NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 AUTH ORITY, 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, Espino sa 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, 2013A - 2806
- 12T1 2 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 Ke nneth 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 br ief). 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

–A - 2806
- 12T1 3 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 provid e related transportation and disposal services. The request for bids mandated, among other things, that bidders "[s]uppl y . . . the certified financial statement of the Bidder and/or, if applicable, the Guarantor for each of th e three (3) recent fiscal ye ars " (emphasis added). This request for bids did not define what was meant by a "certified financial statement," stat ing only that undefined terms were to be afforded "the meaning normally ascribed to them in the trade, profession or business wi th which t hey 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 l owest bid ($134,380,000) , and plaintiff Waste Management of New Jersey , Inc. (Waste Management) submitte d the third lowest bid ($137,952,000) . T he Authority determined that Mascaro submitt e dA - 2806
- 12T1 4 the lowest responsible bi d, and t he losing bidders objected , arg uing, 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 conclud ed Mascaro was the lowest responsible bid. On October 23, 2012, Waste Management filed a verif ied complaint and sought entry of an order to show cause. On
Nove mber 5, 2012, Covanta fi led 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, 2 012, and, on November 15, 2012, entered an or der that: memoria lized the Authority's consent not to enter into a contract with Mascaro until the court ruled on the applications for inter locutory injunctive relief; scheduled the production of expert reports ; and specified questions of interest the expe rts were to address in their anticipated testimony. Expert testimony was heard o n November 29, 2012, regarding, among other things, the meaning of the phrase "certified financial statement."A - 2806
- 12T1 5 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 n ot address the remaining Crowe [ 1 ] f actors." 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 M anage ment 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 summa ry judgme nt entered against it. On January 25, 2013, th e judge granted the reconsideration motion, reinstated certain portions of Covanta's complaint , and permitted the joinder of tw o additional plaintiffs . Mascaro moved for summary judgment on January 17, 2013 , seeki ng a determination th at its bid conformed to the Authority's written requirements. That motion was argued in the trial court on February 22, 2013. I n the ab sence of any legal

1 Crowe v. De Gioia , 90 N.J. 126 (1982).A - 2806
- 12T1 6 impediment , Mascaro also began performing under the awarded
contract on Ja nuary 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 furt her performance of the Mascaro contract. T he Authority entered into an emergency contract with Mascaro on the same terms as the awarded contract , with the except ion that its length was limited to the emergency's duration. Because we granted leave to appeal, the tr ial judge was unable to rule on
Mascaro's summary judgment motion addressi ng 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 curren t status of the litigation.

II In light of what has already occurred in t his 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
t rial judge's views of the meaning of "c ertified financial
statement" and the other bid requirements in dispute are correct or incorrect. But t he case is not presented in a posture that would permit such a ruling . The trial judge

– despite how oneA - 2806
- 12T1 7 may wish to interpret his discussion about the meaning of the phrase "certified financial statement"

– held on ly that he did not believe Covanta and Waste Management had clearly and convinc ingly demonstrated a likelihood of success on the merits . Such an expression is not the equivalent of an adjudic ation of plaintiffs' claims , only an educated prediction about whether plaintiffs are likely to succeed after a full exposition of the merits . 2 In short , t he narrow question presented by thi s interlocutory appeal is whether the trial judge mistakenly

exer cised his discretion in denying interlocutory injun ctive 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 injuncti on 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

2 In 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 "find ing."A - 2806
- 12T1 8 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 o pinion, the trial judge correct ly i dentified these as the factors to be applied . In addition, the judge held that each of these factors must be clearly and convincing ly demonstrated, a general principle we have previously recognized . See i d. at 520; McKenzie v. Corzine , 396 N.J. Super. 40 5, 414 (App. Div. 2007) ; see also S&R Corp. v Jiffy Lube Int'l, Inc. , 968 F. 2d 371, 374 (3d Cir. 1992) . T he judge then determined that plaintiffs' failure to convince him of the likelihood of success on their claims required denial of interlocutory injunc tive relief without consideration of the other factors . This conclusion was erroneous because it overlooks a court's authority to impose interlocutory restrain t s regardless of doubts about the movants' likeliho od of success . T o explain, we first consider wha t 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. I n this regard , we consider whether the legal or equitable principles upon which th e 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),A - 2806
- 12T1 9 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 provide d in s ufficient financial information , is not doubtful but well
- established . See Meadowbrook Carting Co. v. Island Heights Borough , 138 N.J. 307, 313
- 15 (1994) . Instead, h ere, the judge correctly recognized the likelih ood
- 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 be en persuaded to Ma scar o and the Authority 's position after h earing testimony from the parties' experts, determined that plaintiffs had not clearly and convincingly shown they were likely to succeed. Because the j udge reached this conclusion after considering the credibility and demeanor of the expert s, we deem it appropriate

– despite plaintiffs' forceful contentions to the contrary
– to defer to the judge's observations about the strength of the parties' posi tions. Again, that merely means that , for the purpose of considering whethe r injunctive reliefA - 2806
- 12T1 10 was properl y denied , we assume the accuracy of the judge's prediction about plaintiffs' likelihood of success. Such an observation, however, does not end the matter. A s Judge Clapp explained many years ago, the reason we consider whether a movant's right to injuncti ve relief is clear "doubtless lies in the fact that an interlocutory injunc tion is so drastic a remedy ." Gen. Elec. Co. v. Gem Vacuum Stores , Inc. , 36 N.J. Super. 234, 236 (App. Div. 1955). But our c ourts 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, 2 19
- 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 int erlocutory 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 clai m on its merits is flexible; it should be exercised "whenever necessary to subserve the ends of justice,"A - 2806
- 12T1 11 and "justice is not served if the subject
- matter of the litigation is destroyed or substantially impaired during the pendency of the suit." Chris tiansen , supra , 127 N.J. Eq. at 219
- 20 . This less rigid approach , for example, permit s injunctive relief preserving the status quo even if the claim appears doubtful when a balancing of the relative hardships substantial ly favor s the movant , or the irreparable injury to be suff ered by the movant in the absence of the injunc tion 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 (ho lding that the plaintiffs "were jus tly 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 2 19
- 20 (noting that pendente lite restraints are appropriate if " the sub ject
- 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 v indicating 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 interlocutoryA - 2806
- 12T1 12 injunction "serves as an equitable policing measure t o prevent the parties from harming one another d uring 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 play s 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 rel ief 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. T his 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 narr ow inquiry requires consideration of t he trial judge's explanation as wellA - 2806
- 12T1 13 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 explan ation, inexplicably departed from established policies, or rested on an impermissible basis.'" Ibid. (quoting A chacoso
Sanchez 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 h ardship s; he did not consider the irrepar able injury that would follow the injunction's denial ; he did not examine whether the denial of interlocutory relief would impair or destroy the

3 We haste n to describe the limitations of our deferenc e . The judge made no findings on the pivotal factual iss ues, 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 e xpress 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 un bound 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).A - 2806
- 12T1 14 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 bi dding process could be fully and finally ad judicated . These circumstances weigh ed heavily in favor of interlocutory injunctive relief here , a nd the judge's failure to consider these other Crowe factors constitutes an abuse of discretion

war ranting our intervention notwithstanding the deference owe d to the judge's p rediction of the lik elihood 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 fina l disposition may not have been far off when we granted leave to appea l. That is, even if the summary judgment motion still pending does not resu lt 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 a re satisfied the record fully support s injunctive relief and

– to avoid causing a ny further delay in the case's final adjudica tionA - 2806
- 12T1 15 – we will simply direct that the re straints imposed by our prior order remain in place. The trial court order of December 12 , 2012 , which denied interlocutory injunctive relief, is r eversed. Our order of
F ebruary 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 Ma scaro may continue to perform under the emergency contract
– pending the entry of final judg ment in the trial court. We do not retain jurisdiction.