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Brahin v. City of Somers Point

April 24, 1996


The opinion of the court was delivered by: Rimm

This is a local property tax matter presently before me on remand from the Superior Court, Appellate Division. Implicated in the case is the Correction of Errors statute, N.J.S.A. 54:51A-7. When the matter was previously before me, a judgment was entered on September 2, 1993, dismissing the complaint on defendant's motion at the Conclusion of plaintiff's case.

The subject property is a vacant lot located in a commercial district of the City of Somers Point, next to the Somers Point Shopping Center. It is designated as block 499, lot 14.01 on the municipal tax map. Plaintiff seeks a judgment reducing the tax assessments for the property from $1,266,300 to $588,600 for the tax years 1989, 1990, 1991 and 1992, alleging correctable errors by the municipal tax assessor.

The initial trial took place on August 10, 1993. At that time, plaintiff offered the testimony of one witness and had various documents marked in evidence. Plaintiff also sought, through the witness, to introduce the oral statements of, and two letters from, Diane R. Hesley, the Somers Point tax assessor, indicating that a mistake had been made in the assessment of the property. On objection by defendant, the City of Somers Point, I precluded admission of that evidence, ruling that Hesley had not been the assessor during the tax years in issue and that her opinion as to whether an error had been made was irrelevant. At the close of plaintiff's evidence, I granted defendant's motion to dismiss the complaint, resulting in the judgment of September 2, 1993.

On appeal, the Appellate Division reversed the dismissal of the complaint, concluding that the evidence precluded at trial was relevant and should have been admitted. On remand from the Appellate Division, the parties agreed that the evidence and testimony from the first trial would be incorporated into the record of the second trial, that plaintiff would introduce the previously excluded evidence, and that defendant could then proceed with its defense.

At the second trial on October 2, 1995, plaintiff recalled her only witness from the first trial and introduced the previously excluded evidence which was now admitted in accordance with the Appellate Division's decision. At the close of plaintiff's case, defendant proceeded with its evidence which had not been necessary at the first trial because of the dismissal at the Conclusion of plaintiff's case.


In 1985, Leon Freeman, plaintiff's father and predecessor in title to the subject property, obtained subdivision approval for lot 14.01, which at that time consisted of 28.14 acres. Three lots were created: a new lot 14.01 and lots 14.04 and 14.05. The size of lot 14.01 was reduced to 13.08 acres, including a sixty-foot wide access easement. The municipal tax assessor received notice of this subdivision after the tax list for the 1986 tax year had already been prepared. The 1986 tax list made no reference to lots 14.04 and 14.05 and listed lot 14.01 at its original acreage.

By a deed dated May 9, 1986 and recorded on May 16, 1986, Leon Freeman transferred title to lot 14.01 to his daughter, plaintiff in this case. The recorded deed listed the acreage of lot 14.01 as 13.08 acres. Upon receipt of a copy of this deed, the municipal tax assessor changed the tax list to show the new owner of the property and notified the municipal engineer so that the tax map could be revised to reflect the subdivision. The tax list for the 1987 tax year listed the acreage for lot 14.01 as 13.08 acres and also listed the two newly subdivided lots, 14.04 and 14.05. The subdivision changes were also reflected on the municipal tax map.

In late 1986, a revaluation firm, Applied Measurement Services, performed a district-wide revaluation for the City of Somers Point. As part of its work for the municipality, the firm prepared property record cards for the subdivided lots 14.04 and 14.05. The firm also prepared a property record card for lot 14.01 which listed the lot acreage as 28.14 acres, the area of the lot prior to the subdivision. The revaluation firm developed its assessments for lots 14.01, 14.04 and 14.05 and sent them to Vital Resources Data Center where a tax list was prepared which was then forwarded to the municipality.

By a deed dated December 30, 1986 and recorded on January 12, 1987, plaintiff transferred lot 14.01 to the Jamesway Corporation and to herself. The Jamesway Corporation was to build a store on the property. In return for this transfer, plaintiff received $250,000 in cash and a note for $385,000 from the Jamesway Corporation. The deed actually contained a typographical error in the stated interests of the grantees as follows:

JAMESWAY CORPORATION, a New Jersey Corporation 40 Hartz Way, Secaucus, New Jersey 07094 and JUDITH BRAHIN an Individual 1535 Chestnut Street Second Floor Rear, Philadelphia, PA 19102 as Tenants in Common owning respectively 7-1/2 and 5-1/12ths of the subject land.

To correct this typographical error, a "correction and confirmation deed" dated April 13, 1987 indicated the grantees and their interests as follows:

JAMESWAY CORPORATION, a New Jersey Corporation, of 40 Hartz Way, Secaucus, New Jersey 07094 and JUDITH BRAHIN an Individual of 1535 Chestnut Street, Second Floor Rear, Philadelphia, PA 19102 as Tenants in Common owning respectively 7/12 and 5/12ths of the subject land.

This deed also indicated that, in accordance with the applicable statute, an abstract was sent to the assessor by the county clerk.

Sometime in January of 1987, the municipal tax assessor received a copy of the December 30, 1986 deed from plaintiff to the Jamesway Corporation. A staff person in the tax assessor's office noted the transaction on the municipal tax list. At the second trial, a photocopy of the Real Property Tax List for 1987, page 34, was marked in evidence. The printed information disclosed that block 499, lot 14.01 contains 13.08 acres. The printed information also listed plaintiff as the owner. However, handwritten notations on the exhibit indicated "635,000 1-12-87" and crossed out plaintiff's name and replaced it with Jamesway Corp. as the owner. In fact, the exhibit discloses other similar entries for other lots indicating dates and amounts and name changes, this apparently being the system used by the assessor's office to initially reflect transfers of title.

In February of 1987, an attorney representing plaintiff sent a letter to Frederick W. Mitchell, the city's tax assessor from 1982 to May, 1992 and during the entire period of time involved in this matter, asking whether the assessment for lot 14.01 included the sixty-foot access easement. In response, Mitchell indicated that the property tax assessment was based on the subdivision acreage (12.37 acres) plus the easement acreage (0.71 acres) or a total of 13.08 acres. Plaintiff did not question the amount of the assessment at that time. In fact, plaintiff received tax bills from the municipality for 1987, 1988, 1989, 1990, 1991 and 1992 and only questioned the assessment amount for lot 14.01 at the end of 1992. The tax bill for 1989 does not indicate area, but the tax bills for 1990, 1991 and 1992 each show the correct acreage for lot 14.01 as 13.08 acres.

In 1992, Edward Iaquinto, an employee of the firm that managed plaintiff's property, noticed that some other commercial properties in Somers Point managed by his firm had been assessed at $45,000 per acre, while lot 14.01 had been assessed at $97,000 per acre. At the first trial, Iaquinto explained that it was his Conclusion that the $1,266,300 assessment figure for lot 14.01 had been determined by multiplying the pre-subdivision acreage of 28.14 acres by $45,000 per acre, the amount at which he believed the other properties under his firm's management had been assessed. Iaquinto testified that despite the fact that the tax bills for the property showed the correct acreage, he still believed that the assessor had made a mistake in the assessment of the lot.

At the second trial, Iaquinto related his Discussions in November of 1992 with Diane R. Hesley, the municipal tax assessor who had replaced Frederick W. Mitchell. Iaquinto explained that, after discovering what he believed to be an error in the assessment for lot 14.01, he telephoned Hesley to question the assessment. Hesley listened to Iaquinto's questions, reviewed the property record card, and decided merely from a review of the card that a mistake had been made. Hesley then sent letters to plaintiff and to Iaquinto stating that the subject property had been incorrectly assessed and indicating that she would reduce the 1993 assessment for the lot to $588,600.

At the second trial, the city presented its defense and called Mitchell as its first witness. He testified as follows on direct examination:

Q. Mr. Mitchell, during the years 1989 through 1992, that assessment, do you know the lot size on which that assessment was based?

A. Yes.

Q. And what was that?

A. 13.08 acres.

Q. Now was 13.08 acres always the lot size for the subject lot?

A. No. It had been subdivided some years prior to that.

Q. Now during the years that are at issue in this particular case, the tax years 1989 through 1992, do you -- or I'm sorry -- prior to these years, 1989 through 1992, do you know what the lot size was before the property was subdivided?

A. Approximately 24 acres give or take, I believe. I'm not sure --

Q. Okay.

A. -- exactly. I don't -- was it 24 or 28? I'm not sure.

Q. Okay. Now in making the assessments for the years 1989 through 1992 did you ever utilize a figure of 28.14 ...

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