SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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- 17T3 MI CASITA DAY CARE CENTER, Plaintiff

- Appellant,

v. CITY OF CAMD EN, Defendant

- Respondent.

____________________ ________

Submitted March 26, 2019

– Decided April 5, 2019 Before Judges Fisher and Hoffman. On appeal from the Tax Court of New Jersey, Docket No. 012171

- 2015. Hornstine & Pelloni, LLC, attorneys for ap pellant (Brian A. Pelloni, on the brief). Michelle D. Bank, City Attorney , attorney for respondent (Elissa R. Redmer, Assistant City Attorney, on the brief).
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APP ROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet , this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36

- 3.2 A

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This appeal requires our consideration of the tax judge's application of the "square corners" doctrine to a sit uation where the property owner failed to file a timely appeal to the county board of taxation during the midst of litigation regarding earlier tax years. Finding no error in the tax judge's rulings, we affirm. Plaintiff Mi Cas i ta Day Care Center , and oth er entities that were parties to the proceedings in the tax court, own five parce ls of land in the City of Camden on which an e ducational day care facility is operated . Since acquiring these parcels

– at various times between Octobe r 1985 and May 2012

– M i Casita and others 1 were granted tax exemption s on the ir parcels pursuant to N.J.S.A. 54:4

- 3.6. In December 2010, the City's tax assesso r advised that pla intiffs were not eligible for the exemption. No explanation was given for that determination

. Plai ntiffs filed t imely appeal s for the tax year 2011 with the county board of taxation, which upheld the exemption denial

. Plaintiff s then filed timely appeal s in the tax court and, while those matters were still pending, similar

1 The record reveals that Camden Day Nursery Association and Broadway Family Center were also plaintiffs in these related tax matters . Although these other entities were apparently the owners of one or more of the p arcels, only Mi Casita filed a notice of appeal filed in this court. No party attributes any significance to the absence of the other plaintiffs from this appeal. In light of our disposition of this appeal, it makes no difference.3 A

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proceedings and determinatio ns in the county board of taxation took place for the tax years 2012 and 2013. In early 201 4, the tax assessor again claim ed that plaintiff s were not entitled to exemption s for the tax year 2014

. Without repeating the process invoked for the three preced ing years, plaintiff s moved for summary judgment
in the tax court on the 2011, 2012, and 2013 matters. That motion was returnable
M arch 28, 2014, perilously close to the April 1 deadline for filing an appeal regarding tax year 2014. Prior to the return d ate, the City sought plaintiffs' consent to the motion's adjournment . That re quest generated a controversy because of the loo ming April 1 deadline for the 2014 tax year ; plaintiffs required the City's agreement that the judge's ultimate decision on the ea rlier appeals would also apply to the 2014 tax year and, briefly, the City agreed. But soon after , the City withdrew that concession on the ground that it did not have the power to reach such an
ag reement in the absence of plaintiffs' appeal for the 2014 tax year. This impasse resulted in the judge's involvement in a telephone conf erence that went

un recorded. The outcome of that conference was an adjournment to April 11,
2014. During argument , the City 's attorney made it clear the City had no
intention of applying the tax court's decision to the tax year 2014. That led to a4 A

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debate on the record about what, if anything, had been agreed on during the earlier , unrecorded telephone conference. Without deciding the parties' cross

motion s or resolving th e d ispute about what counsel did or didn't agree to during the telephone conference , the judge suggested to plaintiff that "[i]t might be wise to file [the 2014 appeal] late and make an argument about leave to file late and if that's denied, you can make an a rgument with the [tax] court based upon what transpired at that proceeding." At the conclusion of the argument on the motions' return date, the judge res erved decision, requiring the City's submission of additional factual info rmation

. Plaintiff s submitt ed to the county board of taxation its appeals regarding the tax year 2014 on May 1, 2014 , a month late

. As the tax judge later observed in a written opinion, Camden failed to provide the information referred to during the April 11, 2014 hearing for "over a period of years" despite "nume rous opportunities" to do so. Later, t he judge denied the summary judgment motions and set the matter down for a trial in September 2016. In August 2016, reconsideration was sought and the City provided the additional infor mation , prompting an adjournment of the trial . In March 2017, the judge granted summary judgment and directed that the properties be listed5 A

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as exempt for tax years 2011, 2012, 2013, 2015 and 2016. The jud ge reserved decision on tax year 2014 , inviting su pplemental briefs. After submission of the supplemental f

iling s, the judge rendered a written opinion in which he explained why the denial of an exemption for the tax year 2014 was unreviewable

. A later reconsideration motion was also denied.
Plaintiff appeal s , arguing in a single point that the judge erroneously applied "the 'square corners' doctrine in concluding that it lacked jurisdiction to decide plaintiff's 2014 claims where plaintiff relied upon the representations of defendant in waiting to file its local appeals until after the s tatutory deadline." We find insufficient merit in this argument to warrant further discussion in a written opinion, R. 2:11

- 3(e)(1)(E), and affirm , adding only a few brief
comments

. As noted, plaintiff made no attempt to file an appeal regarding the 2014 tax year to the county board of taxation until May 1, 2014, a month after the statutory deadline. See N.J.S.A. 54:3

- 21 (declaring that a taxpayer "feeling aggrieved . . . may on or before April 1 . . . appeal to the co unty board of taxation" ). T hat there then remained pending tax court litigation for earlier tax
year s did not absolve plaintiff of the obligation to file an appeal to the county board of taxation for the tax year 2014. And, because no cognizable appeal w as6 A

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filed in the county board of taxation, there could be no cognizable appeal filed in the tax court, since a condition of seeking review in the tax court is the
existence of a judgment emanating from the county board of taxation. N.J.S.A.
54:51A

- 9(a) (th e assertion of a real property tax dispute in the tax court presupposes a judgment of the county board because the tax court appeal must be "filed within 45 days of the service of [that] judgment"). 2 Becaus e our Supreme Court recognizes that statutory tim e limitations in tax matters require "strict adherence," F.M.C. Stores Co. v. Borough of Morris Plains , 100 N.J. 418, 424 (1985), and because the Court also views the "[f]a ilure to file a timely appeal [as] a fatal jurisdictional defect," id. at 425, we ag ree with the tax judge's determination that plaintiff's late appeal of the 2014 t ax assessment was not reviewable in the tax court

. Plaintiff, however, argues that a proper application of the so - called
"s quare corners" doctrine allows for relief from the consequences of its untimely filing. The tax judge rejected this, and so do we. As the Court described this
doctrine in F.M.C. Stores , "in dealing with the public, government must 'turn square corners,'" id. at 426, and may not "conduct itself so as to a chieve or

2 No hearing was ever s cheduled on plaintiff's late appeal to the county board of taxation, and no decision was ever rendered.7 A

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preserve any kind of bargaining or litigational advantage over the property owner," id. at 427. When the City sought an adjournment of the summary judgment m otions that were returnable days prior to the A pril 1 deadline , its counsel initially ag reed to be bound for that year to the tax court's decision on the earlier tax years . The judge explained the circumstances that generated this argument: [P]laintiffs' square corners argument is based on the

March 14, 2014 letter and the emails plaintiffs' counsel exchanged with defendant's counsel and the court on March 17, 2014. Those communications plainly state that plaintiffs' counsel would consent to an extension of time to respond to plaintiffs' summary judgment motion on two conditions: that defend ant would waive the April 1, 2014 filing deadline, and that defendant would agree to execute a [c]onsent [o]rder applying the court's decision with respect to tax year 2013 to tax year 2014. Shortly after the parties reached this agreement, defendant's co unsel memorialized in writing that the City does not have the legal authority to extend the filing deadline. Defendant's counsel reported that this information had been transmitted to plaintiffs' counsel and, as a result, he had withdrawn his consent to a n adjournment. At that point, the agreement between the parties' counsel regarding an adjournment of the motion was rescinded. In fact, after notification from the City that it lacked the authority to waive the filing deadline, plaintiffs' counsel partic ipated in a telephone conference with the court during which he did not consent to defendant's adjournment request.8 A

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In light of these circumstances, the judge concluded that plaintiff s could not reasonably labor under the impression there was an agreement about the 2014 tax year. Plaintiff s knew prior to the filing deadline that regardl ess of the City's early willingness to accommodate them in exchange for their consent to an adjournment, no relief had been afforded or intended regarding the 2014 tax
year . The City did not enter into a bargain and it did not take advantage of plaintiff s in the weeks leading up to the April 1 deadline . The square corners doctrine could not, as the judge correctl y held, relieve plaintiff s of the consequence of failing to f ile a timely 2014 appeal. Affirmed.