On appeal from Superior Court of New Jersey, Law Division, Union County.
Before Judges Shebell, Skillman and Kleiner.
The opinion of the court was delivered by SKILLMAN, J.A.D.
Plaintiff General Motors Corporation brought this action under the Federal Civil Rights Act, 42 U.S.C.A. § 1983, against defendants City of Linden ("Linden"), its tax assessor, Emanuel Frangella ("Frangella"), and an independent real estate appraiser retained by Linden to assist in valuing plaintiff's property, Richard Chaiken ("Chaiken"). Plaintiff claimed that defendants violated its rights under the federal and state constitutions by imposing an arbitrary, discriminatory and excessive property tax assessment on its automobile assembly plant in Linden. By an amended complaint, plaintiff claimed that Chaiken negligently valued its property and therefore is also liable under common law tort principles.
The Law Division concluded that it lacked jurisdiction over plaintiff's § 1983 claims because they relate to a tax assessment. Despite holding that it lacked jurisdiction, the Law Division also ruled that the individual defendants have absolute immunity from suit under § 1983 for an alleged violation of constitutional rights relating to a tax assessment and that Linden cannot be held responsible for any constitutional violation which its tax assessor may have committed. In addition, the Law Division, citing J.H. Becker, Inc. v. Marlboro Township, 82 N.J. Super. 519, 530, 198 A.2d 463 (App. Div. 1964), dismissed plaintiff's common law negligence claim against Chaiken on the ground that his valuation of plaintiff's property was 'not binding upon the tax assessor." The trial court subsequently denied defendants' motions for counsel fees and costs.
Plaintiff has appealed from the summary judgment in defendants' favor and defendants have cross-appealed from the denial of their applications for counsel fees and costs.
Initially, we note that the order from which this appeal has been taken is not a final judgment appealable as of right because it does not include a final determination of defendants' applications for counsel fees and costs. Defendants argued in support of their applications for attorney fees that even if they did not enjoy absolute immunity from suit under § 1983, plaintiff's proofs were "woefully inadequate and could not sustain a cause of action." In denying defendants' applications, the trial court stated:
Defendants also base their request for attorney fees on the assertion that General Motor's lawsuit lacked any basis in fact. . . .
Plaintiff responds that it would be unfair for this Court to grant attorney fees . . . because discovery has been stayed and therefore, the facts have not been disclosed . . . .
Plaintiff argues that it has sufficient proofs, or will through discovery obtain sufficient proofs to show that the defendant's assessment was the result of discrimination or retaliation. . . .
Plaintiff argues that it should not be stalled from developing further proofs of a conspiracy and that, under the circumstances, a motion for attorney fees at this time is premature. General Motors argues that it should be given the opportunity to have discovery and to brief and argue the facts which it alleges demonstrates a conspiracy and bad faith.
This Court accepts the plaintiff's argument at this time thereby denies the defendants' request for attorney fees. But I note once again that the proofs submitted to date are inadequate and insufficient as a basis for a 1983 claim.
In light of my decision regarding attorney fees, the issue of costs will be held in abeyance until such time as the issue of attorney fees is resolved.
Thus, the trial court's denial of defendants' applications for counsel fees was without prejudice to their later renewal, because that denial was based in part on plaintiff's request to be allowed to conduct additional discovery.
This decision was memorialized by a "final order," entered on June 30, 1993, which stated in part that "defendants' motions to include reasonable attorneys' fees as part of their costs are hereby denied, and that the issue of defendants' court costs shall be held in abeyance." Considered in light of the court's prior oral opinion, we read this order to deny defendants' applications for attorney fees without prejudice to their renewal after General Motors completes discovery. See Church of Scientology of Cal. v. Cazares, 638 F.2d 1272, 1290 (5th Cir. 1981) (indicating that even though a § 1983 action presents "novel legal issues," it nevertheless may be "groundless" and thus warrant an award of counsel fees to a defendant if plaintiff's claims have no substantial factual foundation). In addition, this order expressly held defendants' application for costs in abeyance.
An appeal as of right may be taken to this court only from a final judgment, which requires a final Disposition of all claims as to all parties. Hudson v. Hudson, 36 N.J. 549, 553, 178 A.2d 202 (1962). Consequently, an order which holds an application for attorneys' fees or costs in abeyance or which denies the application pending the completion of further discovery is not a final judgment. See In re Estate of Johnson, 240 N.J. Super. 134, 136, 572 A.2d 1163 (App. Div. 1990).
Although the order from which this appeal has been taken is interlocutory, the appeal has been fully briefed and argued. Moreover, we are satisfied that the interests of Justice will be served by a decision of this court with respect to certain of the issues presented. Therefore, we grant plaintiff leave to appeal nunc pro tunc. See R. 2:4-4(b)(2). However, since the denial of defendants' applications for attorneys' fees and costs were without prejudice and contemplated further proceedings before the trial court, we dismiss defendants' cross appeals.
We conclude that the trial court erred in holding that it lacked jurisdiction over this matter. The court also erred in its further holding that defendants enjoy absolute immunity from a suit under § 1983 alleging a denial of federal constitutional rights in connection with a tax assessment. Since the trial court did not decide and the parties have not addressed whether plaintiff's allegations state a cause of action under § 1983, we do not pass upon this question. Finally, we agree with the trial court's holding that Chaiken may not be held ...