A&S RUSSO REAL ESTATE, LLC v. RODMAN W. CHRYSLER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A&S RUSSO REAL

ESTATE, LLC,

Plaintiff-Appellant,

v.

RODMAN W. CHRYSLER,

HELEN M. CHRYSLER,

and PSC FLOTURN, INC.,

Defendants-Respondents,

and

BRENNAN ENVIRONMENTAL, INC.,

a New Jersey Corporation,

Defendant/Third-Party

Plaintiff-Respondent,

v.

ESTATE OF ANTHONY J. RUSSO

and SANDRA RUSSO,

Third-Party Defendants.

________________________________________________________________

September 21, 2015

Argued October 22, 2014 Decided

Before Judges Lihotz, Espinosa and St. John.

On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-3001-12.

Gregory B. Pasquale argued the cause for appellant (Shain Schaffer & Rafanello, PC, attorneys; Mr. Pasquale, on the briefs).

David Restaino argued the cause for respondents Rodman W. Chrysler, Helen M. Chrysler and PSC Floturn, Inc. (Fox Rothschild LLP, attorneys; Mr. Restaino and Matthew S. Adams, on the brief).

Richard C. Wischusen argued the cause for respondent Brennan Environmental, Inc. (Rogut McCarthy LLC, attorneys; Mr. Wischusen, on the brief).

PER CURIAM

Plaintiff A&S Russo Real Estate, LLC (A&S) appeals from orders that dismissed its complaint, which alleged various claims against defendants, Rodman W. Chrysler, Helen M. Chrysler (the Chryslers) and PSC Floturn, Inc. (PSC) (collectively, the Chrysler defendants), and Brennan Environmental, Inc. (BEI) regarding the remediation of property, including a contribution claim pursuant to the New Jersey Spill Compensation and Control Act (Spill Act), N.J.S.A. 58:10-23.11f(a)(2)(a).1 After oral argument, the Supreme Court decided Morristown Associates v. Grant Oil Co., 220 N.J. 360 (2015), and held the "six-year statute of limitations is not applicable to Spill Act contribution claims." Id. at 364. In correspondence filed with this court thereafter, plaintiff contended that Morristown Associates was dispositive of the appeal, requiring a reversal of the trial court's orders dismissing their complaint. Defendants disagreed, arguing that independent grounds existed for affirming the trial court's orders. Defendants argued the claims were barred by Rule 4:5-1(b)(2), the entire controversy doctrine, res judicata and collateral estoppel. In addition, the Chrysler defendants and BEI argue they do not fall within the definition of a responsible party under the Spill Act, N.J.S.A. 58:10-23.11(f). We reverse the dismissal of the Spill Act contribution claim on statute of limitations grounds and, for the reasons that follow, conclude the entire controversy doctrine does not bar plaintiff's contribution claim.

I.

To comply with the requirements of the Industrial Site Recovery Act (ISRA), N.J.S.A. 13:1K-6 to -14, prior to the sale of its industrial site in Hillside (Property), PSC retained BEI to prepare a Remedial Action Report (RAR) in 1998. The purpose of the RAR was to detail the actions taken to remediate a release from an inactive 3000 gallon underground storage tank (UST) at the site. BEI removed the UST and, in the RAR, noted it was "in poor condition with several holes." BEI detected a sheen in the groundwater during the excavation and removed impacted soil from the area. Sampling of the groundwater revealed the presence of trichloroethene (TCE) and tetrachloroethene (PCE) above the New Jersey Department of Environmental Protection (NJDEP)-Groundwater Quality Standards. The RAR stated TCE and PCE "are typically used as metal degreasers, parts cleaners and solvents," are not associated with the types of fuel oil that had been stored in the UST, and noted that a machine shop formerly operated on the adjacent property within fifteen feet of the UST excavation. BEI recommended "formal closure of the case and that no further action is warranted because the ground water contamination is more then [sic] likely from an off-site source."

NJDEP issued a No Further Action and Covenant Not to Sue letter (the NFA) to PSC, to the attention of defendant Rodman W. Chrysler, in September 1999. The NFA acknowledged the completion of a remedial investigation and action regarding the UST and stated "no further action is necessary for the remediation of" the UST "so long as [PSC] did not withhold any information from" NJDEP. The NFA noted the presence of TCE and PCE on the Property "from an unknown source unrelated to the investigated area of concern" and further noted that PSC "declined the offer" made on January 12, 1999 "to voluntarily address this contamination." NJDEP further advised that "any contamination identified on-site above cleanup criteria would require remediation."

The Chryslers leased the Property to Anthony J. Russo (Russo) in January 1999 pursuant to an agreement that granted him the option to purchase the property. Pursuant to Paragraph 37 of the lease, the Chryslers were "solely responsible for the remediation of the in-ground storage tank as outlined" in an environmental assessment report "and [for] the removal of asbestos and potentially hazardous materials." The Chryslers sold the Property to Anthony J. Russo and Sandra Russo (the Russos) for $150,000 in December 2000.

In August 2002, the Russos sued the Chrysler defendants, BEI and BEI's subcontractor. As amended, the complaint alleged that during the remediation services, BEI or its subcontractor "drilled through an existing storm pipe, causing damage to the pipe and the Property." The remaining counts of the complaint alleged a breach of contract based upon the Chrysler defendants' failures to complete the remediation and to "responsibly" undertake their obligation to remove the UST and perform remediation services by negligently hiring BEI or its subcontractor.2

In January 2003, while the 2002 litigation remained pending, the Russos deeded the Property to A&S, a limited liability company they had formed. However, they did not amend the pleadings or the Rule 4:5-1 certification to identify A&S as a party. The Chrysler defendants filed a motion for summary judgment, which was unopposed, resulting in an order dated May 14, 2004, dismissing the remaining counts against them.3

II.

In August 2012, A&S filed the complaint that initiated this litigation. The complaint alleged that A&S entered into negotiations to sell the Property in 2012 and, during the course of its effort to obtain DEP approval regarding the satisfactory environmental condition of the Property, discovered "substantial amounts of fuel oil had seeped into the soil beneath and contiguous to the location where" the UST had been located, and significant groundwater contamination had not been disclosed by the defendants.4 A&S further alleged it "incurred and continue[d] to incur considerable environmental costs in connection with the clean-up of the fuel oil and groundwater which had not been remediated by the Defendants."

The complaint alleged the following causes of action against the Chrysler defendants: breach of contract (count one), fraud (count two), strict liability pursuant to N.J.S.A. 13:1K-13 (count three) and negligence (count seven). The complaint alleged breach of contract (count four), negligence (count five) and fraud (count six) against BEI. The complaint made claims against all defendants for contribution under the Spill Act, N.J.S.A. 58:10-23.11f(a)(2)(a) (count eight), strict liability pursuant to N.J.S.A. 58:10-23.11(g)(c)(1) (count nine) and negligent misrepresentation (count ten). The complaint was amended in October 2012 to add count eleven, alleging that Flo-Turn, Inc. was liable as successor in interest to PSC.

BEI filed a timely answer, cross-claim and third party complaint. In lieu of an answer, the Chrysler defendants filed a motion to dismiss all counts of the amended complaint pursuant to Rule 4:6-2(e) except the Spill Act contribution claim alleged in count eight. Thereafter, BEI filed a cross-motion, seeking the dismissal of counts four, six, nine and ten of the complaint pursuant to Rule 4:6-2(e).

By order dated April 10, 2013, the trial judge denied BEI's motion in its entirety, finding BEI waived its right to file a motion for dismissal pursuant to Rule 4:6-2(e) because it had filed an answer to the complaint without asserting that the complaint failed to state a claim upon which relief could be granted. R. 4:6-2(e). On the same date, the trial judge granted the Chrysler defendants' motion in part, dismissing counts one, two, nine and ten against them. As to counts one, two and ten, the judge reasoned

By the time A&S was purportedly assigned as "successor-in-interest" to Russo's rights, the purchase was complete and the lease and accompanying rider expired. Any claims now asserted by A&S stemming from that agreement and purchase are dismissed, as A&S has no standing to properly assert them.

The judge dismissed count nine on the ground that N.J.S.A. 58:10-23.11g(c)(1) did not provide for a private cause of action, stating the only remedy available to A&S under the Spill Act was for contribution toward damages incurred in remediating the site.

In May 2013, well before the discovery end date of February 7, 2014, the Chrysler defendants filed a second motion, seeking dismissal of the remaining counts of the complaint against them. Citing the 2002 litigation, they argued the claims asserted in the 2013 lawsuit were barred by the entire controversy doctrine, res judicata and collateral estoppel.

BEI filed a summary judgment motion, seeking the dismissal of the complaint. BEI contended the breach of contract claim asserted against it was based upon an alleged third party beneficiary status and should be dismissed because the breach of contract claim against the Chrysler defendants had been dismissed for lack of privity. Noting injury to A&S could not be foreseeable at the time the Property was remediated because A&S did not yet exist, BEI argued the negligence and fraud allegations must also be dismissed. As to the Spill Act claims, BEI argued that count nine should be dismissed in light of the trial judge's prior decision that no private cause of action existed under N.J.S.A. 58:10-23.11g(c)(1). BEI argued that the contribution claim alleged in count eight should be dismissed because it was not a party that could be held liable for contribution under N.J.S.A. 58:10-23.11f(a)(2)(a). BEI also asserted the claims were barred by the entire controversy doctrine. The trial judge granted the defendants' motions, dismissing the complaint in its entirety, and set forth his reasons in a written opinion.

The judge concluded that the Spill Act contribution claim alleged in count eight was barred by the statute of limitations because it was not brought within six years after A&S was established. The judge also reasoned that the entire controversy doctrine warranted the dismissal of counts three and seven against the Chrysler defendants because a similar claim had been asserted in the 2002 litigation and dismissed with prejudice. Turning to BEI's summary judgment motion, the trial judge concluded all the counts against BEI were barred by the statute of limitations and that counts four, five, six and ten were also barred by the entire controversy doctrine.

III.

In its appeal,5 A&S presented three arguments relating to the trial court's application of the statute of limitations to its Spill Act claims, which are rendered moot by the Supreme Court's decision in Morristown Associates. The remaining argument6 asserts the trial court erred in applying the entire controversy doctrine to bar its claims. We agree.

The Supreme Court noted that the contribution provision, N.J.S.A. 58:10-23.11f(a)(2)(a), explicitly limits a contribution defendant to those defenses enumerated in N.J.S.A. 58:10-23.11g(d)(1): "an act or omission caused solely by war, sabotage, or God, or a combination thereof." Morristown Assocs., supra, 220 N.J. at 381.7 The Court did not address the application of equitable doctrines, such as the entire controversy doctrine, to Spill Act contribution claims. However, it did observe that defenses "such as challenges to venue, service of process and subject matter jurisdiction. . . . [which] are established by court rules under the jurisdiction of the Supreme Court . . . are not subject to overriding legislation." Id. at 382. Although the entire controversy doctrine is "derived from common law principles," its essential support lies in the power of the Supreme Court to create rules governing the trial court. Kent Motor Cars, Inc. v. Reynolds & Reynolds, Co., 207 N.J. 428, 443 (2011) (citing N.J. Const. art. VI III, 4). Since the entire controversy doctrine is a creation of court rule, R. 4:30A, it is reasonable to conclude that the entire controversy doctrine may be applied to Spill Act contribution claims in appropriate circumstances.

The entire controversy doctrine is "an equitable preclusionary doctrine" designed "to encourage comprehensive and conclusive litigation determinations, avoid fragmentation of litigation, and promote party fairness and judicial efficiency." Pressler & Verniero, Current N.J. Court Rules, cmt. 1 on R. 4:30A (2015). Although the rule generally requires that "all aspects of the controversy between those who are parties to the litigation be included in a single action," K-Land Corp. No. 28 v. Landis Sewerage Auth., 173 N.J. 59, 70 (2002), the "equitable nature of the doctrine[] bar[s] its application where to do so would be unfair in the totality of the circumstances and would not promote any of its objectives, namely, the promotion of conclusive determinations, party fairness, and judicial economy and efficiency." Ibid. (citation omitted); see also Pressler & Verniero, supra, cmt. 1 on R. 4:30A (2015).

[T]he entire controversy doctrine requires us to consider fairness to the parties, as the polestar of the application of the rule is judicial fairness. Consequently, the boundaries of the entire controversy doctrine are not limitless. It remains an equitable doctrine whose application is left to judicial discretion based on the factual circumstances of individual cases.

[Oliver v. Ambrose, 152 N.J. 383, 395 (1998) (citations and internal quotation marks omitted).]

Further, the doctrine does not "apply to bar component claims either unknown, unarisen or unaccrued at the time of the original action." K-Land, supra, 173 N.J. at 70 (quoting Pressler & Verniero, supra, comment 3.3 on R. 4:30A. The Court stated further

[I]n determining the appropriate scope of the entire controversy's claim joinder requirement, it is significant that "the leading cases establishing and applying the entire controversy doctrine as a bar to the subsequent assertion of omitted claims appear to have involved deliberate and calculated claim-splitting strategies designed to frustrate the orderly administration of justice, as opposed to an innocent omission by an uninformed litigant."

[Ibid. (quoting Prevratil v. Mohr, 145 N.J. 180, 203 (1996) (Stein, J., dissenting)).]

The Court cited our decision in Hillsborough Township Board of Education v. Faridy Thorne Frayta, P.C., 321 N.J. Super. 275 (App. Div. 1999), as "illuminat[ing] the equitable limitations on the mandatory claim joinder requirement." K-Land, supra, 173 N.J. at 71. Following the construction of a new elementary school, the Board of Education (Board) was aware of three construction defects, but only filed suit against contractors and professionals involved in the construction to recover damages caused by one of the defects: lead-containing solder in the drinking water. The claims included allegations that the architect and construction manager negligently supervised the plumbers. Hillsborough Twp., supra, 321 N.J. Super. at 280. The lawsuit ended through voluntary stipulations of dismissal with prejudice without any payment from any of the defendants. Ibid. In a subsequent lawsuit, the Board sought damages resulting from the other construction defects, "alleging negligence in design, installation and specifications of ceiling fans." Id. at 281. We reversed the trial court's decision to bar the second lawsuit on entire controversy grounds. Although the claims arose from construction defects known at the time of the first lawsuit, we found that neither the interests of judicial economy nor prejudice to the defendants justified the dismissal of the complaint on equitable grounds. Id. at 286. We noted that the earlier claims were never adjudicated on the merits, the defendants provided no payment or any other form of consideration for the dismissal, and the Board did not furnish them a release. Id. at 286-87.

In Lanziano v. Cocoziello, 304 N.J. Super. 616 (App. Div. 1997), we considered the application of the entire controversy doctrine to a Spill Act contribution claim. The plaintiff landlord owned a gas station and filed suit against the operators of the gas station, which appears to have been based in part on the tenants' maintenance of underground storage tanks. Id. at 621. Several years after the lawsuit was settled, the plaintiff filed a legal malpractice claim against his counsel and a Spill Act contribution claim against the prior owner of the gas station. We reversed the trial court's dismissal of the complaint on entire controversy grounds. Quoting Circle Chevrolet Co. v. Giordano, Halleran & Ciesla, 142 N.J. 280, 290 (1995), we stated, "[t]he entire controversy doctrine only applies to component claims that 'arise during the pendency of the first action that were known to the litigant,' and the entire controversy doctrine 'does not apply to bar component claims that are unknown, unarisen, or unaccrued at the time of the original action.'" Lanziano, supra, 304 N.J. Super. at 626. The import of our decision was that it was inequitable to apply the entire controversy doctrine to bar the contribution claim because, although a common law right to contribution existed at the time the original suit was settled, "it [could not] be authoritatively said that a right to contribution against [the prior owner] existed under the Spill Act at the time of the [earlier] litigation." Id. at 627.

A&S argues its cause of action for contribution had not accrued at the time of the 2002 litigation because it was unaware of the contamination from the UST that required subsequent remediation. We note the motions here were decided before discovery was complete and were subject to the standard set forth in Rule 4:46-2(c).8 Thus, all "legitimate inferences" from the evidence must be drawn in A&S's favor, ibid., in determining whether its claims should have been dismissed on summary judgment as barred by the entire controversy doctrine.

The claims in the 2002 lawsuit that related to the remediation were disposed of by way of an unopposed summary judgment motion. Because no records are available regarding that disposition, we are unable to determine whether there was an adjudication on the merits, whether dismissal was on procedural grounds or whether any payment was made to settle that aspect of the suit.

Moreover, it is of no little significance that the claim to be barred is one for contribution under the Spill Act. [T]he Spill Act provides a right of contribution for "dischargers or persons [who] clean[] up and remove[] a discharge of a hazardous substance" against "all other dischargers and persons in any way responsible for a discharged hazardous substance or other persons who are liable for the cost of the cleanup and removal." [Morristown Assocs., supra, 220 N.J. at 380 (quoting N.J.S.A. 58:10-23.11f(a)(2)(a))].

By its terms, the right to contribution arises "[w]henever one or more dischargers or persons cleans up and removes a discharge of a hazardous substance." N.J.S.A. 58:10.23-11f(a)(2)(a). Neither A&S nor the Russos undertook a cleanup of the contaminated area at the time of the 2002 litigation and, based upon the NFA, it did not appear that further remediation was required by NJDEP at that time. Drawing all legitimate inferences from the evidence in favor of plaintiff, the facts known at the time of the 2002 litigation were insufficient for the accrual of a Spill Act contribution claim. See Lynch v. Rubacky, 85 N.J. 65, 70-71 (1981) (a cause of action accrues when a plaintiff "'learns, or reasonably should learn, the existence of that state of facts which may equate in law with a cause of action'" that is based upon the material facts of the case) (quoting Burd v. N.J. Tel. Co., 76 N.J. 284, 291-92 (1978)).

We note further that the application of the entire controversy doctrine to A&S's contribution claim here would run afoul of the purposes of the Spill Act, which "is remedial legislation designed to cast a wide net over those responsible for hazardous substances and their discharge on the land and waters of this state." Morristown Assocs. supra, 220 N.J. at 383. The contribution provision was enacted "to encourage prompt and effective remediation by any responsible party who might otherwise be disinclined to do so because of the risk and burden of bearing the entire cost despite the responsibility of others for the creation and continuation of the problem." Pitney Bowes, Inc. v. Baker Indus., Inc., 277 N.J. Super. 484, 487 (App. Div. 1994). The Legislature imposed joint and several strict liability "without regard to fault, for all cleanup and removal costs" upon "any person who has discharged a hazardous substance, or is in any way responsible for any hazardous substance." N.J.S.A. 58:10-23.11g(c)(1); see In re Kimber Petroleum Corp., 110 N.J. 69, 85 (1988) ("A party even remotely responsible for causing contamination will be deemed a responsible party under the Act."), appeal dismissed sub nom. Kimber Petroleum Corp. v. Daggett, 488 U.S. 935, 109 S. Ct. 358, 102 L. Ed. 2d 349 (1988); see also United States v. Kramer, 644 F. Supp. 2d 479, 487 (D.N.J. 2008). When the available defenses were limited to those enumerated in subsection (d), the Sponsor's Statement for the bill expressly stated the intent was "to remove the defenses to strict liability which exist[] under the present law." Morristown Assocs., supra, 220 N.J. at 377 (quoting Assemb. 3542 (Sponsor's Statement), 198th Leg. (1979)). And, the quantum of proof necessary to support a contribution claim is modest: "In an action for contribution, the contribution plaintiffs need prove only that a discharge occurred for which the contribution defendant or defendants are liable pursuant to [N.J.S.A. 58:10-23.11g]." N.J.S.A. 58:10-23.11f(a)(2)(a).

Given the wide net of liability cast by the Spill Act and the clear legislative intent that the contribution provision serve to encourage responsible parties to act promptly in effective remediation cleanups, it follows that the entire controversy doctrine would only be applicable to bar a contribution claim in very narrow circumstances not present here. We therefore hold that A&S's Spill Act contribution claim is not barred by the entire controversy doctrine.

IV.

We next turn to defendants' argument that they cannot be held liable for contribution to the remediation costs because they did not discharge the hazardous substance to be remediated. A&S argues that the Chrysler defendants fall within the scope of persons or entities "in any way responsible" under N.J.S.A. 58:10-23.11g(c)(1). A&S has not presented any argument on appeal that BEI is "in any way responsible" within the meaning of the statute and, as a result, such contention is deemed waived. Gormley, supra, 218 N.J. at 95 n.8.

N.J.S.A. 58:10-23.11g(c)(1) imposes strict liability on "any person who has discharged a hazardous substance, or is in any way responsible for any hazardous substance." "Discharge" is explicitly defined by the Act as

any intentional or unintentional action or omission resulting in the releasing, spilling, leaking, pumping, pouring, emitting, emptying or dumping of hazardous substances into the waters or onto the lands of the State, or into waters outside the jurisdiction of the State when damage may result to the lands, waters or natural resources within the jurisdiction of the State.

[N.J.S.A. 58:10-23.11b.]

The Chrysler defendants need not be "dischargers" to be liable for contribution. Liability may be imposed if the Chrysler defendants "are 'in any way responsible' for the hazardous substances found on the property, or by virtue of their lack of due diligence in discovering the contamination at the time they purchased the land." N.J. Sch. Dev. Auth. v. Marcantuone, 428 N.J. Super. 546, 558 (App. Div. 2012), certif. denied, 213 N.J. 535 (2013). The phrase "in any way responsible" requires "'some connection between the discharge complained of and the alleged discharger.'" Id. at 558-59 (emphasis omitted) (quoting N.J. Dep't of Envtl. Prot. v. Dimant, 212 N.J. 153, 177 (2012)). "The phrase must be broadly construed to encompass either ownership or control over the property at the time of the damaging discharge, or control over the hazardous substance that caused the contamination." Id. at 559 (citing Dimant, supra, 212 N.J. at 177-78).

Because the trial judge dismissed the complaint on other grounds, he did not reach the question of whether the Chrysler defendants could be liable for contribution under N.J.S.A. 58:10-23.11g(c)(1). However, the evidence in the record is sufficient to defeat the Chrysler defendants' summary judgment motion on this issue.

Defendants also argue the complaint was properly dismissed because it is precluded by the doctrines of collateral estoppel, res judicata and also, because A&S was not named as a party in the 2002 litigation as required by Rule 4:5-1(b)(2). These arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

In sum, we reverse the order dismissing the Spill Act contribution claim as to the Chrysler defendants (counts eight and eleven). We do not disturb the dismissals with prejudice of the remaining counts against the Chrysler defendants and BEI.

Affirmed in part, reversed in part. We do not retain jurisdiction.

1 The complaint also alleged claims for breach of contract, fraud, negligence and liability under the Industrial Site Recovery Act (ISRA), N.J.S.A. 13:1K-6 to -14. Plaintiff has not argued for the reinstatement of those claims in this appeal.

2 The complaint also alleged a breach of contract by the Chrysler defendants based upon their failure to provide the Russos with "marketable title free and clear of all liens" against the Property because an $88,000 mortgage to the Union County Economic Development Corporation remained open as of record on the Property. This count was settled and dismissed in May 2003.

3 Although the order in the record before us only dismisses the complaint against the Chrysler defendants, the parties represent that the claims against all defendants were dismissed.

4 However, the complaint also stated Russo was provided with the NFA prior to the purchase of the Property and was aware "at all times" that BEI was engaged to perform the remediation services.

5 Plaintiff filed a motion to supplement the record after filing its notice of appeal, which we deny.

6 Although A&S identified the April 10, 2013 order in its notice of appeal and asks for the reinstatement of its complaint without limitation, it has presented no argument for the restoration of counts one, two, nine and ten in its appeal. Because these issues were not addressed in A&S's merits brief, they are deemed waived. See Gormley v. Wood-El, 218 N.J. 72, 95 n.8 (2014); Drinker Biddle & Reath LLP v. N.J. Dep't of Law & Pub. Safety, Div. of Law, 421 N.J. Super. 489, 496 n.5 (App. Div. 2011) (claims not addressed in merits brief deemed abandoned); see also Pressler & Verniero, Current N.J. Court Rules, comment 4 on R. 2:6-2 (2015).

7 Subsection (d)(2) added a new defense for innocent purchasers who purchased property after 1993. N.J.S.A. 58:10-23.11g(d)(2). That defense is not applicable to the defendants here.

8 Although the motions filed by the Chrysler defendants were submitted as motions to dismiss pursuant to Rule 4:6-2(e), it is clear the motions were not decided on the pleadings alone and, as that rule provides: "If . . . matters outside the pleading are presented to and not excluded by the court the motion shall be treated as one for summary judgment and disposed of as provided by R. 4:46, and all parties shall be given a reasonable opportunity to present all material pertinent to such a motion."