March 26, 2009
EXXON MOBILE CORPORATION, PLAINTIFF-RESPONDENT,
BOURAS PROPERTIES, LLC, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, General Equity Part, Union County, Docket No. C-8-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 11, 2009
Before Judges Axelrad, Lihotz and Messano.
Defendant Bouras Properties, L.L.C. (Bouras), appeals from an April 11, 2008 order granting summary judgment to plaintiff Exxon Mobil Corporation (Exxon). We affirm.
We present the facts derived from evidence submitted by the parties in support of, and in opposition to, the summary judgment motion, viewed in a light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995).
Soil and groundwater contamination were discovered at a former Exxon-branded service station site, known as Flynn's Garage, located on Euclid Avenue, in the City of Summit (Summit). The groundwater contamination invaded the abutting realty located across the street, which was owned by Bouras. In its efforts to comply with New Jersey Department of Environmental Protection (NJDEP) regulations to effectuate the clean-up of the contamination, Exxon engaged the assistance of environmental consultants, Kleinfelder, and commenced preparation of the necessary remediation work.
Exxon contacted Bouras' legal counsel to negotiate the terms of an agreement allowing Exxon access to Bouras' site to perform its remedial efforts. A "Site Access Agreement" (the Agreement) was executed by Kassandra Romas, Managing Director of Bouras, and Gary A. Stumpf, Senior Project Manager for Exxon.
Subsequent to the Agreement's execution, representatives of Exxon or Kleinfelder communicated with Romas regarding the work. James Killen, a Kleinfelder project engineer, requested site plans for Bouras' property to design the remediation system and prepare submittals to Summit. On June 15, 2005, Killen wrote Romas, informing her the consultants were "proceeding with the design and eventual installation of the remediation system as described in your access agreement with Exxon." Killen advised a survey of Bouras' property would be conducted on July 6 and 7, 2005 to obtain the approvals for "installing the remediation system." The various communications between Bouras and Exxon's consultants were confirmed by an email to Romas.
On August 29, 2005, Exxon's project manager, Maureen Forlenza, wrote to Romas to advise of groundwater testing results, which revealed levels of benzene, toluene, ethyl benzene, xylenes and lead that exceeded the State's groundwater quality standards. Exxon prepared a Classification Exception Area (CEA), designating the area where use of the groundwater was temporarily prohibited until the clean-up's completion. The CEA included a portion of Bouras' property.
On October 14, 2005, a meeting between Exxon, its consultants and Bouras was held to review the remediation system's scope of installation work and address any concerns raised by Bouras. The group, which included Killen, Pat West, another Kleinfelder consultant, and Forlenza, met with Romas in her office. Romas maintained the meeting was brief and she "did not put it together" that a remedial system was to be put on Bouras' property.
Exxon began preparation for trenching activities by purchasing remedial equipment and installing piping in November 2005. On November 9, 2005, an on-site meeting was held between Romas and Kleinfelder's project manager to review the installation of the trenching and the identification of the location of the remediation system to be installed pursuant to the Agreement. From November to December 2005, and March to April 2006, there were a minimum of five personnel, including police detail, heavy equipment, and orange fencing on or around Bouras' property. During the trenching and piping activities, the intersection of Euclid Street and Maple Street was closed to traffic. Photographs in the record exhibit Exxon's presence on Bouras' site and surrounding properties during this time period.
In April 2006, Kleinfelder contacted Romas while she vacationed in Greece, to ascertain the location of Bouras' sprinkler system prior to the installation of the remedial system piping. In May 2006, Killen contacted Romas to inquire of Bouras' preferences regarding the privacy fence to surround the remediation system shed. Romas questioned the length of time for the system's operation and expressed concern about possible complaints from local residents regarding the installation of a remedial system. Killen met with Romas and Bouras' real estate advisor, George Paras, to discuss the recently raised concerns. At that meeting, Romas asked Exxon to "'hold off' on submitting its permit application related to the remediation system's installation and operation" because Bouras awaited City approvals for installation of a back-up generator.
In June 2006, Bouras formally objected to installation of the remedial system. Romas stated installation "would make Bouras appear as the public face responsible for an environmental cleanup of a condition created by someone else." Additionally, the system "would be obtrusive and would unreasonably interfere with the operations of its building in that it would remove a significant number of parking spaces."
At the time Bouras voiced these reservations, Exxon had completed its preliminary work for installation of the remedial system, spending in excess of $300,000. Bouras' refusal to allow installation to proceed prevented Exxon from complying with the NJDEP's directives and risked the imposition of fines and penalties.
Romas explained she believed Exxon's purpose in gaining access to Bouras' property was "investigative" and "confined to the installation of a [flush mounted monitoring] ground water sampling well" as shown on the supplied site map. She assumed Exxon's work efforts "would be unobtrusive." Romas learned, however, Exxon intended to install a remedial facility, which would be "obtrusive and would unreasonably interfere with the operations of the Bouras Properties['] building in that it would remove a significant number of parking spaces from use for an indefinite period of time." Romas insisted she "never signed a document committing Bouras Properties to receive a... [r]emedial [s]ystem and... never tacitly or expressly consented to the construction of such a system on the site."
We pause to recite the relevant Agreement terms. The Agreement expressed Bouras' authorization to allow Exxon and its consultants to enter Bouras' property to perform environmental investigations which included the following:
1. The work that is the subject of this Site Access Agreement is described as follows (collectively referred to as the "Work"): Exxon  Mobil and/or its environmental consultants will:
· install a groundwater monitoring well as shown in the attached site map to a depth of approximately forty feet below grade (The well(s) will be flush mounted and will be accessed through a 8" manhole. Installation of the well(s) is estimated to take approximately half a day.);
· periodically gauge, monitor, survey or sample the groundwater monitoring wells;
· install a remedial system in the approximate location shown on the attached site map. The installation of the remedial system will consist of the following:
1) a groundwater treatment system with a shed enclosure. The equipment proposed within the shed would consist of an oil/water separator, filler units, and air stripper and carbon units. The approximate size of the shed will be forty feet by fifteen feet.
2) a vapor treatment system within a fence enclosure. The equipment proposed would consist of a cat-ox unit, carbon units and subsequent piping. The approximate size of the fence will be fifteen feet by fifteen feet.
3) electrical connections from the power lines to the systems.
4) trenching for the system piping, which will be approximately four feet deep and will connect the monitoring well at the Property and the monitoring wells at the former Exxon facility located at 31 Euclid Avenue, Summit, New Jersey.
The site map referenced in the Agreement was not initially attached. However, on March 14, 2005, Greg Gemgnani, the director of environmental health and safety of Bouras Industries, a company with an indirect affinity with Bouras Properties, L.L.C., was faxed a copy of the proposed site map.
The map did not depict the specific details of the remedial system.
Exxon filed this Chancery Division action requesting the court compel Bouras to comply with the Agreement terms. Bouras filed a counterclaim for damages "as a result of the discharge and spill of a hazardous substance by Exxon... onto its property." We have been advised that Bouras' counter-claim was severed from this action and transferred to the Law Division by order dated October 3, 2007.
After discovery, Exxon filed its motion for summary judgment. Bouras argued enforcement of the Agreement was precluded by a lack of mutual consent and the indefiniteness in the agreed upon terms, which did not include the site map depicting the remediation system. The motion judge determined Bouras signed the Agreement and the document provided for installation of a remedial system. Further, after Bouras executed the Agreement, it did not object to the installation of the system and allowed [Exxon] to proceed... with efforts necessary to obtain the approvals and to begin the work for the installation of this remediation system as was agreed upon.
The fact that [Bouras] signed the agreement and never asked any questions about where this remedial system was going to be should not and cannot visit harm upon [Exxon].
[Exxon] did nothing wrong and in fact did detrimentally rely upon the signed agreement and lack of objection from [Bouras].
Summary Judgment was granted by order dated April 11, 2008.
On appeal, Bouras argues summary judgment was improvidently granted on the theory of equitable estoppel and suggests a factual dispute exists, as Exxon could not enforce the Agreement because it "relied on access to the site, [which] was never the subject of mutual consent and [the Agreement] lacks sufficient definiteness for specific performance." We find these arguments unavailing.
Our review requires we use the same standard as the trial court in deciding a summary judgment motion. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.) (citing Antheunisse v. Tiffany & Co., 229 N.J. Super. 399, 402 (App. Div. 1988), certif. denied, 115 N.J. 59 (1989)), certif. denied, 154 N.J. 608 (1998). Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that 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); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 528-29 (1995). "Genuine" means "only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c).
In determining whether there is a genuine issue of material fact for summary judgment purposes, the trial court must ascertain "what reasonable conclusions a rational jury can draw from the evidence[.]" Brill, supra, 142 N.J. at 535. To make the determination, the judge "'must accept as true all the evidence which supports the position of the party defending against the motion and accord him [or her] the benefit of all legitimate inferences which can be deduced therefrom[.]'" Ibid. (quoting Pressler, Current N.J. Court Rules, comment 1 on R. 4:40-2 (2007)). If reasonable minds could differ, the motion must be denied. Ibid.
The "essence of the inquiry" is "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Id. at 536 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2512, 91 L.Ed. 2d 202, 214 (1986)). The trial court is required to consider "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Id. at 540. The opposing party must nevertheless offer facts, which are substantial or material in opposing the motion in order to defeat the grant of summary judgment. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 75 (1954).
Even though the allegations of the pleadings may raise an issue of fact, if the other papers show that, in fact, there is no real material issue, then summary judgment can be granted. Ibid. Thus, "[b]are conclusions in the pleadings, without factual support in tendered affidavits, will not defeat a meritorious application for summary judgment." U.S. Pipe & Foundry Co. v. Am. Arb. Ass'n, 67 N.J. Super. 384, 399-400 (App. Div. 1961) (citing Gherardi v. Bd. of Educ. of the City of Trenton, 53 N.J. Super. 349, 358 (App. Div. 1958)). Furthermore, disputed issues "of an insubstantial nature" cannot overcome a motion for summary judgment. Brill, supra, 142 N.J. at 530 (citing Judson, supra, 17 N.J. at 75). Therefore, "when the evidence 'is so one-sided that one party must prevail as a matter of law,'..., the trial court should not hesitate to grant summary judgment." Id. at 540 (citation omitted). In light of this standard, we conclude the motion judge properly granted summary judgment.
Bouras contends the application of equitable estoppel to support the grant of summary judgment was error. In support of its argument, Bouras does not deny that it executed the Agreement; its challenge is directed to Exxon's failure to provide a site map delineating the proposed location of the remediation system suggesting intrusion on its property was "for the limited purpose of installing one groundwater monitoring well."
In our determination, we cannot ignore the unequivocal language of the parties' Agreement. Where the terms of a contract are clear and unambiguous, with no room for interpretation or construction, we must enforce the terms as written. Karl's Sales & Serv., Inc. v. Gimbel Bros., Inc., 249 N.J. Super. 487, 493 (App. Div.), certif. denied, 127 N.J. 548 (1991) (citing Kampf v. Franklin Life Ins. Co., 33 N.J. 36, 43 (1960)). When a contract is clear "the court is bound to enforce the contract as it finds it. The law will not make a better contract for parties than they themselves have seen fit to enter into, or alter it for the benefit of one party and to the detriment of the other. The judicial function of a court of law is to enforce the contract as it is written." [Conway v. 287 Corp. Ctr. Assocs., 187 N.J. 259, 273 (2006) (quoting James v. Fed. Ins. Co., 5 N.J. 21, 24 (1950)).]
No rational reading of the parties' Agreement would reach the result urged by Bouras. The Agreement details the scope of work to include not only the installation of a groundwater monitoring well, but also the installation of an extensive remedial system consisting of (1) a groundwater treatment system, comprised of an oil/water separator, filler units, and air stripper, surrounded by a forty feet by fifteen feet shed enclosure; (2) a vapor treatment system, consisting of a cat-ox unit, carbon units and subsequent piping within a fifteen feet by fifteen feet fence enclosure; (3) electrical connections from the power lines to the systems; and (4) trenching, set approximately four feet deep, to connect the monitoring well at the Bouras site with the monitoring wells at the former Exxon facility.
Bouras neither suggested the document supplied to Gemgnani on March 14, 2005, was defective nor voiced reluctance to the scope of work delineated in the Agreement. Although given several opportunities for input, Bouras never asked any questions about the nature or location of the remedial system. Up until June 2006, fifteen months after execution of the Agreement, all of Bouras' actions displayed concurrence with the completion of remediation. Exxon reasonably relied upon the explicit scope of work, as well as Bouras' compliant conduct by preparing the trenching, purchasing material and processing the necessary permits. It was not until Bouras perceived possible backlash or negative publicity from local residents due to the remediation work that it resisted continuation of the project.
Equitable estoppel "requires a detrimental change in position based on reasonable reliance." Fairken Assocs. v. Hutchin, 223 N.J. Super. 274, 280 (Law Div. 1987). "The doctrine is designed to prevent injustice by not permitting a party to repudiate a course of action on which another party has relied to his detriment." Marsden v. Encompass Ins. Co. of N.Y., 374 N.J. Super. 241, 249 (2005) (citing Mattia v. N. Ins. Co. of N.Y., 35 N.J. Super. 503, 510 (App. Div. 1955)), certif. denied, 183 N.J. 257 (2005). Thus, Exxon has shown Bouras' conduct induced its reliance such that Exxon acted to its detriment. Miller v. Miller, 97 N.J. 154, 163 (1984). We concur with the motion judge's conclusion that Bouras be estopped from preventing completion of the remediation work as set forth in the Agreement. Considering the express written terms of the agreement and the conduct of the parties, we conclude the motion judge correctly applied the doctrine of equitable estoppel and properly granted summary judgment.
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