JESSE WOLOSKY VS. FREDON TOWNSHIP (TAX COURT OF NEW JERSEY)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 24, 2018
• Docket: A-1980-16T1
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1980-16T1

JESSE WOLOSKY,

Plaintiff-Appellant,

v.

FREDON TOWNSHIP and MICHAEL AND PENNY HOLENSTEIN,

Defendants-Respondents. ________________________________

Argued May 30, 2018 – Decided July 24, 2018

Before Judges Hoffman and Mayer.

On appeal from Tax Court of New Jersey, Docket No. 008267-2016.

Matthew R. Petracca argued the cause for appellant (King and Petracca, LLP, attorneys; Matthew R. Petracca, on the brief).

Tara Ann St. Angelo argued the cause for respondents Michael and Penny Holenstein (Gebhardt & Kiefer, PC, attorneys; Tara Ann St. Angelo, on the brief).

William E. Hinkes argued the cause for respondent Fredon Township (Hollander, Strelzik, Pasculli, Hinkes, Wojcik, Gacquin, Vandenberg & Hontz, LLC, attorneys, join in the brief of respondents Michael and Penny Holenstein).

PER CURIAM

Plaintiff Jesse Wolosky appeals from a Tax Court judgment

dismissing his complaint, which alleged the tax assessment for the

property of defendants, Michael and Penny Holenstein,1 "is below

market value" and demanded "judgment increasing the said

assessment to the correct assessable value." We affirm.

I

Fredon Township (the Township) previously assessed

defendants' property at $544,400 in 2009 and 2010, $506,300 in

2011, and $437,600 in 2012 through 2016. On March 30, 2016,

plaintiff filed a petition of appeal challenging the Township's

assessment of defendants' property with the Sussex County Board

of Taxation, which dismissed the appeal without prejudice, citing

the conflict presented by Penny Holenstein's employment as a tax

assessor. Plaintiff then filed a complaint with the Tax Court

seeking the same relief. During discovery, plaintiff moved to

compel production of a January 2015 appraisal prepared when

1 Penny Holenstein serves as the tax assessor for a municipality where plaintiff owns property. Plaintiff filed an appeal from the Holenstein's assessment after he unsuccessfully challenged Ms. Holenstein's assessment on his property.

2 A-1980-16T1 defendants refinanced the mortgage on their property. The Tax

Court denied the motion.

At trial, plaintiff presented expert Matthew Nemeth as his

only witness. According to Nemeth, the subject property, located

on a cul-de-sac, contains 6.26 acres of land and a single-family

colonial house with four bedrooms, three and one-half baths, an

attached three-car garage, a porch, a balcony, an in-ground pool,

and a shed. Nemeth described the house as "average quality in

good condition." Nemeth utilized a sales comparison approach and

concluded to "a reasonable degree of certainty" that the value of

the subject property was $535,000.

To acquire data regarding comparable sales, Nemeth relied on

the websites of the New Jersey Association of Tax Boards, New

Jersey Property Fax, and Multiple Listing Service (MLS). He did

not confirm any data with the buyer, seller, broker or attorney

involved in the transactions he utilized as comparable sales. He

also did not access the deeds, sale documents, or property record

cards for any of the comparable properties, nor did he physically

inspect any of the comparable properties.

After plaintiff rested, defendants moved to dismiss. The Tax

Court granted the motion to dismiss based on plaintiff's failure

"to present sufficient competent evidence to overcome the

presumption of correctness." The judge found the "origins and

3 A-1980-16T1 accuracy" of the information and sources plaintiff's expert used

were "unknown and unreliable," and further noted, "While an expert

may utilize hearsay, [he or she] cannot solely rely upon it."

Furthermore, Nemeth provided no market data to support the

adjustments he made to comparable sales.

II

First, we address three preliminary issues the parties raised

on appeal: whether we should consider the 2017 assessment of the

subject property; whether we should consider plaintiff's ratio of

assessed value argument first raised on appeal; and whether the

Tax Court improperly relied on an unpublished case.

Plaintiff argues the increase in assessment of the subject

property to $440,000 for the 2017 tax year from a prior assessment

of $437,600 supports his contention that there are multiple errors

in the 2016 tax assessment and that the 2017 assessment should be

considered as part of this appeal. However, "[o]ur scope of review

. . . is limited to . . . the record as it existed at the time of

trial." N.J. Div. of Youth and Family Servs. v. M.M., 189 N.J.

261, 278 (2007) (citing R. 2:5-4). Attempting to present documents

for the first time on appeal is "a gross violation of appellate

practice and rules . . . ." Middle Dep't Inspection Agency v.

Home Ins. Co., 154 N.J. Super. 49, 56 (App. Div. 1977). Plaintiff

provided the 2017 assessment for the first time on appeal.

4 A-1980-16T1 Furthermore, the 2017 assessment is irrelevant because the

applicable valuation date for this appeal is October 1, 2015,

while the valuation date for the 2017 assessment is October 1,

2016. See N.J.S.A. 54:4-23 (setting the valuation date for tax

assessment as October 1 of the preceding year). Accordingly, we

decline to consider the 2017 tax assessment on appeal.

Plaintiff makes the argument, for the first time on appeal,

that the ratio of the assessed valuation to the true value of the

subject property mandates denial of the motion to dismiss.

However, we usually decline consideration of an issue not properly

raised before the trial judge, unless the jurisdiction of the

court is implicated or the matter concerns an issue of great public

importance. Zaman v. Felton, 219 N.J. 199, 226-27 (2014) (citing

Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)). Because

plaintiff did not raise below the issue concerning the ratio of

assessed valuation, nor does it concern jurisdiction or a matter

of great public importance, we decline to address it.

Plaintiff argues the Tax Court should not have relied upon

DiSenso v. Wyckoff Township, No. 014165-2015 (Tax Aug. 31, 2016)

in its opinion dismissing his tax appeal. Specifically, plaintiff

contends the reliance was improper because the case is unpublished,

the facts differ from those of the subject appeal, and the case

fails to apply the correct standard of review.

5 A-1980-16T1 Rule 1:36-3 provides, "No unpublished opinion shall

constitute precedent or be binding upon any court." However, the

Tax Court did not cite DiSenso as precedent or binding authority.

The Tax Court recognized the case as unpublished and simply

"adopted the . . . language as its own, given that the opinion and

the published case law cited therein are well reasoned and

pertinent to the facts of the present case." Although we do not

approve of the Tax Court's discussion of DiSenso in its opinion,2

we discern no harmful error here since we find the court used the

opinion as a non-binding secondary authority consistent with its

own analysis and decision. The Tax Court found the presumption

of validity analysis from DiSenso helpful, and mistakenly chose

to discuss the case in its opinion since the critical facts in

DiSenso are substantially similar to those in the matter under

review.

III

Turning to the substantive issue, plaintiff argues the Tax

Court erred in dismissing his complaint. We disagree.

Our review of a Tax Court decision is limited. Estate of

Taylor v. Dir., Div. of Taxation, 422 N.J. Super. 336, 341 (App.

2 Our Supreme Court has made clear that "no unpublished decision shall be cited by any court." In re Alleged Improper Practice, 194 N.J. 314, 330 n.10 (2008) (quoting R. 1:36-3).

6 A-1980-16T1 Div. 2011). "We also accord the Director's decision a presumption

of correctness in light of the Director's expertise." Ibid.

(citing H.J. Bradley, Inc. v. Taxation Div. Dir., 4 N.J. Tax 213,

229 (Tax 1982)). The Tax Court's factual findings "will not be

disturbed unless they are plainly arbitrary or there is a lack of

substantial evidence to support them." Yilmaz, Inc. v. Dir., Div.

of Taxation, 390 N.J. Super. 435, 443 (App. Div. 2007) (citation

omitted). Thus, we examine "whether the findings of fact are

supported by substantial credible evidence with due regard to the

Tax Court's expertise and ability to judge credibility." Ibid.

(citation omitted). However, our review of the Tax Court's legal

conclusions is de novo. Manalapan Realty, L.P. v. Twp. Comm. of

Manalapan, 140 N.J. 366, 378 (1995).

When examining a taxpayer's challenge to a real estate tax

assessment, it is well-settled such assessments are "entitled to

a presumption of validity." MSGW Real Estate Fund, LLC v. Borough

of Mountain Lakes, 18 N.J. Tax 364, 373 (Tax 1998). The

presumption stands when "the assessment is not so far removed from

the true value of the property . . . as to justify removal of the

presumption of validity." Transcon. Gas Pipe Line Corp. v.

Bernards Twp., 111 N.J. 507, 517 (1988) (citing Pantasote Co. v.

City of Passaic, 100 N.J. 408, 415 (1985)). "[O]nce sufficient

competent evidence is produced and the presumption overcome, . . .

7 A-1980-16T1 [t]he court must then turn to a consideration of the evidence

adduced on behalf of both parties and conclude the matter based

on a fair preponderance of the evidence." Ford Motor Co. v. Twp.

of Edison, 127 N.J. 290, 312 (1992) (first alteration in original)

(quoting Pennwalt Corp. v. Twp. of Holmdel, 4 N.J. Tax 51, 55-56

(Tax 1982)).

In an action challenging a municipal real estate assessment,

"[i]f the defendant moves to dismiss at the close of the

plaintiff's proofs, pursuant [to Rule] 4:37-2(b), the court

. . . must accept [the plaintiff's] evidence as true and accord

the plaintiff all legitimate inferences [that] can be deduced from

the evidence." MSGW, 18 N.J. Tax at 376 (citing Brill v. Guardian

Life Ins. Co. of Am., 142 N.J. 520, 535 (1995)). "The trial court

is not concerned with the worth, nature or extent (beyond a

scintilla) of the evidence, but only with its existence, viewed

most favorably to the party opposing the motion." Id. at 378

(quoting Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969)).

"Under the 'net opinion' rule, an opinion lacking in . . .

foundation and consisting of bare conclusions unsupported by

factual evidence is inadmissible." Rosenberg v. Tavorath, 352

N.J. Super. 385, 401 (App. Div. 2002) (citations omitted).

N.J.R.E. 703 requires an expert base his or her opinion on "facts,

data, or another expert's opinion, either perceived by or made

8 A-1980-16T1 known to the expert, at or before trial." Ibid. An expert must

provide "the why and wherefore" behind an opinion rather than

solely issuing conclusions. Ibid. (quoting Jimenez v. GNOC, Corp.,

286 N.J. Super. 533, 540 (App. Div. 1996)). "The net opinion rule

. . . mandates that experts 'be able to identify the factual bases

for their conclusions, explain their methodology, and demonstrate

that both the factual bases and the methodology are reliable.'"

Townsend v. Pierre, 221 N.J. 36, 55 (2015) (quoting Landrigan v.

Celotex Corp., 127 N.J. 404, 417 (1992)). An expert's opinion

cannot be "based merely on unfounded speculation and unquantified

possibilities." Vuocolo v. Diamond Shamrock Chems. Co., 240 N.J.

Super. 289, 300 (App. Div. 1990).

Plaintiff contends the Tax Court erred in dismissing his

claim because "unrebutted and credible expert testimony"

established a market value and assessment of the subject property

of $535,000. He argues dismissal was inappropriate because he

presented more than "a scintilla" of evidence in support of the

asserted valuation. See MSGW, 18 N.J. Tax at 378. He also

contends the judge failed to view the evidence "in a light most

favorable" to the plaintiff, and he overcame the presumption of

validity due to Nemeth's testimony. See ibid.

The Tax Court dismissed the claim based on plaintiff's

"failure to overcome the presumption of validity of the

9 A-1980-16T1 assessment." The court found Nemeth "relied solely on hearsay

contained in internet sources" and failed to confirm any data on

comparable sales. The court also found Nemeth's conclusion

regarding the value of the subject property "neither sustainable

nor credible."

We find the record supports the Tax Court's rejection of

Nemeth's testimony. At trial, defendants stipulated to Nemeth's

qualifications as a residential real estate appraiser, and the

court accepted him as an expert. However, Nemeth relied on the

websites of the New Jersey Association of Tax Boards, New Jersey

Property Fax, and Multiple Listing Service, and failed to confirm

any data with the buyer, seller, broker or attorney involved in

the comparable property transactions. He also failed to access

the deeds, sale documents, or property record cards for any of the

comparable properties, nor did he physically inspect any of the

comparable properties.

Furthermore, Nemeth made adjustments to the value of the

comparable properties that he asserted were "extracted from the

market data and cross checked with other accepted tax appeals from

this market area to ensure they are in line and acceptable."

However, Nemeth did not provide the market data relied on to

calculate those adjustments. Accordingly, Nemeth's testimony

constituted a net opinion because he failed to "identify the

10 A-1980-16T1 factual bases for [his] conclusions" or "demonstrate that both the

factual bases and the methodology are reliable." See Townsend,

221 N.J. at 55.

Given Nemeth's inadmissible testimony, plaintiff provided no

evidence to overcome the presumption of validity regarding the

Board's tax assessment. Without Nemeth's testimony, plaintiff

failed to provide even "a scintilla" of evidence in support of his

asserted valuation. See MSGW, 18 N.J. Tax at 378. Accordingly,

plaintiff failed to overcome the presumption of validity and the

Tax Court properly dismissed his complaint.

IV

Plaintiff also argues the court erred in denying his discovery

motion to compel the production of defendants' refinance mortgage

appraisal. We disagree.

We review discovery orders for abuse of discretion. Capital

Health Sys., Inc. v. Horizon Healthcare Servs., Inc., 230 N.J. 73,

79 (2017). Thus, "appellate courts are not to intervene but

instead will defer to a trial judge's discovery rulings absent an

abuse of discretion or a judge's misunderstanding or

misapplication of the law." Id. at 79-80 (citing Pomerantz Paper

Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011)).

Plaintiff incorrectly asserts the discovery standard

established in Rule 4:10-2 applies to the current matter; however,

11 A-1980-16T1 matters pending in the small claims track instead apply Rule

8:6-1(a)(4). Rule 8:6-1(a)(4) specifically exempts "local

property tax cases assigned to the Small Claims Track" from the

provisions of discovery outlined in Rule 4:10-2. Rule 8:6-1(a)(4)

provides that discovery in small claims track tax cases is limited

to production of certain enumerated documents unless "good cause"

is shown to permit additional discovery. A mortgage appraisal is

not one of the items enumerated in Rule 8:6-1(a)(4), and plaintiff

has not shown "good cause" for production. Accordingly, we find

the Tax Court properly denied the motion to compel.

Affirmed.

12 A-1980-16T1