Appeal of Schwarz & Schwarz, Inc., 163 NC App 358 (03-641) 03/16/2004

Appeal by appellant Schwarz & Schwarz, Inc. from an order entered 6 February 2003 by the North Carolina Property Tax Commission. Heard in the Court of Appeals 4 February 2004.

Wilson, Lackey & Rohr, P.C., by David S. Lackey, for appellee Caldwell County.

Isaacson Isaacson & Sheridan, L.L.P., by Desmond G. Sheridan and Jennifer N. Fountain, for appellant Schwarz & Schwarz, Inc.

    HUNTER, Judge.

    Schwarz & Schwarz, Inc. (“appellant”) appeals from an order of the North Carolina Property Tax Commission sitting as the State Board of Equalization and Review (“the Commission”) entered 6 February 2003 dismissing appellant's appeal from the valuation of real property by the Caldwell County Tax Assessor. Because we conclude the Commission did not abuse its discretion in dismissing the appeal, we affirm.
    At a hearing before the Commission on 16 October 2003, Jeffrey H. Schwarz (“Mr. Schwarz”), one of appellant's stockholders,appeared pro se on behalf of the corporation. The Commission asked Mr. Schwarz if he was aware of the Commission's rule requiring corporate entities to be represented by counsel before the Commission, to which Mr. Schwarz replied that he was not aware of that rule. A staff attorney for the Commission stated that Mr. Schwarz had been provided with a summary of the Commission's rules. Mr. Schwarz responded that he had not seen the summary of the rules, later explaining that he did not open his mail, but that he had an attorney review the rules summary.
    The Commission's rule summary specifically refers the reader to the provisions of the Administrative Code setting out the Commission's rules and provides a detailed summation of those rules including that “Corporate taxpayers . . . must be represented by an attorney licensed to practice law in North Carolina.” The attorney representing Caldwell County moved for dismissal and Mr. Schwarz subsequently asked the Commission for a continuance. Without ruling on the request for a continuance, the Commission dismissed the appeal for failure to comply with the rules of the Commission.
    On appeal to this Court, appellant contends that the Commission erred in dismissing its appeal from the property valuation. Specifically, appellant first argues that the Commission should have considered the request for a continuance prior to considering the motion to dismiss. Appellant offers no authority for this argument, instead asserting that the decision was arbitrary and capricious. We disagree.    Appellant conceded that the rules summary had been received and reviewed by an attorney, and Mr. Schwarz admitted that he had not personally reviewed the rules after receiving them. This illustrates that this was not a case where a party was caught unawares, with no notice of the rules of the Commission and no opportunity to abide by those rules. The Commission's dismissal of the appeal was neither arbitrary nor capricious, but instead grounded in the rules of the Commission requiring corporate entities to be represented by counsel. Although the Commission's decision not to grant a continuance produces a harsh result denying appellant a review of the property valuation, under the circumstances of this case, we cannot conclude the Commission abused its discretion through the application of its rules. See In re Phillips, ___ N.C. App. ___, ___, 587 S.E.2d 465, 467 (2003) (Commission did not abuse its discretion by dismissing appeal for rule violations where appellant had ample notice of the rules of the Commission).
    Appellant next contends that the Commission exceeded its authority by dismissing the appeal as a sanction for failure to comply with the rules of the Commission. This Court has, however, previously held:
        Since the Commission's rules are binding upon the Commission as well as the public, we conclude that the Commission has an obligation and an implied power to enforce its rules. Dismissal of an appeal for failure to follow the rules is an appropriate sanction. Without the implicit authority to enforce its rules by dismissal, the Commission's effectiveness as a quasi-judicial body would be fatally compromised.In re Appeal of Fayetteville Hotel Assoc., 117 N.C. App. 285, 288, 450 S.E.2d 568, 570 (1994), aff'd, 342 N.C. 405, 464 S.E.2d 298 (1995) (per curiam). The rules of the Commission, as codified in the North Carolina Administrative Code, require: “Corporate taxpayers . . . must be represented by an attorney licensed to practice law in North Carolina. This requirement will not be waived by the Commission.” 17 N.C.A.C. 11.0216(a) (2002). Furthermore, “[i]n order to pursue an appeal, the appellant must either appear at the scheduled hearing or be represented at the hearing by an attorney at law.” 17 N.C.A.C. 11.0217(a) (2002). “If no continuance has been granted, the failure of the appellant or his attorney to appear at the scheduled time and date for hearing is grounds for dismissal of the appellant's appeal.” 17 N.C.A.C. 11.0217(b).
    In this case, despite having received a summary of the rules and having the summary reviewed by an attorney, appellant was not represented by counsel at the hearing, as plainly required by the rules, making the appeal subject to dismissal. Moreover, appellant did not seek a continuance until the day of the hearing and after the motion to dismiss had already been made. Therefore, the Commission had the express power to enforce its rules through the sanction of dismissal.
    Appellant finally contends that the Commission was without authority to require corporate taxpayers to be represented by an attorney in proceedings before the Commission. For this proposition appellant relies on Lexis-Nexis v. TRaviSHan Corp.where this Court expressly adopted the general rule that “in North Carolina a corporation must be represented by a duly admitted and licensed attorney-at-law and cannot proceed pro se unless doing so in accordance with the exceptions set forth in this opinion.” Lexis-Nexis v. TRaviSHan Corp., 155 N.C. App. 205, 209, 573 S.E.2d 547, 549 (2002). Appellant argues that this Court in Lexis-Nexis exempted administrative hearings from the general rule by quoting the Restatement of the Law Governing Lawyers, that “'[w]ith respect to litigation, several jurisdictions except representation in certain tribunals, such as . . . small-claims courts and in certain administrative proceedings.'” Id. at 208, 573 S.E.2d at 549 (quoting Restatement (Third) of the Law Governing Lawyers § 4 cmt. e (1998)). This quote was, however, one part of a general statement of the law existing throughout the country. The exceptions referred to in Lexis-Nexis as applicable in North Carolina were only those exceptions that have been expressly recognized by North Carolina Courts and which were expressly laid out in that case. See id.
    Thus, under Lexis-Nexis, the rule in North Carolina is as follows. In North Carolina a corporation must be represented by a duly admitted and licensed attorney-at-law and cannot proceed pro se, with three exceptions: (1) an employee of a corporate entity may prepare legal documents; (2) a corporation may appear pro se in small claims court; and (3) a corporation may make an appearance through a corporate officer in order to avoid default. See id. Therefore, none of the exceptions recognized in this state bars theCommission from requiring a corporate taxpayer to be represented by counsel and the Commission has not exceeded its authority by making such a requirement. Accordingly, the Commission did not err in dismissing appellant's appeal.
    Affirmed.
    Judges McCULLOUGH and LEVINSON concur.
    Report per Rule 30(e).

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