Appeal by plaintiff from an order dated 20 January 2006 by the
North Carolina Property Tax Commission. Heard in the Court of
Appeals 10 May 2007.
Roger Richard pro se plaintiff-appellant.
Rutherford County, by Shelley T. Eason and Walter H. Dalton,
Roger Richard (plaintiff) appeals from an order dated 20
January 2006 by the North Carolina Property Tax Commission
(Commission) granting Rutherford County's motion for summary
Roger Richard and his wife own a single family dwelling
located on a 10.01 acre tract of real property in Rutherford
County, North Carolina. Rutherford County valued plaintiff's
property at $95,500. From this valuation, ad valorem
(See footnote 1)
taxes are to
be assessed to plaintiff's real property. On 5 May 2005, plaintiffappealed the County's valuation of this tract to the North Carolina
Property Tax Commission and filed the required Application for
Hearing on 15 August 2005. On the Application for Hearing form,
plaintiff states that his opinion of the correct value of his
property is to be determined by the validity of schedules of
In a separate action, plaintiff also filed an appeal to the
Property Tax Commission challenging Rutherford County's schedule of
values on the basis that the schedule of values had been amended in
2005. Plaintiff requested his property valuation appeal be
continued pending the outcome of the Commission's decision on the
validity of the schedule of values. Plaintiff's challenge to the
schedule of values, In the Matter of the Appeal of Roger Richard
(05 PTC 490) was heard by the Commission on 16 November 2005. By
order dated 21 December 2005, the Commission upheld the validity of
Rutherford County's schedule of values, concluding as a matter of
law that the 2005 amendments merely corrected an immaterial
On 5 January 2006, Rutherford County filed a motion for
summary judgment which was heard by the Commission on 20 January
2006. The motion for summary judgment was based upon the rationale
stated in plaintiff's Application for Hearing form, that the value
of his property would be determined by the validity of the
schedule of values. At the hearing the Commission granted
Rutherford County's motion for summary judgment by written order
filed 18 April 2006. From this order, plaintiff appeals.
Plaintiff argues the Commission erred in granting Rutherford
County's motion for summary judgment. Plaintiff cites the North
Carolina Commission Rules, Section 17 N.C.A.C. 11.0209 which states
that the North Carolina Rules of Civil Procedure do not apply to
proceedings before the Commission. Plaintiff argues that because
the Commission granted Rutherford County's motion for summary
judgment, plaintiff was denied the opportunity to argue the
valuation of his property.
The North Carolina Commission Rules, Section 17 N.C.A.C.
11.0209 states [t]he hearing before the Commission is a formal
adversarial proceeding conducted under the rules of evidence as
applied in the Trial Division of the General Courts of Justice. The
North Carolina Rules of Civil Procedure do not apply to proceedings
before the Commission. 17 N.C.A.C. 11.0209 (2005). However,
[a]lthough the North Carolina Administrative
Code specifically states that Rules of Civil
Procedure do not strictly apply to
proceedings before the Commission, see
N.C.A.C. 11.0209 (2002), our courts have long
held that, by presenting evidence, a party
waives its right to appeal the denial of a
motion to dismiss. Hamilton v. Hamilton
N.C. App. 639, 642, 379 S.E.2d 93, 94 (1989)
(citing 9 C. Wright & A. Miller, Federal
Practice and Procedure, sec. 237, p. 221
(1971)). Those provisions of the
Administrative Code that do apply, however, do
not set forth a procedure for motions in
general, or motions to dismiss in particular.
Thus, we are left to analogize. We see no
reason to depart from the usual approach here,
even though the Rules of Civil Procedure do
not apply, because by analogy, the same
principles of sound trial management do.
In re North Wilkesboro Speedway, Inc.
, 158 N.C. App. 669, 677, 582
S.E.2d 39, 44 (2003). This Court has held the Commission possesses
inherent authority to dismiss a tax appeal when a taxpayer fails to
comply with its rules or orders. See In re Appeal of Fayetteville
, 117 N.C. App. 285, 288, 450 S.E.2d 568, 570 (1994)
(Without implicit authority to enforce its rules by dismissal, the
Commission's effectiveness as a quasi-judicial body would be
fatally compromised.), aff'd
, 342 N.C. 405, 464 S.E.2d 298 (1995).
Here, the Commission properly heard Rutherford County's
summary judgment motion in exercise of the same principles of
sound trial management that apply to the Rules of Civil Procedure.
In re North Wilkesboro Speedway
at 677, 582 S.E.2d at 44.
Furthermore, in review of the substance of the County's motion for
summary judgment, for this Court to reverse the Commission's
decision, appellant must show that the Commission's findings were:
(1) In violation of constitutional provisions;
or (2) In excess of statutory authority or
jurisdiction of the Commission; or (3) Made
upon unlawful proceedings; or (4) Affected by other errors of law; or (5) Unsupported
by competent, material and substantial evidence in view
of the entire record as submitted; or (6) Arbitrary or
N.C. Gen. Stat. § 105-345.2(b) (2005). Questions of law are
reviewed de novo
, while we review the sufficiency of the evidence
to support the Commission's decision under the whole-record test.
In re Greens of Pine Glen Ltd.
, 356 N.C. 642, 647, 576 S.E.2d 316,
319 (2003). In evaluating whether the record supports the
Commission's decision, this Court must evaluate whether the
decision is supported by substantial evidence, and if it is, thedecision cannot be overturned. In re Appeal of Interstate Income
, 126 N.C. App. 162, 165, 484 S.E.2d 450, 452 (1997)
(citations omitted). Substantial evidence [is] such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion. State ex rel. Comm'r of Ins. v. N.C. Fire Ins.
, 292 N.C. 70, 80, 231 S.E.2d 882, 888 (1977)
The whole record test requires that this Court not
substitute its judgment for that of the agency when two reasonable
conflicting results could be reached. In re Southview
, 62 N.C. App. 45, 47, 302 S.E.2d 298, 299
(1983). Ad valorem
tax assessments are presumed correct, therefore
the taxpayer has the burden, before the Commission, of showing the
assessment was erroneous. In re McElwee
, 304 N.C. 68, 75, 283
S.E.2d 115, 120 (1981). To rebut this presumption, the taxpayer
must produce competent, material and substantial evidence showing
the county tax supervisor used either an arbitrary method of
valuation or an illegal method of valuation. In re Appeal of AMP,
, 287 N.C. 547, 563, 215 S.E.2d 752, 762 (1975). Furthermore,
the arbitrary or illegal valuation must have substantially exceeded
the true value of the property. Id.
In the case sub judice
, plaintiff challenged the tax value
assigned to his property by Rutherford County. In order to
prevail, he would have to establish that Rutherford County used an
arbitrary or illegal method of valuing his property, and that this
arbitrary or illegal valuation method resulted in a valuesubstantially in excess of fair market value. Id
. On his
Application for Hearing, plaintiff states no amount indicating what
he asserted to be the correct value of his property. Instead, he
asserts that the correct value of his property was to be
determined by [the] validity of the schedules of value.
Plaintiff's Application for Hearing explicitly rests on whether the
Rutherford County schedule of values would be declared invalid by
the Commission in plaintiff's companion case, 05 PTC 490.
Plaintiff argues that if the schedule of values were invalid, then
application of the invalid schedule of values to his property would
constitute an arbitrary or illegal method of valuation. However,
after the Commission upheld the schedule of values in plaintiff's
companion case, plaintiff could no longer assert that Rutherford
County had used an arbitrary or an illegal method of valuation when
applying the schedule of values to his property. Where the
schedules were found to be valid, plaintiff could not produce
evidence to support an essential element of his claim. Summary
judgment in favor of Rutherford County was properly granted.
Judges MCCULLOUGH and STROUD concur.
Report per Rule 30(e).