115 CCD Partners, L.P. v. City of Jersey City ( 2021 )

NOT FOR PUBLICATION WITHOUT APPROVAL OF
THE TAX COURT COMMITTEE ON OPINIONS
TAX COURT OF NEW JERSEY
Essex County Dr. Martin Luther King, Jr. Justice
Building 495 Martin Luther King Blvd. - Fourth Floor
MARY SIOBHAN BRENNAN Newark, New Jersey 07102-0690
JUDGE
(609) 815-2922 Ext. 54600
Fax: (973) 424-2424
December 3, 2021
Richard Nashel, Esquire
Nashel and Nashel, LLC
415 Sixtieth Street
West New York, New Jersey 07093
Dominic DiYanni, Esquire
Eric M. Bernstein & Associates, LLC.
34 Mountain Boulevard, Building A
P.O. Box 4922
Warren, New Jersey 07059
Filed on ECourts
Re: 115 CCD PARTNERS, L.P. v. CITY OF JERSEY CITY
Docket Nos. 006676-2016, 005840-2017, 008002-2018, 007137-2019,
000249-2020, 004966-2020 and 000250-2020
Dear Mr. Nashel and Mr. DiYanni:
This letter opinion sets forth the court’s ruling on plaintiff’s motion to compel terms of an
alleged settlement to be presented to the governing body for approval over the objection of the
assessor. For the reasons explained more fully below, the court denies plaintiff’s motion.
I. Findings of Fact and Procedural History
The following findings of fact are based on the certifications submitted in the moving
papers, and the data and documents contained within the Tax Court Management System and on
ECourts, as well as this court’s telephone conference call notes.
Plaintiff, 115 CCD Partners, L.P., is the owner of real property located in defendant City
of Jersey City (“City”) in Hudson County. The property is a commercial building with a street
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address of 115 Columbus Drive and is identified on the City’s municipal map as Block 12901, Lot
5. For tax years 2016 and 2017, the City assessed the land at $215,200 and the improvements were
assessed at $1,559,800, for a total assessment of $1,1775,000. Following revaluation for tax years
2018, 2019, and 2020, the City assessed the land at $3,218,000 and the improvements were
assessed at $5,270,000, for a total assessment of $8,488,700. Also, the 2019 added assessment and
omitted added assessment for the prior year for qualifier T01, which were assessed in the amount
of $465,200, are appealed.
The 2016 and 2017 tax appeals were originally assigned to this court (Judge Brennan). On
January 26, 2018, the 2016 and 2017 tax appeals were transferred from this court to the Hon. Joan
Bedrin Murray, J.T.C. Thereafter, the 2018 tax appeal was also assigned to Judge Murray. On
July 6, 2018, the 2016, 2017 and 2018 tax appeals were transferred from Judge Murray to the Hon.
Joseph M. Andresini, P.J.T.C. The 2019, and three 2020 tax appeals were also assigned to Judge
Andresini. Finally, on July 30, 2020, the 2016, 2017, 2018, 2019 and the three 2020 tax appeals
were transferred to this court (Judge Brennan).
This motion’s subject matter involves a mandatory, in-court settlement conference that
occurred on December 12, 2018 1 during Judge Andresini’ s calendar call. In attendance were,
plaintiff’s counsel, plaintiff’s appraiser, defendant’s tax counsel, and defendant’s appraiser.
Neither Defendant’s assessor nor deputy assessor were in attendance, and the court did not
admonish nor sanction their nonattendance.
1
The Tax Management System and the Proceedings tab on ECourts do not document this
December 12, 2018 court appearance. The court files document a telephone conference call with
Judge Andresini on December 6, 2018 and December 13, 2018, both of which were given an
outcome designation of “Adjourned.”
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Prior to this conference, plaintiff’s counsel sent defendant’s tax counsel a settlement
proposal on or about December 21, 2017. At the December 12, 2018 conference, defendant’s tax
counsel and defendant’s appraiser offered a proposed counter settlement offer. 2 The conference
ended with both counsel representing that they would discuss and recommend this counter
proposal to their respective clients and the City’s tax assessor.
As with many municipalities, it is the defendant’s practice to require the assessor’s
concurrence and approval of the proposed settlement terms reached in a pending tax appeal matter
before placing that settlement on an agenda for formal governing body approval. There is no
indication in the court file that the pending appeals (2016, 2017 and 2018) were to be marked
“tentatively settled” and transferred to the court’s settlement stipulation calendar. To the contrary,
the appeals remained on the court’s active open calendar for the better part of the last three years.
A review of the court’s files memorializes the following subsequent events:
Judge Andresini
January 29, 2019 A court comment stating “tcc 3 1/28 issue w/squage footage def
say 40,000 more than pl measurement nlt 4 2/15 tcc 2/22@2:00”
February 22, 2019 Telephone conference call – Heard
February 25, 2019 A court comment stating “tcc 2/22 pl provided a survey of
property demonstrating 40,000 sg ft improvement def atty to review w/cl
tcc 4/8@4:15”
April 8, 2019 Telephone conference call – Heard
June 26, 2019 Calendar Call –Appeared
July 8, 2019 Telephone conference call – Adjourned
2
Any agreement reached prior to October 1, 2019, is not applicable to the 2020 tax appeal.
3
Court interprets “tcc” as “telephone conference call.”
4
Court interprets “nlt” as “no later than.”
3
July 25, 2019 Calendar Call – Appeared
September 26, 2019 Calendar Call – Adjourned
February 3, 2020 A court comment stating “cc 5 1/23 ocsc 6 nlt 4/27 tcc 5/12@2:00”
May 12, 2020 Telephone Conference Call - Adjourned
May 28, 2020 Calendar Call – Appeared
Judge Brennan
January 25, 2021 Telephone Conference Call - Appeared
Judge’s notes – “1/25/21- There is a dispute over square footage of the
property. The assessor wants to look over the leases. Schedule a peremptory
hearing: Friday, March 12, 2021 AD”
March 11, 2021 Judge’s notes – “03/11/2021: Hearing adjourned as square footage issue
was resolved. Teams meeting scheduled for 03/24/2021 at 12:00. If case is
not resolved, schedule trial. DY”
“03/11/2021: Adjourned to 05/12/2021 at 1:00. DY”
May 12, 2021: Judge’s notes – “all lease agreements were provided. DiYanni provided
counter proposal, waiting for response from assessor. Mr. Nashel says there
is a FMC Stores standard of conduct issue. Assessor did not show up at
previous settlement conference. 3 weeks. New Teams meeting for Thursday
June 24, at 2:00. DY”
June 24, 2021 Judge’s notes – “The assessors position is the last counter offer that was
provided is where they are at, they are unable to improve it. The offer still
stands but cannot do anything more. The assessor was not present in the in
court settlement conference in 2018 in front of Judge Andresini and the
settlement they reached in that meeting was rejected by the Jersey City
assessor. Build CMO. Trial date: Tuesday, February 15, 2022. AD”
Thereafter, plaintiff’s counsel filed this motion on October 5, 2021, requesting that this court order
the defense tax counsel to submit the counter settlement offer’s terms discussed at the December
5
Court interprets “cc” as “calendar call.”
6
Court interprets “ocsc” as “out of court settlement conference.”
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12, 2018 conference to the governing body for its approval, and to reject any objection at the
governing body’s counsel meeting based upon the assessor’s conduct.
In support of the motion, plaintiff argues: (1) that defendant failed to “turn square corners”
as set forth by the New Jersey Supreme Court in F.M.C. Stores Co. v. Morris Plains, 100 N.J. 418(1985); (2) that defense tax counsel and defendant’s appraiser held apparent authority to bind the
City, and exercised said authority at the December 12, 2018 settlement conference; (3) that the
assessor’s acts constitute a waiver of his right to object to the counter settlement proposal; (4) that
an appropriate sanction for the assessor’s nonattendance at the December 12, 2018 settlement
conference is to disallow his objection to the counter settlement proposal; and (5) that plaintiff is
entitled to equitable relief from the court. Plaintiff also asserts that the assessor’s actions caused
undue harm because plaintiff’s expert appraiser retired in early 2020.
Defendant opposes the motion citing the comment to R. 8:9-5 which states:
The current Tax Court practice, approved by the Court’s Presiding
Judge permits entry of stipulation of settlement without affidavit
provided, however, that the attorneys represent to the court that they
have made examination of the value and proper assessment of the
properties, have obtained such analysis, information, and appraisals
with respect thereto as they deem necessary and that the attorney for
the taxing district has consulted with the assessor who has concurred
with the settlement.
[Rules Governing the Courts of the State of New Jersey, Sylvia B.
Pressler and Peter Verniero (2022 Edition)].
Defendant also asserts that, while having the authority to attend the settlement conference, neither
defense tax counsel nor defendant’s appraiser held apparent or implied authority to enter into a
settlement agreement subject to governing body approval without the defendant assessor’s
concurrence and approval. In support of this, defendant points to past practice with the City’s
other tax appeals, and defense tax counsel’s representation that the counter settlement proposal
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needed to be discussed with the assessor, thereby making it conditioned upon his approval.
Defendant also reasons that the plaintiff’s counsel asserted a condition on obtaining his client’s
approval as well, resulting in neither party being bound to the counter settlement proposal. For
these reasons, defendant argues no tentative agreement existed in a form that would be subject to
governing body approval.
II. Conclusions of Law
New Jersey courts have held that sending an attorney to a settlement conference
presumptively establishes the attorney’s authority to settle, and that apparent authority may even
be found where the principal denies having granted authority to settle, but nevertheless places
the attorney in a position where “‘a person of ordinary prudence, conversant with business usages
and the nature of the particular business, is justified in presuming that such agent has authority to
perform the particular act in question.’” See Seacoast Realty Co. v. West Long Beach Bor., 14 N.J.
Tax 197, 204-205 (1994). United States Plywood Corp., supra, 41 N.J. at 74, 194 A.2d
730 (quoting J. Wiss & Sons Co. v. H.G. Vogel Co., 86 N.J.L. 618, 621, 92 A. 360 (E. & A. 1914)).
With respect to the facts of this case, the court finds that plaintiff’s counsel was aware of
the practice requiring the assessor’s concurrence and approval of any settlement agreement prior
to such agreement being placed on an agenda for governing body approval. It is common practice
in the Tax Court and is acknowledged in the Comment to R. 8:9-5, as well as the Stipulation of
Settlement found on the Tax Court’s website.
Furthermore, the terms of a tentative agreement were not placed on the record, were not
shared with the court, and did not in any manner effectuate a change in the court’s handling of
these open and active tax appeals. While plaintiff criticizes the assessor for taking too long to
advise of the tentative settlement agreement’s rejection, plaintiff offers no explanation as to why
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it did not avail itself of court intervention in the manner of requesting an order to show cause,
scheduling a mandatory conference with the assessor in attendance, or a trial date. While the court
is sympathetic and agrees that the assessor’s position on the December 12, 2018 counter proposal
was not immediately forthcoming, there were multiple avenues in which plaintiff could have
obtained relief from the court. Instead, the court was left to schedule and attend to years of court
appearances, while both parties lacked the motivation to resolve the appeals in a timelier fashion.
The court also does not find the assessor’s actions to violate the square corners doctrine.
While plaintiff may question the assessor’s inquiries and actions, the court recognizes the
assessor’s right in verifying those elements associated with commercial property value such as,
square footage, lease terms, and information obtained from visual inspection. In addition, there
was an improvement on the property in tax year 2018 that generated added assessments for 2018
and 2019. The assessor’s review and analysis were not as simple as the plaintiff portrays. The
court is also cognizant that since March 2020, the coronavirus caused a detrimental impact on both
parties’ ability to conduct business normally.
For the reasons set forth above, the court denies plaintiff’s motion. The 2016 through 2020
tax appeals are currently scheduled for trial on February 15, 2022.
/s/ Mary Siobhan Brennan
Mary Siobhan Brennan, J.T.C.
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