Jackson Const. Co. v. Ocean Tp.
| Decision Date | 25 August 1981 |
| Citation | 440 A.2d 88,3 N.J.Tax 296,182 N.J.Super. 148 |
| Parties | , 440 A.2d 88 JACKSON CONSTRUCTION CO., Jessep Corp., Monjier Corp., and Jefferson Construction Co., all corporations of the State of New Jersey, Plaintiffs, v. TOWNSHIP OF OCEAN, a Municipal Corporation of the County of Monmouth, State of New Jersey, Defendant |
| Court | New Jersey Tax Court |
W. Peter Ragan, Asbury Park, for plaintiffs (Blankenhorn & Ragan, Asbury Park, attorneys).
Dennis M. Crawford, Wanamassa, for defendant (Schaefer, Crawford & Hirsch, Wanamassa, attorneys).
ANDREW, J. T. C.
Pursuant to R. 4:50-1 plaintiffs move for an order vacating judgments of dismissal entered by the Clerk of the Tax Court on May 2, 1980.
This local property tax proceeding originally involved the issue of the proper valuation and assessment of vacant land for the tax year 1975. There are approximately 300 separately assessed parcels of land which, pursuant to the pretrial order, had been consolidated for trial.
The pretrial order was entered in this matter on January 4, 1980. It required that appraisal reports and lists of comparable sales be exchanged by the parties no later than January 18, 1980 and provided further that the case would be heard during the trial week of February 11, 1980. At plaintiffs' request the matter was adjourned for one month and a firm trial date of March 19, 1980 was set by the court.
Counsel for both parties appeared in court on March 19, 1980. Counsel for defendant Ocean Township, accompanied by his appraiser and the taxing district assessor, was prepared to proceed. The court was advised by taxpayers' counsel that the appraisal expert retained by plaintiffs was not in court and was not expected to appear. Taxpayers' counsel revealed that the expert's absence was due to a dispute between the expert and the principal of the corporate plaintiffs regarding the expert's compensation. In answer to the judge's question, counsel for plaintiffs indicated that the dispute would not likely be resolved. He could not represent to the court that plaintiffs were, or would soon be, prepared to proceed with the trial of the matter. As such, he did not even advance an application for an adjournment.
The judge thereupon granted defendant's motion to dismiss the complaints for lack of prosecution. The judgments of dismissal were entered by the Clerk of the Tax Court on May 2, 1980.
The record reveals that on October 29, 1980 a substitution of attorney form was executed and plaintiffs' present counsel were retained.
Plaintiffs now seek vacation of the judgments of dismissal pursuant to R. 4:50-1, which provides in part:
On motion, with briefs, and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence ...; (c) fraud ..., misrepresentation, or other misconduct of an adverse party; (d) the judgment or order is void; (e) the judgment or order has been satisfied, released or discharged ...; or (f) any other reason justifying relief from the operation of the judgment or order.
A motion under R. 4:50-1 must be made within "a reasonable time," and for reasons (a), (b) and (c) therein not more than one year after the entry of judgment. R. 4:50-2. Plaintiffs rely on reasons (a), "surprise," and (f), the catchall category, of R. 4:50-1. Plaintiffs state that if the dismissal judgments are not vacated, they will be forever barred by the statute of limitations from prosecuting these claims. See N.J.S.A. 2A:3A-4.1(b).
The motion was filed on January 22, 1981, about ten months after the granting of the motion to dismiss and about nine months after the entry of judgment.
Although plaintiffs have advanced subsection (f) of R. 4:50-1 () their primary thrust has been the surprise which emanated from their expert's failure to appear. No other reasons have been urged which would justify the requested relief. The sheer fact that the statute of limitations would bar the filing of another complaint does not in and of itself justify the vacation of a judgment. Miller v. Estate of Kahn, 140 N.J.Super. 177, 182, 355 A.2d 702 (App.Div.1976).
On the return date of the motion, after having considered the affidavits and briefs submitted and hearing oral argument, this court was not satisfied that it could make a determination on the proofs adduced. Therefore, the court carried the motion to another date, at which time the parties could present additional proofs, particularly the testimony of the principal for the taxpayers and the taxpayers' appraisal expert. See Allegro v. Afton Village Corp., 9 N.J. 156, 161, 87 A.2d 430 (1952).
At the continued date and time plaintiffs presented the testimony of Jerome Epstein, vice-president and secretary of plaintiffs' corporations. It was Epstein, in his official capacity for plaintiffs, who retained the expert, Paul J. Kiernan, and conducted all business with him regarding these tax matters. The salient points of Epstein's testimony indicate that he had retained Kenneth L. Walker, Jr., as an expert to provide the necessary appraisal reports and testimony for an appeal of the subject lots to the Monmouth County Board of Taxation for the tax year 1975. Just prior to the hearing date before the county board Walker notified Epstein that he could neither complete the necessary appraisals nor be prepared to testify before the county board. Epstein then, in September 1975, retained Kiernan, who agreed to prepare written appraisal reports for each of the subject parcels and to give testimony before the Monmouth County Board of Taxation and, if necessary, the Division of Tax Appeals (now the Tax Court). Epstein indicated that Kiernan had agreed to a total fee of $1,200 which, perhaps coincidentally, happened to be the same fee that Walker had originally agreed to accept. Kiernan did prepare appraisal reports and give oral testimony before the county tax board on October 6, 1975.
On October 15, 1975 Kiernan sent a bill to Epstein for services rendered in the amount of $4,000. Epstein testified that he contacted Kiernan about the bill shortly after it was received and that Kiernan suggested a compromise figure of $2,800, which would also cover testimony to be given to the Division of Tax Appeals. Epstein indicated that he refused this. Thereafter the county board affirmed the original assessments as to each parcel and timely appeals were filed to the Division of Tax Appeals.
Epstein further indicated that during the 4 1/2-year period from October 15, 1975 to February 26, 1980 he received up-datings of the original bill sent to him by Kiernan, each reflecting a demanded fee of $4,000. Epstein called Kiernan to attempt to resolve the question of the fee. It was Epstein's testimony that at one time there was a discussion of a fee of $2,800, while at another time there was discussion of a $3,000 fee and yet another discussion with regard to a $2,500 fee.
As previously indicated, a firm trial date was set for March 19, 1980. In February 1980, with the hearing date approaching, Epstein contacted Kiernan. Epstein testified that Kiernan now required a $3,000 payment for all services previously rendered and those still to be provided. Epstein indicated that he could not come to an agreement with Kiernan. Thereafter, he asked his then attorney to intercede with Kiernan and, according to the testimony of Epstein, his attorney indicated that he had resolved the fee dispute with Kiernan for the sum of $2,500. Epstein then stated that on the afternoon of March 17, 1980, two days before the hearing, he learned from his then attorney that Kiernan refused to appear at the hearing unless he received a total fee, in advance, of $3,000. Epstein testified that he was not able to reach Kiernan by telephone until 7:45 a.m. on March 19, 1980, when he advised Kiernan that he would pay a fee of $3,000. However, he stated he was told by Kiernan that he, Kiernan, could not appear in court that morning because he had another commitment which he deemed more important. That same morning Epstein contacted his then attorney to relate that he had agreed to pay Kiernan's fee, that Kiernan had agreed to testify and that an adjournment should be obtained in order to permit Kiernan sufficient time to make arrangements to appear in court.
The dismissal of the appeals followed as a result of Kiernan's absence at the hearing and plaintiffs' inability to proceed with the case. Plaintiffs assert that under these circumstances, i. e., the abrupt and unexpected refusal of their expert to appear, though, they maintain, no fault of their own, the reopening of these matters is merited.
Defendant presented the testimony of Kiernan. Kiernan indicated that he was contacted by Epstein in September 1975 to see if Kiernan could obtain a new date for plaintiffs before the county board (their originally scheduled date had passed without an appearance by plaintiffs). It was Kiernan's function to obtain a new date and, if successful, to prepare appraisals and testify before the county board. Kiernan testified that he did not set a fee initially because he felt it was an enormous undertaking and he had little idea of how many hours it would take to accomplish. Therefore, he could not estimate a fee but advised Epstein that he would keep it reasonable. Kiernan was successful in obtaining a new date and did, in fact, prepare the appraisals and testify before the county board on October 6, 1975. However, since Kiernan was not optimistic as to a successful result at the county board level, he indicated to Epstein that appeals to the State Division of Tax Appeals would probably be necessary and that he would provide expert testimony before the Division without further fee. Kiernan stated that he sent his original billing for...
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