F.M.C. Stores Co. v. Boro of Morris Plains

Citation195 N.J.Super. 373,479 A.2d 435
PartiesF.M.C. STORES CO., Plaintiff-Appellant, v. BORO. OF MORRIS PLAINS, Defendant-Respondent. EDISON MALL ASSOCIATES, Plaintiff-Appellant, v. TOWNSHIP OF EDISON, Defendant-Respondent. 115 ACRES VENTURE/FIRST NATIONAL STATE BANK, Plaintiff-Appellant, v. TOWNSHIP OF EDISON, Defendant-Respondent.
Decision Date02 August 1984
CourtNew Jersey Superior Court – Appellate Division

Steven R. Irwin, West Orange, for plaintiffs-appellants (Mandelbaum & Mandelbaum, West Orange, attorneys; Steven R. Irwin, West Orange, on the brief).

John J. Harper, Morris Plains, for defendant-respondent Borough of Morris Plains (Harper & Hansbury, Morris Plains, attorneys; John J. Harper, Morris Plains, on the letter brief).

Jonathan N. Harris, Elmwood Park, for defendant-respondent Edison Tp. (Andora, Palmisano, DeCotiis & Harris, Elmwood Park, attorneys; Anthony D. Andora, Elmwood Park, of counsel; Mr. Harris, on the brief).

Before Judges PRESSLER, TRAUTWEIN and O'BRIEN.

The opinion of the court was delivered by

PRESSLER, J.A.D.

These consolidated appeals arise out of three separate direct actions instituted in the Tax Court pursuant to N.J.S.A. 54:3-21 by three separate taxpayers whose respective real property assessments exceeded $750,000 and who challenged their respective assessments as excessive. The common issue raised is whether the defendant-taxing district, if it elects to challenge its own assessment as being too low, must take its appeal by the August 15 deadline date prescribed by statute or whether it may do so beyond that date by filing a counterclaim subject to the relaxable time requirements prescribed by the rules governing the trial divisions of the Superior Court.

In each of these cases, the defendant municipality moved in the Tax Court for leave to file such a counterclaim after August 15. Each of the motions was granted and each of the taxpayer-plaintiffs sought leave to appeal. Leave was granted in all three cases, which we then consolidated for argument and disposition. 1 We now reverse all three orders. It is our holding that compliance with the August 15 date is a jurisdictional prerequisite for the prosecution by a defendant municipality of an appeal from its own assessment whether or not the taxpayer first appeals.

The relevant facts are simple and undisputed. Each of the plaintiffs is the owner of commercial property in its respective municipality, each of which underwent a complete reevaluation effective in 1983. F.M.C. Stores Co., whose property was assessed for that year at a total of $5,230,600, filed its appeal in the Tax Court on August 5, 1983. Edison Mall, whose property was assessed at a total of $1,296,000, and 115 Acres Venture/First National Bank, whose property was assessed at a total of $6,352,500, each filed an appeal in the Tax Court on August 8, 1983. Morris Plains, the defendant in the F.M.C. Stores Co. action, filed a timely answer supporting its assessment. 2 On August 29, 1983, it filed a motion seeking leave to amend its answer in order to add a counterclaim challenging its assessment on the ground that it was below the true value of the property and also below the common level in the taxing district. The motion was granted over plaintiff's objection.

In the Edison cases, no responsive pleading was filed by the defendant until March 1984 when, after retaining special counsel, defendant filed a motion in each of the cases seeking leave to file a late answer and counterclaim in order to challenge the assessments as being both below true value and below the common level. Those motions were also granted over plaintiffs' objections.

The conceptual basis of the Tax Court's action in granting the defendants' motions was grounded on R. 8:3-7, which provides as follows:

A counterclaim shall accord, as to form, with R. 8:3-3; as to contents, with R. 8:3-4 and R. 8:3-5 and as to service, with R. 8:5-2 through 5 inclusive.

That rule is, however, silent with respect to the time period in which service of a counterclaim must be made. R. 4:1, however, provides that the rules in Part IV, insofar as applicable, govern the practice and procedure in the Tax Court except as otherwise provided in Part VIII. It was the court's perception in view of R. 4:1 that R. 8:3-7 is therefore subject to the time prescriptions governing the filing of counterclaims in the Superior Court, namely, R. 4:6-1, requiring a counterclaim to be served within 20 days after service of the summons and complaint. It was also the court's view that a Tax Court counterclaim is subject to R. 4:7-4, which permits a pleader to add an omitted counterclaim by amendment to his pleadings "when justice requires," and to R. 4:9-3, which permits amended pleadings to relate back to the date of the original pleading. This rationale for permitting the filing of a late appeal by way of a counterclaim was adopted by the Tax Court in Curtiss-Wright Corp. v. Wood-Ridge, 2 N.J.Tax 143 (Tax Ct.1981), relied upon here in the granting of the challenged motions.

We are, however, constrained to disagree with this view because we are persuaded that in respect of a municipal appeal from its own assessment, the Curtiss-Wright holding is contrary to the countervailing statutory dictates of N.J.S.A. 54:3-21. That statute provides in part that

A taxpayer feeling aggrieved by the assessed valuation of his property, or feeling that he is discriminated against by the assessed valuation of other property in the county, or a taxing district which may feel discriminated against by the assessed valuation of property in the taxing district, or by the assessed valuation of property in another taxing district in the county, may on or before August 15 appeal to the county board of taxation by filing with it a petition of appeal; provided, however, that any such taxpayer or taxing district may on or before August 15 file a petition of appeal directly with the tax court, if the assessed valuation of the property subject to the appeal exceeds $750,000.00.

The statute therefore clearly and unequivocally accords both the taxpayer and the taxing district an independent right to appeal from a real property assessment. 3 But that right, whether first asserted in the county board of taxation or, because of the amount of the assessment, in the Tax Court, is also conditioned upon the filing of the appeal by August 15. The question then is whether the August 15 date is a jurisdictional requirement for each party, irrespective of any action taken by the other, or whether it is a time limitation which is subject to modification by court rule. In our view, it is a jurisdictional and therefore, by definition, a non-modifiable requirement.

The right to appeal a real property assessment is statutory, and the appellant is required to comply with all applicable statutory requirements. The Supreme Court has recognized, however, that not "every procedural omission rises to the level of a fatal defect in subject matter jurisdiction * * *." General Trading Co. v. Taxation Div. Director, 83 N.J. 122, 127-128, 416 A.2d 37 (1980). Nevertheless, the statutory time prescription for the filing of an appeal has uniformly been held to constitute a non-relaxable jurisdictional requirement attended by the consequence of preclusion of the action if not complied with. See, e.g., Newark v. Fischer, 3 N.J. 488, 70 A.2d 733 (1950); Clairol, Inc. v. Kingsley, 109 N.J.Super. 22, 262 A.2d 213 (App.Div.1970), aff'd 57 N.J. 199, 270 A.2d 702 (1970); Prospect Hill Apts. v. Flemington, 172 N.J.Super. 245, 247, 1 N.J. Tax 224, 411 A.2d 737 (Tax Ct.1979). And see Bass River Tp. v. Driscoll, 3 N.J. Tax 177, 181 (Tax Ct.1981); Environmental Protection Dep't v. Franklin Tp., 181 N.J.Super. 309, 317, 3 N.J. Tax 105, 113, 437 A.2d 353 (Tax Ct.1981); Galloway Tp. v. Petkevis, 2 N.J. Tax 85, 88 (Tax Ct.1980); Sun Life Assur. Co. of Canada v. Orange, 2 N.J. Tax 25, 28 (Tax Ct.1980); City of Salem v. Salem County Bd. of Taxation, 1 N.J. Tax 462, 464 (Tax Ct.1980).

Clearly, if no appeal were taken by a taxpayer to the Tax Court by August 15 of the tax year, the taxing district would be thereafter absolutely precluded from taking an appeal for that year. If the taxpayer did take an appeal by filing a complaint on or before August 15, the taxing district could not file its own complaint appealing the assessment after August 15. We are persuaded that when a taxing district is barred from filing its own complaint, its right to appeal is irrevocably lost and cannot be revived by the procedural mechanism of a counterclaim. In short, we conclude that the pendency of an appeal by the taxpayer cannot extend the taxing district's time to take its own appeal beyond the statutory August 15 date.

We are satisfied that under the statutory scheme the right of appeal of the taxpayer and the right of appeal of the taxing district are separate and independent causes of action, even though they involve the same subject matter. Cf. Weyerhaeuser Co. v. Borough of Closter, 190 N.J.Super. 528, 464 A.2d 1156 (App.Div.1983), reaffirming the applicability of the statutory time limitations to appeals which constitute separate causes of action. Thus, the right of each party to pursue an appeal within the statutory time period is wholly independent of and unaffected by the course of action decided upon by the other. That time limitation, prescribed by statute and thus constituting a jurisdictional prerequisite, is not, in our view, subject to court rule modification, and the mechanism of a court-rule counterclaim cannot be used either to extend or to abbreviate the statutory period. Cf. Alid v. North Bergen, 180 N.J.Super. 592, 436 A.2d 102 (App.Div.1981), app. dism. 89 N.J. 388, 446 A.2d 126 (1981).

Obviously, one party could not, by filing its appeal more than 20 days prior to August 15, curtail the other party's right to appeal since each party has been accorded the unqualified...

To continue reading

Request your trial
18 cases
  • Mallon, Matter of
    • United States
    • New Jersey Superior Court — Appellate Division
    • April 19, 1989
    ...to have acquiesced therein. See In re Keogh-Dwyer, 45 N.J. 117, 120, 211 A.2d 778 (1965); F.M.C. Stores Co. v. Borough of Morris Plains, 195 N.J.Super. 373, 389, 479 A.2d 435 (App.Div.1984), aff'd 100 N.J. 418, 495 A.2d 1313 (1985); Essex County Welfare Bd. v. Perkins, 133 N.J.Super. 189, 1......
  • F.M.C. Stores Co. v. Borough of Morris Plains.
    • United States
    • New Jersey Supreme Court
    • July 30, 1985
    ...from granting increases in the original assessments, at least when discrimination is not an issue. F.M.C. Stores Co. v. Borough of Morris Plains, 195 N.J.Super. 373, 479 A.2d 435 (1984). In the Edison Township cases, the taxpayers, Edison Mall and 115 Acres Venture/First National State Bank......
  • In Re AWB Associates, GP
    • United States
    • U.S. Bankruptcy Court — Eastern District of Pennsylvania
    • September 10, 1992
    ...believe do not meet the constitutionally-mandated standard. N.J.STAT.ANN. § 54:3-21 (West 1991); F.M.C. Stores Co. v. Borough of Morris Plains, 195 N.J.Super. 373, 381, 479 A.2d 435, 439 (1984), aff'd, 100 N.J. 418, 495 A.2d 1313 (1985); and Weyerhauser Co. v. Borough of Closter, 190 N.J.Su......
  • In re Constable Terminal Corp.
    • United States
    • U.S. Bankruptcy Court — District of New Jersey
    • July 28, 1998
    ...that failure to timely file a tax appeal results in a bar to maintenance of such an action. See, F.M.C. Stores, Co. v. Boro of Morris Plains, 195 N.J.Super. 373, 380-81, 479 A.2d 435 (1984). Constable also notes that pursuant to N.J.S.A. 54:3-27.2 a refund only results if a taxpayer is succ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT