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 ("any other reason justifying relief from the operation of the judgment") 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 ...