Jankovich v. Point Pleasant Borough ( 2020 )

NOT FOR PUBLICATION WITHOUT APPROVAL OF
THE TAX COURT COMMITTEE ON OPINIONS
TAX COURT OF NEW JERSEY
120 High Street
KATHI F. FIAMINGO Mount Holly, NJ 08060
JUDGE
(609) 288-9500 EXT 38303
October 16, 2020
Martin J. Buckley, Esq.
Dasti, Murphy, McGuckin, Ulaky
Koutsouris & Connors
506 Hooper Avenue
Toms River, New Jersey 08753
Joseph E. Bock, Jr., Esq.
Spiotti & Associates, P.C.
271 U.S. Highway 46
Fairfield, New Jersey 07004
Re: Jankovich v. Point Pleasant Borough
Docket Nos. 010619-2020
Dear Counsel:
This letter constitutes the court’s opinion with respect to defendant’s motion to dismiss for
failure to prosecute. As discussed more fully below the court denies defendant’s motion.
I. Statement of Facts and Procedural History
Plaintiff filed an appeal of the 2020 tax year assessment with the Ocean County Board of
Tax Appeals (“County Board”) and was informed that a hearing would be held on July 16, 2020.
The County Board’s offices are located in Toms River, New Jersey. Counsel for plaintiff received
notices for hearings of appeals in several Ocean County municipalities for July 14, 15 and 16,
2020, including Beach Haven Borough, Plumsted Township, Point Pleasant Beach, South Toms
River Borough, Lakehurst Borough, Long Beach Township, Ocean Township, Stafford Township
and Jackson Township, all of which were scheduled to be heard in Toms River, N.J. On July 16,
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2020 counsel appeared for hearings on properties located in Jackson Township at the Toms River
location and expected that the appeal of the subject property would also be held at the same
location. Counsel learned at the conclusion of the Jackson Township appeals that the appeals for
properties located in Point Pleasant Borough were being heard by the County Board at a location
in Brick Township. Upon receiving this information, counsel had his office call the County Board
and inform them that he was traveling to Brick Township from the Toms River County Board
appeal location.
Counsel arrived at the Brick Township location at approximately 9:45 a.m. after the appeals
for Point Pleasant Borough had been concluded but while the County Board Commissioner was
hearing appeals for other municipalities. Counsel requested and was permitted to place his
appearance on the record, as well as the fact that he had intended to present evidence in the appeal
of the instant matter. Counsel had previously provided that with evidence to the County Board
representatives as required. Nonetheless a judgment dismissing the appeal in this matter for failure
to prosecute was issued on July 27, 2020.
Plaintiff filed the within appeal on September 10, 2020. Defendant filed the instant motion
to dismiss for failure to prosecute at the County Board on September 30, 2020 which plaintiff
opposes.
II. Conclusions of Law
N.J.S.A. 54-51A-1(a) provides, in part, that “any party who is dissatisfied with the
judgment, action or determination of the county board of taxation may seek review of that
judgment, action or determination in the Tax Court, pursuant to rules of court.” However, where
Tax Court determines that the dismissal was as a result of the taxpayer’s failure to prosecute the
appeal before the County Board, there is no review. N.J.S.A. 54:51A-1(c)(2). See also N.J.A.C.
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18:12A-1.9 (“A petitioner shall be prepared to prove his case by complete and competent evidence.
In the absence of some evidence, the board may dismiss the petition. In the case of failure to
appear, the board may dismiss the petition for lack of prosecution.”) Typically, a failure to appear
in the context of a dismissal for lack of prosecution precludes a de novo review by the Tax Court.
VSH Realty, Inc. v. Harding Tp., 291 N.J. Super. 295, 300 (App. Div. 1996). Thus, if sustained
by the Tax Court, the dismissal of an appeal by a county board of taxation resulting from the failure
to prosecute will terminate the taxpayer’s right to appeal the assessment for the tax year in
question, without a hearing. Pipquarryco, Inc. v. Borough of Hamburg, 15 N.J. Tax 413, 418 (Tax
1996).
In evaluating a motion to dismiss under the standards of N.J.S.A. 54:51A-1(c)(2), the Tax
Court must ascertain whether the taxpayer’s failure to prosecute before the county board fell within
the intendment of the statute. Veeder v. Township of Berkeley, 109 N.J. Super. 540, 545 (App.
Div. 1970). The motion to dismiss should be granted sparingly and only in the most egregious
circumstances. Wilshire Oil Co. of Texas v. Township of Jefferson, 17 N.J. Tax 583, 585 (Tax
1998). A dismissal pursuant to this statute should be circumscribed by the same obligations to
administer justice as are applicable to the Tax Court, and all doubts should be resolved against
dismissal. Ibid. The “administration of the court’s calendar with blind rigidity cannot take priority
over a party’s…right to contest its assessment.” VSH Realty, Inc. v. Township of Harding, 291
N.J. Super. 295, 301 (App. Div. 1996) (citation omitted). Dismissal of an action is a drastic remedy
and should not be invoked “unless the plaintiff's behavior is deliberate and contumacious.” Id. at
300.
Here the uncontroverted certification of plaintiff’s counsel demonstrates that at best
counsel erred in believing that the hearing on the within appeal would be heard in the same location
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as appeals he had attended for eight other municipalities on the prior two days of County Board
appeals. Furthermore, counsel certifies that he attended hearings at that same location for yet
another municipality on the day the hearing in this matter was scheduled. Moreover, upon learning
of his error he contacted the County Board to advise them he would be there shortly, only to learn
on his arrival some 45 minutes after the scheduled hearing time, that the appeal had been dismissed
due to his lateness.
Our courts have consistently recognized that dismissal of a cause of action based on a strict
adherence to calendar practice violates the equitable principles of our system of justice. As Judge
Kuskin expressed, “calendar control cannot take precedence over principles of fundamental
fairness. The court system exists to administer justice, not merely to satisfy the court’s desire to
dispose of cases on its calendar. Courts exist to serve the public through counsel, not vice versa.”
Pipquarryco, Inc. v. Hamburg Borough, 15 N.J. Tax at 417 (citing Rutherford Realty Assoc. v.
Borough of Rutherford, 277 N.J. Super. 347 (App. Div. 1994)). “Where, 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 419.
“[T]he drastic step of dismissal should not be invoked unless it is clear that the conduct of
the offending party is deliberate.” Rutherford Realty Assoc. v. Borough of Rutherford, 277 N.J.
Super. at 353.; (See Jepson Refrigeration Corp. v. City of Trenton, 295 N.J. Super. 492, 496 (App.
Div. 1996)). “Not only are procedural dismissals, with prejudice, generally unwarranted…but
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procedural dismissals themselves are not favored.” Id. at 352-353 (quoting Connors v. Sexton
Studios, Inc., 270 N.J. Super. 390 (App. Div. 1994)).
Counsel certifies, and there is no evidence to the contrary that he was prepared to proceed
with evidence to contest the appeal and would have done so if permitted by the Commissioner 1.
Further, counsel demonstrates to the satisfaction of the court, his lateness in appearing at the time,
date and location of the hearing at the County Board was not deliberate or contumacious and was
in fact an understandable error given the circumstances.
III,. Conclusion
For the reasons set forth above, the court denies defendant’s motion to dismiss plaintiff’s
complaint.
Very truly yours,
/s/ Kathi F. Fiamingo
Kathi F. Fiamingo, J.T.C.
1
At oral argument defendant argued that had plaintiff presented its evidence the appeal would
have been dismissed for failure to present adequate evidence, 5B. However that is not what
occurred. Counsel for plaintiff was not permitted to present any evidence, and the appeal was
dismissed for lack of prosecution. The court therefore rejects counsel’s argument that the evidence
presented would not have been sufficient as that was not the basis for the County Board’s
determination in this matter.
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