Wilshire Oil Co. v. Jefferson Township

17 N.J. Tax 583
CourtNew Jersey Tax Court
DecidedOctober 9, 1998
StatusPublished
Cited by9 cases

This text of 17 N.J. Tax 583 (Wilshire Oil Co. v. Jefferson Township) is published on Counsel Stack Legal Research, covering New Jersey Tax Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wilshire Oil Co. v. Jefferson Township, 17 N.J. Tax 583 (N.J. Super. Ct. 1998).

Opinion

KUSKIN, J.T.C.

Plaintiff filed appeals with the Morris County Board of Taxation contesting the 1998 assessments on twenty properties in Jefferson Township. On the scheduled hearing date, May 5,1998, plaintiffs counsel appeared before the county board, but was not prepared to present testimony because of the unavailability of a witness. After the county board denied his request for adjournment, he attempted to call the Township Assessor as a witness. The county board refused to permit such testimony. The board then granted the Township’s motion for dismissal of the appeals, and entered Judgments under Judgment Code 5B — “No evidence provided (lack of prosecution).” Plaintiff appealed to the Tax Court, and the Township, relying on the County Board’s dismissal for lack of prosecution, moved to dismiss the appeals under N.J.S.A. 54:51A-1(c)(2). This statute provides, in relevant part:

If the tax court shall determine that the appeal to the county board of taxation has been ... (2) dismissed because of appellant's failure to prosecute the appeal at a hearing called by the county tax board, ... there shall be no review.

I denied the Township’s motion in an oral decision. This opinion amplifies that decision.

In considering a motion to dismiss under N.J.S.A. 54:51 A-l (c)(2), the Tax Court has the authority to determine whether the county board’s dismissal for lack of prosecution was warranted. Veeder v. Berkeley Tp., 109 N.J.Super. 540, 546, 264 A.2d 91 (App.Div.1970); Pipquarryco, Inc. v. Hamburg Bor., 15 N.J.Tax 413, 416 (Tax 1996). The legal standard to be applied in making such determination is that a motion to dismiss should be granted only in the most egregious circumstances. In VSH Beatty, Inc. v. Harding Tp., 291 N.J.Super. 295, 677 A.2d 274 (App.Div.1996), the Appellate Division stated: “The third observation that we make is that a narrow scope of what may form a basis for a dismissal for lack of prosecution is entirely consistent with our view that dismissals of actions in general is a drastic remedy. Normally, such dismissals should not be invoked in the absence of [586]*586prejudice and unless the plaintiffs behavior is deliberate and contumacious.” Id. at 300, 677 A.2d 274 (citations omitted). See also Veeder v. Berkeley Tp., supra, 109 N.J.Super. at 546, 264 A.2d 91.

In VSH, the municipality, by agreement with counsel for the taxpayer, called the assessor as a witness before the county board of taxation, and the board permitted the taxpayer’s counsel to cross-examine the assessor. Such cross-examination elicited no proofs sufficient to justify a reduction in the assessment. The county board dismissed the appeal for lack of prosecution, and the Tax Court granted a motion to dismiss pursuant to N.J.S.A. 54:51A-1 (c)(2). VSH Realty, Inc. v. Harding Tp., 14 N.J.Tax 379 (Tax 1994), rev’d, 291 N.J.Super. 295, 677 A.2d 274 (App.Div.1996). The Appellate Division, in reversing the Tax Court, recognized the assessor’s testimony as sufficient to preclude a dismissal for failure to prosecute.

[T]his is not a situation where counsel’s appearance was [a] sham. As he points out in the appellant’s brief, when he called the tax assessor or attempted to do so:
[I]t [was not] a foregone conclusion that the taxpayer could not elicit an opinion of value from the assessor. The assessor is presumed to be an expert familiar with real estate values in his community. Thus, taxpayer’s attorney had every reason to be surprised that the assessor had no idea what the subject property was worth.
VSH Realty, Inc. v. Harding Tp., supra, 291 N.J.Super. at 302, 677 A.2d 274.]

The court then quoted from Glen Wall Assocs. v. Wall Tp., 99 N.J. 265, 284, 491 A.2d 1247 (1985), the admonition that, “[i]n this day of rising litigation expenses, it is important for the courts to adopt reasonable limits on what is to be expected of a litigant in presenting his case through the use of an expert.”

Two Tax Court cases are relevant to defendant’s motion. One is Pipquarryco Inc. v. Hamburg Bor., supra, 15 N.J.Tax 413, where the Tax Court stated as follows:

Dismissal of an appeal by a county board for failure to prosecute will, if sustained by the Tax Court, terminate, without a hearing, a taxpayer’s right to appeal for the tax year in question. Such a dismissal should, therefore, be circumscribed by the same obligations to "administer justice” as are applicable to the Tax Court, and all doubts should be resolved against dismissal.
[587]*587Where, 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 418-19.]

In ARP Realty Assocs. v. Washington Bor., 16 N.J.Tax, 281 (Tax 1997), the attorney for the taxpayer appeared before the county board on the scheduled hearing date, having previously engaged an appraiser. The attorney advised the board that the appraisal report for the appeal had not been completed, and requested a short adjournment or a dismissal of the appeal without prejudice. The county board denied these requests, and granted a motion to dismiss for lack of prosecution. The Tax Court held that such dismissal was improper, noting the language in VSH characterizing dismissal as a drastic remedy to be invoked only when the plaintiffs behavior is deliberate and contumacious, and concluding as follows:

In the subject appeal, the attorney for the taxpayer appeared before the Warren County Board of Taxation on the scheduled hearing date, requested an adjournment or an affirmance without prejudice [the equivalent of a dismissal without prejudice], but presented neither testimonial evidence nor an appraisal. The county board did, however, have ample time to adjourn the hearing date. Its jurisdiction under N.J.S.A. 54:3-26 did not expire until July 1,1996, approximately six weeks after the May 14, 1996 hearing date for the three appeals. This was a far lesser time constraint than was present in [Jepson Refrigeration v. Trenton, 295 N.J.Super. 492, 685 A.2d 505 (App.Div.1996)] where the Appellate Division nevertheless held that a dismissal for lack of prosecution was inappropriate.

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Bluebook (online)
17 N.J. Tax 583, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilshire-oil-co-v-jefferson-township-njtaxct-1998.