                NOT FOR PUBLICATION WITHOUT THE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.,                                   APPROVED FOR PUBLICATION

         Plaintiff-Appellant,                 December 16, 2013

                                          APPELLATE DIVISION
    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 December 16, 2013

         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.
           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 –




                                    2                          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



                                            3                                   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."




                                                 4                                      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

1
    Crowe v. De Gioia, 90 N.J. 126 (1982).



                                                5                                    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



                                             6                                       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


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 "finding."



                                             7                                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),




                                     8                             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




                                                 9                                        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,"




                                              10                                        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




                                               11                                    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




                                     12                                 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 Achacoso-

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

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


3
 We 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).



                                              13                                   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




                                            14                                    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.




                                     15                                   A-2806-12T1
