Opinion
Docket No. 011959-2014
10-14-2014
Re: Paglinawan, Alex & Lydia R. v. Scotch Plains Twp. Block 14901, Lot 41
NOT FOR PUBLICATION WITHOUT APPROVAL OF THE TAX COURT COMMITTEE ON OPINIONS
Adam J. Colicchio, Esq.
Palumbo & Renaud
190 North Avenue East
Cranford, New Jersey 07016
Michael R. Shulman, Esq.
Turteltaub & Turteltaub, P.A.
526 Broadway
P.O. Box 60
Bayonne, New Jersey 07002
Dear Counsel:
This letter constitutes the court's opinion in connection with the Township of Scotch Plains ("defendant") motion to dismiss the complaint in the above-captioned matter.
The Union County Board of Taxation ("County Board") dismissed with prejudice the petition of appeal filed by Alex & Lydia R. Paglinawan ("plaintiff"), as a result of plaintiff's failure to appear and present evidence at the County Board hearing. Plaintiff timely filed a complaint with the Tax Court appealing the County Board's judgment. The defendant asserts that the Tax Court lacks jurisdiction under N.J.S.A. 54:51A-1(c) to entertain plaintiff's appeal from the County Board's judgment dismissing with prejudice plaintiff's petition for failure to prosecute. The defendant's motion is premised on the following provisions of N.J.S.A. 54:51A-1(c)(2):
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.
Plaintiff argues that its non-appearance at the County Board hearing resulted from not receiving notice of the hearing, as required under N.J.A.C. 18:12A-1.9. Therefore, plaintiff contends that the County Board's dismissal of the petition with prejudice was in error and that plaintiff should be permitted to prosecute its appeal before the Tax Court.
Under N.J.S.A. 54:51A-1 the Tax Court retains jurisdiction to review, de novo, any judgment, action or determination of a county board of taxation. The provisions of N.J.S.A. 54:51A-1(c)(2) place certain limitations on the Tax Court's ability to review a county board of taxation's judgment arising from the dismissal of a petition with prejudice for failure to prosecute an appeal. However, under N.J.S.A. 54:2-35 the Tax Court is vested with the authority to render "such judgment therein as it may think proper."
For the reasons set forth hereifn, the court concludes that under the facts presented, the County Board's judgment dismissing with prejudice the plaintiff's petition for lack of prosecution was not warranted. The decision of the County Board deprived plaintiff of the right to present evidence and have plaintiff's tax appeal determined on its merits. Therefore, defendant's motion to dismiss the complaint is denied.
I. Procedural History and Findings of Fact.
On March 31, 2014, plaintiff filed a petition of appeal with the Union County Board of Taxation challenging the 2014 assessment levied on the real property located at 9 Heritage Lane, in the Township of Scotch Plains, County of Union, and State of New Jersey (the "property"). At the June 26, 2014 hearing plaintiff's counsel failed to appear and offer evidence of value of the property. Accordingly, the County Board granted defendant's motion to dismiss plaintiff's petition with prejudice a result of plaintiff's failure to appear and present evidence. On June 26, 2014, the County Board issued a Memorandum of Judgment affirming the assessment on the property, under judgment code "5A", referencing plaintiff's "non-appearance." On June 27, 2014, plaintiff's counsel contacted the County Board and inquired when the hearing was scheduled, because he did not receive any notice. A representative of the County Board advised plaintiff's counsel that the hearing had been conducted and that judgment was entered on June 26, 2014 dismissing the petition for lack of prosecution. On July 3, 2014, the County Board mailed the Memorandum of Judgment to plaintiff's counsel. On July 30, 2014 plaintiff filed a complaint with the Tax Court appealing the County Board's judgment and challenging the 2014 assessment on the property.
Defendant's counsel filed amotion to dismiss plaintiff's complaint under N.J.S.A. 54:51A-1(c)(2) arguing that because plaintiff failed to appear and offer any evidence of value before the County Board, such failure equates to a dismissal with prejudice for failure to prosecute. Therefore, defendant's counsel maintains the matter is not subject to review by the Tax Court.
In opposition to the motion, plaintiff's counsel contends that he did not receive notice of the hearing from the County Board, as required under N.J.A.C. 18:12A-1.9(b), thus plaintiff was deprived of the right to present its evidence.
plaintiff's counsel submitted an uncontested certification to the court certifying that he did not receive notice of the hearing from the County Board. The court finds plaintiff's counsel's certification credible in this matter. Additionally, the court finds that plaintiff's counsel's failure to appear at the County Board hearing deprived plaintiff of the opportunity to present evidence of value of the property and have the tax appeal heard on its merits.
II. Conclusions of Law.
The Tax Court's review of judgments, actions, or determinations of the county boards of taxation is governed by N.J.S.A. 54-51A-1. N.J.S.A. 54-51A-1(a) provides, in part, that "any party who is dissatisfied with the judgment, action or determination of the county board of taxation may seek review of that judgment, action or determination in the Tax Court, pursuant to rules of court." However, the Tax Court shall not review an appeal from a county board of taxation's decision arising from the dismissal of a petition with prejudice for failure to prosecute an appeal. N.J.S.A. 54-51A-1(c)(2). Typically, a failure to appear in the context of a dismissal for lack of prosecution precludes a de novo review by the Tax Court. VSH Realty, Inc. v. Harding Tp., 291 N.J. Super. 295, 300 (App. Div. 1996). The effectuating regulations under N.J.A.C. 18:12A-1.9 similarly provide:
(e) 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.Thus, if sustained by the Tax Court, the dismissal of an appeal by a county board of taxation resulting from the failure to prosecute will terminate the taxpayer's right to appeal the assessment for the tax year in question, without a hearing. Pipquarryco, Inc. v. Borough of Hamburg, 15 N.J. lax 413, 418 (Tax 1996).
However, under N.J.S.A. 54:2-35, the Tax Court is not only authorized to review any action or determination of a county board of taxation, but to "give such judgment therein as it may think proper." Veeder v. Township of Berkeley, 109 N.J. Super. 540, 546 (App. Div. 1970). In evaluating a motion to dismiss under the standards of N.J.S.A. 54:51A-1(c)(2), the Tax Court must ascertain whether the taxpayer's failure to prosecute before the county board fell within the intendment of the statute. Veeder, supra, at 109 N.J. Super. 545 (App. Div. 1970). This determination involves questions of fact, thus the Tax Court must examine the totality of the circumstances surrounding the county board of taxation's dismissal for lack of prosecution. "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. The legal standard to be applied in making such determination is that the motion to dismiss should be granted sparingly and only in the most egregious circumstances. Wilshire Oil Co. of Texas v. Township of Jefferson, 17 N.J. Tax 583, 585 (Tax 1998). 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. Ibid. The "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). Dismissal of an action is a drastic remedy and should not be invoked "unless the plaintiff's behavior is deliberate and contumacious." Id. at 300.
Here, defendant contends the Tax Court is deprived of jurisdiction because the taxpayer did not appear and proffer evidence to the County Board, resulting in the dismissal of the petition with prejudice for lack of prosecution. N.J.S.A. 54:51A-l(c)(2). It is undisputed that a county board of taxation is vested with the authority to dismiss an appeal with prejudice, if a taxpayer has not produced sufficient reliable evidence of value. However, the Tax Court is obligated to examine whether the actions of the county board of taxation were reasonable and appropriate under the circumstances. A plaintiff's failure to appear and present evidence at a county board of taxation hearing, resulting from not receiving notice of the hearing, is insufficient to warrant dismissal of a petition with prejudice.
Under N.J. A.C. 18:12A-1.9(b), county boards of taxation are required to provide notice of the time and place of the hearing to a taxpayer or its authorized legal representative. The taxing authority must demonstrate that it employed reasonable steps to effectuate service of notice on the taxpayer. Family Realty Co. v. Secaucus Town, 16 N.J. Tax 185, 190 (Tax 1996)(citing Berkeley Tp. v. Berkeley Shore Water Co., 213 N.J. Super. 524 (App. Div. 1986). Each county board of taxation is required to "adopt such standardized petitions of appeal, rules, regulations and procedures as are prescribed by the Director of the Division of Taxation, under N.J.S.A. 54:3-14 to provide notice to taxpayers of tax assessment contest proceedings." Family Realty, supra, 16 N.J. Tax at 190. In response to the enactment of N.J.S.A. 54:3-14, the Director promulgated N.J.A.C. 18:12A-1.9(b), which provides:
(b) The board shall give at least 10 days' notice of the time and place of hearing of the appeal to the petitioner, assessor and attorney of the taxing district."Absent a Legislative enactment or court rule contrary thereto, a required notice may be effectively given if properly mailed." Family Realty, supra, 16 N.J. Tax at 190; See also R. 8:4-2(b). "In the absence of a rule governing any matter at issue [before a county board of taxation], the rules of the Tax Court insofar as they may be applicable, shall govern", this includes R. 1:1-1 making the court rules of general application applicable to the Tax Court; and R. 1:5-1 requiring service of notice on an attorney of record." Family Realty, supra, 16 N.J. Tax at 190. Thus, the failure to provide adequate notice of a proceeding to a litigant or its designated counsel will likely render the outcome of the proceeding invalid.
Our courts have consistently recognized that dismissal of a cause of action based on a strict adherence to calendar practice violates the equitable principles of our system of justice. As Judge Kuskin expressed, "calendar control cannot take precedence over principles of fundamental fairness. The court system exists to administer justice, not merely to satisfy the court's desire to dispose of cases on its calendar. Courts exist to serve the public through counsel, not vice versa." Pipquarryco, Inc. v. Hamburg Borough, 15 N.J. Tax 413, 417 (1996)(citing Rutherford Realty Assoc. v. Borough of Rutherford, 277 N.J. Super. 347 (App. Div. 1994)). "Where, on or before the scheduled hearing date, a taxpayer communicates to the county board the taxpayer's desire to prosecute an appeal and provides reasonable indicia that the taxpayer will, on a later date, be prepared to proceed in a 'meaningful manner', the taxpayer's conduct should not be regarded as either 'deliberate' or 'contemptuous', and the county board should not dismiss the appeal for failure to prosecute." Id. at 419.
Therefore, unless the conduct of the litigant is so patently offensive, intentional and purposeful, a dismissal based solely on procedural grounds is unwarranted. "[T]he drastic step of dismissal should not be invoked unless it is clear that the conduct of the offending party is deliberate." Rutherford Realty Assoc. v. Borough of Rutherford, 277 N.J. Super. 347, 353 (App. Div. 1994); (See Jepson Refrigeration Corp. v. City of Trenton, 295 N.J. Super. 492, 496 (App. Div. 1996)). "Not only are procedural dismissals, with prejudice, generally unwarranted...but procedural dismissals themselves are not favored." Id. at 352-353 (quoting Connors v. Sexton Studios, Inc., 270 N.J. Super. 390 (App. Div. 1994)).
Similarly, in VSH Realty, Inc. v. Harding Township, 291 N.J. Super. 295 (App. Div. 1996), the Appellate Division recognized that the dismissal of an action resulting from plaintiff's failure to appear at the county board of taxation's hearing was unjustified. Relying on Rutherford Realty Assoc. v. Borough of Rutherford, supra, the Appellate Division stated that the administration of the court's calendar with "blind rigidity" cannot take priority over a party's constitutional right to contest its assessment. VSH Realty, Inc., supra, 291 N.J. Super. at 301.
In applying the principles of R. 4:46-2(c) to defendant's motion to dismiss, the court must resolve all legitimate inferences in favor of the non-moving party. Here, plaintiff's attorney has certified to the court that he did not appear before the County Board because he did not receive notice of the hearing date. This failure to receive notice deprived plaintiff of the ability to present the merits of its case. It is undisputed that a county board of taxation is required to send notice of the place and time of hearing to plaintiff's counsel, under N.J.A.C. 18:12A-1.9(b) and R. 1:5-1. The defendant does not argue, or offer any evidence to the court that plaintiff or plaintiff's counsel received notice of the hearing date and willfully disregarded such notice. Additionally, there is no evidence before the court that plaintiff's counsel's failure to appear and present evidence to the County Board was intentional or deliberate. plaintiff's petition of appeal was timely filed on March 31, 2014 with the County Board. plaintiff's counsel certified to the court that he was prepared to present an appraisal report and the testimony of the appraiser at the County Board hearing, "but for" his failure to receive notice of the hearing. On June 27, 2014, plaintiff's counsel contacted the County Board to inquire when the hearing was scheduled and was informed that judgment had been entered on June 26, 2014, dismissing the petition for lack of prosecution. In short, there has been no evidence presented to the court demonstrating that the conduct of plaintiff's counsel was deliberate and contemptuous thereby warranting the County Board's dismissal with prejudice of the petition for lack of prosecution.
Accordingly, the court concludes that the County Board's dismissal of plaintiff's petition has prejudiced the plaintiff. The County Board dismissed the cause of action without ever addressing the merits of plaintiff's case. To dismiss plaintiff's complaint in this matter would not serve to further the interests of fundamental fairness and the administration of justice.
III. Conclusion.
For the above stated reasons, defendant's motion to dismiss plaintiff's complaint under N.J.S.A. 54:51A-1 is denied. An order reflecting this letter opinion will be entered and will accompany this opinion.
Very truly yours,
/s/
Hon. Joshua D. Novin, J.T.C.