July 22, 2009
COOPER BIOMEDICAL, INC., COOPER DEVELOPMENT COMPANY, INC., COOPER DEVELOPMENT CORPORATION, COOPER TECHNICON, TECHNICON INSTRUMENTS CORP., PLAINTIFFS-APPELLANTS/ CROSS-RESPONDENTS,
WORTHINGTON BIOCHEMICAL, INC., VON WORTHINGTON AND NANCY WORTHINGTON, DEFENDANTS-RESPONDENTS/CROSS-APPELLANTS, AND IVC INDUSTRIES, INC.*FN1 AND AMERICAN VITAMIN PRODUCTS, INC., DEFENDANTS.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, L-5527-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 11, 2009
Before Judges Stern, Payne and Waugh.
Plaintiffs, Cooper Biomedical, Inc., Cooper Development Company, Inc., Cooper Development Corporation, Cooper Technicon, and Technicon Instruments Corp,*fn2 appeal from a trial court order, following a bench trial, dismissing as unproven plaintiffs' claim against defendants Worthington Biochemical and its principals, Von and Nancy Worthington, of a right to contribution for the cost of environmental clean-up of trichloroethylene (TCE), pursuant to the New Jersey Spill Compensation and Control Act, N.J.S.A. 58:10-23.11 to -23.11z.
On appeal, plaintiffs make the following legal arguments:
I. UNDISPUTED EVIDENCE ESTABLISHED THAT WORTHINGTON POSSESSED, USED, SPILLED, AND DISCHARGED TCE AT THE SITE
A. Worthington Was "Responsible" For discharges Of TCE And, Thus, Strictly Liable For Contamination At The Site.
B. Worthington Discharged TCE At The Site.
C. Worthington Actively Used TCE Throughout Its Tenancy From 1987 Through 1997.
D. Worthington Had No TCE Inventory Records.
II. THE EXPERT EVIDENCE ESTABLISHED THAT WORTHINGTON'S DISCHARGES CAUSED CONTAMINATION AT THE SITE
A. Additional Studies Conducted By Environmental Consultants Prove That The Contamination At MW-10 Was The Result Of Worthington's TCE Spills.
B. The Trial Court Had No Basis For Disregarding The Computer Modeling Evidence In The Record.
C. The Trial Court Improperly Ignored The Substantial New Testing and Data.
D. Worthington's Expert Evidence Was Largely Unsupported.
III. THE TRIAL COURT'S NUMEROUS ERRORS RESULTED IN A MANIFEST DENIAL OF JUSTICE
Defendants cross appeal, arguing that the trial judge erred when she declined to award attorneys fees to them pursuant to the lease between Cooper Technicon and Worthington Biochemical. Following a thorough review of the record, we affirm.
We preface our opinion by noting the limited scope of our review of plaintiffs' contentions, as established by the Court in Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974):
[O]ur courts have held that the findings on which it [the judgment] is based should not be disturbed unless "* * * they are so wholly insupportable as to result in a denial of justice," and that the appellate court should exercise its original fact finding jurisdiction sparingly and in none but a clear case where there is no doubt about the matter. Greenfield v. Dusseault, 60 N.J. Super. 436, 444 (App. Div. 1960), aff'd o.b. 33 N.J. 78 (1960). That the finding reviewed is based on factual determinations in which matters of credibility are involved is not without significance. Brundage v. New Jersey Zinc Co., 48 N.J. 450 (1967). Findings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence. New Jersey Turnpike Authority v. Sisselman, 106 N.J. Super. 358 (App. Div. 1969), certif. denied, 54 N.J. 565 (1969). It has otherwise been stated that "our appellate function is a limited one: we do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice," Fagliarone v. Twp. of No. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963), and the appellate court therefore ponders whether, on the contrary, there is substantial evidence in support of the trial judge's findings and conclusions. Weiss v. I Zapinsky, Inc., 65 N.J. Super. 351, 357 (App. Div. 1961). [Ibid.]
See also In re John Seward Johnson 1961 Charitable Trust, 194 N.J. 276, 284 (2008).
The record indicates that the property at issue was part of a large industrial site utilized for the manufacture of medical diagnostic reagents and enzymes, first by a corporation owned by Von Worthington's father, then, commencing in 1978, by a company known as Millipore, which sold the site in 1982 to Flow General, Inc., which sold the property in 1983 to Cooper Biomedical. In 1986, Cooper Biomedical transferred the property to its subsidiary, Cooper Technicon. In connection with that sale, and in compliance with the New Jersey Environmental Clean-up Responsibility Act (ECRA, now known as the Industrial Site Recovery Act or ISRA, N.J.S.A. 13:1K-6 to -14), on October 30, 1986, Cooper Biomedical entered into an administrative consent order with the New Jersey Department of Environmental Protection (DEP), by which it agreed to test for and remediate any contamination found on the property.
In May 1987, Cooper Technicon (hereinafter, Cooper) entered into an asset sale agreement with Worthington Biochemical, by which Cooper sold its enzyme production business to Worthington.
Additionally, Cooper entered into a ten-year lease with Worthington that permitted Worthington to occupy a portion of the facility. Although the lease was nominally drawn in Cooper's name, at the time that the lease was executed, Cooper was engaged in negotiations for sale of the property to American Vitamin Products, Inc. Negotiations regarding the terms of the lease were conducted with American Vitamin, and all lease payments were made by Worthington to it. The leased property encompassed the western or central portion of the facility's U-shaped main building, including an area at the northernmost portion of the building known as the breezeway. It did not include an area known as the former maintenance wing, located in the north, at a right-angle to the leased space, although Worthington employees were permitted supervised access to that area. A "crud-cart sump," used for the disposal of various materials, had been located in the parking lot at the vertex of the right angle, alongside the maintenance wing. However, the sump had been decommissioned and filled with concrete in or about 1983, prior to the inception of Worthington's lease. In June 1997, Worthington vacated the property, transferring its operations to another location.
As part of Worthington's asset purchase from Cooper, it obtained five freeze dryers, utilized in the enzyme production process. Those freeze dryers contained TCE, which was used as a heat transfer agent. According to Richard E. Jackson, Ph.D., Cooper's expert in hydrogeology, TCE is a denser than water, non-aqueous phase liquid that tends to sink rapidly in the ground "like a stone."
As it sinks it leaves a . . . kind of halo of small globules behind and depending on the volume that is actually spilled, it can go to quite considerable depths. . . . As water passes through an[d] around these globules the trichloroethylene dissolves . . . [and] produces a plume in the sand, and the soil, of dissolved trichloroethylene.
The United States Environmental Protection Agency has limited the presence of TCE in drinking water to five parts per billion (ppb) and the presence of TCE's breakdown product, dichloroethylene (DCE) to 7 ppb. Both substances are identified by the DEP as hazardous substances. N.J.A.C. 7:1E, Appx. A.
During the period of Worthington's lease, the company gradually replaced the TCE, a carcinogen, with a non-hazardous substance, hiring Frank Cervino to do the work at times when other repairs to the freeze dryers were required. Cervino placed the TCE, drained from the freeze dryers, into two fifty-five-gallon drums, which were stored in a locked room until they were moved to a loading dock,*fn3 just prior to their removal from the premises by David Raposo.
In accordance with the 1986 ECRA consent order, Cooper retained Killam Associates, Inc. to test the property for contamination. By July 1987, monitoring wells (MWs) dug by Killam, particularly MW-4, had disclosed a TCE plume, emanating from what Cooper later learned was the site of a spill of twenty to thirty gallons of TCE that occurred in a northeasterly area of the property near the facility's hazardous substance storage area, and extended in a southwesterly direction under the facility's parking lot. Cervino, a former Cooper employee, testified that he had discovered the spill during the winter of 1984, and that it had been caused by a forklift driven by a Cooper employee that pierced a fifty-five gallon drum of TCE, allowing the contents to spill onto the ground. A Phase I pump-and-treat remedial action plan for that plume was proposed on July 10, 1987, and implemented shortly thereafter through the installation of a horseshoe-shaped series of wells southwest of the area of the spill.
In environmental coverage litigation between Transcontinental Insurance Company, Employers Mutual of Wausau, and Cooper, Cooper took the position that all TCE contamination on the site resulted from the 1984 accidental spill, and thus was within coverage provided by the two insurers. At some point in time, Cooper learned that an additional TCE spill had occurred in the "main manufacturing" area in 1977 or 1978 as the result of a cut line in a freeze dryer, during the occupancy of the plant by Millipore. As a result, approximately fifty gallons of TCE ran out of the line and into a floor drain that connected to an underground drainage system and a sump located in the southwest corner of the parking lot and, from there, passed through pipes to the facility's sewerage treatment facility. Upon learning of this spill, in 1990, Cooper sued Millipore and also Flow General in the Federal District Court for the District of New Jersey. Payments to Cooper in settlement of litigation were made in the insurance coverage and environmental contamination suits.
As the environmental investigation continued, additional monitoring wells were placed in the parking lot area, including MW-10, located in the middle of the western portion of the parking lot near the main building. In an October 28, 1987 memorandum from the DEP, that agency observed that TCE degradation products, particularly cis-1,2-dichloroethylene, were present in MW-10 in much higher concentrations than in MW-4 and two other monitoring wells, indicating the possibility of a different source of contamination.
Further, in the course of the insurance coverage litigation, Transcontinental's expert claimed that the 1977-78 spill was the primary cause of the contamination discovered in the vicinity of MW-10, basing that conclusion on the fact that groundwater did not flow from the area of the 1984 spill to MW-10, and on the presence of significant quantities of the breakdown products of TCE, especially cis-1,2-dichloroethylene in the vicinity of MW-10, indicating a spill occurring prior to 1984. Cooper's expert, Dr. Jackson, disagreed, and in a declaration dated March 20, 1997, he stated:
Based on the substantial materials I have reviewed, the tasks I have conducted, and my professional expertise and experience, I have formed the following opinions in connection with the Freehold facility:
(a) The principal substances that have caused property damage at, under and around the Freehold facility are chlorinated solvents, specifically trichloroethylene ("TCE") and its daughter products.
(b) The property damage at, under and around the Freehold facility is entirely consistent with the sudden and accidental release of TCE in 1984, when the puncturing of a 55 gallon drum of TCE caused 20-30 gallons of TCE to spill and enter the subsurface.
In explaining his conclusion, Dr. Jackson attributed the high concentrations of DCE to "relatively rapid biodegradation" as the result of the biotransformation of TCE by dissolved nitrogen, acting as a bacterial nutrient, and the presence of petroleum hydrocarbons, which provided a carbon source for biodegradation. To explain why contamination was found in an area that was not in the pathway of the plume from the 1984 spill, Dr. Jackson opined:
The spilled TCE had migrated to the MW-10 area by May 1987 and, quite possibly, to the MW-14 area by then, following a preferential permeability pathway. Thus, the TCE was likely beneath the main building before the Phase I pump-and-treat system was operational. Extraction from this system would have caused some reversal of the TCE plume, however, aqueous TCE molecules (and their daughter products) would be retarded in their migration so it would take time to remove the aqueous TCE from beneath the building. Consequently, recent contamination levels at MW-10 do not signify a source of TCE contamination other than the 1984 spill, but rather represent detection of TCE that had migrated beneath the building after the 1984 spill.
Between 1987 and 1997, the remediation process proceeded with some difficulty because Killam's well system frequently malfunctioned. By the winter of 1996-97, the remediation costs had increased into the millions, and Cooper's CEO, Parker Montgomery, began to wonder if Worthington were releasing contaminants into the ground. In January or February 1997, Montgomery visited Worthington's facility and pronounced that Worthington's housekeeping in the area of the loading dock and breezeway "was just a mess. There were barrels and material all over the ground," and stains were on the floor.*fn4 These observations prompted Montgomery to request that Killam perform additional tests to determine whether there was another source of contamination at the site. The tests were conducted in May 1997. As the result of the testing, a separate and independent plume was detected northwest of MW-10, emanating from the area of the crud cart sump. Killam concluded in an August 5, 1997 report that this newly-discovered plume was the result of a spill that postdated Cooper's occupancy of the premises, because soil borings taken in the area in 1987 were negative, whereas those taken in 1997 revealed contamination. However, it is noteworthy that the earlier samples were of soil above the water table, whereas the later samples were from soil in the saturated zone.
Among the diagrams contained in the Killam report were graphs of the concentrations of TCE and DCE at MW-4 and MW-10 at various sampling times between January 1993 and April 1997. In connection with MW-4, the graph indicated negligible concentrations of DCE and spikes in the concentration of TCE, diminishing to very low levels in April 1997. The graph for MW-10 indicated vastly higher concentrations of DCE, with spikes occurring in January 1994, April 1995 and October 1995, and much smaller concentrations of TCE. Although Killam did not specifically rely on this data to conclude that spills had occurred after Cooper left the site, Cooper's subsequent environmental consultants, O'Brien & Gere Engineers, Inc., did so. The firm initially concluded in an August 1998 report that evidence of concentrations of DCE at MW-10 that were higher than concentrations of TCE was "inconsistent with the expectation that the source is related to a trichloroethene [sic] release" because the breakdown product could be expected to be present at a lower concentration if a new TCE source existed. However O'Brien & Gere did not foreclose the possibility of a new DCE spill in its August 1998 report, and it concluded that such a spill had occurred in its later December 31, 1998 report. There is no evidence in the record that Worthington ever used DCE.
At the time that the 1997 tests occurred, Worthington's lease had expired, and it was occupying the premises as a holdover tenant while preparing to move to a different site. In that connection, Worthington requested that the DEP issue it a Remediation in Progress Waiver pursuant to N.J.A.C. 7:26B-5.4(b), permitting a transfer of the property while remediation remained incomplete. The waiver was granted after Von Worthington certified that there had been no discharges of hazardous substances by Worthington Biochemical during the period of its lease.
On September 29, 1997, Cooper, citing the evidence obtained by Killam, sought rescission of the waiver granted to Worthington by the DEP. The DEP rejected Cooper's request in a letter dated April 16, 1998 that required Cooper to submit specific information to support its claim that there had been a release after Cooper had vacated the site.
A second request by Cooper to the DEP for rescission of the DEP's waiver to Worthington, based upon Killam's August 7, 1997 report and O'Brien & Gere's December 31, 1998 report, was likewise rejected on March 31, 1999. The DEP stated:
The information provided does not conclusively indicate there was a separate subsequent release of a solvent after 1987. Based upon the NJDEP's review of the data provided, the contamination in this area is likely the result of the migration of Cooper's historical solvent release. The NJDEP rationale for this decision is stated below.
The two key monitoring wells in this area are MW-4 (originally a source area well located 25 feet from Cooper's release) and MW-10 (located 150 feet down-gradient of Cooper's release and immediately down-gradient of the Phase I ground water extraction system). Upon the NJDEP's review of the historical ground water results, paying particular attention to specific chlVOCs*fn5 (TCE and degradation products), the data does not clearly indicate that there have been multiple releases in this area. The fluctuations in the chlVOC concentrations noted by Cooper in the existing rounds of ground water data as representative of a subsequent discharge, are interpreted by the NJDEP as a normal pattern associated with seasonal change, sampling practices, fluctuating water levels, etc.
The DEP also rejected Cooper's soil boring evidence, noting, as we have done previously, that the 1987 samples were obtained above the water table at one foot grade, whereas the 1997 samples were collected within the saturated zone. "Therefore," the DEP concluded, "given the location of MW-10 to Cooper's original release location and the period of time that has elapsed since Cooper's initial discharge, the data can be interpreted as the expected result of Cooper's plume migrating within the saturated zone from the original release location." Although Cooper responded in July 1999 to the DEP's conclusions, its arguments in support of the existence of a spill in the vicinity of MW-10 after Cooper left the site were again rejected by the DEP in a letter dated October 5, 1999. Two more submissions by Cooper to the DEP in September 2000 and February 2001 again failed to produce the requested rescission of Worthington's waiver. Invocation of the DEP's dispute resolution process was likewise unsuccessful in achieving Cooper's goal.
In 2001, the Cooper entities filed suit against Worthington Biochemical, American Vitamin and IVC Industries*fn6 seeking contribution for costs incurred in connection with the environmental remediation of the former Cooper site. Von and Nancy Worthington were named as defendants in a second amended complaint. Following discovery, the matter was tried to a judge over the course of four days in December 2006. At the trial, testimony was provided on behalf of plaintiffs by the CEO of Cooper Biomedical, Parker Montgomery, and the expert that Cooper had utilized in the environmental contamination litigation, Dr. Jackson. Testimony for the defense was provided by corporate CEO Von Worthington; Frank Cervino, the person responsible for the repair of the freeze dryers since 1972 or 1974; Frederick Schmitz, another long-term employee, working as a mechanic; David Raposo, the person who disposed of the two drums of TCE in 1997; and defendant's expert, Frederick Bopp, III, Ph.D.
In April 2007, the judge issued a written opinion in which she concluded that plaintiffs failed to meet their burden of demonstrating by a preponderance of the credible evidence that a discharge, as defined by N.J.S.A. 58:10-23.11(g)(b), occurred during Worthington's tenancy, and she therefore declined to find defendants strictly liable for environmental contamination at the site pursuant to N.J.S.A. 58:10-23.11(g) or a right of contribution to exist pursuant to N.J.S.A. 58:10-23.11(f)(a)(2).
The major focus of the judge's decision was on the expert testimony. At trial, both experts concluded that environmental contamination had been caused by two separate plumes centered around MW-4 and MW-10 and emanating from separate discharges. Both agreed that the contamination in the vicinity of MW-4 had been caused by the 1984 spill during Cooper's occupancy of the premises. However, the experts differed regarding the source of the contamination around MW-10. Dr. Jackson concluded, as the result of computer modeling based on evidence of spikes in DCE concentrations in MW-10 and other evidence, that the contamination arose from spills by Worthington in January 1988, December 1989, January 1992 and July 1994. Dr. Bopp, in contrast, concluded that the contamination arose from the Millipore spill in 1977-78 and from disposal of substances in the crud cart sump prior to its closure in 1983. Among other things, he noted that the contamination found at MW-4 consisted of relatively "new" TCE whereas the contamination at MW-10 contained a variety of breakdown products. He thus concluded that the spill was older, not newer, than the spill occurring in 1984. Dr. Bopp also challenged Dr. Jackson's conclusion that most or all of the contamination from the 1977-78 spill would have moved off site, concluding that substantial quantities of the contaminant would not have moved from the unsaturated zone to the saturated zone and hence off the property, particularly because the area was covered by an impermeable parking lot that restricted water flow. Dr. Bopp, like the DEP, attributed spikes in the concentrations of DCE to fluctuations in the water table, and he concluded that low readings occurring after 1997 when Worthington quit the premises were merely coincidental. As a final matter, Dr. Bopp queried how Worthington could have discharged TCE in an area to which it had only supervised access, particularly since its TCE was stored at a different location until shortly before its removal from the property.
The judge found the testimony of Dr. Jackson not to be credible, since it diametrically opposed the opinion given by him in connection with Cooper's environmental coverage action, in which Jackson attributed all on-site contamination by TCE to the "accidental" 1984 spill. She regarded Jackson's attempts at trial to rehabilitate his prior statements to have been "weak at best," giving detailed explanations for that conclusion.
Additionally, the judge challenged Jackson's statements regarding the reliability of his computer modeling, noting that such modeling was usually undertaken to estimate the likely course of a known spill, whereas Jackson utilized the modeling in a reverse fashion to establish the location and dates of otherwise unknown spills. The judge correctly observed: "No evidence was offered which would indicate that such a practice is accepted in the field of hydrogeology or under the circumstances of this case." In sum, the judge concluded that the change in Dr. Jackson's opinion merely served Cooper's interests and thus his revised opinion lacked credibility.
Although the judge found Worthington's expert, Dr. Bopp, to be less well credentialed, she found that he "adequately and credibly explained, from a geological standpoint, the properties of TCE and its interaction with the soil," and she accepted Bopp's opinion that none of the on-site contamination could be attributed to Worthington.
Additionally, the judge relied on the testimony of Frank Cervino that no TCE escaped from the freeze dryers during the time that Worthington was in operation and that he could account for all of the TCE that was used during that time. With respect to Cervino's testimony, the judge stated:
Cervino, who clearly had the most extensive and reliable knowledge regarding the freeze dryers and their operation, was a particularly credible and forthright witness. He had been employed by all of the various entities who had operated at the site and had been an independent contractor for Worthington during the time period in question. He thus had no particular stake in the outcome of the trial or allegiance to any particular party.
The judge additionally found Worthington and Raposo to have been credible witnesses, while stating that she was "unimpressed" by Schmitz and found his testimony neither added nor subtracted from the credible evidence.
Our review of the record, in light of the standards established by the Court in Rova Farms, satisfies us that the trial judge's findings were not so "inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms, supra, 65 N.J. at 484 (quoting Fagliarone, supra, 78 N.J. Super. at 155).
In reaching this conclusion, we have considered both the lay and the expert testimony provided in this matter. With respect to lay testimony, we note that the only substantial evidence with respect to Worthington's use of TCE was provided by Cervino.*fn7 In that connection, Cooper argues that, in a deposition, Cervino admitted to having spilled approximately one cup of TCE when he was dismantling a freeze dryer prior to its transfer to a new location. Cooper also relies on testimony regarding residual amounts of TCE remaining in hoses used to transfer the material. However, our review of the cited deposition testimony, along with Cervino's testimony at trial, satisfies us that the trial judge could reasonably determine that no such admissions were made; that any spills were captured in a cup or pan and properly disposed of; that hoses were safely stored in a bucket; and that although Cervino testified that spills were "possible," or that they "might" have occurred, he never admitted that they were "probable" or that they had in fact occurred while Worthington occupied the premises.
We also reject the contention that Cervino admitted to placing TCE or filters contaminated with spent TCE in the "garbage." Rather, we interpret his testimony as indicating that TCE was "garbage" that would be placed in the waste TCE drum. A complete reading of Cervino's testimony with respect the filters establishes that he did not know what Worthington's disposal practices were in that regard.
We thus do not find that the trial judge disregarded key facts in reaching her decision. Rather, she merely interpreted the various testimony of Cervino in a manner that favored Worthington. We thus do not find the interests of justice to have been offended as the result of the judge's conclusions.
We accord little weight to Cooper's arguments with respect to the expert testimony. As we stated in State v. M.J.K., 369 N.J. Super. 532 (App. Div.), certif. granted, 181 N.J. 549 (2004), appeal dismissed, 187 N.J. 74 (2005):
Expert testimony . . . "need not be given greater weight than other evidence nor more weight than it would otherwise deserve in light of common sense and experience. [Torres v. Schripps, Inc., 342 N.J. Super. 419, 430 (App. Div. 2001)] (citing In re Yaccarino, 117 N.J. 175, 196 (1989)). Indeed, a judge is not obligated to accept an expert's opinion, even if the expert was "impressive." State v. Carpenter, 268 N.J. Super. 378, 383 (App. Div. 1993), certif. denied, 135 N.J. 467 (1994). The factfinder may therefore accept some of the expert's testimony and reject the rest, Todd v. Sheridan, 268 N.J. Super. 387, 401 (App.
Div. 1993), and may do so even if that testimony is unrebutted by any other evidence. Johnson v. American Homestead Mortgage Corp., 306 N.J. Super. 429, 438 (App. Div. 1997). [M.J.K., supra, 369 N.J. Super. at 549.]
Our review of the record in light of this standard satisfies us that the trial judge properly exercised her discretion in accepting the testimony of Dr. Bopp and rejecting that of Dr. Jackson. We decline to further address Cooper's arguments with respect to the lay testimony and expert opinion given at trial, determining that they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E).
As we stated initially, Worthington has challenged on cross-appeal the trial court's denial of its claim for attorneys fees pursuant to Article XXIII of the lease between it and Cooper. In this regard, the trial judge stated:
Worthington argues that, because Cooper included claims under the Lease, it is entitled to reasonable counsel fees as the prevailing party pursuant to Article XXIII. At the same time, however, Worthington argues that Cooper was never its landlord and that Cooper conveyed its interests in the property to American Vitamin in 1987.
The court finds that Cooper's predominant claim was for contribution under the Spill Act and that the incidental claims under the Lease, under the totality of the facts and circumstances of this case, does not operate to entitle Worthington to reimbursement of costs and counsel fees.
We agree with the judge's conclusion in this regard.