Wolosky v. Fredon Township

Citation472 N.J.Super. 315,277 A.3d 1
Decision Date02 June 2022
Docket NumberDOCKET NO. A-2382-19
Parties Jesse WOLOSKY, Plaintiff-Appellant, v. FREDON TOWNSHIP, and Michael and Penny Holenstein, Defendants-Respondents.
CourtNew Jersey Superior Court — Appellate Division

472 N.J.Super. 315
277 A.3d 1

Jesse WOLOSKY, Plaintiff-Appellant,
FREDON TOWNSHIP, and Michael and Penny Holenstein, Defendants-Respondents.

DOCKET NO. A-2382-19

Superior Court of New Jersey, Appellate Division.

Argued May 3, 2022
Decided June 2, 2022

Walter M. Luers argued the cause for appellant (Cohn, Lifland, Pearlman, Herrmann & Knopf, attorneys; Walter M. Luers, on the briefs).

Robert B. McBriar argued the cause for respondent Fredon Township (Schenck, Price, Smith & King, LLP, attorneys; William E. Hinkes, on the brief).

Tara Ann St. Angelo argued the cause for respondents Michael and Penny Holenstein (Gebhardt & Kiefer, PC, attorneys; Kelly A. Lichtenstein and Tara Ann St. Angelo, on the brief).

John R. Lloyd argued the cause for amicus curiae Association of Municipal Assessors of New Jersey (Chiesa Shahinian & Giantomasi, PC, attorneys; John R. Lloyd, on the brief).

Before Judges Hoffman, Whipple and Geiger.

The opinion of the court was delivered by


472 N.J.Super. 319

Plaintiff Jesse Wolosky appeals from an order of the Tax Court awarding Green Township, pursuant to the frivolous litigation statute, N.J.S.A. 2A:15-59.1, "$45,589.35 in counsel fees and costs for its defense of [defendant Penny] Holenstein"1 in her official capacity as Municipal Tax Assessor. Wolosky v. Fredon Twp., 31 N.J. Tax 373, 405 (Tax 2019). Because the motion for sanctions was untimely, we vacate the award of sanctions in favor of Green Township.

472 N.J.Super. 320

Plaintiff also appeals from an order denying his motion for counsel fees against defendant Fredon Township. Because the record does not support a finding that Fredon Township acted frivolously, we affirm the denial of plaintiff's motion for sanctions.


As a resident of Sussex County, plaintiff sought to increase the tax assessment of the Holensteins’ single-family residence located in Fredon Township. To bring about this increase, on March 30, 2016, plaintiff filed a petition of appeal with the Sussex County Board of Taxation (the Board), challenging the assessment2 of the Holensteins’ residence for the 2016 tax year. The Board dismissed the appeal without prejudice,

277 A.3d 4

citing a perceived conflict presented by the fact that Holenstein served as the Municipal Tax Assessor for three Sussex County municipalities: the Townships of Green, Byram, and Stillwater.

On May 12, 2016, plaintiff timely appealed to the Tax Court, pursuant to N.J.S.A. 54:51A-1, again seeking to increase the assessment on the Holensteins’ residence. In his complaint, plaintiff alleged he was "aggrieved and discriminated against by the assessed valuation of [Holensteins’] property." The Holensteins filed an answer3 asserting six affirmative defenses, including failure to state a claim upon which relief can be granted; in addition, they alleged that plaintiff's complaint was "baseless and asserted solely for improper purposes," warranting the imposition of sanctions.

On June 2, 2016, Holensteins’ counsel sent plaintiff a letter, advising him that his tax appeal was frivolous and filed with an

472 N.J.Super. 321

intent to harass. The letter also advised that the Holensteins would seek sanctions and attorneys’ fees if plaintiff did not withdraw the tax appeal within twenty-eight days.

When plaintiff failed to withdraw his appeal, defendants filed a motion to dismiss. During oral argument on the motion, the trial court called plaintiff to the witness stand to give sworn testimony concerning his basis for filing the subject tax appeal. After plaintiff testified, the court ruled the motion premature, explaining the tax appeal would not be frivolous if plaintiff overcomes the presumption of validity,4 "regardless of ...his motivations."

Defendants made clear their intention to seek reimbursement for all counsel fees incurred if plaintiff failed to overcome the presumption. While acknowledging that plaintiff "stands to lose quite a bit" because of "the allegations of revenge and vendetta," the court explained,

It is not a frivolous case if [plaintiff] survives the motion to dismiss but ... in the end[,] doesn't prevail.

[I]t's really only a frivolous case if [plaintiff] produces no evidence at all to survive the [c]ourt going to value. But [if] the [c]ourt can go to value, he could survive the motion. The court could go to value and rule against him. So[,] under those circumstances[,] I don't think it's a frivolous case.

But if [plaintiff] doesn't meet the first step to overcome the presumption[,] then I think we'll be talking about a frivolous case and what evidence points to that ....

On September 2, 2016, the court denied the Holensteins’ motion to dismiss, without prejudice. Thereafter, the court entered an order

472 N.J.Super. 322

permitting plaintiff to inspect the Holensteins’ residence, within certain parameters.

277 A.3d 5

The matter proceeded to trial on December 9, 2016, with plaintiff presenting expert Matthew Nemeth5 as his only witness. We summarized Nemeth's testimony in our opinion denying an earlier appeal filed by plaintiff in this matter, after the trial court dismissed his complaint:

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.

[ Wolosky v. Fredon Twp., No. A-1980-16, 2018 WL 3543011 (App. Div. July 24, 2018) (slip op. at 2–3) ( Wolosky I )]

After Nemeth testified, plaintiff rested; at that point, defendants renewed their motion to dismiss, arguing that Nemeth's testimony failed to overcome the presumption of correctness. The trial court granted the motion, ruling that plaintiff failed to overcome the presumption of validity of the challenged assessment and dismissed plaintiff's case with prejudice. Specifically, the court found that Nemeth relied "on multiple listing service as a sole source of data" and failed to "support any of his adjustments with any objective data put before this Court." The court noted that Nemeth presented evidence of a difference of 378-square feet, or "[r]oughly a good size room." However, to accept the value proposed by Nemeth of $535,000 would mean that the "the difference

472 N.J.Super. 323

of one good-sized room equates to $100,000 in value," which the court found was "not believable ... not credible."

As for plaintiff's "motives in bringing this suit" and the award of sanctions and costs, the court stated it would need to "schedule a hearing ... in the future to determine whether something like sanctions or costs are appropriate in this case." Importantly, the court advised "both sides to look at the rules that pertain to frivolous suits, to be sure that we comply with those."

Before the hearing ended, the trial court reconsidered its plan to schedule a hearing to address the issue of frivolous litigation sanctions, explaining that "any hearing in that regard" is not "appropriate until the plaintiff decides whether to appeal this decision and the [a]ppellate [c]ourt[s] decide[ ] whether or not they agree or disagree" with the decision to dismiss plaintiff's case. Notably, the court did not address the conflict between its revised plan, which deferred the issue of frivolous litigation sanctions until plaintiff exhausted all appeals, with the mandatory time limitation imposed by Rule 1:4-8(b)(2), which instructs that "[a] motion for sanctions shall be filed with the court no later than [twenty] days following the entry of final judgment."

277 A.3d 6

On December 9, 2016, the court entered judgment dismissing plaintiff's case with prejudice; thereafter, plaintiff filed a timely appeal of the judgment. While the appeal remained pending, plaintiff filed tax appeals challenging the assessment on the Holensteins’ residence for the years 2017 and 2018.6 On July 24, 2018, we affirmed the dismissal of the 2016 complaint based on plaintiff's failure to present sufficient evidence to overcome the presumption

472 N.J.Super. 324

of correctness....

To continue reading

Request your trial

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