August 1, 2012
JOHN REIMERS, PLAINTIFF-APPELLANT,
CHESTERFIELD TOWNSHIP, DEFENDANT-RESPONDENT.
CHESTERFIELD TOWNSHIP, PLAINTIFF-RESPONDENT,
JOHN AND BRIGITTA REIMERS, DEFENDANTS-APPELLANTS.
On appeal from the Tax Court of New Jersey, Docket Nos. 010610-2008 and 016535-2009.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 10, 2012
Before Judges Carchman and Nugent.
Appellant John Reimers*fn1 appeals from two Tax Court judgments entered on August 13, 2010: one dismissing his complaint against defendant Chesterfield Township (the Township) challenging the 2008 tax assessment of his property, the other fixing the amount of the 2009 tax assessment. We affirm.
Appellant and his wife own property located at 125 Sykesville Road, designated on the Township's tax map as Block 1002, Lot 12, and consisting of approximately 103 acres taxed primarily as farm land. The parties' dispute concerns a parcel of the property, consisting of approximately .75 acres, on which appellant's residence and three "outbuildings" are located (the parcel). The Township's 2008 and 2009 assessments of the parcel were $503,000 and $448,500, respectively.
Appellant appealed the 2008 assessment to the Burlington County Board of Taxation, which upheld the assessment. He then filed a complaint in the Tax Court seeking a reduction. The Township appealed the 2009 assessment to the County Board of Taxation, which upheld the assessment.*fn2 The Township then filed a complaint in the Tax Court seeking an increase. The dispositions of those actions resulted, either directly or indirectly, from sanctions the court imposed after appellant refused to permit the Township to inspect the parcel. For that reason, we review the Tax Court proceedings that led to the sanctions.
On June 10, 2009, the first date fixed for the Tax Court hearing on the 2008 assessment, appellant requested an adjournment because his expert refused to testify. The court adjourned the hearing to give appellant time to obtain an appraisal from a new expert. When the court adjourned the hearing, it told appellant that the 2009 assessment pending before the County Tax Board, if appealed to the Tax Court, would be consolidated with the 2008 appeal. The court then rescheduled the hearing on the 2008 assessment for October 14, 2009, set September 14, 2009 as the parties' deadline for exchanging expert appraisal reports, and memorialized its decision in an order dated June 15, 2009. Thereafter, on August 10, 2009, the Township filed a Tax Court complaint challenging the County Board's judgment for the 2009 tax year.
The Tax Court hearing scheduled to begin on October 14, 2009 was adjourned because the now-consolidated appeals had been transferred to a new judge. On January 6, 2010, the parties appeared, and appellant presented testimony from an expert who had prepared an appraisal for only the 2009 tax year. The court adjourned the hearing to March 3, 2010 to permit appellant to obtain an appraisal for 2008.
Less than two weeks later, the Township moved for an order directing appellant to permit the inspection and measurement of the parcel. To support its motion, the Township provided certifications that appellant had refused to permit the municipal tax assessor to assess the parcel and had ignored repeated requests from the Township to permit such an inspection. Appellant did not oppose the motion. The court entered an order on February 5, 2010, directing appellant to permit the inspection and requiring him to identify in writing before February 15, 2010, available dates and times for such inspection. The court also ordered that the inspection take place by February 23, 2010. Two days after the latter deadline, the Township filed a motion to suppress appellant's proofs because he had disregarded the court order and had refused to permit the Township to inspect the parcel.
Appellant opposed the motion. On March 3, 2010, the court conducted a hearing on the issue. Although appellant had identified two dates for the inspection, he had also insisted that the Township sign liability releases before inspecting the parcel. The Township refused to do so, and when its assessors arrived on one of the dates identified by appellant, he refused to permit them on his property.
Appellant testified at the hearing that it was "an ordinary practice" to require such waivers. He further testified, however, that he had not required a waiver or release from his own expert or from any other visitors to the parcel. After hearing appellant's testimony, the court determined that appellant's answers and demeanor were evasive, and that he had intentionally refused to permit the inspection. The court suppressed appellant's proofs concerning the 2008 tax appeal and his proofs and defenses concerning the 2009 tax appeal, as authorized by Rule 4:23-2(b)(2) and (3).
The Township subsequently filed a motion to dismiss appellant's appeal of the 2008 assessment in light of the presumption of validity of the tax assessment. The Township argued that appellant could not overcome that presumption because his proofs had been suppressed. The court granted the motion. The court also conducted a hearing on the tax assessment for 2009. Based on the unrefuted testimony of the Township's expert, which the court found credible, the court entered a judgment establishing the 2009 assessment as $175,500 for land, and $349,500 for improvements, for a total of $525,000. This appeal followed.
Plaintiff contends on appeal that the Township did not present truthful testimony at the hearing, and that the Township's expert presented a "materially flawed appraisal." For those reasons, plaintiff requests a re-trial for the 2008 tax year in which he would be permitted to present the certified independent appraisals of his experts. He also seeks to have the 2009 assessment dismissed.
Our review of a Tax Court's decision is limited. Because this is a "specialized, complex area[, and t]he judges assigned to the Tax Court have special expertise, . . . we will not disturb their findings unless they are plainly arbitrary or there is a lack of substantial evidence to support them." Pan Chem. Corp. v. Hawthorne Borough, 404 N.J. Super. 401, 406 (App. Div.), certif. denied, 198 N.J. 473 (2009) (internal quotation marks and citations omitted). See also Glenpointe Assocs. v. Twp. of Teaneck, 241 N.J. Super. 37, 46 (App. Div.), certif. denied, 122 N.J. 391 (1990).
The Tax Court issued its written decision on July 30, 2010. We affirm substantially for the reasons set forth in that opinion, which are supported by substantial evidence in the record. Appellant's arguments are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following.
The Tax Court did not misapply its discretion when it suppressed appellant's proofs. The court conducted a hearing to determine why appellant defied its order to permit an inspection of the parcel. After concluding that appellant's explanation was not credible, the court found that he had obstructed the inspection in order to further delay the proceedings. "Because a trial court 'hears the case, sees and observes the witnesses, [and] hears them testify,' it has a better perspective than a reviewing court in evaluating the veracity of witnesses." Pascale v. Pascale, 113 N.J. 20, 33 (1988) (quoting Gallo v. Gallo, 66 N.J. Super. 1, 5 (App. Div. 1961)). We defer to the court's credibility determinations.
We are mindful that barring a party's claim or defense for failure to comply with discovery orders should be the "last and least favorable option" utilized by the court. Il Grande v. DiBenedetto, 366 N.J. Super. 597, 624 (App. Div. 2004). Nevertheless, a litigant who seeks an unfair advantage at trial by obstructing discovery "should not assume that the right to an adjudication on the merits of [his] claims will survive so blatant an infraction." Abtrax Pharm., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 521 (1995). Appellant's defiance of the court's discovery orders involved the very foundation of the cause of action - the ability to appraise appellant's property. Considering those circumstances, we do not find that the Tax Court misapplied its discretion by imposing a sanction that resulted in the dismissal of the 2008 claim, and the Township's presentation of undisputed evidence on the 2009 assessment.