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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA06-1464


Filed: 19 June 2007

from the decision of the         North Carolina Property
Rutherford County Board            Tax Commission
of Equalization and                No. 05 PTC 56
Review concerning real
property taxation for
tax year 2005.

    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, for defendant-appellee.

    BRYANT, Judge.

    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 judgment.
    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 values.”
    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 irregularity.
    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 17 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, 93 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 Hotel Assocs., 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 capricious.

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 Fund I, 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. Rating Bureau, 292 N.C. 70, 80, 231 S.E.2d 882, 888 (1977) (citation omitted).
    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 Presbyterian Church, 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, Inc., 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).

Footnote: 1
    Ad valorem tax is “a tax imposed proportionally on the value of something (esp. real property), rather than on its quantity or some other measure.” Black's Law Dictionary 1469 (7th ed. 1999).

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