In re the Appeals of Northern Telecom, Inc.

ORR, Judge. This appeal involves the tax assessment for business personal property owned by Northern Telecom, Inc. in Durham County. The County appeals from the order of the Property Tax Commission finding its discovery tax assessment null and void based on a contingency fee contract between the County and an outside auditing firm, TEC. NTI cross-appeals the Commission’s failure to consider NTI’s constitutional arguments that relate to the contingency fee contract. Before we address these arguments, however, we must first address the County’s contention that the order signed by Chairman Pinna is null and void based on the ground that at the time of the issuance of the order, three individuals signing the order were not lawful members of the Commission. On 13 June 1991, this action was heard before the Property Tax Commission. At this time, the five members constituting the Commission were Chairman William P. Pinna, Vice-Chairman James C. Spencer, Jr., Oliver W. Alphin, Clarence E. Leatherman, and John A Cocklereece. On 4 November 1991, Chairman William Pinna entered the order for the majority holding that the tax assessment was void, and Vice-Chairman Spencer and Leatherman dissented. By 4 November 1991, however, the terms of Leathermen, Spencer, [218] and Pinna as Commissioners for the Tax Commission had expired, and Pinna’s successor had been appointed. Thus, the issue on appeal is whether the order entered on 4 November 1991 by Chairman Pinna after Pinna’s term had expired as a Commissioner on the Property Tax Commission and Pinna’s successor to the Commission had been appointed is valid and binding. We hold that the order is not valid based on our conclusion that Chairman Pinna did not have the authority to enter an order after the expiration of his term on the Commission. The Property Tax Commission is created by N.C. Gen. Stat. § 105-288(a) (1992) which states: (a) Creation and Membership. — The Property Tax Commission is created. It consists of five members, three of whom are appointed by the Governor and two of whom are appointed by the General Assembly. . . . The terms of the members appointed by the Governor and of the member appointed upon the recommendation of the President Pro Tempore of the Senate are for four years. Of the members appointed for four-year terms, two expire on June 30 of each odd-numbered year. The term of the member appointed upon the recommendation of the Speaker of the House of Representatives is for two years and it expires on June 30 of each odd-numbered year. .. . Further, under this statute, the Property Tax Commission sits as the “State Board of Equalization and Review for the valuation and taxation of property in the State.” N.C. Gen. Stat. § 105-288(b) (1992). Appeals to the Commission as the State Board of Equalization and Review are governed by N.C. Gen. Stat. § 105-290 (1992) which states: (b) . . . The Property Tax Commission shall hear and decide appeals from decisions concerning the listing, appraisal, or assessment of property made by county boards of equalization and review and boards of county commissioners. Any property owner of the county may except to an order of the county board of equalization and review or the board of county commissioners concerning the listing, appraisal, or assessment of property and appeal the order to the Property Tax Commission. [219] (3) On the basis of the findings of fact and conclusions of law made after any hearing provided for by this subsection (b), the Property Tax Commission shall enter an order (incorporating the findings and conclusions) reducing, increasing, or confirming the valuation or valuations appealed or listing or removing from the tax lists the property whose listing has been appealed. A certified copy of the order shall be delivered to the appellant and to the clerk of the board of commissioners of the county from which the appeal was taken, and the abstracts and tax records of the county shall be corrected to reflect the Commission’s order. N.C. Gen. Stat. § 105-290(b)(3) (1992) (emphasis added). Thus, under these statutes, the Property Tax Commission has the authority to sit as a board of equalization to hear appeals from valuation and taxation of property in North Carolina, to make findings of fact and conclusions in these appeals, and to enter orders “reducing, increasing, or confirming the valuation or valuations appealed or listing or removing from the tax lists the property whose listing has been appealed” consistent with these findings and conclusions. In the present case, on 4 November 1991, Chairman Pinna entered the order for the Commission finding the County’s assessment of NTI’s business personal property null and void. Subsequently, by letter dated 17 October 1991, Pinna’s successor, James Vosburgh, was appointed to the Commission by Governor Martin, and on 1 November 1991 Vosburgh signed an oath of affirmation for this position. Thus, when Pinna entered the Commission’s order, he was no longer a member of the Commission. Because the authority to enter this order comes from being appointed as a member of the Property Tax Commission pursuant to the statutes set out previously, Pinna’s authority to enter the order ended when his term expired. The order entered by Pinna is, therefore, null and void and of no legal effect. See Capital Outdoor Advertising, Inc. v. City of Raleigh, 109 N.C. App. 399, 400-01, 427 S.E.2d 154, 155, disc. review allowed, motion to dismiss denied, 333 N.C. 789, 430 S.E.2d 424 (1993) (except by consent of the parties, judgment entered by a superior court judge out of session, out of term, and out of the county and judicial district where the hearing was held is “ ‘null and void and of no legal effect.’ ”); See also Nationwide [220] Mutual Ins. Co. v. Anderson, 111 N.C. App. 248, 431 S.E.2d 552 (1993). NTI argues, however, that because entry of the order was “merely a ministerial act”, the Commission’s order was valid and binding when a majority of the Commissioners approved the order at their meeting in September. We disagree. The record is void of any evidence that the Commission rendered its decision by notifying the parties until its order was actually signed and entered. Although as between the parties a duly rendered judgment may be valid and effective without entry, and its enforcement does not always depend on its entry, the statutes generally require judgments to be entered and for many purposes they are not complete, perfect, and effective until this is done. As a general rule, the decisions of all courts must be preserved in writing in some record provided for that purpose. Where a statute so requires, judgments should be entered, and for many purposes a judgment is not complete, perfect, and effective until it has been duly entered. Thus it has been broadly held that judgments take effect only from the date of entry, and that there is no judgment until it is entered of record. 49 C.J.S. § 107 (footnotes omitted). In the present case, the parties were not notified of the Commission’s decision until the Commission’s order was entered on 4 November 1991. There is no evidence to show that a Commissioner could not change his vote before the final entry of the order. In fact, two Commissioners were preparing a dissent, which dissent could have persuaded any of the other Commissioners in the majority to change their vote. Further, in order to appeal the Commission’s order to this Court, the order had to have been entered. See Searles v. Searles, 100 N.C. App. 723, 725, 398 S.E.2d 55, 56 (1990) (“entry of judgment is jurisdictional[, and] this Court is without authority to entertain an appeal where there has been no entry of judgment.”). Thus, we conclude that entry of this order was necessary for it to be final and binding, in light of the fact that no decision was ever rendered in this action prior to entry of the order. See Fitch v. Fitch, 26 N.C. App. 570, 216 S.E.2d [221] 734, cert. denied, 288 N.C. 240, 217 S.E.2d 679 (1975). NTI’s argument is therefore without merit. We also note that NTI refers to another order of the Commission as evidence that the 4 November 1991 order was valid and binding. On 4 February 1992, the Commission entered an order finding that the 4 November 1991 order of the Commission was “a true and proper Order setting forth the findings and conclusions of a majority of the Members of the Commission who were present at the hearing held 13 June 1991.” This order does not, however, persuade us to alter our decision. As previously stated, the Property Tax Commission has the authority to sit as a board of equalization and review to hear appeals from valuation and taxation of property in North Carolina, to make findings of fact and conclusions in these appeals, and to enter orders “reducing, increasing, or confirming the valuation or valuations appealed or listing or removing from the tax lists the property whose listing has been appealed” consistent with these findings and conclusions. See N.C. Gen. Stat. § 105-290. The statutory scheme which grants the Commission the authority to enter such orders does not, however, give the Commission the authority to determine whether a previous order of the Commission is valid and binding. Thus, the 4 February 1992 decision of the Commission does not alter our conclusion that the 4 November 1991 order is null and void. Based on our holding that the order is null and void, we need not address the remaining assignments of error arising out of this order. Accordingly, we vacate the order of the Commission. Vacated. Judges WELLS and MARTIN concur.