n, 912 S.W.2d 492, 496-97 (Mo. banc 1995). The final step is payment, which is due on December 31 each year. Section 140.010. The County emphasizes the legal consequences to landowners of the first two parts of the process, as expressed in Beatty:

For purposes of ad valorem real property taxation, ownership of real property is determined on the first day of January.
“Every person owning or holding real property ... on the first day of January, including all such property purchased on that day, shall be hable for taxes thereon during the same calendar year.”
[Section 137.075.] Real property is listed and its use for tax classification purposes is determined as of January 1 of a tax year. [Section 137.115.1.] On January 1 of each tax year, the taxing authorities obtain an inchoate tax lien in the real property. [Section 137.085.2; Long v. City of Independence, 360 Mo. 620, 229 S.W.2d 686, 690 (1950).] The inchoate lien becomes a fixed encumbrance “as soon as the amount of taxes is determined by assessment and levy.” [Section 137.085.2.]

Beatty, 912 S.W.2d at 497.

Because Section 137.075 attaches tax liability to the owner of property as of January 1, the County argues, BHA became immutably liable for 2001 taxes, including taxes for the existing improvements on the property, on January 1, 2001. To find otherwise, says the County, would mean voiding the legal effect of the January 1, 2001, assessment, and voiding that assessment would contravene the plain meaning of Section 353.110.1 in that it abates taxes only “after” acquisition. In other words, the County argues that we should interpret “after” to mean the tax period (i.e., calendar year) after the date of acquisition. This, the County sees as fair because the acquisition here took place only a few weeks before the end of the year. However, the fairness argument cuts both ways: it would be equally unfair to deny an abatement until the following year to a redevelopment corporation who acquired property, for example, on the 2nd day of January, as it is to allow an abatement for property acquired December 18th. Thus, the County’s fairness argument fails to support a universally applicable construction of the statute, one that is equally “fair” in all circumstances.

More importantly, because the statute specifically uses the term “calendar year” in some places but not in the part relevant here, the County’s interpretation would require us to read the statute so that unlike terms have like meaning. The rule of construction is to the contrary: “When different terms are used in different subsections of a statute, it is presumed that the legislature intended the terms to have different meaning and effect.” Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 251-52 (Mo. banc 2003). In a portion of Section 353.110.1 not directly at issue in this case, the legislature directed that the taxes due on the land during the abatement period should be determined by the taxes payable on the land “during the calendar year preceding the calendar year during which the corporation acquired ti-tie.” (Emphasis added.) We presume that the legislature used different terms— “ten years” after the RDC acquires the property (used to establish the initiation and duration of the abatement) versus “calendar year ” (used to establish the taxes due on the land) — because it intended different things. The legislature could easily have expressed the interpretation sought by the County by stating that taxes should abate “for the ten calendar years” after the date of acquisition. But this the legislature did not do.

We think, furthermore, that BHA is correct that “after” must be read in conjunction with each prohibition in the statute, including the prohibition against making the owner subject to “payment.” Stripped to the bone, the relevant part of Section 358.110.1 states,

the real property of urban redevelopment corporations ... shall not be subject to assessment or payment of general ad valorem taxes ... after the date [of acquisition] ... except [as] ... measured solely by the amount of the assessed valuation of the land, exclusive of improvements!.]

(Emphasis added.) Stripped to the marrow, the statute states that an RDC shall not be subject to payment. Once the abatement period begins — after the date of acquisition — the statute plainly says the RDC shall not be subject to either assessment or payment of taxes on improvements to the property. The statute does not qualify “after” in any way; the statute neither requires nor promotes a period of delay before abatement begins. To find a requisite delay before abatement begins, we would have to add a qualification to “after” that the statute does not contain, and that the legislature showed, by not using “calendar year” in this part of the statute, that it did not intend. Although not strictly a canon of construction, courts avoid interpreting statutes to include qualifiers where “[s]uch an interpretation im-permissibly adds language to the statute.” Kincade v. Treasurer of State of Mo., 92 S.W.3d 310, 312 (Mo.App.2002).

The 1986 amendments to the statute reinforce the conclusion that “after” in the statute means “right after” rather than “after the conclusion of the current tax year.” In 1986, the legislature amended Section 353.110.1 to add the introductory clause “[o]nce the requirements of this law have been complied with” and the phrase “not in excess.” L.1986, H.B. No. 1327, Section A. The latter, “not in excess,” modifies the period of abatement to clarify it as a maximum, not a fixed period. The introductory clause, beginning with “once,” clarifies that abatement may not begin until all requirements of the section have been complied with, rather than beginning during the RDC’s process of meeting the section’s requirements. We recognize that in statutory construction, “undefined words are given their plain and ordinary meaning as found in the dictionary in order to ascertain the intent of lawmakers.” Asbury v. Lombardi, 846 S.W.2d 196, 201 (Mo. banc 1993). Use of the temporal “once” implies “as soon as, immediately, instantly.” The American Heritage College Dictionary 953 (3d Ed.1993). We apply this plain and ordinary meaning to “once” in conjunction with “after” when construing Section 353.110.1. When the legislature amended the statute to specify that abatement may begin once “the requirements of this section have been complied with,” it did not further qualify the beginning of the abatement period by indicating a delay until the next tax year. Therefore, the 1986 amendment to the statute reinforces our interpretation that abatement begins immediately after the RDC acquires the property.

That is not to say the statute does not allow a delay before abatement begins. Section 353.110.1 says an RDC “shall not be subject to assessment or payment.” Applying the plain and ordinary meaning of the terms employed in the statute, we note that “subject to” means “being under the power or authority of another.” The American Heritage College Dictionary at 1352. Therefore, “shall not be subject to” means an RDC cannot be compelled, under the taxing entity’s power or authority, to pay the tax on improvements. But the statute does not say an RDC “shall not pay” the tax. It says they shall not be “subject to ... payment.” The statute does not prohibit payment; rather, it prohibits the taxing authority from compelling payment. We therefore reject BHA’s argument that no payment of taxes is permitted after the RDC’s acquisition.

Furthermore, Section 353.110.1 bars the taxing authority compelling payment for a “period” of ten years. We must not read the statute so as to render any words as mere surplus; “we must presume that each word of a statute has separate and individual meaning[ ].” State v. Bouse, 150 S.W.3d 326, 335 (Mo.App.2004). The statute abates taxes, not for ten years, but for “a period not in excess of ten years.” A “period” is an “interval of time.” The American Heritage College Dictionary at 1016. And an “interval” is “the amount of time between two specified instants, events, or states.” The American Heritage College Dictionary at 711. Under the statute, the interval can begin no sooner than the RDC meets all the statutory requirements, and ends no more than ten years after it begins. Section 353.110.1.

The County argues that the abatement period must conform to the calendar year tax assessment and payment schedule, because real estate taxes cannot be prorated in Missouri. The County cites no authority for the proposition that Missouri law disallows abatement of property taxes under these circumstances. The only authority we find, Collector of Revenue Within and for the City of St. Louis v. Ford Motor Co., 158 F.2d 354, 358 (8th Cir.1946), likewise cites no Missouri law for that conclusion. We find one Missouri case, with no precedential value, that hints to the contrary. St. Louis County v. Frank, 916 S.W.2d 783 (Mo. banc 1996) (per curiam summary order). But we decline to speculate about the possibility of proration where neither party has argued for it.

b. Cases construing other tax abatement laws

“Statutes involving the assessment, levy[,] and payment of taxes should be construed in context with each other.” Lane v. Lensmeyer, 158 S.W.3d 218, 226 (Mo. banc 2005). The trial court was guided by 20th & Main Redevelopment Partnership v. Kelley, 774 S.W.2d 139 (Mo. banc 1989), which construed the Land Clearance for Redevelopment Authority Act (the “LCRA”), Section 99.300-.715. Like Chapter 353, the LCRA fosters redevelopment of blighted areas by, among other things, facilitating tax abatement for persons rehabilitating designated property. Id. In 20th & Main, the Missouri Supreme Court found that the redeveloper was entitled to the assessment of its property at the value prior to the rehabilitation, even though the developer had not applied for the required tax-abatement certificate until after 90 percent of the rehabilitation was complete. 774 S.W.2d at 140-41. In holding that the taxes should be fixed at the pre-rehabilitation value, the Court noted, “The goal of the LCRA is to offer tax abatement in return for rehabilitation of blighted areas.” Id. at 141.

We think Chapter 353 likewise aims to offer tax abatement in return for rehabilitation of blighted areas, and Section 353.110.1 states that the abatement should begin once the RDC meets the statutory requirements and acquires the property. Requiring an RDC to pay taxes on the improvements to land in the year of acquisition would counter the policy of the statute, because the RDC would face the dual financial burden of both the tax and the redevelopment cost. The legislature plainly intended an RDC to offset its redevelopment cost with the tax abatement.

As to the obligation to pay a tax because liability has attached through assessment, we think State ex rel Smith v. City of Springfield illuminating, although it deals not with an RDC but with a government entity purchasing real property. 375 S.W.2d 84 (Mo. banc 1964). The Springfield court construed Article X, Section 6 of the Missouri Constitution and reaffirmed the principle that a government entity’s tax exemption takes effect immediately upon acquisition of the real estate, notwithstanding the assessment and levy that concluded earlier in the same year. Id. at 90. Springfield resulted in the taxing authority not receiving the revenue it anticipated at assessment, Id. at 92, and we think the County’s anticipated taxes here likewise must succumb to the legislature’s policy preference for curing blight.

The County proposes that Section 137.085.1 intimates the proper timing of the abatement in Chapter 353. Section 137.085.1 reads in relevant part, “Government lands entered or located on prior to the first day of January shall be taxable for that year and every year thereafter” The County cites no case, and we find none, interpreting whether “that year” refers to the year of acquisition, or the year of the first day of January before which the acquisition takes place. In the absence of cases construing Section 137.085, that statute does not guide us in construing Section 353.110.1. We will not speculate as to the construction of a statute not at issue here. The County’s first point is denied.

II. Construing tax exemption statutes against the taxpayer

The County argues, citing State ex rel. Union Elec. Co. v. Goldberg, 578 S.W.2d 921, 923 (Mo. banc 1979), that a statute providing a tax exemption should be strictly construed against the taxpayer claiming the exemption. Although this accurately states the law, Goldberg also clarifies that construing a tax exemption statute against the taxpayer does not mean the taxpayer must lose in any dispute with the taxing authority: “While [construing tax exemptions against the taxpayer] is an accepted canon of statutory interpretation, it should not be applied to force a conclusion that the legislature intended something other than what is expressed in the plain language of the statute.” Id. It is well settled that strict construction “does not mean that whenever a controversy is or can be raised of the meaning of a statute, ambiguity occurs, which immediately and inevitably determines the interpretation of the statute. Its proper office is to help to solve ambiguities, not to compel an immediate surrender to them.” Meyering v. Miller, 330 Mo. 885, 51 S.W.2d 65, 68 (1932) (quoting Citizens’ Bank of La. v. Parker, 192 U.S. 73, 85-86, 24 S.Ct. 181, 48 L.Ed. 346 (1904)). Construed strictly, Section 353.110.1 says the RDC shall not be subject to paying taxes on improvements after acquiring the redevelopment property. The words in the statute have plain meaning. We cannot construe the words in the statute against the taxpayer in contravention of their plain meaning. Point denied.

III. The constitutional viability of abating taxes in the year of acquisition

In its third point, the County argues that abating taxes in the year of acquisition would extinguish an indebtedness to the county, violating Article III, Section 39 of the Missouri Constitution. The County did not raise this argument at trial. “Arguments not presented to the court below are not preserved for appeal.” Jones Co. Custom Homes of Tenn., Inc. v. Commerce Bank, 116 S.W.3d 653, 659 (Mo.App.2003). Point denied.

The judgment is affirmed.

ROBERT G. ULRICH and JOSEPH M. ELLIS, Judges, concur.

      . All statutory references are to Mo.Rev.Stat. (2000), unless otherwise indicated.

      . For a thorough and interesting history, see Gary H. Feder, Legal Outlook for Chapter 353 Development Projects in the 1990’s, 48 J. Mo. Bar 351 (1992).

      . Chapter 353 remains rare in its scope and approach to redevelopment of blighted property. Richard A. King, The Continuing Battle to Curb Urban Blight and the Use of Economic Activity Taxes, 51 J. Mo. Bar 332, (1995). Only Illinois has a statute, enacted in 2005, with language substantially similar to Chapter 353. 315 III. Comp. Stat. Ann. 20/15-5 (2005). Chapter 353 serves as part of "one of the broadest palettes of community development tools in the country.” Joseph G. Lauber, Public-Private Partnership in Community Development: Applying Constitutional Standards for Implementing the Missouri Community Improvement District Act, 59 J. Mo. Bar 80 (2003).

      . When enacted, Chapter 353 was limited to cities with a population of at least 350,000, but that restriction eroded through amendments, so that the statute currently imposes no size restriction.


text:
    STATE of Missouri, Respondent, v. Charles W. BURTON, Appellant.
    No. WD 64643.
    Missouri Court of Appeals, Western District.
    Oct. 11, 2005.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Alison K. Brown, Asst. Atty. Gen., Jefferson City, MO, for Respondent.
    Kent Denzel, Assistant Public Defender, Columbia, MO, for Appellant.
    Before HOWARD, P.J., and SMART and NEWTON, JJ.
   Order

PER CURIAM.

Appellant, Charles Burton, was convicted of driving while intoxicated, and he now appeals. Burton claims that the trial court erred in failing to admonish the jury, sua sponte, to disregard the prosecutor’s statement during closing argument of alleged facts outside the record. Having reviewed the parties’ arguments and record on appeal, we find no plain error. A written opinion would serve no jurisprudential purpose. However, we have provided the parties with a memorandum setting forth the reasons for our decision.

Affirmed. Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. Andrew JACKSON, Defendant/Appellant.
    No. ED 83789.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 11, 2005.
    N. Scott Rosenblum, Clayton, MO, Stephen R. Welby, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shawn L. Naccarato, Asst. Atty. Gen., Jefferson City, MO, for respondent.

      Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY and BOOKER T. SHAW, JJ.
   ORDER

PER CURIAM.

Defendant Andrew Jackson appeals the judgment entered upon his convictions for burglary in the first degree, Section 569.160 RSMo.2000, felony stealing, Section 570.030, and misdemeanor stealing, Section 570.030. Defendant argues three points on appeal. First, Defendant alleges there was insufficient evidence to convict him of the burglary and felony stealing charges. Defendant next claims the trial court abused its discretion by denying Defendant’s motion for mistrial based on the prosecutor’s alleged comments on Defendant’s failure to testify and suggestion that Defendant needed to explain his whereabouts at the time of crimes. Finally, Defendant alleges the trial court abused its discretion by denying Defendant’s motion to sever the burglary and felony stealing charges from the misdemeanor stealing charge. Finding no error, we affirm.

We have reviewed the parties’ briefs and the record on appeal. An opinion reciting the detailed facts and restating the principles of law would have no precedential value. However, the parties have been provided with a memorandum, for their information only, setting forth the reasons for this order.

We affirm the trial court’s judgment pursuant to Rule 30.25(b).

      . All further statutory references are to RSMo.2000.


author: ORDER PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Reginald T. GREEN, Appellant.
    No. ED 84916.
    Missouri Court of Appeals, Eastern District, Division Two.
    Oct. 11, 2005.
    Lisa M. Stroup, St. Louis, MO, for appellant.
    Deborah Daniels, Daniel N. McPherson, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER III, J„ and KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Reginald Green (hereinafter, “Defendant”) appeals from the trial court’s judgment entered after a jury found him guilty of robbery in the first degree, Section 569.303 RSMo (2000), driving while his license was suspended or revoked, Section 302.321 RSMo (2000), and endangering the welfare of a child, Section 568.050 RSMo (2000). Defendant was found to be a prior and persistent felony offender and sentenced to fifteen years imprisonment. Defendant raises three points on appeal claiming the trial court erred in: (1) refusing to proffer an instruction to the jury based upon duress; (2) failing to strike sua sponte one member of the venirepanel; and (3) failing to intervene sua sponte during the State’s examination of Defendant.

We have reviewed the briefs of the parties and the record on appeal. An extended opinion would have no precedential value. We have, however, provided a memorandum opinion for the use of the parties only setting forth the reasons for our decision.

The judgment is affirmed pursuant to Rule 30.25(b).


author: GEORGE W. DRAPER III, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Jerimiah EDWARDS, Appellant.
    No. ED 84227.
    Missouri Court of Appeals, Eastern District, Division Five.
    Oct. 11, 2005.

      Kristina Starke, St. Louis, MO, for appellant.
    Deborah Daniels, Jefferson City, MO, for respondent.
   GEORGE W. DRAPER III, Chief Judge.

Jerimiah Edwards (hereinafter, “Defendant”) appeals from the judgment entered after a jury found him guilty of murder in the second degree, Section 565.020 RSMo (2000), and armed criminal action, Section 571.015 RSMo (2000). Following the penalty phase of his trial, the trial court sentenced Defendant to twenty-five years imprisonment. Defendant raises three allegations of error. He claims the trial court erred in: (1) denying his request to testify during the penalty phase of trial; (2) allowing improper questioning of Defendant; and (3) allowing the prosecution to impeach Defendant’s testimony at trial with prior inconsistent statements from a police report. We affirm in part, and reverse and remand, in part.

We have reviewed the briefs and record on appeal. An extended discussion of Defendant’s second and third points on appeal in this opinion would have no prece-dential value. Accordingly, these points on appeal are affirmed pursuant to Rule 30.25(b).

Defendant’s remaining point on appeal claims the trial court erred in denying his request to testify during the penalty phase of his trial because this ruling violated his fundamental constitutional rights. Defendant argues he was denied due process of law by restricting his ability to testify. Further, he maintains that only he could waive his right to testify and his right may not be denied arbitrarily by the trial court. Since Defendant does not challenge the sufficiency of the evidence nor does the issue raised on appeal relate to the underlying facts of the guilty verdict, our recitation of the facts will be limited to events surrounding the penalty phase of the trial.

Following the announcement of the jury’s verdict, the trial court thanked the jury for its service and prepared to dismiss it. However, trial counsel noted that due to a recent change in Section 557.036 RSMo (2004), the jury must determine sentencing in a penalty phase. The trial court then told the jury its job was not finished. Counsel conferred with the trial court at the bench regarding the presentation of evidence in the penalty phase. Defense counsel merely shook his head when asked if he was going to present any evidence. After conferring with the jury, the trial court recessed until the following day.

Immediately after reading the jury instructions the following morning, Defendant’s counsel approached the bench to advise the trial court Defendant wished to testify. The trial court denied Defendant’s request, stating that it was too late because the trial court “should have been informed before we came out here, and I understand we just arrived here this morning” and that the jury had already been instructed.

The issue of a criminal defendant attempting to assert the right to testify in a non-capital penalty phase has not been clarified under Missouri law. Yet, it is clear the right to testify on one’s own behalf is a fundamental right which may only be waived by the individual criminal defendant. Simmons v. State, 100 S.W.3d 143, 146 (Mo.App. E.D.2003) (citing Kuhlenberg v. State, 54 S.W.3d 705, 708 (Mo.App. E.D.2001)).

“It is well established that the purpose of having a separate penalty phase in a capital trial is to permit the presentation of a broad range of evidence that is relevant to punishment but irrelevant or inflammatory as to guilt.” State v. Ervin, 979 S.W.2d 149, 158 (Mo. banc 1998). Either evidence supporting or mitigating a criminal defendant’s punishment may be presented during the penalty phase. Section 557.036.3 RSMo (2004). This evidence assists the authority recommending the sentence, usually the jury, in deciding upon an “individualized determination of an appropriate punishment.” State v. Nicklasson, 967 S.W.2d 596, 618 (Mo. banc 1998).

In this case, Defendant testified in the guilt phase of his trial and requested through his counsel to testify during the penalty phase. It is unclear as to when defense counsel knew Defendant wanted to testify in the penalty phase, but Defendant’s request was submitted to the trial court prior to any evidence or statements being made to the jury in that penalty phase.

“[W]e are ... presented with an issue regarding a criminal defendant’s right to testify that can ... be avoided in ... criminal case[s] by a simple record .... ” Slater v. State, 147 S.W.3d 97, 99 (Mo.App. W.D.2004). A trial court has no duty to inquire from a criminal defendant who remains silent throughout the proceedings regarding whether he or she will testify. However, the more prudent course of action is for the trial court to voir dire the defendant, on the record, and outside the presence of the jury. The trial court may advise the defendant of the right to testify, obtain an acknowledgment that those rights are understood, and any decision regarding whether or not to testify is agreed to by the defendant. Allen v. State, 50 S.W.3d 323, 327 (Mo.App. W.D. 2001); 28 MISSOURI CRIMINAL Pbactice Handbook Section 23.7.1 (2005); See also State v. Tokar, 918 S.W.2d 753, 760 (Mo. banc 1996) (inquiry made of defendant regarding waiver of his right to testify during the penalty phase of a capital case).

“The decision to testify solely rests with the defendant....” Rousan v. State, 48 S.W.3d 576, 585 (Mo. banc 2001); Howard v. State, 59 S.W.3d 586, 588-89 (Mo.App. E.D.2001); Slater v. State, 147 S.W.3d at 101. Only the defendant is empowered to waive this fundamental constitutional guarantee. Howard, 59 S.W.3d at 589. In this case, there is evidence Defendant wished to assert his right. We believe it is error for a trial court to be informed of a criminal defendant’s desire to testify and not allow the criminal defendant to take the stand even at this stage of the proceedings.

Accordingly, we affirm Defendant’s allegations of error in the guilt phase of his trial, and we reverse and remand for a new penalty phase.

ROBERT G. DOWD, JR., J„ and SHERRI B. SULLIVAN, J„ concur.

      . Just as witnesses are instructed to verbally respond to questions, so should counsel. We now must assume from the record and subsequent actions therein that defense counsel shook his head in a "no” motion.


author: GLENN A. NORTON, Chief Judge.

text:
    Rex YOUNG, Claimant/Appellant, v. HISTORIC LEMP BREWERY, L.L.C. and Division of Employment Security, Respondents.
    No. ED 86690.
    Missouri Court of Appeals, Eastern District, Division Five.
    Oct. 11, 2005.
    Cynthia A. Quetsch, Jefferson City, MO, for respondent.
    Rex Young, St. Louis, MO, pro se.
    Historic Lemp Brewery, L.L.C., St. Louis, MO, pro se.
   GLENN A. NORTON, Chief Judge.

Rex Young (Claimant) appeals from the decision of the Labor and Industrial Relations Commission dismissing his application for review as untimely. Because this Court is without jurisdiction, his appeal is dismissed.

A deputy from the Division of Employment Security determined that Claimant was disqualified from receiving unemployment benefits because he was discharged from work for aggravated misconduct connected with his work. Claimant appealed to the Appeals Tribunal, which affirmed the deputy’s determination on May 11, 2005. Claimant filed an application for review with the Commission on June 13, 2005. The Commission dismissed Claimant’s application for review on June 29, 2005. Claimant filed a notice of appeal to this Court on July 30, 2005.

The Commission’s decision becomes final ten days after it is mailed to the parties. Section 288.200.2, RSMo 2000. A claimant then has twenty days to appeal the Commission’s final decision. Section 288.210, RSMo 2000. Here, the Secretary for the Commission mailed its decision to Claimant on June 29, 2005. The decision became final ten days later and Claimant’s notice of appeal was due on July 29, 2005. Section 288.200.2; Section 288.210. Claimant filed his notice of appeal by facsimile on July 30, 2005, which is untimely.

This Court has a duty to examine its jurisdiction sua sponte. Crowden v. General Sign Co., 133 S.W.3d 562, 562 (Mo.App. E.D.2004). We issued an order directing Claimant to show cause why his appeal should not be dismissed. Claimant has not filed a response to the order. Section 288.210 makes no provision for late filing of a notice of appeal. Phillips v. Clean-Tech, 34 S.W.3d 854, 855 (Mo.App. E.D.2000). An untimely notice of appeal in an unemployment case deprives this Court of jurisdiction to entertain the appeal. Loeffler v. Shop N Save, 121 S.W.3d 261, 261 (Mo.App.E.D.2003).

In addition, Claimant’s application for review to the Commission was dismissed as untimely. Failure to file a timely application for review divests the Commission of jurisdiction. Brown v. MOCAP, Inc., 105 S.W.3d 854, 855 (Mo.App. E.D.2003). Because our jurisdiction is derived from that of the Commission, if it does not have jurisdiction, then neither do we. Id.

The Claimant’s appeal is dismissed for lack of jurisdiction.

KATHIANNE KNAUP CRANE, and BOOKER T. SHAW, JJ., concur.


author: LAWRENCE E. MOONEY, Presiding Judge.

text:
    STATE ex rel. DIRECTOR OF REVENUE, State of Missouri, Relator, v. Honorable David H. ASH, Associate Circuit Court of Pike County, Missouri, 45th Judicial Circuit, Respondent.
    No. ED 86800.
    Missouri Court of Appeals, Eastern District, Writ Division Two.
    Oct. 11, 2005.
    Jeremiah W. (Jay) Nixon, Atty. Gen., James A. Chenault, III, Asst. Atty. Gen., Jefferson City, MO, for relator.
    Candy L. Ries, Louisiana, MO, for respondent.
   LAWRENCE E. MOONEY, Presiding Judge.

Relator Director of Revenue filed a petition for a writ of prohibition to require the respondent judge to recall his order granting Casey Price limited driving privileges pursuant to Section 302.809 RSMo.2000. Because we find the judge exceeded his jurisdiction in granting limited driving privileges to Price, our preliminary order in prohibition is made absolute.

Facts

Price was convicted of felony driving while intoxicated (DWI) in 1998. As a result, the Director of Revenue denied Price’s driving privilege for ten years, effective September 7, 1998. Price filed a petition seeking limited driving privileges and attached a copy of his Missouri Driver Record to the petition. The respondent denied the Director’s motion to dismiss Price’s petition and entered an order granting Price limited driving privileges on August 9, 2005.

The Director filed a petition for a writ of prohibition and suggestions in support. This Court entered a preliminary order in prohibition and directed the respondent to file his answer to the petition in prohibition. Respondent has not done so and is in default.

Analysis

A writ of prohibition is not issued as a matter of right; rather, whether a writ should be issued in a particular case is a question left to the sound discretion of the court in which a petition has been filed. State ex rel. Baldwin v. Dandurand, 785 S.W.2d 547, 549 (Mo. banc 1990); State ex rel. Boyle v. Sutherland, 77 S.W.3d 736, 737 (Mo.App. E.D.2002). “[Pjrohibition will lie only where necessary to prevent a usurpation of judicial power, to remedy an excess of jurisdiction, or to prevent an absolute irreparable harm to a party.” State ex rel. Director of Revenue, State of Mo. v. Gaertner, 32 S.W.3d 564, 566 (Mo. banc 2000); State ex rel. Noranda Aluminum, Inc. v. Rains, 706 S.W.2d 861, 862-63 (Mo. banc 1986). The instant case falls in the second category.

The Director claims the respondent judge exceeded his jurisdiction. The Director argues the trial court lacked jurisdiction to grant limited driving privileges because Price was statutorily ineligible for such privileges, pursuant to Section 302.309.3(5)(b), as a result of his felony DWI conviction. We agree.

A driver is permitted to petition for limited driving privileges if (1) he is ineligible to obtain an operator’s license for ten years pursuant to Section 302.060(9); (2) he has served three years of the ineligibility period without conviction for any drug- or alcohol-related offense; (3) and he is not otherwise ineligible for limited driving privileges under this section, which includes Section 302.309.3(5)(b). Section 302.309.3(6)(a); Hagan v. Director of Revenue, 968 S.W.2d 704, 706 (Mo. banc 1998). Section 302.309.3(5)(b) provides an independent basis of ineligibility in that no person may receive limited driving privileges if his license was suspended or revoked for conviction of a felony involving use of a motor vehicle. Hagan, 968 S.W.2d at 705-07; Hicks v. Director of Revenue, 59 S.W.3d 927, 929-30 (Mo.App. E.D.2001).

A trial court lacks jurisdiction to grant limited driving privileges to one who is statutorily ineligible. Hicks, 59 S.W.3d at 930, citing State ex rel. Director of Revenue v. Mobley, 49 S.W.3d 178, 180 (Mo. banc 2001). If the court lacks subject-matter jurisdiction, it may take no action other than to dismiss the petition. Williams v. Director of Revenue, 69 S.W.3d 919, 920 (Mo.App. E.D.2002); Conrad v. Director of Revenue, 20 S.W.3d 607, 609 (Mo.App. E.D.2000).

Here, the Department of Revenue records attached to Price’s petition and to the Director’s motion to dismiss unequivocally show that Price was convicted of a felony that involved use of a motor vehicle, specifically felony DWI. Price is statutorily ineligible for limited driving privileges because of his felony conviction. Hagan, 968 S.W.2d at 706-07; Williams, 69 S.W.3d at 922. Consequently, the circuit court lacked subject-matter jurisdiction to grant Price such privileges, and it should not have taken any action other than to exercise its power to dismiss Price’s petition. Williams, 69 S.W.3d at 922.

The circuit court acted in excess of its jurisdiction when it ordered the Director to grant Price limited driving privileges. The preliminary order in prohibition is made absolute.

CLIFFORD H. AHRENS and BOOKER T. SHAW, JJ., concur.

      . All statutory references are to RSMo.2000.


author: JEFFREY W. BATES, Chief Judge.

text:
    Ronald L. BACON and Becky Ann Bacon, Plaintiffs-Respondents, v. Michael J. UHL, Sr. and Bonnie M. Uhl, Defendants-Appellants.
    No. 26718.
    Missouri Court of Appeals, Southern District, Division Two.
    Oct. 12, 2005.

      Barbara R. VanTine, Lake Ozark, MO, for Appellants.
    Clarence W. Hawk, Osage Beach, MO, for Respondents.
   JEFFREY W. BATES, Chief Judge.

Ronald and Becky Bacon (“the Bacons”) brought an action to recover on a promissory note after the obligors, Michael and Bonnie Uhl (“the Uhls”), stopped making payments and went into default. The trial court entered judgment in favor of the Bacons for approximately $269,000. The Uhls have appealed. They contend the trial court erred by: (1) failing to offset the value of certain stock, which was pledged as collateral for the loan, against the balance due on the note; (2) refusing to allow the Uhls to make an offer of proof regarding their expert’s testimony about the stock’s value; and (3) awarding attorney’s fees to the Bacons without requiring proof that the sum requested was reasonable. Finding no merit in any of these contentions, we affirm.

I. Facts and Procedural History

In 1990, the Bacons established a real estate business in Osage Beach, Missouri. The business was incorporated under the name of Ron Bacon Realty, Inc. (“RBRI”). The Bacons were RBRI’s only shareholders and directors. RBRI’s business operations were conducted in an office building located in Osage Beach. The Bacons owned the land and the building individually-

In May 1996, the Bacons sold their real estate business to the Uhls. The Uhls purchased the office building and real estate for $350,000 on a contract for deed. To finance the real estate purchase, the Uhls executed a promissory note (“the real estate note”) made payable to the Bacons in the amount of $350,000. The Uhls also purchased all of the Bacons’ shares of stock in RBRI for $250,000. To finance the stock purchase, the Uhls executed a promissory note (“the stock note”) made payable to the Bacons in the amount of $250,000. The stock note obligated the Uhls to make a $2,389.14 installment payment on the first day of each month for 15 years. The interest rate on the stock note was 8% per annum. Nonpayment for 60 days constituted an act of default and triggered an acceleration clause, which made the remaining balance of the stock note due and payable. Upon default, the stock note obligated the Uhls to pay reasonable attorney’s fees and all costs of collection. The stock note provided that it was to be secured “by all outstanding shares of stock in Ron Bacon Realty, Inc.” To that end, the Uhls executed a separate agreement which pledged the RBRI stock as collateral to secure payment of the stock note. The Bacons assigned their shares of RBRI stock to the Uhls, but the Bacons retained physical possession of the stock certificates pursuant to the terms of the stock pledge agreement.

From May 1996 through August 2001, the Uhls made all required payments on the real estate note and the stock note. That changed in September 2001 when the Uhls stopped making payments on the stock note. In October 2001, the Uhls also stopped making payments on the real estate note. They closed the real estate business on December 31, 2001. At some point not disclosed by the record, RBRI was administratively dissolved.

When the Bacons repossessed the RBRI office building and land in January 2002, they found some personal property there that had been abandoned by the Uhls. The Bacons kept the property, but they had it appraised so they could credit the value of the property against the amount due on the stock note. The appraised value of the Uhls’ personal property was $3,226. After repossessing the RBRI premises, the Bacons went back into the real estate business themselves. They operated as a sole proprietorship until February 20, 2002. At that point, they incorporated a new Missouri corporation called Ron Bacon Real Estate, Incorporated. The Bacons continued to keep possession of the old RBRI stock certificates, which were not sold, reissued in the Bacons’ names or modified in any manner.

After the Uhls had been in default on the stock note for more than 60 days, the Bacons turned the note over to an attorney for collection. The Bacons’ attorney presented the Uhls with a notice of default and made demand for payment. Thereafter, the Bacons filed an action to recover on the stock note. The Bacons’ petition alleged that they were entitled to recover the outstanding balance of the stock note, costs of collection and reasonable attorney’s fees. In the Uhls’ answer to the petition, they denied that they owed anything because the value of the RBRI stock, which was in the Bacons’ possession, exceeded the amount of the Uhls’ remaining indebtedness on the stock note. Some months later, the Uhls filed a counterclaim against the Bacons. The counterclaim alleged that: (1) the Bacons could not pursue their action to collect the stock note because they claimed ownership of the RBRI stock that had been pledged as collateral to secure the loan; (2) the Bacons tortiously interfered with the Uhls’ business; (3) the Bacons breached their contract with the Uhls; and (4) the Bacons converted the Uhls’ property.

In the course of the lawsuit, considerable discovery was conducted by the Ba-cons’ attorney on the issues raised by the Uhls’ answer and counterclaims. Several depositions were taken, and paper discovery in the form of interrogatories, requests for production and requests for admissions were propounded. The Uhls also filed a motion for summary judgment, which required the Bacons to respond. The trial court ultimately denied the motion.

On June 2, 2004, the court set the case for a bench trial commencing on September 14-15, 2004. The Bacons’ initial discovery requests to the Uhls included a standard interrogatory asking the Uhls to disclose the identity of any expert whom they expected to call as a witness at trial. None was identified. Over one month pri- or to trial, the Bacons’ attorney sent out a formal request asking the Uhls to supplement their discovery responses. On September 9, 2004, the Uhls’ attorney faxed a letter to the Bacons’ attorney disclosing, for the first time, the identity of an expert. The letter advised the Bacons that the Uhls intended to call an expert witness to testify about the value of the RBRI stock. The expert identified in the fax was Larry Weber, a certified public accountant from St. Louis, Missouri.

On September 14th, the trial commenced as scheduled. All of the Uhls’ counterclaims had been dismissed without prejudice by that time, but the Uhls still contended that they owed nothing on the stock note because the RBRI stock was worth more than what they owed on the stock note. Before the presentation of evidence, the Bacons moved to suppress Weber’s testimony because the Uhls had not disclosed their expert’s identity in a timely fashion. The court took the matter under advisement for a later ruling.

In the Bacons’ case-in-chief, they established their prima facie case by: (1) having the stock note admitted in evidence; (2) introducing a stipulation by the Uhls that they signed this document; and (3) having Mr. Bacon testify that the unpaid principal balance of the stock note on October 1, 2001, was $192,566.26. An amortization schedule for a $250,000 note at 8% interest was admitted in evidence to assist the court in determining the principal and interest due on the stock note as of the trial date. Collection costs in the case totaled $819.65 and were comprised of a $150.00 filing fee and $669.65 in deposition costs. Mr. Bacon testified that he and his wife had incurred attorney’s fees totaling $29,793. They had paid $19,642 of the amount due, but they still owed $10,151 for services provided through September 13, 2004. They had not yet been billed for their attorney’s services during the trial itself.

The remainder of the evidence adduced in the Bacons’ case-in-chief addressed the issue of what credits, if any, the Uhls should receive in determining the amount owed on the stock note. Mr. Bacon testified that when he and his wife repossessed the office building, RBRI had no assets other than the abandoned personal property located therein. The Bacons agreed that the value of this property should be offset against the unpaid balance on the stock note. In Mr. Bacon’s opinion, the RBRI stock which the Bacons held as collateral for the stock note was worthless. Nevertheless, Mr. Bacon asked the court to determine that the Bacons were the legal owners of Uhls’ stock certificates, which had been pledged as collateral to secure the stock note. Although the stock had no value, ownership of it would permit the Bacons to claim a $1,300 real estate commission that was being held in escrow pending the outcome of an arbitration proceeding.

The Bacons also presented admissions from the deposition of Michael Uhl. Mr. Uhl admitted that he nearly lost the business in 1996 after he and his wife first acquired RBRI. The year 2000 also was bad for RBRI, and business got even worse after September 11, 2001. This latter downturn in business is what prevented the Uhls from making timely payments on the stock note. RBRI was operating at a loss in 2001, and the Uhls had to close the business because they weren’t making any sales. They were unable to obtain a bank loan to refinance the stock note because RBRI had no assets to secure such a loan. The Uhls were unable to secure a personal loan for the same reason.

In the Uhls’ case-in-chief, Mr. Uhl was called as a witness. He testified that the RBRI stock was worth $400,000 when the business closed its doors on December 31, 2001. On cross-examination, Mr. Uhl conceded that RBRI’s tax returns showed it made a profit of $14,888 in 1999 and $34,000 in 2000. The company lost $11,330 in 2001. Mr. Uhl also conceded that, when asked during discovery to provide any documents reflecting the value of the RBRI stock, he produced only RBRI’s 2001 tax return. This document confirmed that RBRI lost over $11,000 in 2001. The personal property that RBRI owned that year was only worth $3,900. During the Uhls’ case-in-chief, they made no attempt to challenge the amount of attorney’s fees being requested by the Bacons.

At the close of the Uhls’ case, the trial court took up the issue of whether Weber should be permitted to testify. The Ba-cons objected on the ground that they had asked the Uhls to identify their experts in discovery, and Weber’s name was not disclosed until approximately four days before trial. The Uhls had failed to disclose Weber’s name even after the Bacons made a formal request for supplemental discovery responses on August 5, 2004. The trial court sustained the objection on the ground that Weber had not been timely disclosed as an expert witness. The Uhls then asked to make an offer of proof concerning the testimony they had intended to elicit from Weber. They asserted that Weber’s testimony would prove RBRI’s stock was worth about $270,000 as of December 31, 2001. The trial court refused the offer of proof.

In November 2004, the court entered an amended judgment in favor of the Bacons. After giving the Uhls a $3,900 credit for the value of the personal property they abandoned on December 31, 2001, the court computed the unpaid principal and interest due on the stock note as of September 14, 2004, and entered judgment for the Bacons on the stock note in the amount of $237,528.94. The court decided the RBRI stock was worthless. Legal ownership of these shares was awarded to the Bacons. The court ruled that the Ba-cons’ ownership of the stock vested upon entry of the judgment; prior to that time, they merely had physical possession of the stock certificates. The court also awarded the Bacons the sum of $31,605 for attorney’s fees incurred through September 16, 2004, which the court found to be fair and reasonable. Finally, the court determined the Bacons had incurred $819.65 in collection costs, which were taxed as court costs against the Uhls. This appeal followed.

II. Standard of Review

In this court-tried case, our review is governed by Rule 84.13(d). We must affirm the trial court’s judgment unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Johnston v. Shoults, 160 S.W.3d 440, 441 (Mo.App.2005). The trial court’s judgment is presumed correct, and the Uhls have the burden of proving it erroneous. Surrey Condominium Ass’n, Inc. v. Webb, 163 S.W.3d 531, 535 (Mo.App.2005). “[A]n appellate court should exercise the power to set aside a judgment on the ground that it is against the weight of the evidence with caution and a firm belief that it was wrong.” Lee v. Hiler, 141 S.W.3d 517, 525 (Mo.App.2004). When we evaluate the weight of the evidence, we mean “its weight in probative value, not the quantity or amount of evidence.” Id.

On appeal, we review the evidence and all reasonable inferences in the light most favorable to the judgment and disregard all contrary evidence and inferences. City of Gainesville v. Morrison Fertilizer, Inc., 158 S.W.3d 872, 874 (Mo.App.2005). We defer to the trial judge’s superior opportunity to assess the witnesses’ credibility. Harris v. Lynch, 940 S.W.2d 42, 45 (Mo.App.1997). “Judging credibility and assigning weight to evidence and testimony are matters for the trial court, which is free to believe none, part, or all of the testimony of any witnesses.” Savannah Place, Ltd. v. Heidelberg, 122 S.W.3d 74, 86 (Mo.App.2003).

III. Discussion and Decision

In the Uhls’ first point, they argue that the trial court’s judgment is against the weight of the evidence because the court incorrectly determined ownership of the RBRI stock and failed to take the value of the stock into account in determining the amount the Uhls owed on the stock note. Neither argument has any merit.

The first prong of the Uhls’ argument demonstrates a basic misunderstanding of the clear legal distinction between a share of stock and a stock certificate. A share of stock is a unit of interest in a corporation and is the actual property of the shareholder. Vandivort v. Dodds Truck Line, Inc., 444 S.W.2d 229, 230 n. 1 (Mo.App.1969). A stock certificate, on the other hand, is merely tangible evidence of title to shares of stock. Id. As best we comprehend the Uhls’ argument, they contend the Bacons were always the legal owners of the stock because they always possessed the stock certificates. That is simply not correct. When the Uhls executed the stock note, they contemporaneously executed the stock pledge agreement. This agreement pledged the RBRI stock as collateral to secure the stock note, and it authorized the Bacons to hold the RBRI stock certificates they had assigned to the Uhls. As the trial court correctly decided, retaining physical possession of the stock certificates as collateral did not make the Bacons the legal owners of the stock. Similarly, the Uhls’ default on the stock note did not, ipso facto, make the Bacons the legal owners of the stock. Although the stock pledge agreement authorized the Bacons, in their sole discretion, to repledge the stock, transfer the stock into their names, sell the stock, etc., in the event of a default on the stock note, it did not require them to do so. The evidence presented at trial definitively proved the Bacons chose not to avail themselves of any such cumulative remedies. Instead, they continued to hold the stock certificates as collateral, and they asked for a judicial determination of the stock’s ownership as a part of their action to recover on the stock note. We discern no error whatsoever in the trial court’s decision to award legal ownership of the stock, as of the effective date of the judgment, to the Bacons.

The second prong of the Uhls’ argument is equally baseless. They charge the trial court with committing error by failing to mitigate the Bacons’ damages by applying the value of the stock against the amount the Uhls owed on the stock note. They acknowledge that the court found the stock to be worthless, but they contend this finding is against the weight of the evidence. The Uhls base their argument on Mr. Uhl’s testimony that the stock was worth $400,000 as of December 31, 2001. The trial court evidently disbelieved Mr. Uhl, which was the court’s prerogative. That decision is entirely understandable since: (1) RBRI was then out of business; (2) the company had been operating at a loss during 2001 and had made only marginal profits the two previous years; (3) the corporation’s tangible assets were worth only $3,900; (4) several banks had declined to loan RBRI any money since it had nothing of value to secure the loan; and (5) these same banks had declined to loan any money to the Uhls because they had nothing of value— including their RBRI stock — to secure the loan. We defer to the trial court’s determination that Mr. Uhl’s testimony as to the value of the stock was not credible. Finally, we reject the Uhls’ argument that the stock must have value because the Bacons retained possession of the certificates and asked to be declared the legal owners of the shares. The answer to this argument is apparent from the record. Although the shares of stock had no intrinsic value themselves, ownership of the shares carried with it the right to make a claim on the $1,300 real estate commission that was the subject of a pending arbitration proceeding. The Uhls’ first point is denied.

In the Uhls’ second point, they contend the trial court erred by refusing to permit an offer of proof regarding their expert’s testimony as to the value of the stock since “the value of the stock was a critical issue at trial.” The Uhls argue that the trial court should have permitted this offer of proof so there would be an adequate record of the testimony being excluded for this appeal. The Uhls’ argument is misdirected because it utterly fails to address the reason why Weber’s testimony was excluded: the Uhls’ failure to timely disclose their expert’s identity during discovery. To put a finer point on the issue presented, the trial court’s failure to permit the Uhls to make an offer of proof cannot possibly have any bearing on the outcome of this appeal unless the Uhls first establish that the trial court erred in excluding Weber’s testimony as a sanction for the Uhls’ violation of discovery rules.

Untimely disclosure of an expert witness’ identity is so offensive to the underlying purposes of the discovery rules that prejudice may be inferred. Wilkerson v. Prelutsky, 943 S.W.2d 643, 649 (Mo. banc 1997). For this reason, trial courts have broad discretion to exclude an expert witness whose identity is not timely disclosed. Goede v. Aerojet General Corp., 143 S.W.3d 14, 23 (Mo.App.2004). We review the court’s ruling for an abuse of discretion. Id. “An abuse of discretion occurs when a trial court’s ruling is clearly against the logic of the circumstances then before the court and is so unreasonable and arbitrary that it shocks the sense of justice and-indicates a lack of careful, deliberate consideration.” Hancock v. Shook, 100 S.W.3d 786, 795 (Mo. banc 2003).

At trial, the Uhls offered no explanation or justification for not disclosing their expert’s identity until four days before trial. Similarly, we find none in their appellate brief, even though the Uhls characterize Weber’s testimony as being directed to a “critical issue” in the case. The Uhls have ignored the underlying basis for the trial court’s ruling in order to pursue a red herring argument that the trial court’s error lies in not permitting the offer of proof. We believe the following quotation explains why the Uhls’ argument is unsound:

An offer of proof is required when evidence is excluded on evidentiary grounds. The Commission’s objection was not directed at the content or quality of Sandbothe’s testimony. Its objection essentially argued that relevant evidence must be excluded as a sanction. The court agreed. In such cases an offer of proof is meaningless. The complete exclusion of what may have been probative evidence without consideration of whether it would be admissible, removes the need for an offer of proof to fully inform the trial court on matters of admissibility. Offers of proof are irrelevant when refusing testimony as a sanction.

State ex rel. Missouri Highway and Transp. Comm’n v. McDonald’s Corp., 872 S.W.2d 108, 114 (Mo.App.1994).

Since the Uhls did not timely disclose Weber as an expert or present any justification for their delay, the trial court acted within its discretion in excluding Weber’s testimony as a sanction for the Uhls’ failure to comply with the rules of discovery. Wilkerson, 948 S.W.2d at 649. That being the case, we certainly cannot convict the trial court of error in refusing to permit the Uhls to make a meaningless offer of proof. The Uhls’ second point is denied.

In the Uhls’ third point, they challenge the trial court’s decision to award the Bacons $81,605 in attorney’s fees. The Uhls argue the trial court erred because the record contains no evidence that the sum awarded was reasonable in this “fairly simple breach of contract matter.” We disagree.

A trial judge is considered to be an expert on the subject of attorney’s fees. Nelson v. Hotchkiss, 601 S.W.2d 14, 21 (Mo. banc 1980); Villines v. Mier, 58 S.W.3d 921, 925-26 (Mo.App.2001); see H.S. v. Board of Regents, Southeast Missouri State University, 967 S.W.2d 665, 674 (Mo.App.1998). A judge who tries the case and is acquainted with the issues may fix the amount of fees without the aid of evidence. Nelson, 601 S.W.2d at 21. No evidence or other opinion as to the value of the services is necessary because the judge “knows the nature of the work the presentation of the cause entails, the issues, the quality of the professional labor, the expenditure of time, and, thus, its value assessed according to custom, place and circumstances.” Heilbron v. ARC Energy Corp., 757 S.W.2d 294, 296-97 (Mo.App.1988). Setting the amount of attorney’s fees to be awarded is within the trial court’s sound discretion and should not be reversed unless the award is determined arbitrarily or is so unreasonable as to indicate indifference and the lack of proper judicial consideration. Miller-Stauch Const. Co. v. Williams-Bungart Elec., Inc., 959 S.W.2d 490, 496 (Mo.App.1998).

The award in this case did not constitute an abuse of discretion. The judge who determined the Bacons’ award of attorney’s fees had tried the case and was familiar with the issues. It is evident from the record that much of the work done in this case by the Bacons’ attorney was necessitated by the Uhls’ persistent denial that they owed anything on the stock note and by their attempt to pursue affirmative relief, in the form of a counterclaim, against the Bacons. It was the Uhls who converted what should have been a simple action on a promissory note into a much more complicated lawsuit. Moreover, all of the Uhls’ machinations were for naught. Their counterclaim was dismissed without prejudice before the trial even began. Their only remaining defense — that the RBRI stock was worth more than the remaining balance of the stock note — was an abject failure because the stock was found to be worthless. The judge had a right to consider these facts in assessing appropriate attorney’s fees.

We also note that, even though evidence on the subject of attorney’s fees is not required, there was proof that the Bacons had incurred $29,793 in attorney’s fees as of September 13, 2004. This evidence was not challenged in any manner by the Uhls. The total amount awarded to the Bacons as attorney’s fees was $31,605. Therefore, the judge only awarded the Ba-cons about $1,800 more for the services their attorney provided in trying the case and handling any post-trial matters. The judge made a specific finding that the amount awarded was fair and reasonable. Contrary to the Uhls’ argument, it was not necessary that there be evidence of reasonableness in the record to support that finding. A trial court is an expert on the reasonableness of attorney’s fees. Price v. American Bank of St. Louis, 793 S.W.2d 593, 598 n. * (Mo.App.1990). Accordingly, a judge may award fees “even though no evidence of reasonableness is introduced.” O’Brien v. B.L.C. Ins. Co., 768 S.W.2d 64, 71 (Mo. banc 1989); see also Campbell v. Kelley, 719 S.W.2d 769, 772 (Mo. banc 1986) (where the terms of a promissory-note provide for attorney’s fees, a trial court may award reasonable fees as a matter of law because the court is an expert on fees). The Uhls’ third point is denied.

The judgment of the trial court is affirmed.

GARRISON and BARNEY, JJ., Concur.

      . This appeal does not involve any issue concerning the contract for deed or the real estate note.

      . The Bacons also paid advertising, printing and tax debts owed by RBRI in the amount of approximately $15,000. The Bacons did not include these debts when calculating the amount due on the stock note.

      . "In a suit on a promissory note a prima facie case is made when the note, admittedly signed by the makers, is introduced and evidence follows demonstrating the note is unpaid or that a balance is due and owing.” Bank of Kirksville v. Small, 742 S.W.2d 127, 130 (Mo. banc 1987).

      . This $1,300 real estate commission was the subject of an arbitration proceeding being conducted by the Missouri Association of Realtors. If the commission belonged to RBRI, it would only be paid to the persons holding legal title to RBRI’s stock.

      . In that regard, it is appropriate to point out that Mr. Bacon had not been asked a single question about the subject of attorney’s fees during his cross-examination.

      . All references to rules are to Missouri Court Rules (2005).

      . Murphy interpreted the provisions of former Rule 73.01(c). The provisions of that rule were transferred, in essentially the same form, to Rule 84.13(d) effective January 1, 2000.

      . Since the arbitration proceeding was ongoing, the trial court had no way of determining whether RBRI would recover the disputed commission or what arbitration expenses the Bacons would incur if they were ultimately successful. Furthermore, we find no argument in the Uhls’ brief that the stock must be valued at $1,300 simply because the disputed commission might someday be recovered by RBRI. Accordingly, we find no error in the trial court’s conclusion that, as of the date of trial, the RBRI stock was worthless.