Opinion
No. COA03-861
Filed April 20, 2004 This case not for publication
Appeal by taxpayers from order entered 25 February 2003 by the North Carolina Property Tax Commission. Heard in the Court of Appeals 3 March 2004.
Millie E. Hershner and Lee A. Hershner, taxpayers-appellants, pro se. Lucy Chavis, Assistant Durham County Attorney, for respondent-appellee Durham County.
From the North Carolina Property Tax Commission, No. 02 PTC 108.
Millie E. Hershner and Lee A. Hershner (taxpayers) appeal an order of the North Carolina Property Tax Commission (Commission) dated 25 February 2003 dismissing taxpayers' appeal to the Commission. For the reasons stated herein, we affirm the Commission's order.
On 12 April 2002, taxpayers appealed to the Commission from a decision by the Durham County Board of Equalization and Review regarding the valuation of taxpayers' real property for the 2001 tax year. In a letter dated 26 November 2002, the Secretary of the Commission informed taxpayers that their appeal was "tentatively scheduled for hearing by the [Commission] during its meeting on January 15, 16, and 17, 2003." This letter instructed taxpayers to "read the enclosed Commission Rules and review the Sample Pre-Hearing Order," noting that "the Commission Rules require the parties to exchange their exhibits and identify their witnesses not less than ten days prior to the hearing date." By letter dated 4 December 2002, Assistant Durham County Attorney Lucy Chavis (Chavis) requested that taxpayers contact her "to schedule a time for the Pre-Hearing Conference." Chavis' letter stated that "[f]ailure to prepare a Pre-Hearing Order may result in dismissal of your case." On 23 December 2003, the Secretary of the Commission mailed a Notice of Hearing to taxpayers and Chavis, setting a hearing date of 15 January 2003. This Notice of Hearing stated that "[e]ach appellant should enter into a pre-hearing order with the County Attorney and file the original order with the Commission at least ten days before the hearing date."
On 2 January 2003, by which time the parties had neither entered into a pre-hearing order nor made any stipulations regarding the parties, exhibits, witnesses, issues, or any other matters, Chavis filed a motion requesting that the Commission dismiss taxpayers' appeal for failure to comply with the Commission's rules. On 15 January 2003, prior to hearing taxpayers' appeal on the merits, the Commission heard arguments from Chavis and taxpayers on Chavis' motion to dismiss. The Commission thereafter granted Chavis' motion to dismiss and therefore did not reach the merits of taxpayers' appeal. In its order dismissing taxpayers' appeal from the County Board's valuation of their real property, the Commission made the following pertinent findings of fact:
. . . .
4. A Pre-Hearing Conference was scheduled for December 20, 2002. On December 18, 2002, Mrs. Hershner informed the County Attorney that she could not meet on that date, but that she could meet on December 23, 2002.
5. At the December 23, 2002 meeting, the [sic] Mrs. Hershner informed the County Attorney that she was not prepared to execute the Order on Final Pre-Hearing Conference. At this time, no order was executed and the parties made no stipulations regarding the exhibits, witnesses, issues, and other matters to be considered by the Commission.
6. On January 2, 2003, Durham County, through counsel, filed a motion to dismiss Taxpayers' appeal for failure of the Taxpayers to participate in a Pre-Hearing Conference, exchange exhibits, disclose witnesses and stipulate to other matters relating to the Order on Final Pre-Hearing Conference.
Based on these findings of fact, the Commission concluded as a matter of law as follows:
1. The Taxpayers did not comply with the requirement of 17 NCAC 11 .0214 by failing to enter into a pre-hearing order with stipulations as to the parties, exhibits, witnesses, issues, and other matters relating to this appeal. Rule .0214 clearly provides that "The appellant shall forward six copies of the executed order to the secretary at least 10 days prior to the hearing date."
2. Since the Commission has an obligation and implied power to enforce its rules, the dismissal of the Taxpayers' appeal for failure to follow a rule is appropriate. See In re Fayetteville Hotel Associates, 117 N.C. App. 285, 450 S.E.2d 568 (1994), aff'd per curiam, 342 N.C. 405, 464 S.E.2d 298 (1995).
3. The County, through counsel, properly moved to dismiss the Taxpayers' appeal since the Taxpayers failed to comply with the Commission's rules.
From the Commission's order dismissing their appeal, taxpayers now appeal to this Court. Taxpayers bring forth twelve assignments of error and have combined all twelve into a single argument in their brief, asserting that the Commission committed reversible error by failing to make certain findings of fact which taxpayers contend are supported by the record evidence, and which taxpayers contend would in turn support conclusions of law contrary to those reached by the Commission. We find no merit in taxpayers' argument.
Taxpayers argue in their brief that Chavis took various actions that frustrated taxpayers' attempts to enter into a pre-hearing order and make the required exchange of witnesses and exhibits, and that the Commission erred by failing to make corresponding findings of fact. In support of these assertions, taxpayers cite two documents in the record: (1) taxpayers' "Response in Opposition to County's Motion to Dismiss," an unverified document filed, without benefit of supporting affidavits, with the Commission on 9 January 2003; and (2) an "Order on Final Pre-Hearing Conference," filed with the Commission on 4 January 2003 and executed by taxpayer Mildred E. Hershner but not by Chavis or anyone else on behalf of Durham County, and bearing a handwritten notation that "Chavis . . . refused to sign this when we brought it to her office on: January 2, 2003." This Court has previously "decline[d] to accept as part of the record herein assertions of fact in the parties' briefs which are not sustained by record evidence[.]" Mohamad v. Simmons, 139 N.C. App. 610, 613, 534 S.E.2d 616, 619 (2000). We decline to conclude that taxpayers' bare assertions, as contained in these document and in their brief, constitute competent evidence such that the Commission committed reversible error by failing to make findings of fact based on the assertions contained therein.
Our legislature has provided that the Commission "may adopt rules needed to fulfill its duties." N.C. Gen. Stat. § 105-288(b) (2003). The rules regarding appeals to the Commission are codified in title 17, chapter 11 of the North Carolina Administrative Code. For purposes of this appeal, the relevant section is .0214, which provides as follows:
.0214 PARTIES TO ENTER INTO PRE-HEARING ORDER
Parties shall enter into a pre-hearing order before the appeal is set for hearing. This order will include stipulations as to parties, exhibits, witnesses, issues, and any other matters which can be stipulated by the parties. The secretary of the Commission will furnish a sample order to all appellants. The Commission urges that the parties stipulate all uncontroverted essential facts and agree upon the qualifications of expert witnesses in the order. The appellant shall forward six copies of the executed order to the secretary at least 10 days prior to the date of hearing.
17 NCAC 11.0214 (June 1982, amended July 1993).
In In re Appeal of Fayetteville Hotel Assoc., 117 N.C. App. 285, 450 S.E.2d 568, (1994), aff'd, 342 N.C. 405, 464 S.E.2d 298 (1995), the case cited by the Commission in its order, this Court concluded that because "the Commission has an obligation and an implied power to enforce its rules[,] [d]ismissal of an appeal for failure to follow the rules is an appropriate sanction." Fayetteville, 117 N.C. App. at 288, 450 S.E.2d at 570. In Fayetteville, as in the instant case, the Commission cited 17 NCAC 11.0214 and found that the taxpayer violated this Rule, as well as 17 NCAC 11.0213, by failing to exchange documentary evidence 10 days prior to the hearing date or enter into a pre-hearing order. Id. at 287-88, 450 S.E.2d at 570; accord, In re Appeal of Phillips, ___ N.C. App. ___, 587 S.E.2d 465 (2003) (Commission did not abuse its discretion in dismissing taxpayers' appeal where taxpayers provided counsel for the County a list of witnesses and exhibits three days before the hearing and failed to enter a pre-hearing order).
In the instant case, as in Fayetteville and Phillips, the Commission dismissed taxpayers' appeal after finding that taxpayers failed to comply with the Commission's rules. Here, the Commission specifically found taxpayers "did not comply with the requirement of 17 NCAC 11.0214 by failing to enter into a pre-hearing order with stipulations as to the parties, exhibits, witnesses, issues, and other matters relating to this appeal." Accordingly, we affirm the order of the Commission dismissing taxpayers' appeal.
Affirmed.
Judges McCULLOUGH and BRYANT concur.
Report per Rule 30(e).