                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL 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.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-1189-17T3

MI CASITA DAY CARE CENTER,

          Plaintiff-Appellant,

v.

CITY OF CAMDEN,

     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 appellant
                    (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
      This appeal requires our consideration of the tax judge's application of the

"square corners" doctrine to a situation 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 Casita Day Care Center, and other entities that were parties

to the proceedings in the tax court, own five parcels of land in the City of

Camden on which an educational day care facility is operated. Since acquiring

these parcels – at various times between October 1985 and May 2012 – Mi

Casita and others 1 were granted tax exemptions on their parcels pursuant to

N.J.S.A. 54:4-3.6. In December 2010, the City's tax assessor advised that

plaintiffs were not eligible for the exemption. No explanation was given for that

determination.

      Plaintiffs filed timely appeals for the tax year 2011 with the county board

of taxation, which upheld the exemption denial. Plaintiffs then filed timely

appeals 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 parcels, 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.
                                                                            A-1189-17T3
                                         2
proceedings and determinations in the county board of taxation took place for

the tax years 2012 and 2013.

      In early 2014, the tax assessor again claimed that plaintiffs were not

entitled to exemptions for the tax year 2014. Without repeating the process

invoked for the three preceding years, plaintiffs moved for summary judgment

in the tax court on the 2011, 2012, and 2013 matters. That motion was returnable

March 28, 2014, perilously close to the April 1 deadline for filing an appeal

regarding tax year 2014.

      Prior to the return date, the City sought plaintiffs' consent to the motion's

adjournment. That request generated a controversy because of the looming

April 1 deadline for the 2014 tax year; plaintiffs required the City's agreement

that the judge's ultimate decision on the earlier 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

agreement in the absence of plaintiffs' appeal for the 2014 tax year. This

impasse resulted in the judge's involvement in a telephone conference that went

unrecorded. 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 a


                                                                           A-1189-17T3
                                        3
debate on the record about what, if anything, had been agreed on during the

earlier, unrecorded telephone conference. Without deciding the parties' cross-

motions or resolving the dispute 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 argument with the [tax] court based upon what

transpired at that proceeding."      At the conclusion of the argument on the

motions' return date, the judge reserved decision, requiring the City's submission

of additional factual information.

      Plaintiffs submitted 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 "numerous opportunities" to do so. Later, the 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 information, prompting an adjournment of the trial. In March 2017,

the judge granted summary judgment and directed that the properties be listed


                                                                           A-1189-17T3
                                         4
as exempt for tax years 2011, 2012, 2013, 2015 and 2016. The judge reserved

decision on tax year 2014, inviting supplemental briefs. After submission of the

supplemental filings, 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 appeals, 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 statutory 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 county board of

taxation"). That there then remained pending tax court litigation for earlier tax

years 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 was


                                                                           A-1189-17T3
                                        5
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) (the 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 Because our

Supreme Court recognizes that statutory time 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]ailure to file a timely appeal

[as] a fatal jurisdictional defect," id. at 425, we agree with the tax judge's

determination that plaintiff's late appeal of the 2014 tax assessment was not

reviewable in the tax court.

      Plaintiff, however, argues that a proper application of the so-called

"square 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 achieve or



2
  No hearing was ever scheduled on plaintiff's late appeal to the county board
of taxation, and no decision was ever rendered.
                                                                           A-1189-17T3
                                        6
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 motions that were returnable days prior to the April 1 deadline, its

counsel initially agreed 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 defendant 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 counsel 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 an
            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 participated in a telephone
            conference with the court during which he did not
            consent to defendant's adjournment request.




                                                                         A-1189-17T3
                                        7
In light of these circumstances, the judge concluded that plaintiffs could not

reasonably labor under the impression there was an agreement about the 2014

tax year. Plaintiffs knew prior to the filing deadline that regardless 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

plaintiffs in the weeks leading up to the April 1 deadline. The square corners

doctrine could not, as the judge correctly held, relieve plaintiffs of the

consequence of failing to file a timely 2014 appeal.

      Affirmed.




                                                                            A-1189-17T3
                                         8
