{ "id": 4181337, "name": "IN THE MATTER OF: APPEALS OF: Louisiana Pacific Corporation from the decisions of the Wilkes County Board of Equalization and Review", "name_abbreviation": "In re Appeals of Louisiana Pacific Corp.", "decision_date": "2010-12-07", "docket_number": "No. COA10-500", "first_page": "457", "last_page": "462", "citations": [ { "type": "official", "cite": "208 N.C. App. 457" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "392 S.E.2d 113", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "115", "parenthetical": "holding that a nursing home owner's untimely appeal from a denial of a certificate of need deprived the Office of Administrative Hearings from considering the nursing home owner's appeal" }, { "page": "114", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "98 N.C. App. 675", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525629 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "678", "parenthetical": "holding that a nursing home owner's untimely appeal from a denial of a certificate of need deprived the Office of Administrative Hearings from considering the nursing home owner's appeal" }, { "page": "677" } ], "opinion_index": 0, "case_paths": [ "/nc-app/98/0675-01" ] }, { "cite": "507 S.E.2d 589", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "590-91", "parenthetical": "holding that a property owner's untimely appeal from a zoning enforcement officer to the Cary Board of Adjustment under the Cary zoning ordinance deprived the Board of Adjustment of subject matter jurisdiction to review the property owner's appeal" } ], "opinion_index": 0 }, { "cite": "131 N.C. App. 696", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11204819 ], "year": 1998, "pin_cites": [ { "page": "698", "parenthetical": "holding that a property owner's untimely appeal from a zoning enforcement officer to the Cary Board of Adjustment under the Cary zoning ordinance deprived the Board of Adjustment of subject matter jurisdiction to review the property owner's appeal" } ], "opinion_index": 0, "case_paths": [ "/nc-app/131/0696-01" ] }, { "cite": "301 S.E.2d 98", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "99-100", "parenthetical": "\"Failure to give timely notice of appeal in compliance with [N.C.] G.S. 1-279 and Rule 3 of the North Carolina Rules of Appellate Procedure is jurisdictional, and an untimely attempt to appeal must be dismissed.\"" } ], "opinion_index": 0 }, { "cite": "308 N.C. 187", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4710288 ], "year": 1983, "pin_cites": [ { "page": "189", "parenthetical": "\"Failure to give timely notice of appeal in compliance with [N.C.] G.S. 1-279 and Rule 3 of the North Carolina Rules of Appellate Procedure is jurisdictional, and an untimely attempt to appeal must be dismissed.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0187-01" ] }, { "cite": "446 S.E.2d 594", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "596" } ], "opinion_index": 0 }, { "cite": "115 N.C. App. 703", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12139688 ], "year": 1994, "pin_cites": [ { "page": "707" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0703-01" ] }, { "cite": "228 S.E.2d 254", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "260" } ], "opinion_index": 0 }, { "cite": "290 N.C. 731", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564564 ], "year": 1976, "pin_cites": [ { "page": "739" } ], "opinion_index": 0, "case_paths": [ "/nc/290/0731-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 105-290", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2009, "pin_cites": [ { "page": "(e)" } ], "opinion_index": 0 }, { "cite": "449 S.E.2d 196", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "199", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "116 N.C. App. 551", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524856 ], "year": 1994, "pin_cites": [ { "page": "556", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/116/0551-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 105-345.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2009, "pin_cites": [ { "page": "(b)" }, { "page": "(c)" } ], "opinion_index": 0 }, { "cite": "283 S.E.2d 115", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "120" } ], "opinion_index": 0 }, { "cite": "304 N.C. 68", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565314 ], "year": 1981, "pin_cites": [ { "page": "74" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0068-01" ] } ], "analysis": { "cardinality": 558, "char_count": 13309, "ocr_confidence": 0.748, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.13738310611931429 }, "sha256": "af89acb877df81f98be7c2c541056cbaeae6c12c6fd7be55c1e07b5f84087234", "simhash": "1:c470d16b4a6a2e0e", "word_count": 2181 }, "last_updated": "2023-07-14T21:19:36.775795+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JACKSON and THIGPEN concur." ], "parties": [ "IN THE MATTER OF: APPEALS OF: Louisiana Pacific Corporation from the decisions of the Wilkes County Board of Equalization and Review" ], "opinions": [ { "text": "ELMORE, Judge.\nWilkes County (County) appeals an order by the North Carolina Property Tax Commission (Commission) granting Louisiana Pacific Corporation (taxpayer) a new hearing regarding the valuation of the taxpayer\u2019s real and business personal property in Wilkes County. The County makes only one argument on appeal: The Commission lacked subject matter jurisdiction to consider the taxpayer\u2019s appeal because the taxpayer did not file timely notices of appeal to the Commission from the decisions of the Wilkes County Board of Equalization and Review (County Board). After careful consideration, we reverse the order of the Commission.\nOn 4 September 2009, the County\u2019s Board of Equalization and Review (BER) sent a letter to the taxpayer\u2019s agent, Gene Acuff, rendering a decision in the taxpayer\u2019s appeal from the County\u2019s valuation of the taxpayer\u2019s property. The letter stated that further appeal from the decision could be made to the Commission, but that \u201c[a]ppeals to the Property Tax Commission must be received by them no later than thirty (30) days from the date of this notice.\u201d. (Emphasis in original.) On 21 October 2009, the Commission received the taxpayer\u2019s notice of appeal from the 4 September 2009 decision by the County\u2019s BER. The letter is dated 20 October 2009. A few days later, on 23 October 2009, the Commission sent the taxpayer\u2019s attorney two letters acknowledging receipt of the taxpayer\u2019s notice of appeal. The first letter referenced the taxpayer\u2019s business personal property appeal (09 PTC 828), and the second letter referenced the taxpayer\u2019s real property appeal (09 PTC 829). The letters are otherwise identical, and, for that reason, we refer to them simply as \u201cthe letter.\u201d Similarly, all of the letters, motions, and other responses that followed appear in duplicate \u2014 one each for the business personal property appeal and the real property appeal; where we refer to plural letters or motions, but only recite language from a single letter or motion, it is because the language in the two communications is identical. We return now to the Commission\u2019s 23 October 2009 letter, which included the following paragraphs discussing the possibility that the taxpayer\u2019s appeal was untimely:\nAppeals to the Property Tax Commission must be filed (postmarked or received in the Commission\u2019s office) within 30 days after the mailing of the decision of the County board. The County\u2019s notice to you was apparently mailed on September 4, 2009, and your notice of appeal to the Commission was received October 21, 2009. If the County\u2019s notice was, in fact, mailed on September 4, 2009, then the 30-day period for appealing to the Property Tax Commission would have expired on October 4, 2009.\nWe are providing this information in order to avoid any misunderstanding in this matter since the Property Tax Commission has no lawful authority to extend the time for filing appeals. Accordingly, if your notice of appeal was not timely filed, and the County moves to dismiss the appeal, the Commission may have no choice but to grant the motion.\nThe taxpayer responded by letters dated 9 November 2009, which included the following relevant language:\nIn your acknowledgment letter to our appeal, you observed that the County\u2019s BER decision was apparently mailed on September 4, 2009, that our appeal was not received until October 21, 2009, and that, therefore, the appeal may be untimely. To the best of the taxpayer\u2019s determination, it was never given notice of the date of the BER hearing on this matter and, therefore, was not given an opportunity to be heard at the BER. Given this, it is the taxpayer\u2019s position that the BER decision was defective, that any purported notice of a decision arising from such hearing is defective, and that the time period for filing an appeal cannot have expired. I believe this defect can be cured by the [Commission] either hearing the case on its merits or sending the case back to the BER for a hearing once proper notice is given.\nThe taxpayer then applied to the Commission for a hearing on its appeal from the BER\u2019s 4 September 2009 decision. The taxpayer set forth five grounds for appeal, two of which are relevant to this appeal:\nd. The [BER] held its hearing to determine the matter at issue in this appeal without giving proper and adequate notice to the property owner of the date, time, or location of said hearing.\nE. The [BER] issued its decision with respect to the issue in this appeal without giving the property owner an opportunity to come before it and present evidence.\nOn 12 November 2009, the County moved to dismiss the taxpayer\u2019s appeal as untimely. In its motions, the County stated that it had mailed notice of its decision to the taxpayer on 4 September 2009 and that the taxpayer had filed notice of appeal from that decision more than thirty days later. The Commission acknowledged the motions by letter dated 17 November 2009 and informed the parties that it would hear the motions during its January 2010 session. In anticipation of the hearing, set for 13 January 2010, the County\u2019s Tax Administrator and Tax Assessor, Alex Hamilton, submitted an affidavit. In that affidavit, Hamilton stated that the BER\u2019s decision not to change the taxpayer\u2019s real property or business personal property valuations was \u201cduly mailed under date of September 4, 2009,\u201d to the taxpayer\u2019s agent, Gene Acuff.\nOn 22 January 2010, the Commission issued its order denying the County\u2019s motions to dismiss the taxpayer\u2019s appeals for lack of timeliness. The Commission concluded that the taxpayer had shown good cause to \u201cappear before the appropriate County Board for a hearing as to the valuation of the real and business personal property in Wilkes County\u201d and remanded the matter \u201cto the appropriate County Board\u201d for a hearing. The Commission based its conclusions and order on the following findings of fact:\n1. The [taxpayer], through counsel, filed notices of appeal to the Commission on October 21, 2009 appealing the September 4, 2009 decisions of the County Board. The appeals were acknowledged as untimely filed by letters dated October 23, 2009.\n2. On November 12, 2009, Wilkes County, through counsel, filed a motion to dismiss the appeals for lack of subject matter jurisdiction because the [taxpayer]^ notices of appeal were not timely filed.\n3. In his Affidavit, Mr. Gene Acuff states that the [taxpayer] \u201cwas never sent a notice of a scheduled Board hearing\u201d and was not given an opportunity to present evidence.\n4. The September 4, 2009 decisions are not valid when the county failed to give [taxpayer] notice of the August 20, 2009 hearing in order for the [taxpayer] to appear.\nThe County now appeals from this order.\nThe question before us is whether the Commission erred by considering an appeal that was not timely filed. The question is complicated by the taxpayer\u2019s claim that it did not receive notice of the hearing that led to the 4 September 2009 BER decision from which it appealed after the statutory time limit. However, the taxpayer does not claim that it did not receive the 4 September 2009 BER decision or that the BER did not send that decision on 4 September 2009. Assuming for the sake of argument that the taxpayer did not receive notice of the 20 August 2009 hearing, does that lack of notice excuse the taxpayer from timely filing its appeal from the 4 September 2009 decision? In a word, no.\nGeneral Statute section 105-345.2 \u201cis the controlling judicial review statute for appeals from the Property Tax Commission.\u201d In re McElwee, 304 N.C. 68, 74, 283 S.E.2d 115, 120 (1981). The statute sets out the following relevant guidelines for reviewing appeals from the Commission:\n(b) So far as necessary to the decision and where presented, the court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning and applicability of the terms of any Commission action. The court may affirm or reverse the decision of the Commission, declare the same null and void, or remand the case for further proceedings; or it may reverse or modify the decision if the substantial rights of the appellants have been prejudiced because the Commission\u2019s findings, inferences, conclusions or decisions are:\n* * *\n(2) In excess of statutory authority or jurisdiction of the Commission; or\n\u2756 * *\n(4) Affected by other errors of law[.]\nN.C. Gen. Stat. \u00a7 105-345.2(b) (2009). \u201cThe statute also provides that' we are to review \u2018the whole record\u2019 in determining the foregoing[.]\u201d MAO/Pines Ass\u2019n v. New Hanover County Bd. of Equalization, 116 N.C. App. 551, 556, 449 S.E.2d 196, 199 (1994) (citations omitted); see N.C. Gen. Stat. \u00a7 105-345.2(c) (2009).\nGeneral Statute section 105-290 sets out the time limit for appeals from a board of equalization and review to the Property Tax Commission: \u201cTime Limits for Appeals. \u2014 A notice of appeal. . . from a board of equalization and review shall be filed with the Property Tax Commission within 30 days after the date the board mailed a notice of its decision to the property owner.\u201d N.C. Gen. Stat. \u00a7 105-290(e) (2009). \u201cTo perfect an appeal from the county board, an appellant must file a written notice of appeal with the clerk of the board of county commissioners and with the Property Tax Commission within 30 days after the county board has mailed notice of its decision pursuant to G.S. 105-322(g)(2)d.\u201d Brock v. North Carolina Property Tax Com., 290 N.C. 731, 739, 228 S.E.2d 254, 260 (1976). In In re Appeal of Bass Income Fund, this Court affirmed the Commission\u2019s order dismissing taxpayers\u2019 appeal for lack of jurisdiction because the taxpayer had narrowly missed the thirty-day deadline. 115 N.C. App. 703, 707, 446 S.E.2d 594, 596 (1994). We concluded: \u201cBecause taxpayers\u2019 notice of appeal was not received by the Commission until after expiration of the 30 day limitation period in G.S. \u00a7 105-290(e), therefore, the Commission\u2019s determination it was without jurisdiction to entertain taxpayers\u2019 appeal is affirmed.\u201d Id. These cases lead us to the conclusion that the thirty-day \u201cTime Limit for Appeals\u201d set out in \u00a7 105-290(e) is jurisdictional. This conclusion is consistent with other cases in which the Courts have h\u00e9ld that an appellant\u2019s failure to file a timely notice of appeal deprives the reviewing body of jurisdiction. See Booth v. Utica Mutual Ins. Co., 308 N.C. 187, 189, 301 S.E.2d 98, 99-100 (1983) (\u201cFailure to give timely notice of appeal in compliance with [N.C.] G.S. 1-279 and Rule 3 of the North Carolina Rules of Appellate Procedure is jurisdictional, and an untimely attempt to appeal must be dismissed.\u201d); Water Tower Office Assocs. v. Town of Cary Bd. of Adjustment, 131 N.C. App. 696, 698, 507 S.E.2d 589, 590-91 (1998) (holding that a property owner\u2019s untimely appeal from a zoning enforcement officer to the Cary Board of Adjustment under the Cary zoning ordinance deprived the Board of Adjustment of subject matter jurisdiction to review the property owner\u2019s appeal); Gummels v. N.C. Dept. of Human Resources, 98 N.C. App. 675, 678, 392 S.E.2d 113, 115 (1990) (holding that a nursing home owner\u2019s untimely appeal from a denial of a certificate of need deprived the Office of Administrative Hearings from considering the nursing home owner\u2019s appeal). In addition, \u201cbecause the right to appeal to an administrative agency is granted by statute, compliance with statutory provisions is necessary to sustain the appeal.\u201d Gummels, 98 N.C. App. at 677, 392 S.E.2d at 114 (citation omitted).\nHere, the taxpayer did not perfect its appeal within the statutory guideline. This deprived the reviewing body, the Commission, of jurisdiction to hear the appeal. That the substance of the appeal may have had merit does not render the time limit for appeals inapplicable. Accordingly, the Commission erred by denying the County\u2019s motion to dismiss and entertaining the taxpayer\u2019s appeal. We reverse the 22 January 2010 order denying the County\u2019s motion to dismiss and remand the matter to the Commission for entry of an order granting the County\u2019s motion to dismiss for lack of subject matter jurisdiction.\nReversed and remanded.\nJudges JACKSON and THIGPEN concur.\n. The underlying merits of this case are not before us on appeal, and we express no opinion as to the proper valuation of the taxpayer\u2019s real and business personal property.", "type": "majority", "author": "ELMORE, Judge." } ], "attorneys": [ "Vannoy, Colvard, Triplett & Vannoy, P.L.L.C., by Anthony R. Triplett, for the County.", "Bell, Davis & Pitt, P.A., by John A. Cocklereece, Jr., D. Anderson Carmen, and Justin M. Hardy, for the taxpayer." ], "corrections": "", "head_matter": "IN THE MATTER OF: APPEALS OF: Louisiana Pacific Corporation from the decisions of the Wilkes County Board of Equalization and Review\nNo. COA10-500\n(Filed 7 December 2010)\nJurisdiction\u2014 subject matter jurisdiction \u2014 notice of appeal not timely\nThe North Carolina Property Tax Commission (Commission) lacked subject matter jurisdiction to consider taxpayer\u2019s appeal from the decisions of the Wilkes County Board of Equalization and Review regarding the valuation of taxpayer\u2019s property because taxpayer did not file timely notice of appeal to the Commission.\nAppeal by Wilkes County from order entered 22 January 2010 by the Property Tax Commission sitting as the State Board of Equalization and Review. Heard in the Court of Appeals 28 October 2010.\nVannoy, Colvard, Triplett & Vannoy, P.L.L.C., by Anthony R. Triplett, for the County.\nBell, Davis & Pitt, P.A., by John A. Cocklereece, Jr., D. Anderson Carmen, and Justin M. Hardy, for the taxpayer." }, "file_name": "0457-01", "first_page_order": 481, "last_page_order": 486 }