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Rutherford Realty Associates v. Borough of Rutherford

Decided: November 30, 1994.

RUTHERFORD REALTY ASSOCIATES, PLAINTIFF-APPELLANT,
v.
BOROUGH OF RUTHERFORD, DEFENDANT-RESPONDENT.



On appeal from the Tax Court of New Jersey.

Before Judges Dreier and Villanueva.

Per Curiam

Plaintiff appeals from two $500 sanctions imposed by the Tax Court Judge, alleging that the Judge abused his discretion by not granting plaintiff's request to adjourn the first trial date and thereafter imposing these sanctions as a precondition for reinstatement. We reverse.

Plaintiff, Rutherford Realty Associates, owns an office building located at 71 Union Avenue, Rutherford, New Jersey. On or about March 4, 1992, plaintiff filed a direct appeal to the Tax Court of New Jersey challenging the assessment of the property for tax year 1992.

The Clerk of the Tax Court assigned this appeal to a Tax Court Judge who advised the parties by letter dated August 7, 1992, that the trial of the case would be held on January 14, 1993.*fn1 The parties were not prepared to dispose of the matter on the first "trial" date, and a case management conference was held by Judge on January 14, 1993 that was attended by counsel for both parties.

The case management order provided that "counsel agree that any adjournments will be subject to [the Judge's] written guidelines on adjournments dated March 1992." In these guidelines the Judge established the "Policy Regarding Adjournments After The Initial Trial Date (Case Management Conference) in Local Property Tax Matters." The Judge's express policy provides, in pertinent part, that all adjournment requests must be in writing and "must be received in chambers at least ten (10) days before the scheduled trial date. " The policy warns counsel that "no further adjournments will be granted except for good cause," and that failure to comply with court orders and court rules may result in dismissal of the case, suppression of expert testimony, or sanctions in accordance with the court rules.

At the time of the conference, plaintiff's attorneys designated an expert appraiser for trial. However, during the course of the litigation, this appraiser indicated that he would not be able to prepare an appraisal report on the subject property. Therefore, plaintiff had to retain another expert. Plaintiff informed its attorneys that a few months earlier another appraiser, John Cito, prepared an appraisal report on the subject property for an unrelated matter. Plaintiff then retained Cito, who assured the attorneys that he could deliver a report for the Tax Court litigation in a timely manner. However, despite the attorneys' continuous efforts to obtain the report, Cito did not deliver his report on the promised date.

On June 28, 1993, Cito for the first time informed plaintiff's attorneys that he would be out of town on the day of trial. Due to the expert's unavailability, plaintiff had no choice but to seek an adjournment. Later that same day, after obtaining the adversary's consent, plaintiff's attorneys forwarded a letter to the Judge requesting a short adjournment. The Judge summarily denied the request because the application was not timely and the reasons given were inadequate, stating, "This case will be settled, tried, or dismissed on July 1, 1993." This was the first real trial date.

Despite this pressure on the taxpayer to resolve its appeal, the attorneys for the parties reached a tentative settlement on the eve of trial. When presented with the offer later that evening, the plaintiff rejected the proposal.

When the attorneys appeared before the Tax Court on the trial date, plaintiff's attorney repeated his request for an adjournment. Defendant's attorney did not object. The Judge, however, denied the request and dismissed the appeal by judgment dated July 20, 1993. The Judge found that there had not been compliance with R. 8:6-1(b)(1) because that an expert report had not, as required, been submitted to the court no later than ten days before the July 1, 1993 trial date. We note, however, that the defendant municipality's report also had not been submitted. The Judge found no exigent reasons for granting the application, and accordingly, denied the request for adjournment. Because plaintiff was not prepared to move its case without an expert or an appraisal, the Judge dismissed the tax appeal.

Plaintiff filed a Motion for Reconsideration returnable August 13, 1993, seeking to reinstate the matter to the Tax Court calendar. The Judge granted the motion by order dated September 3, 1993, on the condition that plaintiff pay penalties totalling $1,000: $500 for failing to inform the court and the defendant of its change in expert appraisers, and an additional $500 for failing to provide the defendant and the court with a copy of its appraisal report within the time limits imposed by the Rules of ...


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