NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4772-17T3
TRACIE IRVIN,
Plaintiff-Appellant,
v.
TIMOTHY JAMES ECHEANDIA,
Defendant-Respondent. ______________________________
Submitted June 5, 2019 – Decided June 25, 2019
Before Judges Koblitz and Mayer.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-4125-16.
Hegge & Confusione, LLC, attorneys for appellant (Michael J. Confusione, of counsel and on the brief).
Howard D. Lipstein, attorney for respondent.
PER CURIAM Plaintiff Tracie Irvin appeals from a May 25, 2018 order granting
summary judgment in favor of defendant Timothy James Echeandia and
dismissing her complaint. We affirm.
The facts are undisputed. Plaintiff was a tenant in an apartment building
owned by defendant. The building sustained water damage during Hurricane
Sandy, causing the ceiling in plaintiff's apartment to collapse. Plaintiff claimed
she suffered injuries to her head and neck when the ceiling collapsed. Plaintiff
filed a personal injury complaint against defendant in August 2014, alleging
negligence and nuisance (2014 lawsuit). In March 2016, plaintiff settled her
claims against defendant. In resolving the 2014 lawsuit, plaintiff signed a
release that contained the following language:
I release and give up any and all claims and rights which I may have against you. This releases all claims, including those of which I am not aware and those not mentioned in this Release. This Release applies to claims resulting from anything which has happened until now, I specifically release the following claims: for any and all claims for personal injuries arising out of a ceiling fall down accident which occurred on or about October 29, 2012 at [defendant's apartment building] and all claims which [were] the subject of a cause of action titled Irwin vs Escheandia et [als.] in the Superior Court of New Jersey, Law Division[,] Essex County under Docket No. ESX-L-6048-14.
A-4772-17T3 2 Three months after settling the 2014 lawsuit, in June 2016, plaintiff filed
another personal injury complaint against defendant, alleging she developed
sinusitis as a result of mold in her apartment caused by Hurricane Sandy water
damage (2016 lawsuit). In the 2016 lawsuit, plaintiff alleged defendant violated
provisions of the New Jersey Administrative Code, New Jersey's Mold Safe
Housing Act, and municipal ordinances. She also asserted claims against
defendant for negligence and breach of contract.
Defendant filed a motion for summary judgment seeking dismissal of the
2016 lawsuit. Defendant argued plaintiff's release of claims in the 2014 lawsuit
precluded her claims in the 2016 lawsuit. He further asserted that plaintiff had
her apartment tested for mold in 2014 and received a written report in March
2014, opining the apartment contained excessive levels of mold spores.
Defendant also claimed plaintiff knew of her sinus problems while the 2014
lawsuit was pending because she underwent sinus surgery in March 2014, prior
to dismissal of the 2014 lawsuit.
The motion judge heard argument on defendant's summary judgment
motion. In an oral decision placed on the record on May 25, 2018, the judge
granted the motion, finding plaintiff's execution of the release in the 2014
A-4772-17T3 3 lawsuit precluded plaintiff's claims against defendant in the 2016 lawsuit. The
following is the judge's summary of the pertinent timeline:
October 29, 2012 - Hurricane Sandy caused damage to the roof of the defendant's apartment building.
October 29, 2012 - the ceiling in plaintiff's apartment collapsed from the water damage attributable to Hurricane Sandy, causing injuries to plaintiff's head and neck.
October 2012 through 2014 - water from Hurricane Sandy and subsequent storms seeped into plaintiff's apartment, causing mold to grow in the walls of the apartment.
February 2014 - plaintiff experienced problems breathing and saw a doctor. The doctor opined plaintiff suffered from sinusitis and recommended surgery.
March 2014 - plaintiff had nasal surgery.
August 29, 2014 - plaintiff filed the 2014 lawsuit.
March 28, 2016 - plaintiff settled the 2014 lawsuit and signed a release.
June 2016 - plaintiff filed the 2016 lawsuit.
Based on this timeline, the judge concluded that, as of 2014, plaintiff
"knew there was mold in her apartment," "tested [her apartment] for mold and
it was positive . . . ," had nasal surgery, and was informed by her surgeon that
"her [breathing] difficulty was caused by the mold in her apartment." The judge
A-4772-17T3 4 found that despite awareness of these facts, plaintiff signed a release, and "the
release couldn't be clearer. She released and gave up all her claims, including
all claims she didn't even know about." In addition, the judge concluded the
2016 lawsuit was barred by the entire controversy doctrine as plaintiff's claims
in that lawsuit related to injuries suffered as a result of Hurricane Sandy that
were asserted and settled in the 2014 lawsuit. He also found the 2016 lawsuit
was barred by the doctrine of res judicata because the second lawsuit invol ved
the same parties and same claims as the 2014 lawsuit.
On appeal, plaintiff argues the judge erred in dismissing her personal
injury claims in the 2016 lawsuit.
We review a grant of summary judgment de novo, applying the same
standard as the trial court. Templo Fuente De Vida Corp. v. Nat'l Union Fire
Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016) (citing Mem'l Props., LLC v.
Zurich Am. Ins. Co., 210 N.J. 512, 524 (2012)). Summary judgment must be
granted if "the pleadings, depositions, answers to interrogatories and admissions
on file, together with the affidavits, if any, show that there is no genuine issue
as to any material fact challenged and that the moving party is entitled to a
judgment or order as a matter of law." Ibid. (quoting R. 4:46-2(c)).
A-4772-17T3 5 We first consider whether the release signed by plaintiff barred plaintiff's
2016 lawsuit. "[T]he scope of a release is determined by the intention of the
parties as expressed in the terms of the particular instrument . . . . A general
release, . . . ordinarily covers all claims and demands due at the time of its
execution and within the contemplation of the parties." Bilotti v. Accurate
Forming Corp., 39 N.J. 184, 203-204 (1963). When the language in a release
refers to "any and all claims," courts generally do not permit exceptions. Isetts
v. Borough of Roseland, 364 N.J. Super. 247, 255-56 (App. Div. 2003).
Here, the language in the release is unequivocal. Plaintiff expressly
relinquished "any and all claims and rights" she may have had against defendant
as of the date she signed the release. As of 2014, plaintiff was aware of her
personal injuries from mold growing in her apartment due to Hurricane Sandy
water damage. Yet, in 2016, she released defendant from "any and all claims."
Based on our review of the record, we discern no error in the judge's dismissal
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4772-17T3
TRACIE IRVIN,
Plaintiff-Appellant,
v.
TIMOTHY JAMES ECHEANDIA,
Defendant-Respondent. ______________________________
Submitted June 5, 2019 – Decided June 25, 2019
Before Judges Koblitz and Mayer.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-4125-16.
Hegge & Confusione, LLC, attorneys for appellant (Michael J. Confusione, of counsel and on the brief).
Howard D. Lipstein, attorney for respondent.
PER CURIAM Plaintiff Tracie Irvin appeals from a May 25, 2018 order granting
summary judgment in favor of defendant Timothy James Echeandia and
dismissing her complaint. We affirm.
The facts are undisputed. Plaintiff was a tenant in an apartment building
owned by defendant. The building sustained water damage during Hurricane
Sandy, causing the ceiling in plaintiff's apartment to collapse. Plaintiff claimed
she suffered injuries to her head and neck when the ceiling collapsed. Plaintiff
filed a personal injury complaint against defendant in August 2014, alleging
negligence and nuisance (2014 lawsuit). In March 2016, plaintiff settled her
claims against defendant. In resolving the 2014 lawsuit, plaintiff signed a
release that contained the following language:
I release and give up any and all claims and rights which I may have against you. This releases all claims, including those of which I am not aware and those not mentioned in this Release. This Release applies to claims resulting from anything which has happened until now, I specifically release the following claims: for any and all claims for personal injuries arising out of a ceiling fall down accident which occurred on or about October 29, 2012 at [defendant's apartment building] and all claims which [were] the subject of a cause of action titled Irwin vs Escheandia et [als.] in the Superior Court of New Jersey, Law Division[,] Essex County under Docket No. ESX-L-6048-14.
A-4772-17T3 2 Three months after settling the 2014 lawsuit, in June 2016, plaintiff filed
another personal injury complaint against defendant, alleging she developed
sinusitis as a result of mold in her apartment caused by Hurricane Sandy water
damage (2016 lawsuit). In the 2016 lawsuit, plaintiff alleged defendant violated
provisions of the New Jersey Administrative Code, New Jersey's Mold Safe
Housing Act, and municipal ordinances. She also asserted claims against
defendant for negligence and breach of contract.
Defendant filed a motion for summary judgment seeking dismissal of the
2016 lawsuit. Defendant argued plaintiff's release of claims in the 2014 lawsuit
precluded her claims in the 2016 lawsuit. He further asserted that plaintiff had
her apartment tested for mold in 2014 and received a written report in March
2014, opining the apartment contained excessive levels of mold spores.
Defendant also claimed plaintiff knew of her sinus problems while the 2014
lawsuit was pending because she underwent sinus surgery in March 2014, prior
to dismissal of the 2014 lawsuit.
The motion judge heard argument on defendant's summary judgment
motion. In an oral decision placed on the record on May 25, 2018, the judge
granted the motion, finding plaintiff's execution of the release in the 2014
A-4772-17T3 3 lawsuit precluded plaintiff's claims against defendant in the 2016 lawsuit. The
following is the judge's summary of the pertinent timeline:
October 29, 2012 - Hurricane Sandy caused damage to the roof of the defendant's apartment building.
October 29, 2012 - the ceiling in plaintiff's apartment collapsed from the water damage attributable to Hurricane Sandy, causing injuries to plaintiff's head and neck.
October 2012 through 2014 - water from Hurricane Sandy and subsequent storms seeped into plaintiff's apartment, causing mold to grow in the walls of the apartment.
February 2014 - plaintiff experienced problems breathing and saw a doctor. The doctor opined plaintiff suffered from sinusitis and recommended surgery.
March 2014 - plaintiff had nasal surgery.
August 29, 2014 - plaintiff filed the 2014 lawsuit.
March 28, 2016 - plaintiff settled the 2014 lawsuit and signed a release.
June 2016 - plaintiff filed the 2016 lawsuit.
Based on this timeline, the judge concluded that, as of 2014, plaintiff
"knew there was mold in her apartment," "tested [her apartment] for mold and
it was positive . . . ," had nasal surgery, and was informed by her surgeon that
"her [breathing] difficulty was caused by the mold in her apartment." The judge
A-4772-17T3 4 found that despite awareness of these facts, plaintiff signed a release, and "the
release couldn't be clearer. She released and gave up all her claims, including
all claims she didn't even know about." In addition, the judge concluded the
2016 lawsuit was barred by the entire controversy doctrine as plaintiff's claims
in that lawsuit related to injuries suffered as a result of Hurricane Sandy that
were asserted and settled in the 2014 lawsuit. He also found the 2016 lawsuit
was barred by the doctrine of res judicata because the second lawsuit invol ved
the same parties and same claims as the 2014 lawsuit.
On appeal, plaintiff argues the judge erred in dismissing her personal
injury claims in the 2016 lawsuit.
We review a grant of summary judgment de novo, applying the same
standard as the trial court. Templo Fuente De Vida Corp. v. Nat'l Union Fire
Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016) (citing Mem'l Props., LLC v.
Zurich Am. Ins. Co., 210 N.J. 512, 524 (2012)). Summary judgment must be
granted if "the pleadings, depositions, answers to interrogatories and admissions
on file, together with the affidavits, if any, show that there is no genuine issue
as to any material fact challenged and that the moving party is entitled to a
judgment or order as a matter of law." Ibid. (quoting R. 4:46-2(c)).
A-4772-17T3 5 We first consider whether the release signed by plaintiff barred plaintiff's
2016 lawsuit. "[T]he scope of a release is determined by the intention of the
parties as expressed in the terms of the particular instrument . . . . A general
release, . . . ordinarily covers all claims and demands due at the time of its
execution and within the contemplation of the parties." Bilotti v. Accurate
Forming Corp., 39 N.J. 184, 203-204 (1963). When the language in a release
refers to "any and all claims," courts generally do not permit exceptions. Isetts
v. Borough of Roseland, 364 N.J. Super. 247, 255-56 (App. Div. 2003).
Here, the language in the release is unequivocal. Plaintiff expressly
relinquished "any and all claims and rights" she may have had against defendant
as of the date she signed the release. As of 2014, plaintiff was aware of her
personal injuries from mold growing in her apartment due to Hurricane Sandy
water damage. Yet, in 2016, she released defendant from "any and all claims."
Based on our review of the record, we discern no error in the judge's dismissal
of the 2016 lawsuit based on the unambiguous language of the release.
We next examine whether the 2016 lawsuit was barred by the entire
controversy doctrine (ECD). The ECD requires the parties to an action raise all
transactionally-related claims in that action. See Pressler & Verniero, Current
N.J. Court Rules, cmt. 1 on R. 4:30A (2019). Rule 4:30A provides "[n]on-
A-4772-17T3 6 joinder of claims required to be joined by the [ECD] shall result in the preclusion
of the omitted claims to the extent required by the
[ECD] . . . ."
The ECD "embodies the principle that the adjudication of a legal
controversy should occur in one litigation in only one court; accordingly, all
parties involved in a litigation should at the very least present in that proceeding
all of their claims and defenses that are related to the underlying controversy."
Wadeer v. N.J. Mfrs. Inc. Co., 220 N.J. 591, 605 (2015) (quoting Highland
Lakes Country Club & Cmty. Ass'n v. Nicastro, 201 N.J. 123, 125 (2009)). The
goals of the ECD include: "(1) the need for complete and final disposition
through the avoidance of piecemeal decisions; (2) fairness to parties to the action
and those with a material interest in the action; and (3) efficiency and the
avoidance of waste and the reduction of delay." Ibid. (quoting DiTrolio v.
Antiles, 142 N.J. 253, 267 (1995)). "In determining whether a subsequent claim
should be barred under [the ECD], 'the central consideration is whether the
claims against the different parties arise from related facts or the same
transaction or series of transactions.'" Ibid. (quoting DiTrolio, 142 N.J. at 267).
The judge correctly determined plaintiff's claims in the 2016 lawsuit were
barred by the ECD. The claims in the 2014 and 2016 lawsuits arose from the
A-4772-17T3 7 same factual transaction – personal injuries related to Hurricane Sandy water
damage. Despite the awareness of her nasal injury when she filed the 2014
lawsuit, plaintiff elected not to include the claim in that litigation. Plaintiff's
failure to include all injury claims in the 2014 lawsuit arising from the same
related facts – water damage from Hurricane Sandy – warrants dismissal of her
2016 lawsuit.
We next consider whether the judge erred in concluding the 2016 lawsuit
was barred by the doctrine of res judicata. Res judicata "refers broadly to the
common-law doctrine barring relitigation of claims or issues that have already
been adjudicated." Velasquez v. Franz, 123 N.J. 498, 505 (1991). Res judicata
"contemplates that when a controversy between parties is once fairly litigated
and determined it is no longer open to relitigation." Aldeman v. BSI Fin. Servs.,
Inc., 453 N.J. Super. 31, 39 (App. Div. 2018) (quoting Lubliner v. Bd. of
Alcoholic Beverage Control, 33 N.J. 428, 435 (1960)). "The application of res
judicata . . . requires substantially similar or identical causes of action and
issues, parties, and relief sought." Walker v. Choudary, 425 N.J. Super. 135,
151 (App. Div. 2012) (quoting Charlie Brown of Chatham, Inc. v. Bd. of
Adjustment, 202 N.J. Super. 312, 327 (App. Div. 1985)).
A-4772-17T3 8 Here, plaintiff's personal injury claims attributable to Hurricane Sandy
were litigated in the 2014 lawsuit and were resolved in March 2016. Plaintiff
knew in 2014 that she suffered a nasal injury due to mold growing in her
apartment after Hurricane Sandy. Yet, she elected not to pursue claims against
defendant for that injury until she settled the 2014 lawsuit and released "any and
all claims" against defendant. Plaintiff clearly had the opportunity to include
her personal injury claims arising from mold in her apartment in the 2014
lawsuit but did not do so.
Plaintiff never amended her complaint in the 2014 lawsuit to include her
nasal injury claim. She then released "any and all claims" against defendant in
March 2016. Thus, plaintiff's 2016 lawsuit is an improper attempt to litigate
claims plaintiff could have presented in the 2014 lawsuit and her claims in her
2016 lawsuit are barred.
Affirmed.
A-4772-17T3 9