Jesse Rosenblum v. Borough of Closter

• Court: New Jersey Superior Court Appellate Division
• Decided: October 10, 2024
• Docket: A-3017-22
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3017-22

JESSE ROSENBLUM,

Plaintiff-Appellant,

v.

BOROUGH OF CLOSTER, 1 JOSEPH MIELE, and GLORIA MIELE,

Defendants-Respondents. ____________________________

Submitted September 24, 2024 – Decided October 10, 2024

Before Judges Gilson and Firko.

On appeal from the Tax Court of New Jersey, Docket No. 013409-2020.

Jesse Rosenblum, appellant pro se.

DeCotiis, Fitzpatrick, Cole & Giblin, LLP, attorneys for respondents Joseph Miele and Gloria Miele (Jason S. Nunnermacker, on the brief).

1 The Borough of Closter is not participating in this appeal. PER CURIAM

Plaintiff Jesse Rosenblum appeals from an April 12, 2023 Tax Court order

awarding attorney's fees and costs to defendants Joseph and Gloria Miele (the

Mieles) as sanctions. We affirm.

I.

The chronology and factual background are set forth in this court's

unpublished opinion entered on July 15, 2020. We incorporate, by reference,

the facts stated in our prior opinion. Rosenblum v. Borough of Closter, No. A-

2561-18 (App. Div. July 15, 2020) (slip op. at 1-2).

The Mieles own property in defendant Borough of Closter (the Borough) ,

consisting of approximately 9.9 acres. They applied for tax status for their

property as farmland under the Farmland Assessment Act, N.J.S.A. 54:4-23.1 to

-23.23. The Mieles represented that just over 5.5 acres of their property is

pastureland that they use for llamas.

On December 15, 2020, plaintiff filed a third-party complaint with the

Bergen County Tax Board (the Board) challenging the farmland assessment for

the Mieles' property for tax year 2020 on the basis their property is not

pastureland but instead is predominantly wooded wetlands, which he contends

does not qualify as pastureland. Since 1991, plaintiff has filed numerous

A-3017-22 2 challenges to the farmland assessments of the Mieles' property, which have been

granted on an annual basis under the Farmland Assessment Act. The Board

denied plaintiff's tax appeal at the local level.

On December 15, 2020, plaintiff filed a complaint in the Tax Court

challenging the Board's determination of the 2020 farmland assessment of the

Mieles' property and sought to have it revoked and assessed with a regular tax

assessment. On December 16, 2020, the Mieles' attorney sent plaintiff a letter

pursuant to Rule 1:4-8(b)(1), advising him the 2020 complaint was frivolous and

that the Mieles would pursue a motion for sanctions and attorney's fees if the

complaint was not withdrawn within twenty-eight days. Plaintiff did not

withdraw the 2020 complaint.

On January 18, 2021, the Borough filed a motion to dismiss the 2020

complaint, which the Mieles joined. On May 5, 2021, the Tax Court judge

conducted oral argument on the Borough's and Mieles' motions to dismiss and

reserved decision.

On December 7, 2021, the judge granted the motions to dismiss the

complaint with prejudice as to the Borough and the Mieles and issued a

comprehensive written statement of reasons. The judge found collateral

estoppel applied "because plaintiff's core issue was 'the presence of a stream and

A-3017-22 3 wetlands means that the land cannot be pastureland for the animals on the

property and was improperly included as farmland by the assessor.'" A

memorializing order was entered.

On January 14, 2022, plaintiff moved for reconsideration. On December

12, 2022, the judge denied plaintiff's motion for reconsideration. In his written

statement of reasons, the judge determined "plaintiff raised the same arguments

[in] the preceding motion arguing that woodland and wetland acreage should be

considered appurtenant and not actively devoted." The judge highlighted the

arguments made by plaintiff were "not based on new evidence," and there was

no "error on [the judge's] part during consideration of the evidence for the order

entered on December 7, 2021." A memorializing order was entered. Plaintiff

did not appeal from the December 7, 2021 or December 12, 2022 orders.

On December 15, 2022, the Mieles moved for reimbursement of their fees

and costs under Rule 1:4-8 and N.J.S.A. 2A:15-59.1, the Frivolous Litigation

Act, based on what they contended was plaintiff's frivolous litigation conduct.

The Borough did not take a position on the motion. Plaintiff opposed the

motion.

On March 3, 2023, the judge granted the Mieles' motion and awarded them

attorneys' fees against plaintiff pursuant to Rule 1:4-8. The judge directed

A-3017-22 4 counsel for the Mieles to submit a supplemental certification of services

detailing their updated legal fees and costs associated with defending plaintiff's

lawsuit.

In his written statement of reasons, the judge summarized the undisputed

facts in the motion record. The judge explained that plaintiff "has filed multiple

unsuccessful tax appeals on the [Mieles'] farmland exemption since 1997." In

addition, the judge emphasized that plaintiff "has had numerous complaints

dismissed by orders in 2009, 2019, and 2021, on the basis of collateral estoppel."

The judge noted plaintiff conceded in previous proceedings "that the complaints

allege the same facts and arguments," yet "plaintiff still filed complaints year

after year requiring the [Mieles] to have to continuously defend their farmland

assessment." As the judge stated:

[Plaintiff's] filings . . . have a common theme, that the property is not truly farmland because it consists of "wooded wetland watercourses, upland woodland, and a shortfall of real pasture." [Plaintiff] argues that delineated woodlands and wetlands cannot be considered pastureland and therefore the Mieles fall short of the minimum five . . . acre requirement for the farmland assessment because excluding 6.3 acres as wetlands, there is only 2.59 acres available for pastureland ("total acre objection").

The judge highlighted that in 1999, following a trial, a prior Tax Court

judge concluded:

A-3017-22 5 The last general area that is an issue in this case is whether or not the minimum five-acre area of property that must be found to be devoted to an agricultural purpose in order to sustain a farmland assessment is, in fact, being used for the qualifying purpose here. And I conclude from the credible evidence produced on the record that five acres of this property at minimum is being devoted actively to the raising of the llamas and that it is appropriate[ly] considered within the various categories enumerated under the Farmland Assessment Act and the regulations implementing the Farmland Assessment Act as permanent pasture.

....

And the evidence in this case is substantial and credible that the animals are not maintained exclusively within corral or pan areas but that they are allowed to roam freely over the entire extent of the property and that they do so not only for purposes of exercise, but also for purposes of foraging or pasturing which brings us to the next question and that is whether or not it is consistent with the law that areas that are found to be pasture are in their physical characteristics predominantly woodland or wetland. And while at first blush the common understanding of the term pasture suggests grassy areas or meadows, there is nothing that I find in the law that makes that an indispensable element of the definition of a pasture and particularly where the animal which is being raised on the property is appropriately raised in a wooded habitat and grazes, which I understand to mean takes his nourishment, paddocks growing immediately out of the ground or browses which I understand to mean takes his nourishment—I guess grazing I associate with grasses and browsing I associate with other kinds of higher growth vegetation where the animal both grazes and

A-3017-22 6 browses as it is clear from the evidence that the llama does.

It is not incongruous for woodland to be considered to be pasturage and for the woodland to provide an addition to forage and feed also an appropriate habitat for the animals to obtain shelter from the hot weather.

And therefore, wooded area may be appropriately considered to be permanent pasture. The definitions of permanent pasture that have been established under the farmland law indicate that it is land that is not cultivated because its potential is realized from grazing or part of an erosion control program, animals may or may not be part of the farm operation.

In a case where they are part of a farm operation and where it is the animal's presence and where the nature of the animals is such that they both browse and graze, woodland may be appropriately be determined to be pasture. A certain portion of the area utilized in raising the llamas is wetland. Some portion of the wetland may also be wooded. I conclude that there is no impediment to counting delineated wetland as permanent pasture for these or any other kinds of animals providing that the characteristics of the property are such as to provide the pasturage and the testimony in this case is that the delineated wetlands are not in significant measure marshy or boggy, but that they can accommodate and support the animals and that the conditions on at least a portion of the wetlands that can be found to be pastureland are—is such that the animals can obtain nourishment and/or shade there as well.

A-3017-22 7 In his March 3, 2023 order, the judge summarized the 1999 decision to

uphold the farmland tax assessment for the 1997 and 1998 tax years finding that

"woodland may be appropriately determined to be pasture[land] after

considering the farm operation, animal's presence, and animal's nature to both

browse and graze." Specifically, the judge rejected plaintiff's claim that the

courts have not reached conclusions of law since the 1999 trial. The judge

explained plaintiff continues to assert that "appurtenant wetlands cannot be used

to reach the five . . . acre minimum requirement because it is not considered

actively devoted."

In addition, the judge noted plaintiff argued "that the defining issue of

each appeal that no court stated [was] what farmland law reinforced what the

prior courts have determined." The judge rejected plaintiff's claim and found

"[c]onclusions of law were provided by the courts in their previous decisions."

In conclusion, the judge found that plaintiff filed his 2020 complaint "in

bad faith, as no reasonable, good faith belief in the merits of the actions existed

in issues that have not already been decided." A memorializing order was

entered.

Pursuant to the order, counsel for the Mieles submitted a supplemental

certification of services dated March 9, 2023. Plaintiff submitted opposition.

A-3017-22 8 On April 12, 2023, the judge entered an order of judgment awarding attorney's

fees in the amount of $16,539.10, and costs in the amount of $430.18, for a total

judgment of $16,969.28. In his accompanying written statement of reasons, the

judge considered the lodestar amount and the RPC 1.5(a) factors.

In addressing the RPC 1.5(a) factors, the judge noted he examined the

supplemental certification of services and found "each entry is fair and

reasonable given the work provided and completed." The judge underscored the

time and labor expended by counsel was "reasonable or even modest" given the

fact the Mieles joined in the Borough's motion to dismiss and did not have to

"duplicate" the Borough's efforts. The judge determined the Mieles prevailed

against plaintiff in the motions to dismiss, for reconsideration, and for sanctions.

The judge noted that plaintiff again attempted to "relitigate the substantive

issues underlying the complaint" but did "not argue the reasonableness of the

Mieles' attorney['s] fees." This appeal followed.

II.

Before us, plaintiff challenges only the amounts of fees and costs awarded

in the April 12, 2023 order of judgment. Plaintiff has not appealed from the

March 3, 2023 order, and therefore, does not challenge the propriety of the

award. Plaintiff has also not appealed from the substance of the orders entered

A-3017-22 9 on December 7, 2021, and December 12, 2022. Plaintiff has effectively

abandoned the appeal of those two orders by not presenting arguments

concerning those orders. See State v. Huang, 461 N.J. Super. 119, 125 (App.

Div. 2018); aff'd o.b., 240 N.J. 56 (2019); Sklodowsky v. Lushis, 417 N.J. Super.

648, 657 (App. Div. 2011).

Moreover, we discern no basis for reversing or modifying the December

7, 2021 or December 12, 2022 orders. We limit our discussion accordingly and

affirm primarily for the reasons expressed in the thorough written opinion of the

judge issued with the April 12, 2023 order of judgment.

We review a trial judge's decision to award counsel fees on a motion for

frivolous litigation sanctions under an abuse of discretion standard. McDaniel

v. Man Wai Lee, 419 N.J. Super. 482, 498 (App. Div. 2011). Reversal is

warranted "only if [the decision] 'was not premised upon consideration of all

relevant factors, was based upon consideration of irrelevant or inappropriate

factors, or amounts to a clear error in judgment.'" Ibid. (quoting Masone v.

Levine, 382 N.J. Super. 181, 193 (App. Div. 2005)).

The Frivolous Litigation Act governs sanctions for frivolous litigation

against a party. Under that statute, a court is permitted to "award reasonable

attorney's fees and litigation costs to a prevailing party in a civil action if the

A-3017-22 10 court finds 'at any time during the proceedings or upon judgment that a

complaint . . . of the non-prevailing person was frivolous.'" Bove v. AkPharma

Inc., 460 N.J. Super. 123, 147-48 (App. Div. 2019) (quoting N.J.S.A. 2A:15-

59.1(a)(1)).

A complaint is frivolous if the judge "find[s] on the basis of the pleadings,

discovery, or the evidence presented" that either: (1) the complaint "was

commenced, used or continued in bad faith, solely for the purpose of harassment,

delay or malicious injury;" or (2) "[t]he non[-]prevailing party knew, or should

have known, that the complaint . . . was without any reasonable basis in law or

equity and could not be supported by a good faith argument for an extension,

modification or reversal of existing law." N.J.S.A. 2A:15-59.1(b)(1) to (2).

Similarly, Rule 1:4-8 provides a pleading is frivolous if: (1) it is

"presented for any improper purpose, such as to harass or to cause unnecessary

delay or needless increase in the cost of litigation;" (2) the claims therein are

not "warranted by existing law or by a non-frivolous argument for the extension,

modification, or reversal of existing law or the establishment of new law"; (3)

the factual allegations lack evidentiary support; or (4) the denials of factual

allegations are not warranted. R. 1:4-8(a).

A-3017-22 11 "For purposes of imposing sanctions under Rule 1:4-8, an assertion is

deemed 'frivolous' when 'no rational argument can be advanced in its support,

or it is not supported by any credible evidence, or it is completely untenable.'"

Bove, 460 N.J. Super. at 148 (quoting United Hearts, LLC v. Zahabian, 407 N.J.

Super. 379, 389 (App. Div. 2009)). In the order imposing sanctions, the court

"shall describe the conduct determined to be a violation of this rule and explain

the basis for the sanction imposed." R. 1:4-8(d).

Applying these principles, we discern no abuse of discretion in the judge's

decision to award attorney's fees and costs to the Mieles pursuant to Rule 1:4-8

and the Frivolous Litigation Act. As the judge found, plaintiff's 2020 complaint

was filed in "bad faith" and contrary to plaintiff's assertions, "[c]onclus ions of

law were provided by the courts in their previous decisions."

The judge's findings are supported by substantial, credible evidence.

Moreover, the judge considered all the relevant and appropriate factors under

Rule 1:4-8 and the Frivolous Litigation Act. We reiterate that plaintiff does not

even address the amount of counsel fees and costs awarded in his merits brief.

We reject plaintiff's arguments that "farmland law" has not been followed

by the courts in this State; that the Tax Court lacks subject matter jurisdiction

because it "disfavors and contradicts" farmland law; and the Mieles are

A-3017-22 12 "undeserving owners of land" who filed fraudulent farmland assessment

applications. Essentially, plaintiff argues his 2020 complaint was not frivolous

and reprises his argument that the Mieles' property was undervalued and

improperly assessed as farmland. As we stated in our prior opinion, which still

holds true, plaintiff "has not asserted any intervening change in significant facts

or statutory regulation or judicial law that favors him, thus we conclude

collateral estoppel was appropriately applied." Rosenblum, slip op. at 11-12.

Accordingly, we discern no abuse of discretion and affirm the April 12, 2023

Tax Court order.

Affirmed.

A-3017-22 13