                 NOT FOR PUBLICATION WITHOUT THE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., 393 N.J. Super. 388, 399-400

(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.         Id.    at    395.        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., 205 N.J.

150, 169 (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."                      Ibid. (quoting Cesare v.




                                            17                                   A-4335-14T2
Cesare, 154 N.J. 394, 411-12 (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."    Ibid. (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, 212 N.J. 269, 278 (2012); Mountain Hill, L.L.C.

v. Twp. Comm. of Middletown, 403 N.J. Super. 146, 193 (App. Div.

2008), certif. denied, 199 N.J. 129 (2009).                          We also review

mixed questions of law and fact de novo.                    In re Malone, 381 N.J.

Super. 344, 349 (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., 309 N.J. Super. 415, 420 (App. Div.

1998); see also Kaur v. Assured Lending Corp., 405 N.J. Super.

468,   474   (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, 120 N.J. 465, 472 (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, 305 N.J. Super. 469, 475 (App. Div. 1997).

       Since      the    "settlement      of    litigation           ranks    high       in    our

public policy," Jannarone v. W.T. Co., 65 N.J. Super. 472, 476

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

35   N.J.    61        (1961),    "settlement        agreements        will        be    honored

'absent      a     demonstration          of       fraud       or     other         compelling

circumstances.'"               Nolan,    supra,         120    N.J.    at     472       (quoting

Pascarella        v.    Bruck,    190   N.J.       Super.      118,    125    (App.       Div.),

certif.     denied,       94     N.J.   600    (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.,       356     N.J.   Super.      118,       126    (App.       Div.    2002),

certif. denied, 176 N.J. 279 (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, 128 N.J. 427, 435 (1992) (quoting

West Caldwell v. Caldwell, 26 N.J. 9, 24-25 (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, 180 N.J. 118, 129-30 (2004) (quoting Johnson & Johnson v.




                                              19                                         A-4335-14T2
Charmley Drug Co., 11 N.J. 526, 538-39 (1953)).                     Thus, "[i]t is

requisite that there be an unqualified acceptance to conclude

the manifestation of assent." Weichert Co. Realtors, supra, 128

N.J. at 435-36 (quoting Johnson & Johnson, supra, 11 N.J. at

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

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

11 N.J. at 538.

     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,

11 N.J. at 538-39.              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, 254 N.J. Super. 133, 138 (App. Div. 1992) (citing Looman




                                       21                                  A-4335-14T2
Realty Corp. v. Broad St. Nat'l Bank of Trenton, 74 N.J. Super.

71, 82 (App. Div.), certif. denied, 37 N.J. 520 (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, 376 N.J. Super. 295, 301 (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, 124 N.J. 559,

564 (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, 80 N.J. 129, 137 (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., 405 N.J. Super. 132, 148 (App. Div.) (quoting

Lobiondo v. O'Callaghan, 357 N.J. Super. 488, 499 (App. Div.),

certif. denied, 177 N.J. 224 (2003)), certif. denied, 199 N.J.

540   (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., 148 N.J. 396, 420 (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.,       182    N.J.   210,      224

(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, 44 N.J. 117,

130 (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.,    238   N.J.       Super.       430,    434   (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
