In the Matter of the Appeal of FAYETTEVILLE HOTEL ASSOCIATES, a North Carolina Limited Partnership, from the appraisal of certain real property by the Cumberland County Board of Equalization.
No. 9410PTC106.Court of Appeals of North Carolina.
December 6, 1994.*569 Sandman & Strickland, P.A. by Nelson G. Harris, Raleigh, for taxpayer-appellant.
Cumberland County Attorney's Office by Deputy County Atty. Danny G. Higgins, Fayetteville, for respondent-appellee.
EAGLES, Judge.
In its appeal here, taxpayer contends that the Commission abused its discretion in dismissing taxpayer's appeal for violation of Commission rules. We disagree.
*570 G.S. 105-288(b) provides that the Commission "may adopt rules needed to fulfill its duties." The Commission's rules regarding appeals to the Commission are codified in Title 17, Chapter 11 of the North Carolina Administrative Code. Sections .0213 and.0214 of the Code require that the Commission be furnished documents ten days prior to the date of the hearing and that the parties enter into a pretrial order ten days prior to the hearing date.
.0213 COMMISSION TO BE FUNISHED DOCUMENTS PRIOR TO HEARING
(a) At least ten days prior to the date of the hearing, each party to the appeal shall furnish to the secretary of the Commission six copies of all documents to be introduced at the hearing, including maps, pictures, property record cards and briefs....
(b) In the absence of an agreement to the contrary, a copy of each such document shall also be furnished or made available to the opposing party at the same time.
.0214 PARTIES TO ENTER INTO A 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 appellant shall forward six copies of the executed order to the secretary at least 10 days prior to the date of hearing.
These two rules require the parties to submit six copies of all documents to be introduced at the hearing and to enter into a pre-hearing order, both at least ten days prior to the hearing.
Here, the Commission found as a fact that the Commission's secretary mailed taxpayer a Notification of Hearing on 22 September 1993 which included instructions for the exchange of documentary evidence and the preparation of a pre-hearing order. The Commission further found that taxpayer did not exchange documentary evidence or enter into a pre-trial order 10 days before the hearing. The Commission found that respondent had submitted its documentation and had attempted to contact taxpayer 12 days prior to the hearing date. Taxpayer failed to submit its documents until the day before the hearing date and did not enter into a pre-trial order. Based on these findings, the Commission dismissed taxpayer's appeal for failure to follow the rules of the Commission.
Rules and regulations of an administrative agency governing proceedings before it, duly adopted and within the authority of the agency, are as binding on the agency as if they were statutes enacted by the legislature. Such rules are also binding upon the public of the agency, and the agency does not generally have the discretion to waive, suspend, or disregard them in a particular case....
2 Am.Jur.2d Administrative Law § 269 (1994); Humble Oil & Refining Co. v. Board of Alderman, 284 N.C. 458, 468, 202 S.E.2d 129, 135 (1974).
Taxpayer contends that the Commission exceeded its authority by dismissing the appeal. Taxpayer alternatively contends that the Commission abused its discretion in dismissing the appeal because it did not consider any alternative sanctions. We disagree. Since the Commission's rules are binding upon the Commission as well as the public, we conclude that the Commission has an obligation and an implied power to enforce its rules. Dismissal of an appeal for failure to follow the rules is an appropriate sanction. Without the implicit authority to enforce its rules by dismissal, the Commission's effectiveness as a quasi-judicial body would be fatally compromised. Taxpayer argues that the Commission should have considered a less severe sanction but cites no authority for the Commission to tax attorney's fees or costs or impose other less stringent sanctions. Although we conclude that the Commission has the implied authority to enforce its rules and to dismiss appeals for failure to follow them, the power to impose sanctions such as attorney's fees or assessment of costs to a party would require more specific legislative authority. These additional powers would exceed the Commission's general rulemaking authority. G.S. 105-288(b). Accordingly, we affirm the order of *571 the Commission dismissing taxpayer's appeal.
Affirmed.
McCRODDEN, J., concurs.
ORR, J., dissents.
ORR, Judge, dissenting.
I respectfully dissent from the majority's conclusion that, because the Commission has an obligation and an implied power to enforce its rules, dismissal of an appeal for failure to follow the rules is an appropriate sanction. I disagree because these sanctions are neither statutorily nor legislatively mandated. If, as the majority indicates, lesser sanctions such as attorney's fees require legislative authority, then surely a punitive measure such as dismissing the appeal also requires legislative authority.
Therefore, I vote to reverse the order of the Commission dismissing taxpayer's appeal.