NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4335-14T2

CUMBERLAND FARMS, INC.,

Plaintiff-Appellant/ APPROVED FOR PUBLICATION Cross-Respondent, November 2, 2016 v. APPELLATE DIVISION NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION and THE ADMINISTRATOR OF THE NEW JERSEY SPILL COMPENSATION FUND,

Defendants-Respondents/ Cross-Appellants.

___________________________________

Argued October 17, 2016 – Decided November 2, 2016

Before Judges Sabatino, Haas and Currier.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L- 1368-13.

Mark E. Tully (Goodwin Procter, LLP) of the Massachusetts bar, admitted pro hac vice, argued the cause for appellant/cross- respondent (Archer & Greiner, Mr. Tully and Chad W. Higgins (Goodwin Procter, LLP) of the Massachusetts bar, admitted pro hac vice, attorneys; Mr. Tully, Mr. Higgins, and Nicholas J. Lochetta, II, on the briefs).

Leonard Z. Kaufmann argued the cause for respondents/cross-appellants (Christopher S. Porrino, Attorney General, and Cohn Lifland Pearlman Herrmann & Knopf, LLP, attorneys; Mr. Kaufmann, Barry A. Knopf, and Gwen Farley, Deputy Attorney General, on the briefs).

The opinion of the court was delivered by

HAAS, J.A.D.

Plaintiff Cumberland Farms, Inc. ("CFI") appeals from the

Law Division's April 15, 2015 order dismissing its complaint

seeking to enforce an alleged settlement with defendants New

Jersey Department of Environmental Protection and the

Administrator of the New Jersey Spill Compensation Fund

(collectively "the DEP") that purportedly resolved natural

resource damage claims the DEP had asserted under the New Jersey

Spill and Compensation Act, N.J.S.A. 58:10-23.11 to -23.50 ("the

Spill Act"). The DEP has filed a cross-appeal from a provision

in the same order granting judgment to CFI on its breach of the

implied covenant of good faith and fair dealing claim, and

ordering CFI and DEP to continue settlement negotiations.

Having reviewed the parties' contentions in light of the

record and applicable law, we affirm the trial court's dismissal

of CFI's breach of contract, specific performance, promissory

estoppel, and declaratory judgment claims. However, on the

DEP's cross-appeal, we reverse the trial court's decision

granting judgment to CFI on its breach of the implied covenant

of good faith and fair dealing claim.

2 A-4335-14T2 I.

We derive the following facts and procedural history from

the record developed during the two-day bench trial. Under the

Spill Act, the DEP may seek damages against a responsible party

for the loss of use of natural resources adversely affected by

the party's discharge of hazardous substances. N.J. Dep't of

Envtl. Prot. v. Exxon Mobil Corp.,

(App. Div. 2007) (citing N.J.S.A. 58:10-23.11f(a)(1) and -

23.11q). In an attempt to encourage responsible parties to

voluntarily settle their potential natural resource damages

("NRD") liability, the DEP published Policy Directive 2003-07

("the Directive") in September 2003.

. The

Directive, which by its terms created "no enforceable rights,

legal or equitable, for any person," laid out the DEP's

procedures and formulae for resolving NRD claims. In order to

take advantage of the settlement process, responsible parties

had to notify the DEP prior to January 2, 2004 of their

intention to settle any potential NRD claims.

CFI owns numerous convenience stores and service stations

in New Jersey. On December 31, 2003, CFI's attorney sent a

letter to the Commissioner of the DEP advising that "CFI would

like to voluntarily enter into good faith discussions with the

[DEP] concerning any potential NRD claims at this time. . . ."

3 A-4335-14T2 In May 2004, CFI identified twenty-three of its sites as

candidates for settlement. CFI later notified the DEP of

another fifty-five potential sites where it faced potential NRD

liability.

At trial, CFI called the Administrator of the DEP's Office

of Natural Resource Restoration ("ONRR"), John Sacco, as a

witness. Sacco testified that he and his staff member, Vicky

Galofre, did not have the authority to approve NRD settlements.

Instead, Sacco stated that he and Galofre only had the

"authority to take part in negotiation, [and] come to an

understanding of terms" with the responsible party. Once Sacco

knew the terms of a proposed settlement, he had to "go to [his]

respective management teams and make a recommendation or start a

discussion and then . . . at that point get the authority to

finalize a document for settlement."

According to Sacco, proposed settlements proceeded through

"a very iterative process. It goes back and forth quite often."

There were repeating rounds of analysis between the ONRR, the

DEP's management teams, and the New Jersey Division of Law,

which provided legal advice to the DEP. The attorneys for

potential responsible parties engaged in a similar process with

their clients and experts. During this process, which normally

took months to complete, the parties exchanged numerous drafts

4 A-4335-14T2 of the proposed settlement agreement, correspondence, and other

documents before any enforceable agreement could be struck.

Sacco also testified about the public notice requirement

the DEP and responsible parties had to follow before any

settlement could be finalized. On January 12, 2006, the

Legislature enacted L. 2005, c. 348. This law, which became

effective on April 12, 2006, amended N.J.S.A. 58:10-23.11f(b) to

provide that a responsible party that had resolved its NRD

liability with the DEP "shall not be liable for claims for

contribution [from any non-settling responsible parties]

regarding matters addressed in the settlement. . . ."

Chapter 348 also added a new provision, N.J.S.A. 58:10-

23.11e2, which stated:

At least 30 days[1] prior to its agreement to any administrative or judicially approved settlement . . . the [DEP] shall publish in the New Jersey Register and on the [DEP's] website the name of the case, the names of the parties to the settlement . . . , the location of the property on which the discharge occurred, and a summary of the terms of the settlement . . . , including the amount of any monetary payments made or to be made. The [DEP] shall also provide written notice of the settlement . . . , which shall include the information listed above, to all other parties in the case and to any other

1 On December 2, 2015, the Legislature increased this thirty-day advance notification requirement to sixty days. L. 2015, c. 166.

5 A-4335-14T2 potentially responsible parties of whom the [DEP] has notice at the time of the publication.

Thus, under this new provision, the DEP and a responsible party

could not agree to a final settlement of a NRD claim until after

public notice of the possible settlement had been provided.

Even prior to the enactment of N.J.S.A. 58:10-23.11e2,

however, the settlement agreements negotiated between the DEP

and responsible parties included provisions requiring the

publication of public notice in the New Jersey Register of a

settlement agreement, even if it was already signed. For

example, the first settlement agreement the DEP negotiated with

CFI involved a site in Ridgefield. This agreement provided that

the DEP reserved the right to withdraw from the settlement if

the public comments received following the notice "indicate[d]

to the [DEP] in its sole discretion, that the [s]ettlement

[a]greement is inappropriate, improper, or inadequate." Thus,

the DEP retained the right to withdraw from the agreement based

upon its review of any comments received from the public or

other interested parties.

Prior to the April 12, 2006 effective date of the thirty-

day advance public notice requirement established by N.J.S.A.

58:10-23.11e2, the DEP and CFI entered into a written settlement

agreement for the remaining twenty-two sites CFI had originally

6 A-4335-14T2 identified as candidates for potential settlement. As was the

case with the Ridgefield settlement, the parties exchanged

multiple draft agreements and correspondence before an agreement

covering all twenty-two sites was executed. Like the Ridgefield

settlement, this agreement required public notice of the

settlement, and granted the DEP the right to withdraw from the

agreement if, after reviewing any public comments, it determined

the agreement was "inappropriate, improper, or inadequate."

At that point, there were fifty-five CFI sites remaining

for consideration under the settlement program. The DEP had

already initiated litigation to recover NRD damages from CFI for

one of these sites, which was located in Berkeley Township.

Settlement negotiations involving sites that were already in

litigation were handled in the first instance by the DEP's

outside litigation counsel, rather than by Sacco or Galofre.

CFI's attorney testified that she wanted to keep the other

fifty-four sites out of litigation. The DEP agreed with this

approach. Therefore, the parties dealt with the Berkeley site

separately. Indeed, CFI's attorney testified that none of the

correspondence CFI subsequently exchanged with DEP's litigation

counsel concerning the Berkley property mentioned the remaining

fifty-four sites.

7 A-4335-14T2 After going through a mediation process, CFI and the DEP's

litigation counsel negotiated a settlement of the Berkeley site

litigation. On April 12, 2007, DEP's litigation counsel advised

CFI's attorney that CFI's "proposed settlement has been approved

and accept[ed] by the State." The parties then began a year-

long exchange of documents and correspondence until they agreed

upon the terms of the agreement. At that point, and in

accordance with N.J.S.A. 58:10-23.11e2, the parties arranged for

public notice of the unsigned agreement. The DEP "received no

comments that disclosed facts or considerations that indicated

to the [DEP], in its sole discretion, that the [s]ettlement

[a]greement was inappropriate, improper, or inadequate[,]" and

the parties consummated the agreement on April 14, 2008, when

the final required signature was affixed to the document.

The DEP did not issue a release to CFI concerning the NRD

claims relating to the Berkeley site until 2013. At trial,

Sacco speculated that the release for that site may have "fell

through the cracks."

As part of its settlement of the Berkeley site litigation,

CFI agreed to fund the purchase of forty-three acres of land in

Cumberland County, which would "be held in trust and for the

benefit of the State of New Jersey to remain undeveloped and

undisturbed so that the natural resources on and under the

8 A-4335-14T2 [p]roperty shall remain available for the use and benefit of the

citizens of the State." At trial, CFI's attorney asserted that

CFI purchased additional acreage at that time that it hoped to

use as part of any future settlement of the remaining fifty-four

sites. However, CFI did not provide any documentation linking

these additional acres of land to the fifty-four sites prior to

CFI's purchase of this property.

The remaining fifty-four sites, which are located

throughout New Jersey, are the subject of this appeal. On

August 3, 2006, Galofre sent an email to CFI's attorney stating,

"Please let me know when you are available for a conference call

to go over the [fifty-four CFI] sites." It appears there was a

subsequent discussion between the attorney and Galofre

concerning the sites. On October 20, 2006, Galofre sent the

attorney another email stating, "About two months ago we

discussed the NRD for [fifty-four CFI] properties. Is [CFI]

still interested in settling these [fifty-four] sites?" CFI's

attorney responded later that day, expressing continued interest

in pursuing a settlement, but stating that CFI's environmental

consultants needed to obtain additional information.

When Galofre heard nothing further, she sent an email to

CFI's attorney on January 11, 2007, advising that Sacco was

considering forwarding the fifty-four sites to the DEP's outside

9 A-4335-14T2 counsel for litigation. CFI's attorney responded that same day,

stating CFI was still interested in negotiating a settlement.

Five months later, CFI's attorney sent Galofre an email on

June 14, 2007, stating that CFI

has authorized me to propose [36.99] additional acres that will be purchased by The Nature Conservancy to satisfy CFI's potential NRD liability at the remaining sites we were discussing. This offer is made without prejudice and solely in an attempt to resolve a bona fide dispute and CFI is making no admissions of fact or law.

The next day, Galofre thanked CFI's attorney for the email

and stated that she would "review this and will be in touch with

you about it." On June 20, 2007, Galofre sent the following

email to CFI's attorney:

I have reviewed the proposal made by CFI as stated in your email dated 6/14/07, below, and discussed this proposal with John Sacco. [The] ONRR is satisfied with this proposal, therefore attached find a draft settlement agreement for your review. Please see Appendix B, that lists the sites, and fill in the missing block and lot numbers and program identification numbers. If you have comments to the draft[,] also provide them. However, note that [the] ONRR will not make changes to boilerplate language especially not to the definition of "Natural Resource Damages[.]" Thank you.

As noted above, Sacco, Galofre, and the ONRR did not have

the authority to approve a settlement with CFI or any other

potential responsible party in a NRD case. Instead, their task

10 A-4335-14T2 was to flesh out the terms of any proposed agreement and then

forward it to their management teams for review and possible

approval.

Mindful of the bounds of the ONRR's limited authority, the

"draft settlement agreement" that Galofre sent to CFI's attorney

was a template the ONRR used as the starting point for its

negotiations. There were numerous blank spaces, strikeouts, and

"redlines" throughout the form. The template listed CFI's name

and address, and identified the fifty-four sites that were under

discussion. The form also included CFI's proposal to fund the

purchase of approximately 36.99 acres of land. The provision

stating the amount of money CFI would pay the DEP for its

"oversight costs" was left blank, and the dates by which certain

steps would have to be completed were not included in the

document.

The draft agreement included a provision that stated, "This

[s]ettlement [a]greement shall be effective upon the execution

of this [s]ettlement [a]greement by the Department" and CFI. In

addition, by operation of N.J.S.A. 58:10-23.11e2, prior to DEP's

agreement to any settlement, the terms of the contract had to be

published in order to give the public the opportunity to comment

on them.

11 A-4335-14T2 At trial, Sacco confirmed that, aside from the number of

acres of land CFI proposed to purchase, the remainder of the

draft settlement agreement was "still a work in progress."

Sacco described the draft as "basically a template that we send

out." He stated that other than the "terms of the

compensation[,] . . . the rest of it was yet to be determined

how it would look." CFI's trial counsel specifically asked

Sacco, "[W]hat are you suggesting was still subject to

negotiation?" Sacco replied, "It would be the entirety of the

document."

Nevertheless, CFI's attorney testified that after CFI

received the draft settlement agreement from Galofre on June 20,

2007, "we had a deal." During cross-examination, however, the

DEP's trial counsel read the following portion of CFI's

attorney's deposition testimony into evidence:

Q. So there is no currently existing document to which you would expect [the] DEP to affix -- defendants to affix their signature, correct?

A. Not that I've seen.

CFI's attorney did not respond to Galofre's June 20, 2007

email. On July 25, 2007, Galofre sent the attorney an email

stating, "Please email me and tell me the status of your review

of the settlement document, attached, for the additional [fifty-

four] sites." CFI's attorney did not answer this email either.

12 A-4335-14T2 In August 2008, Galofre sent an email to CFI's attorney

stating that she was leaving the ONRR and that another staff

member, Pam Lange, would "be taking over the [CFI] matter, the

[fifty-four] volunteer service stations[.]" The attorney sent

an email thanking Galofre, but provided no substantive response

to her previous requests for a status report.

CFI's attorney testified that she tried to call Lange on

one occasion, but did not speak to her. The attorney never

contacted Sacco to discuss the draft settlement agreement or to

engage in negotiations. As the months turned into years, Sacco

testified "there was still no response from CFI to continue with

it." Sacco explained that CFI's attorney was aware of the

iterative process from the "three previous deals . . . [a]nd I

think was pretty clear of what were the next steps. We made our

couple of overtures and we never heard back. And you know it

just -- we moved on with other things."

Sometime in 2012, the DEP added CFI as a defendant to a

lawsuit it had filed in 2007 in the Southern District of New

York. In that action, the DEP sought to recover compensation

for the public for contamination caused by the discharge of a

chemical that was added to gasoline, Methyl Tertiary Butyl Ether

("MTBE"), at approximately 5000 sites throughout New Jersey.

With the addition of CFI, the fifty-four sites at issue in this

13 A-4335-14T2 appeal were included in the contaminated sites for which the DEP

sought compensation. One of the CFI properties, known as the

Baker's Waldwick site, was designated as a "bellwether site"

that would be tried during the first phase of the MTBE

litigation.

On September 13, 2012, CFI's attorney sent a letter to the

DEP's trial counsel in the MTBE litigation. In the letter,

CFI's attorney claimed that it and DEP had settled the DEP's NRD

claims for the fifty-four sites on June 20, 2007. On December

4, 2012, DEP's attorney responded with a letter stating,

"Although I am aware that settlement discussions occurred

several years ago as to a number of sites and that some were

settled, I have seen no documentation that such discussions

actually resulted in an enforceable settlement of the scope you

reference."

On June 20, 2013, six years after Galofre sent CFI's

attorney the draft settlement agreement for the fifty-four

sites, CFI filed a complaint seeking to enforce the alleged

final settlement. CFI asserted that the DEP breached the

parties' agreement by including the sites in the MTBE

litigation, and it sought specific performance of the

settlement. CFI also claimed that the DEP breached the implied

covenant of good faith and fair dealing "by failing to

14 A-4335-14T2 consummate the [s]ettlement [a]greement and failing to perform

any of [its] obligations under this [s]ettlement [a]greement."

CFI also argued that it partially performed its obligations

under the alleged agreement by purchasing property that could be

used to satisfy its NRD liability for the fifty-four sites and,

therefore, the DEP was estopped from denying the existence of an

enforceable contract. Finally, CFI sought a judgment

"[d]eclaring that the parties' agreement remains in full force

and effect," and requiring the DEP to enter into a settlement

agreement "as agreed to and otherwise completing the settlement

in this matter."

At the conclusion of testimony, the trial judge rendered an

oral decision, rejecting CFI's claim that "the draft settlement

agreement" the DEP sent CFI's attorney on June 20, 2007

constituted an enforceable contract. The judge noted that the

draft agreement had a number of blanks, redlines, and

strikeouts. In addition, neither party had signed the

agreement, and no public notice had been provided as required by

N.J.S.A. 58:10-23.11e2. The judge found that both Sacco and

CFI's attorney2 testified that "it's an iterative process,"

2 The judge found that Sacco was "an honest witness," but stated he gave "greater weight" to CFI's attorney's testimony. In support of this credibility finding, the judge stated that Sacco testified "that the [DEP] always acts in good faith. And at the (continued)

15 A-4335-14T2 involving the exchange of emails "and letters and going back and

forth. . . . They go one thing at a time going through it until

finally -- the matter is completely resolved."

The trial judge also found that Sacco lacked the authority

to approve a settlement and "that it has to go through and be

signed by certain people at DEP." In addition, the judge noted

that CFI's attorney acknowledged during her deposition testimony

that the draft agreement was not in the form required for either

party to sign it. Because the judge found there was no valid

settlement agreement between CFI and the DEP, he dismissed CFI's

breach of contract, specific performance, and declaratory

judgment claims.

The trial judge also rejected CFI's promissory estoppel

argument. The judge found that CFI had purchased property that

it could use to satisfy part of its NRD liability for the fifty-

four sites, but had not completed its stated plan of buying all

of the acreage necessary to move forward.

(continued) same time he also testified that in the case of the [fifty-four] sites[,] the application fell through the cracks." However, Sacco's comment about something falling through the cracks was limited to the DEP's failure to send CFI a timely release in connection with the Berkeley settlement. He made no similar comment concerning the fifty-four sites involved in this appeal. Therefore, the judge's finding on this point critical of Sacco lacks evidentiary support in the record.

16 A-4335-14T2 Finally, the trial judge entered judgment in CFI's favor on

its breach of the implied covenant of good faith and fair

dealing claim. The judge stated "that the DEP needs to resume

its negotiations. Whether that means that they actually wind up

with an agreement that can be published that's subject to the

publication contingency, I can't say. In the end[,] you may not

have a settlement agreement." This appeal and cross-appeal

followed.

II.

On appeal, CFI argues that the trial judge erred by

concluding there was no enforceable settlement agreement between

the parties. CFI asserts it made an offer to settle its NRD

liability for the fifty-four sites in CFI's attorney's June 14,

2007 letter, and that Galofre's June 20, 2007 email with the

attached "draft settlement proposal" constituted an acceptance

of that offer. We disagree.

Our review of a trial court's fact-finding in a non-jury

case is limited. Seidman v. Clifton Sav. Bank, S.L.A.,

(2011). "The general rule is that findings by the

trial court are binding on appeal when supported by adequate,

substantial, credible evidence. Deference is especially

appropriate when the evidence is largely testimonial and

involves questions of credibility."

(quoting Cesare v.

17 A-4335-14T2 Cesare,

(1998)). We "should 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."

(internal quotation marks omitted).

However, we owe no deference to a trial court's

interpretation of the law, and review issues of law de novo.

State v. Parker,

, 278 (2012); Mountain Hill, L.L.C.

v. Twp. Comm. of Middletown,

, 193 (App. Div.

2008), certif. denied,

(2009). We also review

mixed questions of law and fact de novo. In re Malone,

(App. Div. 2005). The interpretation and

construction of a contract is a matter of law for the trial

court, subject to de novo review on appeal. Fastenberg v.

Prudential Ins. Co. of Am.,

(App. Div.

1998); see also Kaur v. Assured Lending Corp.,

(App. Div. 2009) (reviewing the enforcement of a

settlement agreement de novo).

"A settlement agreement between parties to a lawsuit is a

contract." Nolan v. Lee Ho,

(1990). The

burden of proving that the parties entered into a settlement

18 A-4335-14T2 agreement is upon the party seeking to enforce the settlement.

Amatuzzo v. Kozmiuk,

(App. Div. 1997).

Since the "settlement of litigation ranks high in our

public policy," Jannarone v. W.T. Co.,

(App. Div.), certif. denied sub nom., Jannarone v. Calamoneri,

(1961), "settlement agreements will be honored

'absent a demonstration of fraud or other compelling

circumstances.'"

(quoting

Pascarella v. Bruck,

(App. Div.),

certif. denied,

(1983)). Unless there is "an

agreement to the essential terms" by the parties, however, there

is no settlement in the first instance. Mosley v. Femina

Fashions Inc.,

(App. Div. 2002),

certif. denied,

(2003).

"A contract arises from offer and acceptance, and must be

sufficiently definite 'that the performance to be rendered by

each party can be ascertained with reasonable certainty.'"

Weichert Co. Realtors v. Ryan,

(1992) (quoting

West Caldwell v. Caldwell,

(1958)). "A written

contract is formed when there is a 'meeting of the minds'

between the parties evidenced by a written offer and an

unconditional, written acceptance." Morton v. 4 Orchard Land

Trust,

(2004) (quoting Johnson & Johnson v.

19 A-4335-14T2 Charmley Drug Co.,

(1953)). Thus, "[i]t is

requisite that there be an unqualified acceptance to conclude

the manifestation of assent." Weichert Co. Realtors, supra,

-36 (quoting Johnson & Johnson, supra,

). "In the very nature of the contract, acceptance must be

absolute" and "unequivocally shown." Johnson & Johnson, supra,

.

Applying these principles in this case, we discern no basis

for disturbing the trial judge's determination that CFI failed

to meet its burden of proving there was an enforceable

settlement agreement. The record clearly establishes that the

DEP never agreed to do anything more than attempt to negotiate a

final settlement through the iterative process, and that CFI

never responded to the DEP's overtures.

Both parties knew that Sacco, Galofre, and the ONRR did not

have the authority to enter into a binding settlement agreement.

Their authority was limited to negotiating with a potential

responsible party on the terms of a possible settlement, which

then needed to be reviewed and approved by DEP managers. Thus,

Galofre never stated in her June 20, 2007 email that DEP

management had agreed to settle the matter. Instead, she

specifically advised CFI's attorney that she was forwarding a

"draft settlement agreement" for the attorney's review.

20 A-4335-14T2 Contrary to CFI's contention, Galofre's email cannot be

read as an "unqualified"; "absolute"; or "unequivocal[]"

acceptance of CFI's June 14, 2007 "offer" to settle CFI's NRD

liability for the fifty-four sites. Johnson & Johnson, supra,

. Instead, as the trial judge found, the

emails and the "draft settlement agreement" did not contain the

terms necessary to constitute a binding settlement. CFI's

attorney's email only referred to the property CFI proposed to

fund as part of the settlement. In turn, the draft agreement

Galofre sent to the attorney contained numerous redlines,

strikeouts, and blanks. As CFI's attorney conceded during her

deposition testimony, neither party could sign the agreement in

the condition it was in when Galofre started the negotiation

process on June 20, 2007.

The fact that CFI's attorney never responded to Galofre's

July 25, 2007 email asking the attorney to advise her of the

"status of [the attorney's] review of the [draft] settlement

document," is also telling. "A contracting party is bound by

the apparent intention he or she outwardly manifests to the

other party. It is immaterial that he or she has a different,

secret intention from that outwardly manifested." Hagrish v.

Olson,

(App. Div. 1992) (citing Looman

21 A-4335-14T2 Realty Corp. v. Broad St. Nat'l Bank of Trenton,

(App. Div.), certif. denied,

(1962)).

It is clear from Galofre's email that the DEP did not

believe there was a binding settlement agreement. CFI's

attorney did nothing to question the DEP's understanding of the

nascent status of the negotiations. Indeed, CFI did not

communicate with the DEP concerning the fifty-four sites for

over five years and, only then, asserted that its NRD liability

for these locations had been settled. Under these

circumstances, the trial judge properly rejected CFI's

contention that there was an enforceable settlement as of June

20, 2007.

The trial judge's determination is further supported by two

additional factors. First, the draft agreement expressly stated

that the settlement would not be effective until it was executed

by both parties. As the judge observed, this provision was a

material term of any resolution of the case. Because neither

party signed the marked-up version of the agreement Galofre sent

to CFI's attorney on June 20, 2007, there was no final,

enforceable contract between the parties.

Second, under N.J.S.A. 58:10-23.11e2, the DEP and a

potentially responsible party may not agree to a settlement of

NRD liability until after the DEP has published notice of the

22 A-4335-14T2 terms of the settlement. Because the parties never arrived at

an understanding of the terms of a final settlement, the DEP was

never able, much less required, to publish the notice pursuant

to the statute. Therefore, the trial judge properly determined

there was no enforceable agreement between the DEP and CFI

regarding the fifty-four sites.

Finally on this point, CFI contends that if the parties

agreed upon the terms that needed to be included in the notice

required by N.J.S.A. 58:10-23.11e2, this "agreement" would

constitute a binding contract and the DEP would thereafter be

powerless to withdraw from that "agreement" even if it received

persuasive negative comments about the proposed settlement

during the public comment period following the publication of

the notice. Because we have determined that no valid settlement

agreement was forged between the DEP and CFI, we need not

further address this contention in this opinion. See Indep.

Realty Co. v. Twp. of N. Bergen,

(App.

Div. 2005) (noting that while the New Jersey Constitution does

not confine the exercise of judicial power to actual cases and

controversies, "it is well settled that [courts] will not render

advisory opinions or function in the abstract").

That having been said, however, we perceive no principled

basis for the Legislature to have required in N.J.S.A. 58:10-

23 A-4335-14T2 23.11e2 that public notice be published of the proposed

settlement terms thirty days prior to DEP's agreement to a

settlement of a NRD claim if it did not intend for the DEP to be

able to consider the public comments received during that period

and make a determination whether to consummate, withdraw from,

or modify the settlement. See State v. Reynolds,

(1991) ("A construction of a statute that will render any

part of a statute inoperative, superfluous, or meaningless, is

to be avoided."). Significantly, the parties' prior agreements

expressly permitted the DEP to withdraw from the settlements in

its sole discretion after it considered the public comments.

Paragraphs six and seven of the "draft settlement agreement"

Galofre sent to CFI's attorney also contained the template of a

similar provision that was not finalized because the parties

never agreed to the terms of a settlement in this case.

The DEP's interpretation of the public comment process and

its ability to respond to those comments in the public interest

as evidenced by the language included in its final agreements is

entitled to "great weight as evidence of its conformity with the

legislative intent." Malone v. Fender,

(1979).

Therefore, we reject CFI's contention on this point.

In sum, CFI failed to prove there was an enforceable

settlement agreement. Therefore, the trial judge correctly

24 A-4335-14T2 dismissed CFI's claims for breach of contract, specific

performance, and a declaratory judgment against the DEP.

For similar reasons, the judge also properly rejected CFI's

promissory estoppel argument. "The elements of promissory

estoppel are '1) a clear and definite promise, 2) made with the

expectation that the promisee will rely upon it, 3) reasonable

reliance upon the promise, 4) which results in definite and

substantial detriment.'" East Orange Bd. Of Educ. v. N.J. Sch.

Const. Corp.,

(App. Div.) (quoting

Lobiondo v. O'Callaghan,

(App. Div.),

certif. denied,

(2003)), certif. denied,

(2009). As discussed above, there was no "clear and

definite promise" by DEP that it would enter into a final

settlement agreement with CFI. Thus, CFI cannot demonstrate

that it relied upon that nonexistent "promise" in connection

with its purchase of additional property that it hoped to use to

resolve its NRD liability for the fifty-four sites.

Finally, we are constrained to reverse the portion of the

April 15, 2015 order entering judgment in CFI's favor on its

claim that the DEP breached the implied covenant of good faith

and fair dealing. "[E]very contract in New Jersey contains an

implied covenant of good faith and fair dealing." Sons of

Thunder, Inc. v. Borden, Inc.,

(1997). The

25 A-4335-14T2 implied covenant applies to "both the performance and

enforcement of the contract." Brunswick Hills Racquet Club,

Inc. v. Route 18 Shopping Ctr. Assocs.,

(2005). Under this "implied covenant . . . 'neither party shall

do anything which will have the effect of destroying or injuring

the right of the other party to receive the fruits of the

contract.'" Palisades Props., Inc. v. Brunetti,

(1965) (quoting 5 Williston on Contracts § 670, at 159-60

(3d ed. 1961)).

However, it is well established and CFI concedes, that

"[i]n the absence of a contract, there can be no breach of an

implied covenant of good faith and fair dealing." Noye v.

Hoffman-La Roche Inc.,

(App. Div.

1990). Here, there was no contract between CFI and the DEP.

Therefore, the judge should have also dismissed CFI's breach of

the implied covenant of good faith and fair dealing claim.

In sum, we affirm the trial court's dismissal of CFI's

breach of contract, specific performance, promissory estoppel,

and declaratory judgment claims. We reverse the portion of the

April 15, 2015 order granting judgment to CFI on its breach of

the implied covenant of good faith and fair dealing claim, and

remand for the prompt entry of an order dismissing CFI's

complaint in its entirety.

26 A-4335-14T2 Affirmed in part; reversed in part; and remanded. We do

not retain jurisdiction.

27 A-4335-14T2