JESSE WOLOSKY VS. FREDON TOWNSHIP (TAX COURT OF NEW JERSEY) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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.
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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
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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.
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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.
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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, . . .
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[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
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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
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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
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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,
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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.
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