                                NOT FOR PUBLICATION WITHOUT THE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.




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                                        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




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                                       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


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                                       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)).




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                                        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-


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                                        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


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                                         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)).




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                                        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.




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                                        9
