MICHAEL T. SHERMAN v. CITY OF VENTNOR

                    NOT FOR PUBLICATION WITHOUT APPROVAL OF
                      THE TAX COURT COMMITTEE ON OPINIONS

______________________________
                              :
MICHAEL T. SHERMAN,           : TAX COURT OF NEW JERSEY
                              : DOCKET NO: 012930-2017
               Plaintiff,     :
                              :
               vs.            :
                              :
CITY OF VENTNOR,              :
                              :
               Defendant.     :
______________________________:


              Decided:       September 13, 2018

              Daniel J. Gallagher for Plaintiff.

              Edward O. Lind for Defendant.


CIMINO, J.T.C.



     I.     INTRODUCTION

          This matter comes before the court by way of a motion to

dismiss for failure to prosecute a tax appeal at the County board

of    Taxation      level.      Plaintiff’s     counsel   appeared    before   the

Atlantic County Board of Taxation (the Board) in July 2017, but

presented      no    evidence,    nor   called    any   witnesses    to   testify.

Plaintiff’s counsel claims that there was an understanding at the

hearing that the assessment would be affirmed without prejudice as

to plaintiff taking an appeal to the Tax Court.                      The initial

judgment issued by the Board in July 2017 was that the presumption

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of correctness was not overturned.              Such an outcome does not bar

an appeal to the Tax Court.          N.J.S.A. 54:51A-1.

      In September 2017, plaintiff filed an appeal with the Tax

Court.     The Board subsequently changed its judgment to dismissed

with prejudice.      However, the amended judgment was issued after

the statutorily mandated time to hear the matter had passed.

Defendant then filed a motion to dismiss plaintiff’s appeal on the

grounds that the Tax Court lacks the jurisdiction to hear appeals

dismissed with prejudice at the County board level pursuant to

 N.J.S.A. 54:51A-1(c)(2).         For the following reasons, defendant’s

motion to dismiss is denied.



  II.    STATEMENT OF FACTS

      Plaintiff timely filed a petition in April 2017 seeking a

hearing before the Board to review the existing assessment of his

property in Ventnor City for tax year 2017.               Plaintiff’s property

consists of two adjacent lots (Lots 5 and 6) on the same block

(Block 75).     The hearing before the Board was scheduled for July

6, 2017.    On the date of the hearing, plaintiff’s counsel appeared

on behalf of plaintiff.

      Plaintiff    in   this     case    is     a   physician   who   apparently

practices, at least partly, in Florida. Plaintiff’s counsel stated

that plaintiff was unavailable to appear in person on the date of

the   hearing     because   he    was     in    Florida   treating    patients.

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Plaintiff’s appraiser was also apparently unavailable to attend

the July 6, 2017 hearing before the Board.        Plaintiff’s counsel

stated in his opposition that it was not unusual for the Board to

reject requests for adjournment because of the high volume of cases

that the Board was required to address, which is presumably why he

did not request an adjournment of the hearing before the Board.

Plaintiff’s counsel claims that he had his client available to

testify by telephone if needed, but that he believed that such

telephonic testimony was unnecessary because he felt there was an

understanding at the hearing that the matter would be affirmed

without prejudice as to plaintiff filing an appeal with the Tax

Court.   Plaintiff’s counsel also indicated he would have called

the assessor as a witness, if truly faced with a motion to dismiss

with prejudice for failure to prosecute.

     Defendant claims that the Board asked plaintiff’s counsel if

he wanted to have his client testify by telephone, but that he

declined.    Plaintiff’s   counsel   was   also   allegedly   given   an

opportunity by the Board to call anyone present at the Board

hearing as a witness, the implication apparently being that he was

expected to call the assessor for the defendant, who was present

at the hearing, to testify.    It is at this point, according to

defendant, that plaintiff’s counsel requested that the case be

affirmed without prejudice as to any appeal.      Defendant claims to



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have objected to such a dismissal and requested that the case be

dismissed with prejudice for failure to prosecute.

     Defendant   further    claims   plaintiff    did   not   submit     any

evidence to the Board or the assessor prior to the hearing.

Plaintiff’s counsel contends that he sent a grid which included

comparable sales as well as income and expense calculations to

defendant.   Defendant asserts that plaintiff emailed the grid to

the former assessor’s now inactive email address.

     The Board issued its judgments for Lots 5 and 6 on July 28,

2017 and August 8, 2017, respectively.       The judgment code for both

lots was listed as 2B, “presumption of correctness not overturned.”

Such a judgment allows plaintiff to appeal the matter to the Tax

Court.    N.J.S.A. 54:51A-1.     Plaintiff filed a complaint with the

Tax Court on September 8, 2017.             At that point counsel for

defendant,   apparently    alarmed   that   the   matter   had   not   been

dismissed with prejudice by the Board, got in touch with the Board

to inquire as to why the case had not been dismissed with prejudice

in accordance with counsel for defendant’s recollection.               After

counsel for defendant contacted the Board, a corrected judgment

was issued on October 20, 2017 for Lot 5 as Code 5B, dismissal for

lack of prosecution.      A dismissal for lack of prosecution cannot




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be appealed to the Tax Court.          N.J.S.A. 54:51A-1(c)(2).      The

judgment code for Lot 6 remained as Code 2B. 1

      On April 17, 2018, defendant filed the instant motion to

dismiss on the grounds that plaintiff failed to prosecute his case

at the hearing before the Board and therefore the Tax Court has no

jurisdiction   to   hear   plaintiff’s    appeal.   Plaintiff   opposes

defendant’s motion.



    III. LEGAL ANALYSIS

      This matter comes before the court by way of defendant’s

motion to dismiss for failure to prosecute at the Board level.

The parties’ diverging accounts of what occurred would normally

require the court to make factual determinations in order to decide

defendant’s motion.       However, the court need not delve into the

morass of disputed facts.

      The County Boards in New Jersey are required by statute to

expeditiously render judgments on tax appeals.           The relevant

statute states, “[t]he county board of taxation shall hear and

determine all [tax] appeals within three months after the last day

for filing such appeals. . .”  N.J.S.A. 54:3-26.      The last day for

filing tax appeals with the county boards is “April 1, or 45 days


1  There is nothing in the record that gives any indication as to
why the Board amended its judgment for Lot 5 and not Lot 6. The
court need not speculate as to why this discrepancy occurred to
rule on defendant’s motion to dismiss.
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from the date the bulk mailing of notification of assessment is

completed in the taxing district, whichever date is later. . .”

 N.J.S.A. 54:3-21.      A May 11, 2017 letter from the Acting Director

of the Division of Taxation (Acting Director) to Margaret Schott,

the Tax Administrator of the Board, indicates that the last day

for the Board to hear and determine tax appeals in 2017 was

initially set for June 30, 2017.

     However, if a county board feels that it is unable to hear

and determine all of the tax appeals before it by the statutory

deadline as outlined above, that county board may apply to the

Director   of    the   Division   of   Taxation   (the   Director)   for   an

extension.      “In the event a county board of taxation cannot hear

and determine any one or more appeals within the time prescribed

in [ N.J.S.A.] 54:3-26, it may at any time apply to the Director of

the Division of Taxation for extension of the time within which

the appeal or appeals may be heard and determined.”  N.J.S.A. 54:3-

26.1.   The Board applied for such an extension for the 2017 tax

year.   That application was granted by the Acting Director through

the above referenced May 11, 2017 letter, moving the deadline for

the Board to hear and determine 2017 tax appeals from June 30,

2017 to September 30, 2017.       The Board heard plaintiff’s appeal on

July 6, 2017 and it was able to issue judgments for both Lot 5 and

Lot 6 by August 8, 2017, well within the extended deadline set by

the Acting Director.

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     However, the Board issued a corrected judgment for Lot 5 on

October 20, 2017, well after the expiration of the extension

granted by the Acting Director.        The result of defendant’s motion

to dismiss hinges on the following question: is an amended county

board judgment valid if issued after the expiration of the deadline

for the county board to hear and determine tax appeals for a given

year?   Judge Lario’s opinion in Vicari v. Township of Bethlehem,

 8 N.J. Tax 513, 519 (Tax 1986), provides a roadmap for making such

a determination.

     In Vicari, the plaintiff filed a motion for summary judgment

to void corrected judgments made by the Hunterdon County Board of

Taxation   (the   Hunterdon   Board)    and   to   reinstate    its   earlier

judgments.   Id. at 515.      Plaintiff Vicari filed tax appeals with

the Hunterdon Board to have his two properties assessed as farmland

under the Farmland Assessment Act of 1964.           Ibid.     The Hunterdon

Board heard Vicari’s appeals and issued judgments dated September

24, 1985 granting Farmland Assessment status to both lots.             Ibid.

On November 13, 1985, the Hunterdon Board entered, without notice

to Vicari, amended judgments denying the Farmland Assessments of

plaintiff’s property and reinstating the original assessments on

both lots.   Ibid.    The defendant in Vicari did not deny that it

had amended the judgments without any new evidence entertained nor

any additional participation of the parties.            Id. at 516.      The



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defendant       apparently       reexamined      its   original     judgments     and

determined that they should be amended.                Ibid.

       Vicari made a number of arguments, but the one that is

relevant to the present matter was that county boards lack the

authority to amend their judgments.                    Id. at 517.       The court

concluded that county boards “in [their] quasi-judicial capacity,

similar to our courts, [have] the power and inherent right prior

to [their] loss of jurisdiction to amend and revise judgments on

[their] own motion.”          Id. at 518.        The court further established

that   the   Hunterdon       Board   had   the     jurisdiction     to   amend    its

judgments because they “were issued prior to November 15, 1985 and

before appeals therefrom were filed with this court. . .”                   2 Id. at
 519.

       Vicari    gives     this    court   two     factors     to   consider     when

determining whether or not an amended judgment issued by a county

board is valid.         The first factor is the date on which the amended

judgment was issued; any amended judgments must be issued by a

county   board     no    later    than   the   statutory     deadline,    which   is

typically June 30th of a given tax year.                 Alternatively, if the

county board has obtained an extension of the statutory deadline


 2 In 1995, the Legislature amended  N.J.S.A. 54:4-23.13b to
substitute the date of April 1 for August 15 for farmland
assessment appeals. L. 1995, c. 276, § 6. Parenthetically, in
1991, the Legislature amended  N.J.S.A. 54:3-21 which applies to
most other assessment appeals to substitute the date of April 1
for August 15. L. 1991, c. 75, § 28.
                                         - 8 -
from the Director, any amended judgments must be issued prior to

the end date of the extension. The second factor for consideration

is whether or not the amended judgment was issued prior to any

appeal being filed with the Tax Court. 3

     In    the   present   case,   the    Board     emailed   the     Division     of

Taxation on May 4, 2017 to request an extension of the statutory

deadline to hear and determine tax appeals.                 In the May 11, 2017

letter referenced above, the Acting Director granted the extension

to the Board which extended the deadline from June 30, 2017 to

September 30, 2017.

     The    Board’s    corrected         judgment     was     not     within     the

chronological bounds of the first Vicari factor outlined above.

The Board issued its corrected judgment for the plaintiff’s Lot 5

on October 20, 2017, twenty days after the extension granted by

the Acting Director.

     The    court   understands    that     county     boards       often   have   a

tremendous number of cases to address in a relatively short period




3 The court need not consider the second factor since the amendment
was   outside   the   jurisdictional   time   requirement.      The
circumstances, if any, in which a county board can amend a judgment
post-appeal need not be decided in this case.    This is especially
so since the parties disagree whether there was an error by the
board versus a change of position by the board. Compare, McNair
v. McNair,  332 N.J. Super. 195, 199 (App. Div. 2000)(correction
per R. 1:13-1 allowed pending appeal to correct calculation error),
with DialAmerica Marketing, Inc. v. KeySpan Energy Corp.,  374 N.J.
Super. 502, 505-06 (App. Div. 2005)(matter previously remanded
when judge changed pre-judgment interest rate post appeal).
                                    - 9 -
of time.   As such, clerical errors on judgments issued by county

boards are bound to occur from time to time.     Courts in New Jersey

are able to correct errors caused by mistake in issued judgements

at any time.    Vicari,  8 N.J. Tax at 518 (citing King v. Ruckman,

 22 N.J.Eq. 551 (E. & A. 1871); State v. Conners,  129 N.J. Super.
 476 (App. Div. 1974)).    As observed by the court in Vicari, county

Boards are similar to courts in that they operate in a quasi-

judicial capacity and as such should be free to amend judgments as

necessary prior to their loss of jurisdiction. Vicari,  8 N.J. Tax

at 518.

     However, while courts generally have flexibility with regards

to the timing of court matters, county boards must complete their

business within a statutorily defined time period each year.

Greate Bay Hotel and Casino v. City of Atlantic City,  16 N.J. Tax
 486, 495 (Tax 1997), aff’d o.b.,  304 N.J. Super. 457,  17 N.J. Tax
 101 (App. Div. 1997).    The time period is jurisdictional.    Ibid.;

Danis v. Middlesex Cty. Bd. of Tax’n,  113 N.J. Super. 6, 9 (App.

Div. 1971);    Vicari,  8 N.J. Tax at 517.   See also Union City Assoc.

v. City of Union,  115 N.J. 17, 27 n. 5 (1989).    A judgment rendered

after the deadline is void.    Brookview Gardens, Inc. v. Borough of

Bergenfield,  4 N.J. Tax 625, 626 (Tax 1982), aff’d o.b.,  6 N.J.

Tax 253 (App. Div. 1983).     County boards must entirely dispose of

their cases either by June 30th of a given year or by a later date

as provided by the Director, in this case September 30, 2017.     The

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New Jersey Supreme Court has previously held that compliance with

statutory tax deadlines is critical to the continued functioning

of government: “Strict adherence to statutory time limitations is

essential in tax matters, borne of the exigencies of taxation and

the administration of local government.”                 F.M.C. Stores Co. v.

Borough of Morris Plains,  100 N.J. 418, 424 (1985).                      It is by

extension critical that there be a definitive cutoff event for

county boards to issue any corrections to their judgments.                     That

cutoff event here is the expiration of the statutory period within

which the county boards may address their cases.

     The    facts   in   this     case,    as   presented     by   the   parties,

surrounding whether or not plaintiff failed to prosecute this case

at the Board level are contradictory.            However, the court need not

resolve    that   factual   disparity       because     the   October    20,   2017

corrected   judgment     issued    by     the   Board   regarding   plaintiff’s

property is void.        This is because the corrected judgment was

issued after the statutory deadline for the Board to render its

decisions had passed.       In light of the invalidity of the Board’s

October 20, 2017 corrected judgment, coupled with the plaintiff’s

understanding that the original judgments were without prejudice

as to filing a Tax Court appeal, it is determined that this court

has jurisdiction to hear the plaintiff’s appeal.

     Defendant asserts that Ganifas Trust v. City of Wildwood,  15 N.J. Tax 722 (App. Div. 1996) is controlling since the factual

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pattern is identical.       In Ganifas, the taxpayer’s counsel appeared

without a client or appraiser.           Id. at 724.       He presented no proof

but a list of comparables.             Ibid.      The municipality moved to

dismiss and the plaintiff’s counsel countered by arguing he was

entitled to per se relief based upon the Chapter 123 ratio.                  Ibid.

The county board entered judgments denying the petitions for

“insufficient evidence.”         Ibid.   Below, Judge Rimm determined that

the fact that the county board gave “insufficient evidence” and

not    lack   of   prosecution    as   the     reason   for   the   dismissal     is

insignificant since the Tax Court judge is vested with the power

to    determine,    de   novo,   whether     there   has    been    a   failure   to

prosecute.     Id. at 725.       The Appellate Division agreed.           Ibid.

       There is a subtle but important distinction in the case now

before the court.        This is not the situation where the plaintiff

failed to put on an adequate case and lack of prosecution is

squarely the issue.        The actual issue is whether the Board felt

the matter was better suited for the Tax Court and later had second

thoughts, or instead, simply made a mistake in the judgment which

was subsequently corrected.

       The Appellate Division has plainly stated that “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 prejudice and unless the plaintiff's behavior is

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deliberate and contumacious.”          VSH Realty, Inc. v. Township of

Harding,  291 N.J. Super. 295, 300,  15 N.J. Tax 653, 658 (App Div.

1996).     There   is   no   showing   that   plaintiff’s    actions   were

deliberate or contumacious.      To the contrary, plaintiff’s actions

coupled with the initial judgments demonstrate otherwise.

     Here, a code of 2B was entered which is “presumption of

correctness not overturned” which plaintiff’s counsel understood

to be an affirmance without prejudice.          Ostensibly, defendant’s

counsel had the same impression since he sought to have the

judgment amended to a dismissal with prejudice.             The parties do

not dispute that a county board can, without a full hearing,

effectively opt to send a matter to the Tax Court through a

disposition that is without prejudice.        “County boards of taxation

are ideally suited to the quick and efficient review of assessments

. . . [which] generally do not require extensive discovery or

involve complicated testimony.” Greate Bay Hotel and Casino, Inc.,

 16 N.J. Tax at 495.     Allowing a difficult or complicated matter to

proceed to the Tax Court without a hearing before a county board

fosters the quick and efficient review of the remaining cases on

an often overburdened county board docket.

     This court is reluctant to make credibility determinations

regarding the thought processes of Board members as to whether the

initial outcome constituted a without prejudice disposition or a

mistake.   An effective resolution of the issue would necessarily

                                  - 13 -
involve testimony of the Board members.               While there is a strong

policy to encourage taxpayers to engage in county board hearings

in good faith, there is a countervailing policy that the Board

members sitting in a quasi-judicial capacity not be subject to

interrogation     concerning          their     dispositions. 4           Without

interrogation of the Board members, we are left with the initial

judgement representing the collective determination of the Board.

As   already   stated,   that    initial       judgment,    coupled      with   the

assertion of plaintiff’s counsel that he understood the matter

could go to this court for a hearing, satisfies this court that it

has jurisdiction to hear the merits of the matter.

      Practically speaking, the determination of this motion only

guarantees that plaintiff gets a hearing. The plaintiff must still

prove his case and overcome the presumption of correctness that

attaches to the determination of the assessor’s determination of

value.   Pantasote Co. v. City of Passaic,  100 N.J. 408, 412 (1985).

Moreover,   the   defendant     has    not    ceded   its   right   to   continue

collecting taxes based upon the assessment set by the assessor.




4  The other countervailing policy which should not be forgotten
is that “the court system exists to administer justice, not merely
to satisfy the court's desire to dispose of cases on its calendar.
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.,  291 N.J. Super. at 301,  15 N.J. Tax at 659.
                                      - 14 -
  IV.   CONCLUSION

     For the reasons stated above, the defendant’s motion to

dismiss is hereby DENIED.




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