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NOT FOR PUBLICATION WITHOUT APPROVAL OF

THE TAX COURT COMMITTEE ON OPINIONS

TAX COURT OF NEW JERSEY

Mala Narayanan 153 Halsey Street

JUDGE Gibraltar Building, 8th Floor

Newark, New Jersey 07101

Telephone (973) 648-2921

TeleFax: (973) 648-2149

taxcourtnewark2@judiciary.state.nj.us

March 19, 2012

Michael I Schneck, Esq

Schneck Law Group, L.L.C.

301 South Livingston Avenue, Suite 105
Livingston, New Jersey 07039

John Casey, Esq.

Wolff & Samson, P.A.

One Boland Drive
West Orange, New Jersey 07052

Re: DJS Co. aka Rhode Island Holding, L.L.C. v. East Orange

Dkt. Nos. 003261-2009; 006071-2010

Halstead Apartments, L.L.C. v. East Orange

Dkt. Nos. 001624-2008; 003314-2009; 006031-2010

Hashemi Sohi, Amir v. East Orange

Dkt. Nos. 015267-2009; 005774-2010; 003066-2009

55 Washington Assoc. & Gersand, Inc.

Dkt. Nos. 005490-2007; 000441-2008; 003303-2009

5 Chelsea Ave. Corp v. East Orange

Dkt. Nos. 000404-2008; 003259-2009; 007548-2010

Munnchester Gardens Realty Corp v. East Orange

Dkt. Nos. 001764-2009; 005966-2010

Amato, James Jr. v. East Orange

Dkt. Nos. 015273-2009; 018268-2010

Lennox Multi Family Corp v. East Orange

Dkt. Nos. 005560-2007; 000439-2008; 001785-2009; 006003-2010__________________________________________________

*

Dear Counsel:

This letter opinion constitutes the court’s decision with respect to the defendant’s above-captioned cross-motions, following oral argument.

After all of plaintiffs’ tax appeal complaints were settled with the defendant (“East Orange”), and judgments of the Tax Court were issued, plaintiffs filed motions to compel payment of refunds with statutory interest. East Orange cross-moved for fees and costs against all plaintiffs Plaintiffs then withdrew their motions. East Orange proceeded with its cross-motions.

For the following reasons, the cross-motions are denied.

FACTS

DJS Co. aka Rhode Island Holding, L.L.C. v. East Orange

On September 15, 2010, plaintiff and East Orange filed a stipulation of settlement with the Tax Court, agreeing to reduce the assessment on the plaintiff’s property from $1,457,900 to $1,200,000 for tax year 2009, and to $1,100,000 for tax year 2010. In paragraph four (4) of the stipulation, the parties agreed that refunds resulting from the settlement would be paid to plaintiff’s counsel. A typed provision reads that payment of the refund will be made “within sixty (60) days of the date of the Judgment.” This language is stricken out by hand, with the initials “JDR + MIS” (initials of respective counsel for the parties). In paragraph five (5), the parties agreed that statutory interest pursuant to N.J.S.A. 54:3-27.2 would be waived.

A judgment reflecting the agreed upon assessment value for tax year 2010 was issued on October 29, 2010. A judgment for tax year 2009 was issued on November 19, 2010.

Halstead Apartments, L.L.C. v. East Orange

On January 21, 2011, plaintiff and East Orange filed a stipulation of settlement with the Tax Court, agreeing to reduce the assessment on the plaintiff’s property from $2,018,700 to $2,000,000 for tax year 2008, $1,900,000 for tax year 2009, and $1,700,000 for tax year 2010. In paragraph four (4) of the stipulation of settlement, the parties agreed that refunds resulting from the settlement would be paid to plaintiff’s counsel. There is no mention of a time frame for payment of the refund. In paragraph five (5), the parties agreed that statutory interest pursuant to N.J.S.A. 54:3-27.2 would be waived.

For each of the three tax years, a judgment reflecting the agreed upon assessment values was issued on March 11, 2011.

Amir Hashemi Sohi v. East Orange

On January 21, 2011, plaintiff and East Orange filed stipulations of settlement with the Tax Court, agreeing to reduce the assessments on two of the plaintiff’s properties. For Block 710, Lot 20, the parties agreed to reduce the assessment from $271,000 to $245,000 for tax year 2009. In paragraph four (4) of the stipulation of settlement for Block 710, Lot 20, the parties agreed that refunds resulting from the settlement would be paid to plaintiff’s counsel. A typed provision reads that payment of the refund will be made “within sixty (60) days of the date of the Judgment.” This language is stricken out by hand, with the initials “JDR + MIS” (for the parties’ respective counsel). In paragraph six (6) of this stipulation of settlement, the parties agreed that statutory interest pursuant to N.J.S.A. 54:3-27.2 would be waived. A judgment reflecting the agreed upon assessment value was issued on March 18, 2011.

For Block 710, Lot 26, the parties agreed to reduce the assessment from $1,520,000 to $1,220,000 for tax years 2009 and 2010. In paragraph five (5) of the stipulation of settlement for Block 710, Lot 26, the parties agreed that refunds resulting from the settlement would be paid to plaintiff’s counsel. A typed provision reads that payment of the refund will be made “within sixty (60) days of the date of the Judgment.” This language is stricken out by hand, with the initials “JDR + MIS” (parties’ respective counsel). In paragraph six (6), the parties agreed that statutory interest pursuant to N.J.S.A. 54:3-27.2 would be waived. A judgment reflecting the agreed upon assessment values was issued on March 11, 2011 for each of the two tax years.

55 Washington Assoc. & Gersand, Inc. v. East Orange

On September 28, 2010, plaintiff and East Orange filed a stipulation of settlement with the Tax Court agreeing to reduce the assessment on the plaintiff’s property from $5,363,300 to $5,000,000 for tax year 2007, $4,750,000 for tax year 2008, and $4,500,000 for tax year 2009. In paragraph four (4), the parties agreed that refunds resulting from the settlement would be paid to plaintiff’s counsel. A typed provision reads that payment of the refund will be made “within sixty (60) days of the date of the Judgment.” This language is stricken out by hand, with the initials “JDR + MIS” (for the parties’ respective counsel). In paragraph five (5), the parties agreed that statutory interest pursuant to N.J.S.A. 54:3-27.2 would be waived.

A judgment reflecting the agreed upon assessment values was issued on November 30, 2010 for each tax year, 2007 through 2009.

5 Chelsea Ave Corp v. East Orange

On January 19, 2011, plaintiff and East Orange filed a stipulation of settlement with the Tax Court agreeing to reduce the assessment on the plaintiff’s property from $1,204,200 to $1,150,000 for tax year 2008, $1,000,000 for tax year 2009, and $950,000 for tax year 2010. In paragraph four (4), the parties agreed that refunds resulting from the settlement would be paid to plaintiff’s counsel. A typed provision reads that payment of the refund will be made “within sixty (60) days of the date of the Judgment.” This language is stricken out by hand, with the initials “JDR + MIS” (for the parties’ respective counsel). In paragraph five (5), the parties agreed that statutory interest pursuant to N.J.S.A. 54:3-27.2 would be waived.

A judgment reflecting the agreed upon assessment values was issued on May 13, 2011 for each of the three tax years.

Munnchester Gardens Realty Corp v. East Orange

On January 20, 2011, plaintiff and East Orange filed a stipulation of settlement with the Tax Court agreeing to reduce the assessment on the plaintiff’s property from $5,299,700 to $4,750,000 for tax year 2009 and $4,500,000 for tax year 2010. In paragraph four (4), the parties agreed that refunds resulting from the settlement would be paid to plaintiff’s counsel. A typed provision reads that payment of the refund will be made “within sixty (60) days of the date of the Judgment.” This language is stricken out by hand, with the initials “JDR + MIS” (for the parties’ respective counsel). In paragraph five (5), the parties agreed that statutory interest pursuant to N.J.S.A. 54:3-27.2 would be waived.

A judgment reflecting the agreed upon assessment values was issued on March 18, 2011 for each of the two tax years.

Amato, James Jr. & Nail Abdel Fatah v. East Orange

On January 19, 2011, plaintiffs and East Orange filed a stipulation of settlement with the Tax Court agreeing to reduce the assessment on the plaintiffs’ property from $377,600 to $140,000 for tax years 2009 and 2010. In paragraph four (4), the parties agreed that refunds resulting from the settlement would be paid to plaintiff’s counsel. A typed provision reads that payment of the refund will be made “within sixty (60) days of the date of the Judgment.” This language is stricken out by hand, with the initials “JDR + MIS” (for the parties’ respective counsel). In paragraph five (5), the parties agreed that statutory interest pursuant to N.J.S.A. 54:3-27.2 would be waived.

A judgment reflecting the agreed upon assessment values was issued on March 11, 2011 for each of the two tax years.

Lennox Multi Family Corp. v. East Orange

On January 20, 2011, plaintiff and East Orange filed a stipulation of settlement with the Tax Court agreeing to reduce the assessment on the plaintiff’s property from $1,084,800 to $1,050,000 for tax years 2007 through 2010. In paragraph four (4), the parties agreed that refunds resulting from the settlement would be paid to plaintiff’s counsel. A typed provision reads that payment of the refund will be made “within sixty (60) days of the date of the Judgment.” This language is stricken out by hand, with the initials “JDR + MIS” (for the parties’ respective counsel). In paragraph five (5) of the stipulation of settlement, the parties agreed that statutory interest pursuant to N.J.S.A. 54:3-27.2 would be waived.

A judgment reflecting the agreed upon assessment values was issued on March 18, 2011 for all four of the tax years.

PROCEDURAL HISTORY

On September 30, 2011, all of the above-referenced plaintiffs filed motions to enforce judgment and compel payment of refunds. Plaintiffs argued that under N.J.S.A. 54:3-27.2, the municipality had 60 days from the date of the judgments to issue the tax refunds to the taxpayers, and since that time had long passed and plaintiffs had not received payment of refunds from East Orange, they were entitled to an order requiring East Orange to remit the refund due plus interest, attorneys’ fees, and costs.

On or about October 28, 2011, East Orange filed cross-motions (as to all plaintiffs) demanding attorneys’ fees and costs. It claimed that plaintiffs had specifically waived their rights to receive refunds within any particular time-frame and for statutory interest.

On or about October 31, 2011, plaintiffs’ opposed East Orange’s cross-motions. They maintained that their counsel routinely waived the 60-day time frame and statutory interest as a professional courtesy and in recognition of East Orange’s bonding constraints. However this courtesy did not constitute a waiver of the right to receive refunds in a reasonably timely manner. Plaintiffs also argued that their demands for statutory interest were “incidental” to the main relief sought, namely, payment of the refunds, nonetheless, the waiver was negotiated with the “hope” that refunds would be paid timely.

On or about November 2, 2011, East Orange filed its reply to plaintiffs’ opposition.1 It simply reiterated its argument that plaintiffs’ motions were frivolous and a waste of East Orange’s time and money, and demanded attorneys’ fees and costs.

On the same day, namely, November 2, 2011, all plaintiffs withdrew their motions on grounds that their counsel had just received a copy of East Orange’s resolutions approving refunds for “most of the matters” which were subject of plaintiffs’ motions. A review of the attached resolutions indicated that the City Council for East Orange approved the payment of refunds to all but one of the taxpayers in this motion.2

Thereafter, on or about November 8, 2011, East Orange submitted a certification of Thomas Small in support of its cross-motion seeking attorneys’ fees and costs. Mr. Small certified to the “lengthy bonding process” which necessitated East Orange to generally never agree to a 60-day time limit provision or payment of interest provision in its stipulations of settlements. East Orange’s counsel certified similarly. East Orange argued that plaintiffs’ withdrawal of their motions only buttressed the frivolous nature of their respective motions, and “unless’ they “fe[lt] some pain,” such motions would be repeatedly filed by counsel under a “misguided belief” that their filing somehow triggered refund payments, or was being done simply to “placate impatient clients.”

In response, plaintiffs’ counsel filed a certification on or about November 15, 2011. Counsel stated that while he was fully aware of East Orange’s necessity to issue a bond (to finance tax refunds), and routinely agreed to waive the 60-day statutory time-frame or interest with respect to refund payments to foster settlement, this did not mean he agreed to a “timeless pass” for East Orange to issue refunds. He stated that because several calls to the Tax Collector’s office were never retuned, and in order to comply with the instructions of his “frustrated clients” who had waited from seven (7) to twelve (12) months after the issuance of the final judgments, he had filed the motions. He argued that once the bond issue authorization was received from East Orange he immediately withdrew all motions so as to avoid recurring costs/attorneys’ fees for East Orange (plaintiffs having waived any claim for attorneys’ fees in this regard). During oral argument he admitted that including the demands for interest was an administrative mistake and an oversight, and that the primary basis for the plaintiffs’ motions was to compel East Orange to pay the refunds due.

After oral argument, the court directed East Orange’s counsel to provide supplemental briefing explaining how, if its cross-motions are made in support of litigants’ rights, pursuant to R. 1:10-3, see infra, the provisions of the stipulations of settlement are incorporated into the judgment of the Tax Court. If so, counsel was to address whether the stipulations explicitly or implicitly required forbearance by plaintiffs not to file motions to compel a refund, such that filing the same would violate the Tax Court’s judgment. East Orange did not file such brief.

CONCLUSIONS OF LAW

N.J.S.A. 54:3-27.2 provides for interest on local property tax refunds, and states as follows:

In the event that a taxpayer is successful in an appeal from an assessment on real property, the respective taxing district shall refund any excess taxes paid, together with interest thereon from the date of payment at a rate of 5% per annum, less any amount of taxes, interest, or both, which may be applied against delinquencies . . . within 60 days of the date of final judgment.

Although the statute references a taxpayer who “is successful in an appeal from an assessment on real property,” it also applies to cases which have been settled. Waterview Village-Community Realty Mgt v. Ventnor City, 4 N.J. Tax 262, 267 (Tax 1982) (statute requires interest payment “regardless of” how the “final reduced assessment was obtained”).

A plain reading of the statute indicates that excess taxes plus interest must be refunded to the taxpayer within 60 days of the date of the final judgment. However, parties frequently negotiate waivers of statutory interest provided the refund is made within the 60-day period. See e.g., Petrie Retail, Inc. v. Town of Secaucus, 19 N.J. Tax 356 (Tax 2001), aff’d, 363 N.J. Super. 74 (App. Div. 2003) certif. denied, 177 N.J. 223 (2003). And if such negotiations are embodied in a stipulation of settlement, the courts generally will enforce the settlement both because it is deemed a “binding contract,” and also because of “New Jersey's strong public policy toward settling litigation and enforcing settlements.” Petrie Retail, Inc., supra, 19 N.J. Tax at 363.

New Jersey policy also generally does not favor or permit imposition of attorneys’ fees or costs, unless authorized by rule, statute, or contract. R. 4:42-9 authorizes the court to impose attorneys’ fees under certain specific circumstances, including where expressly provided by the New Jersey Court Rules. R. 4:42-9(a)(7). The only applicable court rules which may provide a basis for East Orange’s claim are R. 1:4-8, R. 1:10-3, or R. 8:9-2.

Rule 1:4-8

Rule 1:4-8 expands on the application of the frivolous litigation statute, N.J.S.A. 2A:15-59.1. It is also “patterned” after Fed. R. Civ. Proc. 11 by including a penalty for attorneys who file frivolous pleadings. Pressler & Verniero, Current N.J. Court Rules, Comment 1 to R. 1:4-8 (GANN 2012). The rule provides that when an attorney signs and files a pleading, he or she is certifying “that to the best of his or her knowledge, information, and belief, formed after an inquiry reasonable under the circumstances” the pleading filed is “not being presented for an improper purpose, such as to . . . needless[ly] increase” litigation costs. R. 1:4-8(a). He or she is also certifying that any “factual allegations” therein “have evidentiary support” or “will be withdrawn or corrected” if further “investigation . . . indicates” lack of such support. Ibid.

If a pleading is done “with intent to defeat the purpose of” R. 1:4-8, they “may be stricken.” Ibid. In addition, it can result in sanctions if the same is properly sought, i.e., by way of a separate certified motion, by the adverse party. Ibid.

A motion for sanctions “shall” be filed within 20 days of the final judgment (which includes an order deciding a post-judgment motion regardless of its appealability). R. 1:4-8(b)(2). A party seeking sanctions must file a certification that (i) it has served a written notice and demand upon opposing counsel that the originally filed motions are believed to be in violation of R. 1:4-8 with the specific basis for the alleged violation, a demand for withdrawal of the offending papers, and notice that a motion for sanctions will be made within a reasonable time if the offending paper is not withdrawn within 28 days of service of the demand; and (ii) that the offending paper was not withdrawn or corrected within the 28-day period. R. 1:4-8(b)(1). If the “offending” motion is withdrawn within the 28-day period, then a motion for sanctions cannot be made. Ibid.

East Orange contends that plaintiffs’ claims of entitlement to refunds within a certain time frame with statutory interest are frivolous because the facts, namely, the stipulations, clearly evidence that each plaintiff either waived the 60-day time period for refund payment or never provided a time limit, and further waived payment of statutory interest. East Orange argues that it “should not have had to waste time and money drafting its response to a motion that should never have been brought.” It appears that East Orange claims that plaintiffs’ baseless motions generated unnecessary increased litigation costs.

It is true that some plaintiffs’ waived payment of refund within 60 days of the judgment and all plaintiffs waived statutory interest. Nonetheless, East Orange’s cross-motion cannot be treated as motions for sanctions because they fail to comply with the 20-day time requirement of R. 1:4-8(b)(2). They also lack the required certifications mandated by R. 1:4-8(b)(1).

Even if East Orange’s cross-motions are deemed notices and demands for withdrawal under R. 1:4-8(b)(1) (since the return date for plaintiffs’ motions of November 4, 2011 expired before the 28-day period would expire3), plaintiffs withdrew their motions before their return date. Although plaintiffs did not immediately withdraw the motions upon receipt of East Orange’s cross-motions but filed replies contesting the same, the fact remains that they withdrew their motions much before the expiry of the 28-day period.

Aside from the technicalities of R. 1:4-8, the court still finds that sanctions should not apply. The “attorneys’ fees sanction pursuant to R. 1:4-8 is not warranted where the plaintiff has a reasonable good faith belief in the merit of [its] action.” DeBrango v. Summit Bancorp, 328 N.J. Super 219, 227, (App. Div. 2000) (internal quotation marks and quotation omitted). See also Trocki Plastic Surgery Center v. Bartkowski, 344 N.J. Super. 399, 406-407 (App. Div. 2001) (for purposes of R. 1:4-8, “the term ‘frivolous’ has been accorded a restrictive interpretation . . . and [is] limited to claims . . . made in bad faith, solely for the purpose of harassment, delay or malicious injury, or without any reasonable basis in law or equity”) certif. denied, 171 N.J. 338 (2002). The conduct for application of R. 1:4-8 is to be “strictly construed” such that the “the term frivolous should be given a restrictive interpretation to avoid limiting access to the court system”); First Atlantic Federal Credit Union v. Perez, 391 N.J. Super. 419, 432-33 (App. Div. 2007) (quotations omitted).

Here, there is no question that plaintiffs are entitled to refunds pursuant to their fully executed stipulations of settlements. It is undisputed that plaintiffs waited for periods ranging from seven months to a year to receive refunds. Also undisputed is the fact that plaintiffs’ counsel did not receive any responses to his inquiries as to the status of the pending refunds from the Tax Collector’s office.4 Plaintiffs’ motions simply sought to enforce their undisputed rights to these refunds.

Additionally, plaintiffs had a foundation in law for their motions. Plaintiffs are entitled by statute to be repaid tax refunds with interest. That some of the stipulations of settlement are silent as to the 60-day repayment period cannot require a conclusion that the refunds could be repaid at any time, however late. A reasonable time for compliance of obligations is imputed upon parties by law. Here, the statute itself defines the term of this reasonable period, namely, 60 days.

Even if plaintiffs are deemed to have waived this statutory time period in the cases where this clause was stricken, contract laws impose a reasonable period of time for performance of obligations. See Black Horse Lane Assoc., L.P. v. Dow Chem. Corp., 228 F.3d 275, 285 (3d Cir. 2000) (“New Jersey courts uniformly have applied the principle that where no time is fixed for the performance of a contract, by implication a reasonable time was intended”) (internal quotation marks and quotations omitted). Whether several months to a year after the issuance of the judgment was an unreasonable amount of time for the plaintiffs to be paid the refunds owed, which reasonableness determination would require a facts and circumstances analysis, ibid., need not be decided to find that plaintiffs’ motion was baseless or spurious as long the claim had a rational basis and support. See First Atlantic, supra, 391 N.J. Super. at 432 (for purposes of R. 1:4-8, “a[n] assertion is deemed frivolous when ‘no rational argument can be advanced in its support, or it is not supported by any credible evidence, or it is completely untenable’”) (quoting Fagas v. Scott, 251 N.J. Super. 169, 190 (Law Div. 1991)).5

Thus, plaintiffs’ did not seek relief “with an intent to defeat” the strictures of the said court rule. Rather, as plaintiffs’ counsel contritely admitted, claims for statutory interest were included inadvertently since the demand was simply copied from other unconnected pleadings and generated en-masse. Plaintiffs’ argument prior to their withdrawal that their counsel waived interest routinely in the hope of getting prompt refunds was simply that, an argument. It does not re-assert a statutory right to interest nor indicate a continued pursuit for such interest in their present motions.

The court finds plaintiffs’ motions are not frivolous or merit sanctions under R. 1:4-8.6

Rule 1:10-3

Rule 1:10-3 allows “a litigant in any action [to] seek relief by application in the action.” The rule “recognizes that as a matter of fundamental fairness, a party who willfully fails to comply with an order or judgment entitling his adversary to litigant’s rights is properly chargeable with his adversary’s enforcement expenses.” Pressler & Verniero, supra, Comment 4.4.5 to R. 1:10-3. Before granting such relief, “the court must be satisfied that” the non-compliant party was fully able to comply and its failure to do was “willfully contumacious.” Id., Comment 4.3 to R. 1:10-3.

The Tax Court is empowered to impose attorneys’ fees and/or sanctions under R. 1:10-3. Arrow Mfr. Co., et al v. West New York, 321 N.J. Super 596 (App. Div. 1999); Trisun Corp., et al. v. West New York, 341 N.J. Super. 556, 558 (App. Div. 2001), aff’g in part and remanding in part, 18 N.J. Tax 533 (Tax 2000).

“The sine qua non for an action in aid of litigant’s rights, pursuant to [R. 1:10-3], is an order or judgment; a predicate element . . . .” Haynoski v. Haynoski, 264 N.J. Super. 408, 413-14 (App. Div. 1993) (denying plaintiffs’ motion to compel enforcement of a settlement agreement, and for attorneys’ fees since the settlement agreement at issue had never been incorporated into an order or judgment of the court).

Thus, East Orange must show that plaintiffs deliberately and willfully failed to comply with this court’s order or judgment. It is well-established that the judgments of the Tax Court are not money judgments. See Universal Folding Box Co., Inc. v. Hoboken City, 20 N.J. Tax 1, 6 (Tax 2002) (judgments of the Tax Court are not money judgments but simply “require[] the municipality only to reduce the assessment. . . .”); New York Life Ins. Co. v. Township of Lyndhurst, 280 N.J. Super. 387, 389 (App. Div. 1995) (for purposes of allowing interest on tax refunds, Tax Court judgments are “judgments reducing tax assessments” and thus “not judgments for the payment of money”).

Here, each of the court’s judgments simply reflected the reduced consensually agreed upon assessment for each property at issue. It did not include language that plaintiffs are not entitled to repayment to statutory interest or the refund language.

However, whether or not the provisions of the stipulations of settlement filed with this court are impliedly incorporated into the judgments for purposes of R. 1:10-3, or whether the court is simply being asked to enforce the contractual stipulation between the parties, East Orange’s cross-motions cannot be granted.7 Since all plaintiffs withdrew their motions, East Orange’s claim under R. 1:10-3 is moot.

Therefore, East Orange is not entitled to recover attorneys’ fees under R. 1:10-3.

Rule 8:9-2

R. 8:9-2 is the only remaining avenue available for East Orange under the New Jersey Court Rules. The rule permits the Tax Court, in its discretion, to grant “out-of-pocket costs” in “special cases.” The comment to the rule states that:

[t]he obvious purpose therefor is the intention on the one hand to make the Tax Court accessible to taxpayers by not penalizing them in the event they fail to prevail and, on the other hand, to preserve the public fisc. The provision for an award of out-of-pocket costs is one that may be therefore anticipated to be sparingly employed and only in extraordinary circumstances.

[Pressler & Verniero, supra, Comment to R. 8:9-2]

The terms “extraordinary circumstances” or “special cases” are undefined and have not been interpreted in the context of R. 8:9-2. In Flagg v. Township of Hazlet, 321 N.J. Super. 256 (App. Div. 1999) the court analyzed the term “extraordinary circumstances” (in the context of an application to extend the time for the filing of a trial de novo) to mean “something unusual or remarkable.” The commonly understood meaning of the term “extraordinary” is something uncommon or unusual or exceptional. Webster’s Second New College Dictionary (1995).

The instant situation is certainly not extraordinary or special. In local property tax appeal practice, it is common for parties to negotiate the standard clause in a manner which will accommodate both their interests. Attempting to enforce the same in court is not unusual or uncommon motion practice.

Further, there is no element of unfairness which would warrant the application of R. 8:9-2. East Orange was not prejudiced because it held the plaintiffs’ refunds interest free for several months after the Tax Court judgments were issued. Further, plaintiffs withdrew their motions as soon as the refunds were paid. East Orange’s additional costs are attributable to its own actions, namely, by continuing to pursue its cross-motion even after the withdrawal of the motions upon which its cross-motions were based.

CONCLUSION

East Orange’s cross-motion for attorneys’ fees in the instant case is denied with prejudice. An order reflecting this opinion will be issued.

Very truly yours,

Mala Narayanan, J.T.C.

1 East Orange’s reply brief, styled as a “letter memorandum in further opposition to plaintiffs’ Motion to Compel” was submitted without requesting leave of court pursuant to R. 1:6-5.

2 The one matter was 55 Washington Assoc. & Gersand, Inc. v. East Orange (Dkt. Nos. 001764-2009; 005966-2010) as to property located at Block 673, Lot 3.

3 The 28-day rectification period or safe harbor can be adjourned or waived (or deemed waived if the movant refuses to adjourn its motion) if the subject of sanctions is a motion whose return date is prior to the 28-day period. R. 1:4-8(b)(1).

4 East Orange conceded that its outside counsel retained for purposes of litigation is not involved in the refund payment procedures once the stipulations have been executed, filed with the court, and the judgments pursuant to those settlements have been issued. Thus, plaintiffs’ counsel’s attempt to contact the Tax Collector is not improper.

5 Similarly, if as plaintiffs’ counsel argued, waiver of statutory interest was a material term of all settlements in that it was predicated upon an expectation that East Orange would pay refunds within a reasonable time after the entry of judgment, then, East Orange’s purported breach by failing to pay within a reasonable period of time would be a basis bringing the present motions even for interest. Given plaintiffs’ concession that they were not seeking interest, but only refunds, this argument need not be considered.

6 A valid claim for attorneys’ fees can be also made if allowed by a statute. R. 4:42-9(a)(8). The frivolous litigation statute, N.J.S.A. 2A:15-59.1, permits such an allowance. The statute applies to the Tax Court. Throckmorton v. Township of Egg Harbor, 267 N.J. Super. 14 (App. Div. 1993). However, this statute requires the award be made to a “prevailing party.” “Even where a settlement is reached, the facts can be interpreted to demonstrate that one party has ‘prevailed’ for purposes of the act.” Fagas, supra, 251 N.J. Super. at 192. In all of the plaintiffs’ cases, the original assessments, generated by East Orange, were reduced according to the settlements. Thus, East Orange has no basis for a claim under this statute, nor did it explain to this court how the statute would apply to give it relief. Note that the Appellate Division also held that the statute’s “focus” is on the “sole purpose” of filing and maintaining an action, not the “effect” of the same upon parties. Throckmorton, supra, 267 N.J. Super. at 20 (reversing the Tax Court’s decision to award attorneys’ fees on grounds plaintiff’s refusal to settle “had the effect of harassing” the township by costing it time, money and effort “to deal with” plaintiff’s complaint).

7 East Orange did not brief this issue as directed by the court. Even if East Orange’s cross-motions were seeking enforcement of the stipulations by themselves, thus, its cross-motions claim that plaintiffs breached their implied contractual obligation not to claim interest or repayment of refunds, the result in this opinion would not change. This is because (i) plaintiffs’ claim for interest was not pursued, and thus, there would be no breach, and (ii) a reasonable time period for refund payment would still be imputed, whether by statute or under general contract law, and thus, plaintiffs’ motions to compel a refund would not be a per se breach.