{
  "id": 8526675,
  "name": "IN THE MATTER OF: THE APPEAL OF WILLIAM H. McELWEE, JR., WILLIAM H. McELWEE, III, ELIZABETH McELWEE CANNON, DOROTHY PLONK McELWEE and JOHN PLONK McELWEE; R. B. JOHNSTON AND SONS; and PAUL OSBORNE and PRESLEY E. BROWN LUMBER COMPANY, from the VALUATION OF CERTAIN OF THEIR PROPERTIES BY WILKES COUNTY FOR 1977",
  "name_abbreviation": "In re the Appeal of McElwee",
  "decision_date": "1985-07-02",
  "docket_number": "No. 8410PTC1225",
  "first_page": "658",
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    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name": "N.C."
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      "year": 1981,
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    {
      "cite": "51 N.C. App. 163",
      "category": "reporters:state",
      "reporter": "N.C. App.",
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      "year": 1981,
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  "last_updated": "2023-07-14T16:03:29.490718+00:00",
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  "casebody": {
    "judges": [
      "Judges Wells and Cozort concur."
    ],
    "parties": [
      "IN THE MATTER OF: THE APPEAL OF WILLIAM H. McELWEE, JR., WILLIAM H. McELWEE, III, ELIZABETH McELWEE CANNON, DOROTHY PLONK McELWEE and JOHN PLONK McELWEE; R. B. JOHNSTON AND SONS; and PAUL OSBORNE and PRESLEY E. BROWN LUMBER COMPANY, from the VALUATION OF CERTAIN OF THEIR PROPERTIES BY WILKES COUNTY FOR 1977"
    ],
    "opinions": [
      {
        "text": "JOHNSON, Judge.\nPetitioners present four assignments of error challenging the findings of fact and conclusions of law of the Property Tax Commission. We decline to address these assignments of error, as we believe the Property Tax Commission exceeded its authority by receiving and reviewing new evidence which formed the basis of its order.\nThis is the second time this case has been before the appellant courts of this state. In re McElwee, 51 N.C. App. 163, 275 S.E. 2d 865, reversed, 304 N.C. 68, 283 S.E. 2d 115 (1981). In the previous appeal before this Court, the Court affirmed the Order of the Tax Commission sustaining the county\u2019s appraisal of the taxpayers\u2019 property. The Supreme Court reversed and remanded the decisions of the Court of Appeals and the Commission holding that the Commission\u2019s findings and conclusions were not supported by competent, material and substantial evidence in view of the entire record. In reversing and remanding the matter to the Commission, the Supreme Court did not vacate the proceedings and order new proceedings in order to give the taxing authorities a second opportunity to bolster its position with new evidence, although such evidence might have been available. The Court concluded that the property owners were entitled to a decision on the record before the Commission and before the Court. In re McElwee, supra; see also, In re Southern Railway, 313 N.C. 177, 328 S.E. 2d 235 (1985).\nThe record presently before us reveals that the Tax Commission received new evidence in the form of testimony from witnesses presented by both appellants and appellees. This procedure was error in light of the decision of the Supreme Court. Accordingly, we remand these proceedings to the Tax Commission to enter an Order based on the record before the Commission at the time of the parties\u2019 first appeal and consistent with the opinion of the Supreme Court.\nRemanded.\nJudges Wells and Cozort concur.",
        "type": "majority",
        "author": "JOHNSON, Judge."
      }
    ],
    "attorneys": [
      "McElwee, McElwee, Cannon & Warden, by W. H. McElwee and William C. Warden, Jr., for petitioner appellants.",
      "Brewer and Freeman, by Paul W. Freeman, Jr., for respondent appellee Wilkes County."
    ],
    "corrections": "",
    "head_matter": "IN THE MATTER OF: THE APPEAL OF WILLIAM H. McELWEE, JR., WILLIAM H. McELWEE, III, ELIZABETH McELWEE CANNON, DOROTHY PLONK McELWEE and JOHN PLONK McELWEE; R. B. JOHNSTON AND SONS; and PAUL OSBORNE and PRESLEY E. BROWN LUMBER COMPANY, from the VALUATION OF CERTAIN OF THEIR PROPERTIES BY WILKES COUNTY FOR 1977\nNo. 8410PTC1225\n(Filed 2 July 1985)\nTaxation \u00a7 25.10\u2014 remand to Property Tax Commission \u2014new evidence received-error\nThe Property Tax Commission erred by receiving new evidence in an appraisal proceeding which had been remanded to the Commission from the Supreme Court because the Commission\u2019s findings and conclusions were not supported by competent, material, and substantial evidence in view of the entire record. The property owners were entitled to a decision on the record before the Commission and the Court.\nAppeal by taxpayers from an Order of the North Carolina Tax Commission entered 25 June 1984. Heard in the Court of Appeals 4 June 1985.\nMcElwee, McElwee, Cannon & Warden, by W. H. McElwee and William C. Warden, Jr., for petitioner appellants.\nBrewer and Freeman, by Paul W. Freeman, Jr., for respondent appellee Wilkes County."
  },
  "file_name": "0658-01",
  "first_page_order": 690,
  "last_page_order": 691
}