MATTHEW P. TERRANOVA, KAREN L. TERRANOVA, and NEW LAND HOLDINGS, LLC, Plaintiffs-Appellants,
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,
18 PETRO CORP. and PITSTOP EXPRESS, INC., Third-Party Defendants.
October 3, 2018
appeal from Superior Court of New Jersey, Law Division,
Middlesex County, Docket No. L-6691-15.
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., on the
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, 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, on the brief).
J. Mairo argued the cause for respondent Amerco Real Estate
Company (Chiesa Shahinian & Giantomasi, PC, attorneys;
David J. Mairo, Michael K. Plumb, 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
Judges Fuentes, Vernoia and Moynihan.
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,
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."
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'
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.
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
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 (App. Div.
2018), all parties agree that the court's summary
judgment decisions were based on judicial estoppel.
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 ...