Terranova v. Gen. Elec. Pension Trust

• Decision Date: 04 January 2019
• Docket Number: DOCKET NO. A-5699-16T3
• Citation: 200 A.3d 412,457 N.J.Super. 404
• Parties: Matthew P. TERRANOVA, Karen L. Terranova, and New Land Holdings, LLC, Plaintiffs-Appellants, v. GENERAL ELECTRIC PENSION TRUST, Atlantic Richfield Co., Charles Boris, Jr., Carol Boris, and Edward Wilgucki, Defendants-Respondents, and U-Haul of Northern New Jersey, Inc., U-Haul International, Inc., Defendants, and Amerco Real Estate Company, Defendant/Third-Party Plaintiff-Respondent, v. 18 Petro Corp. and Pitstop Express, Inc., Third-Party Defendants.
• Court: New Jersey Superior Court — Appellate Division

457 N.J.Super. 404

200 A.3d 412

Matthew P. TERRANOVA, Karen L. Terranova, and New Land Holdings, LLC, Plaintiffs-Appellants,

v.GENERAL ELECTRIC PENSION TRUST, Atlantic Richfield Co., Charles Boris, Jr., Carol Boris, and Edward Wilgucki, Defendants-Respondents,andU-Haul of Northern New Jersey, Inc., U-Haul International, Inc., Defendants,

and

Amerco Real Estate Company, Defendant/Third-Party Plaintiff-Respondent,

v.18 Petro Corp. and Pitstop Express, Inc., Third-Party Defendants.

DOCKET NO. A-5699-16T3

Superior Court of New Jersey, Appellate Division.

Argued October 3, 2018

Decided January 4, 2019

Amy E. Robinson argued the cause for appellants Matthew P. Terranova, Karen L. Terranova, and New Land Holdings, LLC (The Killian Firm, PC, attorneys; Eugene Killian, Jr., Iselin, on the brief).

Michael C. Falk argued the cause for respondents General Electric Pension Trust and Atlantic Richfield Company (Reed Smith LLP, attorneys; Michael C. Falk, of counsel and on the brief; Robert P. Frank and David G. Murphy, Princeton, on the brief).

Elizabeth Callaghan Flanagan argued the cause for respondents Charles Boris, Jr., Carol Boris and Edward Wilgucki (Purcell, Mulcahy & Flanagan, LLC, attorneys; Elizabeth Callaghan Flanagan, Bedminster, on the brief).

David J. Mairo argued the cause for respondent Amerco Real Estate Company (Chiesa Shahinian & Giantomasi, PC, attorneys; David J. Mairo, Michael K. Plumb, West Orange, Thomas R. McCarthy (Consovoy McCarthy Park, PLLC) of the Virginia bar, admitted pro hac vice, and Caroline A. Cook (Consovoy McCarthy Park, PLLC) of the Virginia bar, admitted pro hac vice, on the brief).

Before Judges Fuentes, Vernoia and Moynihan.

The opinion of the court was delivered by

MOYNIHAN, J.A.D.

Matthew P. Terranova, Karen L. Terranova and New Land Holdings, LLC (collectively: plaintiffs), the owners of a commercial property long used as a gas station, appeal from orders granting motions for summary judgment filed by defendants General Electric Pension Trust and Atlantic Richfield Company (collectively: GE defendants), Amerco Real Estate Company,¹ and Charles Boris, Jr., Carol Boris and Edward Wilgucki (collectively: Boris defendants). Plaintiffs allege defendants were dischargers liable pursuant to the New Jersey Spill Compensation and Control Act (Spill Act), N.J.S.A. 58:10-23.11 to 23.24, for contribution toward the cost of clean-up and removal of hazardous substances, N.J.S.A. 58:10-23.11f(a)(2)(a), based on: the GE defendants' ownership and operation of the property from 1960 to 1973, during which "soil and groundwater contamination began in approximately 1963" from three underground storage tanks (USTs) designated as "E1-E3"; the Boris defendants' ownership and operation of the property from 1973 to 1976; and Amerco's ownership and operation of the property, directly or by its predecessor in interest from 1976 to 1980 when Amerco sold the property to plaintiffs. Plaintiffs argue the trial court's basis for granting defendants' motions – the doctrine of judicial estoppel – should not be invoked to preclude them from pursuing claims against defendants for remediation of the property pursuant to the Spill Act "[b]ecause of the complexities of environmental investigation [regarding discharges] and the broad remedial purposes of the Spill Act"; they also contend "[j]udicial estoppel is not a defense recognized by the Spill Act."

We cannot readily discern from the record the basis for the trial court's decision. In their merits brief, the GE defendants, citing simply to their notice of motion for summary judgment, contend they posed judicial estoppel and the entire controversy doctrine as grounds for summary judgment. The notice of motion, however, does not mention those affirmative defenses. And they now, as they did at oral argument before the trial court, argue both judicial estoppel and the entire controversy doctrine preclude plaintiffs' claim.

Amerco and the Boris defendants aver that they advanced judicial estoppel, collateral estoppel and the entire controversy doctrine as grounds for summary judgment; Amerco's notice of motion for summary judgment, however, lists only collateral and judicial estoppel as grounds, and they advanced only those theories at oral argument before the trial court. The Boris defendants' notice of cross-motion for summary judgment does not list any theory. On appeal Amerco does not advance the entire controversy doctrine as a ground for preclusion, only both forms of estoppel. The Boris defendants now argue all three doctrines preclude plaintiffs' claim. None of the defendants' briefs in support of their summary judgment motions appears in the record so we are unable to ascertain what arguments were advanced in the trial proceedings.

Adding to the confusion, only the amended order granting Amerco's summary judgment motion sets forth judicial estoppel as the basis for the trial court's decision. The other orders grant the motions and dismiss plaintiffs' complaint without stating a reason. The court's oral decision on the motions is interspersed with colloquy with plaintiffs' counsel, thwarting appellate review. Based on the blue-penciling of "collateral estoppel" on the face of the amended order, we infer the court addressed only judicial estoppel as a basis for granting Amerco's motion. We note, however, that the court made no mention of collateral estoppel or the entire controversy doctrine in its oral decision.

Notwithstanding this omission, see R. 1:7-4(a) (requiring the motion judge to make factual findings that are supported by the record and explain legal conclusions in a manner amenable to appellate review); see also Estate of Doerfler v. Fed. Ins. Co., 454 N.J. Super. 298, 301-02, 185 A.3d 270 (App. Div. 2018), all parties agree that the court's summary judgment decisions were based on judicial estoppel.

On that record, we affirm the trial court's grant of summary judgment to all defendants. Judicial estoppel is a defense to Spill Act claims for contribution and its application was proper under the material circumstances of this case which we now review in the light most favorable to plaintiffs. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540, 666 A.2d 146 (1995).

Plaintiffs leased the property to Keith Friedman and Michael Puccio who operated a gas station there from 1981 until 2008. Before commencing their operation, Puccio and Friedman relined E1-E3 with an epoxy coating in May 1981. The company which relined the tanks provided Puccio and Friedman with a ten-year warranty. Puccio and Friedman used the tanks until 1993 when new tanks were installed. They sold the gas station operation in 2008 and vacated the property.

In May 2010, Matthew Terranova (Matthew) amended an action he had filed against Puccio and Friedman related to an escrow agreement, adding claims alleging Puccio's and Friedman's environmental contamination of the property, including one for contribution under the Spill Act. The case proceeded to arbitration before retired Judge Robert A. Longhi who adopted the findings set forth in a report authored by Matthew's expert, Eikon Planning and Design, LLC, and found for Matthew. The arbitrator's decision, finding Puccio and Friedman liable to reimburse Matthew $45,000 for expended remediation costs and requiring them to "take over the remediation process" was reduced to final judgment on February 6, 2012. Friedman and Puccio did not fulfill the obligations imposed by the judgment.

Matthew hired Verina Consulting Group, LLC as an environmental consultant in 2015 after parting ways with Eikon. Verina conducted further studies and concluded that "soil and groundwater contamination ... associated with the gasoline storage and handling" began on the property "on or before 1963 and continued until [E1-E3] were removed in 2000."

On November 10, 2015, plaintiffs filed the present action against defendants based on Verina's conclusions. In the course of discovery, defendants became aware of plaintiffs' initial litigation against Puccio and Friedman and filed motions for summary judgment.²

We abide by our familiar standard of review that mandates summary judgment be granted if the court determines "there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). We consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party in consideration of the applicable evidentiary standard, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party. Brill, 142 N.J. at 540, 666 A.2d 146. We review the trial court's decision in these matters de novo, and afford the trial court's ruling no special deference. Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199, 129 A.3d 1069 (2016).

"We review a trial court's decision to invoke judicial estoppel using an abuse of discretion standard." In re Declaratory Judgment Actions filed by Various Municipalities, Cty. of Ocean, 446 N.J. Super. 259, 291, 141 A.3d 359 (2016) (citing State, Div. of Motor Vehicles v. Caruso, 291 N.J. Super. 430, 438, 677 A.2d 795 (App. Div. 1996) ), aff'd, 227 N.J. 508, 152 A.3d 915 (2017). A court abuses its discretion when a decision "is ‘made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.’ "

U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467, 38 A.3d 570 (2012) (quoting Iliadis v. Wal–Mart Stores, Inc., 191 N.J. 88, 123, 922 A.2d 710 (2007) ).

We are unpersuaded by plaintiffs' argument that judicial estoppel is not a recognized defense to Spill Act claims, and that the defenses to Spill Act claims are limited to "an act or omission caused solely by war, sabotage, or God, or a combination thereof," N.J.S.A. 58:10-23.11g(d)(1). And we do not agree that the Supreme Court's rejection of a...