At this time of the year, published decisions from the Supreme Court and the Appellate Division are few and far between, as the new Term is barely one month old. Last week, however, in an unpublished per curiam opinion in State, Dep’t of Environmental Protection v. Alsol Corporation, 2024 N.J. Super. Unpub. LEXIS 2276 (App. Div. Oct. 1, 2024), the Appellate Division (Judges Mawla, Natali, and Vinci) reminded us all of three basic principles.
The facts were these. The DEP filed an action against Alsol under the New Jersey Spill Compensation and Control Act, N.J.S.A. 58:10-23.11 et seq. The DEP alleged that Alsol had failed to remediate property that Alsol allegedly owned in Milltown.
After some procedural steps that need not be recounted here, the Municipal Court granted Alsol’s motion to dismiss the complaint, ruling that (as the Appellate Division summarized in its opinion last week) “a property owner may not be held strictly liable for a discharge that occurs on its property.” The DEP appealed to the Law Division, but that court deemed the record insufficient and remanded the case to the Municipal Court. Alsol then advised the Municipal Court had occurred on an adjacent property owned not by Alsol, but by another entity that shared at least one officer with Alsol.
The DEP then moved to dismiss the case without prejudice because Alsol did not own the affected property. But the Municipal Court, ruling on the same basis as before, granted dismissal with prejudice in a March 30, 2023 opinion. The DEP again appealed to the Law Division, under a new docket number. There were thus two appeals pending, and the Law Division consolidated them and decided them together. As the Appellate Division described, “As to the first appeal, MA-7-2022, the [Law Division] determined it was undisputed Alsol did not own the property and ‘[t]he Spill Act does not render liable a property owner whose property has no connection to a spill . . . that happened on neighboring property. The complaint against Alsol must therefore be dismissed with prejudice.’ The court also found the municipal court incorrectly ruled Alsol could not have been strictly liable even if it did own the property. Having dismissed the complaint with prejudice on the merits based on lack of ownership, the court dismissed the second appeal, MA-1-2023, as moot.”
Alsol had won, but it still appealed. “On appeal, Alsol argue[d]: (1) the court’s March 30, 2023 opinion contains inconsistencies, dicta, and an erroneous view of the law; (2) the court’s determination that property owners are strictly liable for discharges on their property is incorrect; (3) the court ignored Alsol’s request for legal fees pursuant to Rule 4:37-1(b); and (4) the Department’s complaint should have been dismissed based on judicial estoppel.” The Appellate Division rebuffed each of those arguments and stated some first principles.
The panel found the first argument to “lack sufficient merit to warrant extended discussion in a written opinion,” citing Rule 2:11-3(e)(1)(e), the “that’s ridiculous” rule. “‘[I]t is well-settled that appeals are taken from orders and judgments and not from opinions, oral decisions, informal written decisions, or reasons given for the ultimate conclusion.’ Do–Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001). ‘[A] party may not parse through the opinion of a trial judge and take an appeal from words, sentences, or sections of the opinion that [they] find[] ‘objectionable’ when the party is not asserting that the order or judgment was made in error.’ Bandler v. Melillo, 443 N.J. Super. 203, 210 (App. Div. 2015). Here, Alsol does not contend the court erred by dismissing the complaint with prejudice, only that in doing so the court made certain statements it finds objectionable. Alsol’s objections to words, sentences, or sections of the court’s opinion are not properly raised on appeal, and we decline to consider them.” So, the first lesson is that the result contained in an order, not any language of an underlying opinion, is all that matters or is appealable.
The second argument fared no better. “We also reject Alsol’s invitation to conclude hypothetically that it could not have been held strictly liable under the Spill Act even if it did own the property because such a decision would constitute an improper advisory opinion. It is well-established that courts generally decline to issue advisory opinions on matters that are not clear controversies. G.H. v. Twp. of Galloway, 199 N.J. 135, 136 (2009) (declining to consider hypothetical questions because courts ‘cannot answer abstract questions or give advisory opinions’); Indep. Realty Co. v. Twp. of N. Bergen, 376 N.J. Super. 295, 301 (App. Div. 2005) (noting ‘it is well settled that [courts] will not render advisory opinions or function in the abstract’).” Lesson number two is thus that courts will not adjudicate theoretical controversies, only live ones.
Finally, the panel was “not persuaded by Alsol’s claim that the court failed to consider its claim for legal fees. Alsol does not identify how it allegedly ‘argued before [the court]’ it should be awarded legal fees as a condition of dismissal. The record contains a single reference to an award of legal fees in a September 29, 2022, email from counsel for Alsol to the court. There is no indication this argument was ever properly raised below, and it was not addressed during oral argument on March 17, 2023 [following which the Law Division rendered its March 30, 2023 decision].”
To put forward an issue, “[s]ome formal presentation of the issue is required. ‘Writing letters and sending packages to the court and parties apprising them of [an] argument is not properly presenting the issue for decision.’ Stransky v. Monmouth Council of Girl Scouts, Inc., 393 N.J. Super. 599, 612 (App. Div. 2007).”
Since Alsol had not adequately presented the legal fee issue below, the Appellate Division reviewed that issue only for plain error. The panel found none.
None of the three lessons that this opinion taught is new. But it is helpful to be reminded periodically about some of the basics. This decision does that.