ISTVAN F. KELEMEN v. BOROUGH OF EATONTOWN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3935-06T1

ISTVAN F. KELEMEN,

Plaintiff-Appellant

v.

BOROUGH OF EATONTOWN,

Defendant-Respondent.

____________________________________

 

Submitted October 22, 2008 - Decided

Before Judges A. A. Rodr guez and Payne.

On appeal from the Tax Court of New

Jersey, Mercer County, Docket No.

5972-2006.

Istvan F. Kelemen, appellant pro se.

The Law Offices of Gene J. Anthony, attorneys

for respondent (Mr. Anthony, on the brief).

PER CURIAM

Istvan Kelemen appeals from an order of the Tax Court dismissing his appeal of a 2006 property tax revaluation as the result of Kelemen's failure to prove that his property was assessed at too high a value. Kelemen, a retiree living on a fixed income, owns residential property located at 348 Grant Avenue, Eatontown, New Jersey. In a certification given by Kelemen in connection with this matter, he states that he had purchased the residence less than one year before the revaluation for $395,000. At that time, his land was valued for tax purposes at $46,000 and improvements were valued at $101,800 for a total of $147,800. Upon revaluation, the borough valued his land at $247,500 and improvements at $180,500 for a total of $428,000. The increased value resulted in an increase in Kelemen's total tax bill from $4,909.92 to $6,167.48.

Kelemen appealed the borough's revaluation of his property to the Monmouth County Board of Taxation, but his appeal was denied in a memorandum of judgment dated June 30, 2006. Kelemen then appealed to the New Jersey Tax Court. Prior to a hearing on his appeal, the Borough prepared and sent to Kelemen a proposed stipulation of settlement with regards to tax year 2006. The stipulation did not alter the value of the land, but it reduced the value of the improvements from $180,500 to $135,000. Kelemen did not sign the stipulation. Instead, he returned it to the borough with the land value of $247,500 crossed off and $200,000 written in its place. He wrote "accepted" next to the reduced value of the improvements. The Borough did not accept Kelemen's counteroffer.

A hearing on Kelemen's appeal occurred on January 9, 2007. At the hearing, Kelemen noted that a sewer and stormwater easement existed at the rear of his property, and he requested a reduction in valuation as a result. However, the Borough's attorney indicated that a five-percent reduction had already been imposed for that reason. Additionally, Kelemen introduced evidence of allegedly comparable sales, but he was unable to demonstrate comparability in time of sale, location, lot size, or in the residences themselves. As a final matter, Kelemen argued that the assessment should be reduced in light of Kelemen's straitened financial circumstances.

At the conclusion of his case, the Borough moved for dismissal pursuant to Rule 4:37-2b, arguing that Kelemen had failed to make a prima facie showing that he was entitled to relief. The judge agreed, finding that Kelemen's proofs, viewed under standards established in Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969), did not overcome the presumption of validity applicable to the assessment. See Pantasote Co. v. city of Passaic, 100 N.J. 408, 412-13 (1985). In reaching this conclusion, the judge noted that Pantasote required that a taxpayer present evidence that was "definite, positive and certain in quality and quantity." Quoting Pantasote, the judge stated:

absent any strong indication arising from the evidence properly before the Tax Court that the [quantum] of the assessment was far wide of the mark of true value, inadequacies in the municipality's evidence or deficiencies in the assessment methodology will not impugn the presumption of validity that attached [to] the original assessment.

[See Pantasote, supra, 100 N.J. at 414-15.]

In the present case, the judge found, Kelemen had presented four allegedly comparable sales but he did not "know anything about them." He did not know the square footage of the houses, how large the lots were, or the houses' configurations. Moreover, the sales took place almost a year after the date of the revaluation, which was October 1, 2005. As a consequence, the judge stated that "I can't compare these houses to [Kelemen's] house because I know nothing about them and neither [did Kelemen]. Additionally, the judge held that Kelemen's financial circumstances were irrelevant to the issue of property valuation.

At the conclusion of the judge's decision, Kelemen requested an adjournment to obtain the necessary proofs. However, his application was denied. An order dismissing Kelemen's complaint was entered on January 26, 2007.

Kelemen filed his notice of appeal fifty-two days later on March 19, 2007. On July 11, 2007, we entered an order dismissing the appeal as the result of Kelemen's failure to prosecute it. On September 19, 2007, Kelemen moved to vacate the dismissal. His motion was denied on October 23, 2007. An order of that date stated in relevant part:

The motion is denied without prejudice to reconsideration provided that plaintiff's brief, appendix and transcript are served and filed by November 16, 2007.

Kelemen did not comply with the order, filing his brief and appendix on January 14, 2008. No further motion to vacate the dismissal was filed, and no order vacating the dismissal was entered. Nonetheless, the appeal was inadvertently permitted to proceed.

On appeal, the Borough of Eatontown argues first that the matter should be dismissed because Kelemen failed to file his appeal within the forty-five days required by Rule 2:4-1(a) and did not seek an extension of that deadline pursuant to Rule 2:4-4(a). In light of Kelemen's pro se status, and the absence of evidence of prejudice to the Borough, we might be willing to overlook this procedural irregularity, despite the absence of evidence of good cause. Appeal of Syby, 66 N.J. Super. 460, 464 (App. Div. 1961) (requiring good cause, lack of prejudice, and the existence of a substantial and meritorious issue). Cf. Bowman v. Bambara, 28 N.J. Super. 92, 98 (App. Div. 1953) (modifying default judgment in light of litigant's lay status). However, we are aware of no precedent that would permit us to consider this appeal, given its present status as dismissed and Kelemen's noncompliance with our October 23, 2007 order.

If we were to address the substance of Kelemen's arguments, we would affirm, substantially for the reasons set forth on the record by Judge Menyuk. We would add only that, contrary to Kelemen's argument on appeal, no binding settlement agreement between him and the Borough existed. Kelemen's acts of altering the property value set forth in the proposed settlement agreement and returning the agreement to the Borough resulted in a counteroffer. We have held that: "A counteroffer operates as a rejection because it implies that the offeree will not consent to the terms of the original offer and will only enter into the transaction on the terms stated in the counteroffer." Berberian v. Lynn, 355 N.J. Super. 210, 217 (App. Div. 2002) (citing Fish v. Schultz, 5 N.J. Super. 403, 405 (App. Div. 1949) and 1 Willison on Contracts, 5.3 (4th ed. 1990)), aff'd, as modified, on different grounds, 179 N.J. 290 (2004). See also Restatement (Second) of Contracts, 39(1) cmt. a (1981). Because that counteroffer was not accepted by the Borough, no binding agreement between Kelemen and it can be found to exist.

 
The appeal is dismissed for lack of jurisdiction.

(continued)

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A-3935-06T1

December 3, 2008