Mill Rd. Solar Project LLC v. CEP Solar, Ltd.

• Court: New Jersey Superior Court — Appellate Division
• Writing for the Court: GOODEN BROWN, P.J.A.D.
• Docket Number: A-3063-21,A-3517-21
• Decision Date: 27 October 2025
• Citation: Mill Rd. Solar Project LLC v. CEP Solar, Ltd., A-3063-21, A-3517-21 (N.J. Super. App. Div. Oct 27, 2025)
• Parties: MILL ROAD SOLAR PROJECT LLC, NEW ENERGY VENTURES, INC., and GHG TRADING PLATFORMS, INC., Plaintiffs-Appellants/ Cross-Respondents, v. CEP SOLAR, LTD., MILFORD SOLAR FARM LLC, FWH ASSOCIATES. PA, PURE POWER ENGINEERING, INC.,[1] GARY R. CICERO, MARK BELLIN, ESQ., TOWNSHIP OF HOLLAND, and HOLLAND TOWNSHIP PLANNING BOARD, Defendants-Respondents, and NEW JERSEY RESOURCES and FIBERVILLE ESTATES, LLC, Defendants-Respondents/ Cross-Appellants. MILL ROAD SOLAR PROJECT, LLC, and GHG TRADING PLATFORMS, INC Plaintiffs-Appellants, v. FIBERVILLE ESTATES, LLC, Defendant-Respondent.

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MILL ROAD SOLAR PROJECT LLC, NEW ENERGY VENTURES, INC., and GHG TRADING PLATFORMS, INC., Plaintiffs-Appellants/ Cross-Respondents, v. CEP SOLAR, LTD., MILFORD SOLAR FARM LLC, FWH ASSOCIATES. PA, PURE POWER ENGINEERING, INC.,^[1] GARY R. CICERO, MARK BELLIN, ESQ., TOWNSHIP OF HOLLAND, and HOLLAND TOWNSHIP PLANNING BOARD, Defendants-Respondents, and NEW JERSEY RESOURCES and FIBERVILLE ESTATES, LLC, Defendants-Respondents/ Cross-Appellants. MILL ROAD SOLAR PROJECT, LLC, and GHG TRADING PLATFORMS, INC Plaintiffs-Appellants, v. FIBERVILLE ESTATES, LLC, Defendant-Respondent.

Nos. A-3063-21, A-3517-21

Superior Court of New Jersey, Appellate Division

October 27, 2025

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.

Argued October 22, 2024

On appeal from the Superior Court of New Jersey, Law Division Bergen County, Docket Nos. L-2029-19 and L-0863-22.

Michael S. Kimm argued the cause for appellants.

John F. Byrnes argued the cause for respondents CEP Solar Ltd. Milford Solar Farm LLC, Gary R. Cicero and Mark Bellin in A-3063-21 (Byrnes, O'Hern & Heugle, LLC, attorneys; Sean F. Byrnes and John F. Byrnes, on the brief).

John P. Di Iorio argued the cause for Fiberville Estates, LLC, respondent/cross-appellant in A-3063-21 and respondent in A-3517-21 (Shapiro, Croland, Reiser, Apfel & Di Iorio, LLP, attorneys; John P. Di Iorio and Alexander G. Benisatto, on the briefs).

Lisa S. Bonsall argued the cause for respondent/cross-appellant New Jersey Resources in A-3063-21 (McCarter & English, LLP, attorneys; Lisa S. Bonsall, of counsel and on the brief; John R. Stoelker, on the brief).

Frederick T. Mahar argued the cause for respondent FWH Associates, PA, in A-3063-21 (Thompson Becker, LLC, attorneys; Frederick T. Mahar, of counsel and on the brief; Jason A. Peterson, on the brief).

John P. Gallina argued the cause for respondent Holland Township and Holland Township Planning Board in A-3063-21.

Fazzio Law Offices, attorneys for respondent Pure Power Engineering, Inc. (John P. Fazzio, of counsel and on the brief; John J. Boulton, on the brief).

Before Judges Gooden Brown and Vanek.

OPINION

GOODEN BROWN, P.J.A.D.

These back-to-back appeals, which we consolidate for purposes of issuing a single opinion, stem from a dispute over the development of a solar facility. Plaintiffs Mill Road Solar Project LLC (Mill Road) and GHG Trading Platforms, Inc. (GHG) (collectively, plaintiffs) attempted to develop a solar facility on property owned by defendant/cross-appellant Fiberville Estates, LLC (Fiberville) in Holland Township. After the project failed, defendants CEP Solar Ltd. (CEP), Milford Solar Farm LLC (Milford), Gary R. Cicero (Cicero), Mark Bellin, Esq. (Bellin), and GTB Partners, LLC (GTB) (collectively, the CEP defendants) ultimately developed the solar facility on the Fiberville property and later sold it to defendant/cross-appellant New Jersey Resources (NJR). Defendants FWH Associates, PA (FWH), and Pure Power Engineering, Inc. (Pure Power) provided engineering and site planning services to both plaintiffs and the CEP defendants. Defendant Holland Township's Planning Board reviewed applications to use the property as a solar farm.

In A-3063-21, plaintiffs appeal from the trial court's: (1) grant of summary judgment to the CEP defendants on plaintiffs' claims of breach of contract, fraud, unjust enrichment, and breach of the covenant of good faith and fair dealing; (2) dismissal of plaintiffs' First Amended Complaint (FAC) against Fiberville without prejudice for failure to state a claim, and denial of plaintiff's motion for leave to amend that complaint; (3) dismissal of plaintiffs' claims against FWH and Pure Power for conversion and breach of their professional and ethical duties for failure to obtain an affidavit of merit (AOM); (4) dismissal of plaintiffs' claim against Holland Township for failure to state a claim; and (5) denial of plaintiffs' motion for a default judgment against Holland Township and NJR. In its cross-appeal, Fiberville asserts that the trial court's dismissal of the FAC should have been with prejudice, not without prejudice. NJR also cross-appeals from the trial court's denial of its motion for sanctions against plaintiffs for filing an allegedly frivolous motion for default judgment after NJR had already been dismissed from the case.

In A-3517-21, plaintiffs appeal from the trial court's dismissal of their subsequently-filed action against Fiberville on the grounds that plaintiffs' claims were barred by the entire controversy doctrine and plaintiffs failed to state a claim on which relief could be granted. In the subsequent action, plaintiffs raised the same claims they sought to include in a proposed second amended complaint.

Based on our review of the voluminous record and the applicable legal principles, we affirm in part, and reverse in part.

I.

We glean these facts from the record. Mill Road is a New Jersey limited liability company owned by GHG, a Nevada corporation. At some point during the litigation, Mill Road was also owned by New Energy Ventures Inc. (NEV), a Delaware corporation. Mill Road was formed in or around 2015 "as a special purpose entity to develop a utility-scale solar energy farm" which was to be located in Holland Township, on property owned by Fiberville on Mill Road (the Property).

Fiberville had previously taken steps to develop a solar facility on the Property and, in 2011, it had entered into a Wholesale Market Participation Agreement (WMPA) with PJM Interconnection LLC (PJM), a regional transmission organization that coordinates the movement of wholesale electricity across several states, including New Jersey, and Jersey Central Power & Light Company (JCPL), which allowed it to sell any electricity generated by a solar facility on the Property to the local utility. In August 2011, the WMPA was filed with the Federal Energy Regulatory Commission (FERC) pursuant to FERC's "independent jurisdictional authority over wholesale sales of electric energy and related products in PJM's markets." In June 2012, Fiberville entered into an Interconnection Agreement^[2] and a Construction Agreement with JCPL for the construction of a solar facility on the Property.

On April 15, 2015, GHG and Fiberville entered into a "Purchase and Sale Agreement" whereby Fiberville agreed to sell GHG "all of its right, title and interest in and to the WMPA . . . and any and all other assets related to construction and operation of a solar farm" on the Property, in exchange for a purchase price of $600,000 plus up to $200,000 in reimbursement of Fiberville's expenses for the solar project. The agreement had several conditions, including the requirement that Fiberville obtain an assignment to GHG of the WMPA and Interconnection Agreement, in a form reasonably acceptable to GHG's counsel, a mutually executed lease agreement for the Property between Fiberville and GHG, and various regulatory approvals by the New Jersey Board of Public Utilities (BPU) and the Department of Environmental Protection (DEP).

On June 18, 2015, the BPU issued a "Clean Energy Order" in response to Fiberville's request that the proposed solar facility on the Property be certified as a brownfield eligible for Solar Energy Renewable Credits (SRECs) pursuant to N.J.S.A. 48:3-87(t). The Order granted conditional certification of the facility provided that, as built, it complied with all DEP requirements and the requirements of the SREC Registration Program (SRP). In August 2015, PJM and JCPL executed agreements consenting to the assignment of the WMPA and the Interconnection and Construction Agreements to Mill Road.

On September 1, 2015, Fiberville and Mill Road entered into a twenty-year lease for the Property. Under the terms of the lease, Mill Road could only use the Property as a solar facility, and would pay annual rent each year in advance commencing on September 1, 2015. The first year's rent was $200,000, which would increase by 1.5% per year over the lease term. Failure to pay the rent when due that continued for ten days after written notice from Fiberville would be considered an "Event of Default" that would permit Fiberville to terminate the lease "and/or pursue all other appropriate remedies available at law or equity."

Section 10.9 of the lease required both parties to "maintain in the strictest confidence" the terms of the lease, including the amounts payable thereunder, and any information regarding Mill Road's operations, or "any other information that is proprietary or that [Mill Road] requests be held confidential." Excluded from the confidentiality requirement was "any such information that is in the public domain by reason of prior publication through no act or omission" of Fiberville or Mill Road. Also, Fiberville was permitted to disclose otherwise confidential information to its "personal advisors, . . . any prospective purchaser of the Property" or as part of a legal proceeding.

On September 28, 2015, GHG entered into a non-disclosure agreement (NDA) with CEP. The NDA acknowledged that the parties "wish[ed] to explore a business relationship concerning an investment in one or more solar renewable energy projects." The parties agreed not to disclose any confidential information provided pursuant to the NDA to any unrelated third party and restricted any party receiving confidential information from using it "for any purpose except to carry out discussions considering, and the furthering of, any business relationship between the [p]arties." The term of the NDA was "during services performed and one year from the...