Opinion
Docket No. 014372-2012
05-07-2013
Re: M. Nervegna & J. Goll v. Township of East Brunswick Block 759, Lot 17
BY ELECTRONIC MAIL Jeff J. Horn, Esq. Horn Law Group, L.L.C.. David P. Lonski, Esq. Shamy, Shipers & Lonski, P.C.
NOT FOR PUBLICATION WITHOUT APPROVAL OF
THE TAX COURT COMMITTEE ON OPINIONS
Mala Sundar
JUDGE
BY ELECTRONIC MAIL
Jeff J. Horn, Esq.
Horn Law Group, L.L.C..
David P. Lonski, Esq.
Shamy, Shipers & Lonski, P.C.
Dear Counsel:
This is the court's opinion dealing with a contested motion to dismiss the above captioned complaint. Defendant ("Township") contends that Plaintiffs' failure to appear and provide valuation evidence prior to, and at the scheduled hearing, prompted the dismissal of their petition by the Middlesex County Board of Taxation ("County Board"), and therefore, the Tax Court lacks jurisdiction under N.J.S.A. 54:51A-1(c) to entertain an appeal from such dismissal. Plaintiffs argue that their counsel's appearance on the scheduled date with a substantial package of valuation evidence and intention to call the assessor as a witness precludes a dismissal for lack of prosecution.
The court finds that because it is undisputed that Plaintiffs' counsel appeared before the County Board on the scheduled hearing date, and it also undisputed that the counsel was denied the opportunity to proffer the assessor's testimony, the dismissal of the petition filed before the County Board for lack of prosecution cannot be upheld. Therefore, the Township's motion to dismiss Plaintiffs' Tax Court complaint is denied. procedural history and facts
For tax year 2012, Plaintiffs filed a timely petition before the County Board challenging the assessment of $143,600 imposed upon their home located at 12 Maxwell Road, designated as Block 759, Lot 17 ("Subject"). The County Board scheduled a hearing for July 26, 2012. The address on the hearing notice was 390 George Street, Suite 220, New Brunswick, New Jersey 08903.
Plaintiffs retained counsel in connection with the litigation and prosecution of their County Board petition. They had not retained a real estate appraiser for purposes of the County Board petition. They did not independently provide any evidence, such as comparables, to the Township or the County Board since they had retained counsel and relied upon their counsel to perform the necessary services in this regard, but were aware of sale prices of neighboring homes, which they provided to their attorney.
Plaintiffs provided a certification of its counsel's legal assistant that by letter dated July 16, 2012, the counsel's office mailed a package of information containing a grid analysis of the Subject and four comparable sales (with line items as to property location, tax map identification, age, size (lot and improvements), room count, design, sale date, sale price and tax assessment. It also contained photographs of the Subject with a MOD-IV printout. Also attached were photographs, MLS information, SR1A data and the MOD-IV printout for each of the four comparables. The package was accompanied, with a cover letter, to the County Board (to the attention of the Tax Board Administrator). The cover letter requested a reduction in assessment based upon the comparable sale analysis, and indicated that the Plaintiffs reserved the right to produce "additional or substitute data." The cover letter indicated that copies were sent to the "Municipal Tax Assessor" and "Municipal Clerk." The address on the cover letter was 390 George Street, Suite 220, P.O. Box 871, New Brunswick, New Jersey 08901.
On the hearing date, Plaintiffs, nor any witness on their behalf, appeared before the County Board. Counsel for Plaintiffs, however, appeared before the County Board, "presented a package of [data] to the County Board," and "offered to submit this data for the Board's review." The attorney certified that his normal practice is to call the municipal assessor as a witness when there is either a motion to dismiss the appeal by the defendant's counsel or where the County Board indicates "that it is not satisfied, based on the notion that the package of data is not sufficient basis for determining value." He followed this practice here by requesting the assessor be called as a witness "to provide his or her value opinion," but a "single" member of the County Board "declined" this request.
The Township's assessor certified that "no comparable sales information or other valuation was provided" to the Township "at any time prior to the" County Board hearing date. He also averred that when the matter was called by the County Board, plaintiffs' counsel appeared but "did not present any evidence as to value."
The County Board granted the Township's motion to dismiss the petition for lack of prosecution. It issued a Memorandum of Judgment affirming the assessment, using judgment code "5B," meaning "no evidence provided (lack of prosecution)."
Plaintiffs timely appealed the judgment to the Tax Court. The Township thereafter filed the instant motion. findings
N.J.S.A. 54:51A-1 provides that a Tax Court cannot review a county board petition which, among others, has been dismissed for failure to prosecute. Thus,
If the Tax Court shall determine that the appeal to the county board of taxation has been . . . dismissed because of appellant's failure to prosecute the appeal at a hearing called by the county tax board; . . . , there shall be no review. This provision shall not preclude a review by the Tax Court in the event that the appeal was "dismissed without prejudice" by the county board of taxation.The effectuating regulations also provide similarly. Thus, N.J.A.C. 18:12A-1.9 provides:
[N.J.S.A. 54:51A-1(c).]
A petitioner shall be prepared to prove his case by complete and competent evidence. In the absence of some evidence, the board may dismiss the petition. In the case of failure to appear, the board may dismiss the petition for lack of prosecution.
[N.J.A.C. 18:12A-1.9(e).]
Dismissal of an appeal by a county board for failure to prosecute, if sustained by the Tax Court, terminates a taxpayer's right to appeal the tax year in question without a hearing. Pipquarryco, Inc. v. Borough of Hamburg, 15 N.J. Tax 413, 418 (Tax 1996).
The Tax Court is vested with the power to determine, de novo, whether there has been a failure to prosecute before the county board within the intendment of the statute. Veeder v. Township of Berkeley, 109 N.J. Super. 540, 545 (App. Div. 1970). Whether there has been a failure to prosecute involves a question of fact. Ibid. "In reviewing the determination of the county board of taxation, the Tax Court must take into account the facts available to the county board at the time of its ruling." Pipquarryco, supra, 15 N.J. Tax at 418.
A dismissal pursuant to this statute should be circumscribed by the same obligations to administer justice as are applicable to the Tax Court, and all doubts should be resolved against dismissal. Thus, "administration of the court's calendar with blind rigidity cannot take priority over a party's . . . right to contest its assessment." VSH Realty, Inc. v. Township of Harding, 291 N.J. Super. 295, 301 (App. Div. 1996) (citation omitted). Since dismissal is a drastic remedy it should not be invoked "in the absence of prejudice and unless the plaintiff's behavior is deliberate and contumacious." Id. 300-01. "Contumacious" is defined as "[o]bstinately disobedient or insubordinate; recalcitrant." Webster's II: New Riverside University Dictionary (1984). Thus, a motion to dismiss for lack of prosecution at the County Board should be granted sparingly and in egregious circumstances.
The Township argues that the County Board's dismissal for lack of prosecution is proper because Plaintiffs chose to not appear before the County Board even though they had no other scheduling conflicts. However, it is undisputed that Plaintiffs' counsel appeared on the scheduled hearing date. This is sufficient. The Township's insistence that Plaintiffs also accompany their counsel and appear or risk dismissal is unsupported. See Princeton Alliance Church v. Township of Mount Olive, 25 N.J. Tax 282, 286 (Tax 2009) (dismissal for lack of prosecution is "inappropriate" where plaintiff's "counsel appeared before the Board on the date of hearing").
The Township argues that the County Board's dismissal for lack of prosecution is also proper because Plaintiffs did not provide an valuation evidence "prior to the scheduled hearing." The court is not persuaded. The record here indicates that Plaintiffs provided evidentiary data to the County Board and the assessor by letter of July 16, 2012, which was at least 7 days prior to the hearing date of July 26, 2012. Although the package was addressed to the attention of the Tax Administrator, the street address is the same as that of the County Board. And although Plaintiffs' counsel used 08901 as the zip code while the County Board's address shows the zip code as 08903, the United States Postal Service website on "Zip Code Lookup" shows that both zip codes are assigned to New Brunswick, and that the zip code assigned to street address 390 George Street, Suite 220, in New Brunswick, is 08901. The court, therefore, is not persuaded that Plaintiffs failed to provide valuation evidence to either the County Board or the Assessor before the hearing date.
The County Board's website on instructions to appeal an assessment for tax year 2013 states that "No written materials will be permitted into evidence at the time of the hearing unless copies thereof have first been provided to the opposing party and the County Tax Board seven days prior to the hearing. See http://www.co.middlesex.nj.us/taxboard/ (last visited May 6, 2013).
While Plaintiffs included a P.O. Box number, that number is included in the County Board's website as its address for appeals. See http://www.co.middlesex.nj.us/taxboard/ (last visited May 6, 2013) ("[t]he Tax Board is located at 390 George Street, Suite 220, New Brunswick, New Jersey and our mailing address is PO Box 871, New Brunswick, New Jersey 08903").
See https://www.usps.com/zip4 (last visited May 6, 2013). This court has taken judicial notice of "public information service provided by the United States Postal Service['s website]." Green v. City of East Orange, 21 N.J. Tax 324, 335 and n.8 (Tax 2004).
The only issue then is whether Plaintiffs' counsel proffered "some" valuation evidence to the County Board. See N.J.A.C. 18:12A-1.9(e) (failure of taxpayer to provide "some evidence" is grounds for dismissal of the appeal); Ganifas Trust v. City of Wildwood, 15 N.J. Tax 722, 726 (App. Div. 1996) (taxpayer must provide "some proofs as to true value in order to overcome the presumption that current assessments are valid"). Absence of such evidence, "much less insufficient evidence, . . . may properly form a basis for a dismissal under N.J.S.A. 54:51A-1(c)(2)." VSH Realty, supra, 291 N.J. Super. at 301-02.
Plaintiffs contend that they "offered to submit" the previously mailed valuation data package to the County Board, and later, attempted to proffer the Assessor's testimony. It is unclear whether the Assessor's testimony was proffered because the County Board rejected the Plaintiffs' data package as sham or useless evidence so as to constitute lack of evidence, or because the Township moved to dismiss Plaintiffs' petition on the same grounds. The court however does not need to decide this issue because there is nothing in the record to refute Plaintiffs' counsel's certification that the County Board refused its request to elicit testimony of the assessor. Denying an opportunity to present such testimonial evidence is "inappropriate." Wilshire Oil Co. of Texas v. Township of Jefferson, 17 N.J. Tax 583, 588-89 (Tax 1998) (noting that a "county board had inherent authority to require the assessor, who was present in the hearing room, to testify at the request of plaintiff's attorney, even without a subpoena"); Princeton Alliance Church, supra, 25 N.J. Tax at 288 (precedent establishes that "a taxpayer can prosecute his or her appeal by way of cross-examination or [by] submission of competent documentary evidence"); see also Schaefer v. Borough of Chatham, 2012 N.J. Tax LEXIS 21, 5 (Tax Dec. 7, 2012) ("Board's refusal to allow the Taxpayers to proceed with their appeals despite appearances by counsel and appraisers, effectively created a situation where the Taxpayers were precluded from satisfying the evidentiary standard needed to avoid a dismissal for lack of prosecution").
In Ganifas Trust, supra, the court deemed a list comparables as lacking "evidentiary value" vis-à-vis the "true value" of the residences at appeal, such that a dismissal for lack of prosecution was proper, because that list included commercial properties and an appraiser could not render a value conclusion of the residences with such information. 15 N.J. Tax at 725. Here, Plaintiffs' documentary evidence comprised of a grid summarizing the SRIA data as to property location, lot/improvement size, age, assessment information, sale date and sale price for each comparable, along with the MLS listing and SR1A data. All comparables were of residences, thus, appropriate for analysis under a sales comparison approach, which is generally deemed the most reliable value indicator for single family homes. See Greenblatt v. City of Englewood, 26 N.J. Tax 41, 53 (Tax 2010). Thus, Plaintiffs' proffer of the documentary evidence is not so lacking as to constitute a sham or equate to an absence of "some" evidence.
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Based on the record here, and under the facts and circumstances of this case, the court finds that the County Board's judgment dismissing Plaintiffs' petition for lack of prosecution because ""no evidence [was] provided," cannot be sustained. Because the court so finds, it need not address Plaintiffs' alternative argument that dismissal of their petition by a single member of the County Board lacks validity due to the absence of a required quorum. conclusion
For the aforementioned reasons, the Township's motion to dismiss Plaintiffs' complaint is hereby denied. An Order reflecting this opinion will be simultaneously entered.
Very truly yours,
Mala Sundar, J.T.C.