NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2806-12T1

DOCKET NO. A-2808-12T1

WASTE MANAGEMENT OF NEW JERSEY,

INC.,

Plaintiff-Appellant,

v.

MORRIS COUNTY MUNICIPAL UTILITIES

AUTHORITY, and SOLID WASTE SERVICES,

INC. d/b/a J.P. MASCARO & SONS,

Defendants-Respondents.

___________________________________________

COVANTA 4RECOVERY, L.P.,

Plaintiff-Appellant,

v.

MORRIS COUNTY MUNICIPAL UTILITIES

AUTHORITY, SOLID WASTE SERVICES, INC.

d/b/a J.P. MASCARO & SONS, and

WASTE MANAGEMENT OF NEW JERSEY, INC.,

Defendants-Respondents.

__________________________________________________________

Argued December 3, 2013 – Decided

Before Judges Fisher, Espinosa and Koblitz.

On appeal from the Superior Court of New 

Jersey, Law Division, Morris County, Docket 

Nos. L-2627-12 and L-2868-12.

APPROVED FOR PUBLICATION

December 16, 2013

APPELLATE DIVISION

December 16, 2013
2 A-2806-12T1

Maeve E. Cannon argued the cause for 

appellant Waste Management of New Jersey, 

Inc. (Hill Wallack, LLP, attorneys; Patrick 

D. Kennedy, and Jamie G. O'Donohue, of 

counsel; Ms. Cannon and Susan L. Swatski, of 

counsel and on the brief).

Jeffrey J. Greenbaum argued the cause for 

appellant Covanta 4Recovery, L.P. (Sills 

Cummis & Gross, P.C., attorneys; Mr. 

Greenbaum and Kenneth F. Oettle, of counsel 

and on the brief).

Brent T. Carney argued the cause for 

respondent Morris County Municipal Utilities 

Authority (Maraziti, Falcon & Healey, LLP, 

attorneys; Joseph J. Maraziti, Mr. Carney, 

and Joanne Vos, of counsel and on the 

brief).

Thomas P. Scrivo argued the cause for 

respondent Solid Waste Services, Inc. d/b/a 

J.P. Mascaro & Sons (McElroy, Deutsch, 

Mulvaney & Carpenter, LLP, attorneys; Edward 

B. Deutsch and Mr. Scrivo, of counsel and on 

the brief).

The opinion of the court was delivered by

FISHER, P.J.A.D.

In this public bidding matter, we granted leave to appeal 

the denial of an interlocutory injunction based solely on the 

trial judge's determination that plaintiffs were not likely to 

succeed on the merits. Because the judge mistakenly overlooked 

his authority to impose interlocutory injunctive relief to 

preserve the parties' positions and subject matter of the suit –
3 A-2806-12T1

even when there are legitimate doubts about plaintiffs' 

likelihood of success – we reverse.

I

The record reveals that, on July 9, 2012, defendant Morris 

County Municipal Utilities Authority (the Authority) issued a 

public notice seeking sealed bids for a five-year contract to 

operate the two Morris County solid waste transfer stations and 

to provide related transportation and disposal services. The 

request for bids mandated, among other things, that bidders 

"[s]upply . . . the certified financial statement of the Bidder 

and/or, if applicable, the Guarantor for each of the three (3) 

recent fiscal years" (emphasis added). This request for bids 

did not define what was meant by a "certified financial 

statement," stating only that undefined terms were to be 

afforded "the meaning normally ascribed to them in the trade, 

profession or business with which they are associated."

The Authority received sealed bids in September 2012. 

Plaintiff Covanta 4Recovery, L.P. (Covanta) submitted the lowest 

bid ($131,004,000), defendant Solid Waste Services, Inc. d/b/a 

J.P. Mascaro & Sons (Mascaro) submitted the second lowest bid

($134,380,000), and plaintiff Waste Management of New Jersey, 

Inc. (Waste Management) submitted the third lowest bid

($137,952,000). The Authority determined that Mascaro submitted 
4 A-2806-12T1

the lowest responsible bid, and the losing bidders objected, 

arguing, among other things, that Mascaro included in its bid 

package only two pages of uncertified "condensed financial 

information" for the years ending March 31, 2010, 2011 and 2012. 

Upon further consideration, public comment and the presentations 

of the interested parties, as well as additional information 

from Mascaro, the Authority again concluded Mascaro was the 

lowest responsible bid.

On October 23, 2012, Waste Management filed a verified 

complaint and sought entry of an order to show cause. On 

November 5, 2012, Covanta filed a similar complaint, which 

included a claim that its bid should not have been rejected; 

Covanta also sought entry of an order to show cause. The judge 

heard argument on November 8, 2012, and, on November 15, 2012,

entered an order that: memorialized the Authority's consent not 

to enter into a contract with Mascaro until the court ruled on 

the applications for interlocutory injunctive relief; scheduled 

the production of expert reports; and specified questions of 

interest the experts were to address in their anticipated 

testimony. Expert testimony was heard on November 29, 2012, 

regarding, among other things, the meaning of the phrase 

"certified financial statement."
5 A-2806-12T1

On December 12, 2012, the trial judge issued a written 

opinion regarding the applications for interlocutory injunctive 

relief. The judge concluded that Waste Management and Covanta 

"failed to satisfy by clear and convincing evidence a likelihood 

of success on the merits" and, consequently, he "need not 

address the remaining Crowe[1] factors." An order denying relief 

was entered the same day.

On December 21, 2012, the judge granted summary judgment 

dismissing Covanta's complaint for reasons set forth in a 

written opinion. That same day, Waste Management moved in this 

court for leave to appeal the denial of its application for 

interlocutory injunctive relief; Covanta similarly moved for 

leave to appeal a short time later. Covanta also moved in the 

trial court for reconsideration of the summary judgment entered 

against it. On January 25, 2013, the judge granted the 

reconsideration motion, reinstated certain portions of Covanta's 

complaint, and permitted the joinder of two additional 

plaintiffs.

Mascaro moved for summary judgment on January 17, 2013, 

seeking a determination that its bid conformed to the 

Authority's written requirements. That motion was argued in the 

trial court on February 22, 2013. In the absence of any legal 

 

1Crowe v. De Gioia, 90 N.J. 126 (1982).
6 A-2806-12T1

impediment, Mascaro also began performing under the awarded 

contract on January 28, 2013.

That was the status of the case when, on February 26, 2013,

another panel of this court granted Waste Management and 

Covanta's pending motions for leave to appeal the denial of 

interlocutory injunctive relief; the panel also stayed the 

further performance of the Mascaro contract. The Authority 

entered into an emergency contract with Mascaro on the same

terms as the awarded contract, with the exception that its 

length was limited to the emergency's duration. Because we 

granted leave to appeal, the trial judge was unable to rule on 

Mascaro's summary judgment motion addressing the sufficiency of 

its bid. See R. 2:9-1(a); Society Hill Condo. Ass'n, Inc. v. 

Society Hill Assocs., 347 N.J. Super. 163, 177 (App. Div. 2002). 

This is the current status of the litigation.

II

In light of what has already occurred in this case, as well 

as the passage of time since we granted leave to appeal, it is 

not surprising some parties seek our declaration whether the 

trial judge's views of the meaning of "certified financial 

statement" and the other bid requirements in dispute are correct 

or incorrect. But the case is not presented in a posture that 

would permit such a ruling. The trial judge – despite how one 
7 A-2806-12T1

may wish to interpret his discussion about the meaning of the 

phrase "certified financial statement" – held only that he did 

not believe Covanta and Waste Management had clearly and 

convincingly demonstrated a likelihood of success on the merits. 

Such an expression is not the equivalent of an adjudication of 

plaintiffs' claims, only an educated prediction about whether 

plaintiffs are likely to succeed after a full exposition of the 

merits.

2 In short, the narrow question presented by this 

interlocutory appeal is whether the trial judge mistakenly 

exercised his discretion in denying interlocutory injunctive 

relief. We conclude he did.

In summarizing the Supreme Court's oft-cited decision in 

Crowe, supra, 90 N.J. at 132-34, we held in Waste Mgmt. of N.J., 

Inc. v. Union Cnty. Utils. Auth., 399 N.J. Super. 508, 519-20 

(App. Div. 2008), that issuance of an interlocutory injunction 

turns on whether "the movant has demonstrated a reasonable 

probability of success on the merits; that a balancing of the 

equities and hardships favors injunctive relief; that the movant 

 

2In alluding to its opposition to the pending summary judgment 

motion, Waste Management contends the trial judge has yet to 

hear all the evidence relevant to the meaning of "certified 

financial statement." Because the judge's observations were 

based on less than all the relevant evidence available, it would 

be further inappropriate for us to view the judge's prediction 

as a final adjudication and then proceed to determine whether we 

agree or should otherwise defer to that "finding."
8 A-2806-12T1

has no adequate remedy at law and that the irreparable injury to 

be suffered in the absence of injunctive relief is substantial 

and imminent; and that the public interest will not be harmed." 

In his written opinion, the trial judge correctly identified 

these as the factors to be applied. In addition, the judge held 

that each of these factors must be clearly and convincingly 

demonstrated, a general principle we have previously recognized. 

See id. at 520; McKenzie v. Corzine, 396 N.J. Super. 405, 414 

(App. Div. 2007); see also S&R Corp. v Jiffy Lube Int'l, Inc., 

968 F.2d 371, 374 (3d Cir. 1992). The judge then determined 

that plaintiffs' failure to convince him of the likelihood of 

success on their claims required denial of interlocutory 

injunctive relief without consideration of the other factors. 

This conclusion was erroneous because it overlooks a court's 

authority to impose interlocutory restraints regardless of 

doubts about the movants' likelihood of success.

To explain, we first consider what is meant when it is said 

a movant's right to an interlocutory injunction "must be clearly 

and convincingly demonstrated." Waste Mgmt., supra, 399 N.J. 

Super. at 520. In this regard, we consider whether the legal or 

equitable principles upon which the claim is based are doubtful 

or unsettled, see Accident Index Bureau, Inc. v. Male, 95 N.J. 

Super. 39, 50 (App. Div. 1967), aff’d o.b., 51 N.J. 107 (1968), 
9 A-2806-12T1

app. dis., 393 U.S. 530, 89 S. Ct. 872, 21 L. Ed. 2d 754 (1969), 

or whether the material facts are in dispute, Anders v. 

Greenlands Corp., 31 N.J. Super. 329, 338 (Ch. Div. 1954), or 

both.

In the matter at hand, the basis for the claim that a 

publicly-advertised contract should not be awarded to a bidder 

who has failed to meet material bid requirements or who has 

provided insufficient financial information, is not doubtful but 

well-established. See Meadowbrook Carting Co. v. Island Heights 

Borough, 138 N.J. 307, 313-15 (1994). Instead, here, the judge 

correctly recognized the likelihood-of-success factor was 

governed by whether there was a factual dispute about the 

meaning of the bid requirements and the sufficiency of the 

financial information provided. The judge, having been 

persuaded to Mascaro and the Authority's position after hearing 

testimony from the parties' experts, determined that plaintiffs 

had not clearly and convincingly shown they were likely to 

succeed. Because the judge reached this conclusion after 

considering the credibility and demeanor of the experts, we deem 

it appropriate – despite plaintiffs' forceful contentions to the 

contrary – to defer to the judge's observations about the 

strength of the parties' positions. Again, that merely means 

that, for the purpose of considering whether injunctive relief 
10 A-2806-12T1

was properly denied, we assume the accuracy of the judge's 

prediction about plaintiffs' likelihood of success.

Such an observation, however, does not end the matter. As 

Judge Clapp explained many years ago, the reason we consider 

whether a movant's right to injunctive relief is clear 

"doubtless lies in the fact that an interlocutory injunction is 

so drastic a remedy." Gen. Elec. Co. v. Gem Vacuum Stores, 

Inc., 36 N.J. Super. 234, 236 (App. Div. 1955). But our courts 

have also long recognized "there are exceptions, as where the 

subject matter of the litigation would be destroyed or 

substantially impaired if a preliminary injunction did not 

issue." Id. at 237 (citing Naylor v. Harkins, 11 N.J. 435, 446 

(1953); Christiansen v. Local 680 of Milk Drivers, 127 N.J. Eq.

215, 219-20 (E. & A. 1940); Haines v. Burlington Cnty. Bridge 

Comm'n, 1 N.J. Super. 163, 174 (App. Div. 1949)). That is, "a 

court may take a less rigid view" of the Crowe factors and the 

general rule that all factors favor injunctive relief "when the 

interlocutory injunction is merely designed to preserve the 

status quo." Waste Mgmt., supra, 399 N.J. Super. at 520. See 

also Brown v. City of Paterson, 424 N.J. Super. 176, 183 (App. 

Div. 2012). The power to impose restraints pending the 

disposition of a claim on its merits is flexible; it should be 

exercised "whenever necessary to subserve the ends of justice," 
11 A-2806-12T1

and "justice is not served if the subject-matter of the 

litigation is destroyed or substantially impaired during the 

pendency of the suit." Christiansen, supra, 127 N.J. Eq. at 

219-20. 

This less rigid approach, for example, permits injunctive 

relief preserving the status quo even if the claim appears

doubtful when a balancing of the relative hardships 

substantially favors the movant, or the irreparable injury to be 

suffered by the movant in the absence of the injunction would be 

imminent and grave, or the subject matter of the suit would be 

impaired or destroyed. See, e.g., Naylor, supra, 11 N.J. at 446 

(holding that the plaintiffs "were justly entitled to have the 

defendants restrained from taking affirmative action which might 

destroy their status and the subject of the litigation, and this 

was so notwithstanding the doubts expressed that they will 

ultimately prevail"); Christiansen, supra, 127 N.J. Eq. at 219-

20 (noting that pendente lite restraints are appropriate if "the 

subject-matter of the litigation [would otherwise be] destroyed 

or substantially impaired during the pendency of the suit, and 

thus the court loses the faculty of fully vindicating such right 

and of remedying such wrong as may be revealed on final 

hearing"); Hamilton Watch Co. v. Benrus Watch Co., Inc., 206 

F.2d 738, 742 (2d Cir. 1953) (recognizing that an interlocutory 
12 A-2806-12T1

injunction "serves as an equitable policing measure to prevent 

the parties from harming one another during the litigation" and 

"to keep the parties, while the suit goes on, as far as possible 

in the respective positions they occupied when the suit began"). 

Moreover, we have recognized the important role the public 

interest plays when implicated, as here, and have held "that 

courts, in the exercise of their equitable powers, 'may, and 

frequently do, go much farther both to give and withhold relief 

in furtherance of the public interest than they are accustomed

to go when only private interests are involved.'" Waste Mgmt., 

supra, 399 N.J. Super. at 520-21 (quoting Virginian Ry. Co. v. 

Sys. Fed'n, 300 U.S. 515, 552, 57 S. Ct. 592, 601, 81 L. Ed.

789, 802 (1937)).

Ultimately, on appellate review, the question is whether 

the grant or denial of interlocutory injunctive relief emanated 

from the trial judge's exercise of sound judicial discretion. 

See N.J. State Bar Ass'n v. Northern N.J. Mortgage Assocs., 22 

N.J. 184, 194 (1956); Waste Mgmt., supra, 399 N.J. Super. at 

520. This standard "defies precise definition" when we question 

whether "there are good reasons for an appellate court to defer 

to the particular decision at issue." Flagg v. Essex Cnty. 

Prosecutor, 171 N.J. 561, 571 (2002). This narrow inquiry 

requires consideration of the trial judge's explanation as well 
13 A-2806-12T1

as the legal grounds upon which the decision was based. Our 

Supreme Court has observed that an abuse of discretion has 

occurred when a decision was "'made without a rational 

explanation, inexplicably departed from established policies, or 

rested on an impermissible basis.'" Ibid. (quoting AchacosoSanchez v. Immigration & Naturalization Serv., 779 F.2d 1260, 

1265 (7th Cir. 1985)); see also US Bank Nat'l Ass'n v. 

Guillaume, 209 N.J. 449, 467-68 (2012).

Here, the judge made observations, after hearing expert 

testimony, that plaintiffs were not likely to succeed on the 

merits and, to be sure, those factual observations are entitled 

to deference at this stage.

3 But the judge's examination of the 

matter mistakenly ended there. He did not balance the relative 

hardships; he did not consider the irreparable injury that would 

follow the injunction's denial; he did not examine whether the 

denial of interlocutory relief would impair or destroy the 

 

3We hasten to describe the limitations of our deference. The 

judge made no findings on the pivotal factual issues, and our 

expression of deference should not be interpreted as an

agreement with the judge's view of the facts or his 

identification or application of the governing legal principles. 

We express no view of the merits nor predict what may occur on 

appeal once the issues are finally adjudicated in the trial 

court. We are reviewing only the sufficiency of a prediction 

not a finding of fact. Indeed, the trial judge is similarly 

unbound even to his own prior prediction. See, e.g., Univ. of 

Texas v. Camenisch, 451 U.S. 390, 395, 101 S. Ct. 1830, 1834, 68 

L. Ed. 2d 175, 180 (1981).
14 A-2806-12T1

subject matter of the suit; and he did not weigh the detrimental 

impact on the public if a lucrative contract were to be given to 

a potentially unqualified party before a challenge to the 

bidding process could be fully and finally adjudicated. These 

circumstances weighed heavily in favor of interlocutory 

injunctive relief here, and the judge's failure to consider 

these other Crowe factors constitutes an abuse of discretion 

warranting our intervention notwithstanding the deference owed 

to the judge's prediction of the likelihood of success.

III

We recognize that the trial judge had effectively managed 

the case and that it had rapidly advanced to a point where a 

final disposition may not have been far off when we granted 

leave to appeal. That is, even if the summary judgment motion 

still pending does not result in a final disposition, we gather 

the trial of any remaining disputed issues would occur in the 

very near future. Accordingly, although such circumstances 

might ordinarily warrant a remand to the trial judge for 

reconsideration of his denial of injunctive relief following a 

review and application of the other Crowe factors, we are 

satisfied the record fully supports injunctive relief and – to 

avoid causing any further delay in the case's final adjudication 
15 A-2806-12T1

– we will simply direct that the restraints imposed by our prior 

order remain in place.

The trial court order of December 12, 2012, which denied 

interlocutory injunctive relief, is reversed. Our order of 

February 26, 2013, which was designed to preserve the status quo 

as it existed when suit was commenced, shall remain in place –

with the additional condition that Mascaro may continue to 

perform under the emergency contract – pending the entry of 

final judgment in the trial court. We do not retain 

jurisdiction.