THOMAS G. STOCKER v. O'DONNELL, STANTON & ASSOCIATES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

THOMAS G. STOCKER and

SONIA P. STOCKER,

Plaintiffs-Appellants,

v.

O'DONNELL, STANTON &

ASSOCIATES, and JAMES F.

STANTON, P.E.,

Defendants-Respondents,

and

TOTAL BUILDING SERVICES,

L.L.C., JOSEPH STAUDER, and

JOHN CAVALIER,

Defendants.

_____________________________________

Submitted May 19,2014 Decided June18, 2014

Before Judges Yannotti and Leone.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-3797-11.

Malcolm Blum, attorney for appellants.

ThompsonBecker &Bothwell, L.L.C., attorneys for respondents (John H. King, on the brief).

PER CURIAM

Plaintiffs Thomas G. Stocker (Stocker) and Sonia P. Stocker appeal from an order entered by the Law Division on January 25, 2013, denying their motion to vacate an order for summary judgment previously entered by the court. We affirm.

I.

Plaintiffs are the owners of real property in Toms River. In 2001, Kara Homes constructed six single-family homes on adjacent property. Horn Tyson & Yoder, Inc. (HT&Y) provided engineering services related to the development, including the design of a stormwater management system.

In 2006, plaintiffs commenced an action against Kara Homes, HT&Y, the six home owners and certain contractors involved in the development. Stocker v. Kara Homes, et al., OCN-L-3516-06 (Stocker I). Plaintiffs alleged that construction of the development caused an increase in the amount of stormwater flowing onto their property. They also alleged that HT&Y's design of the stormwater management system was flawed.

In the litigation, HT&Y's insurer retained O'Donnell, Stanton & Associates (OSA) to act as HT&Y's expert engineering witness. James F. Stanton (Stanton) is associated with OSA. Plaintiffs' attorney retained Chester DiLorenzo (DiLorenzo) of Midstate Engineering, Inc. to act as plaintiffs' engineering expert. The parties in Stocker I participated in mediation. According to defendants, in mediation, plaintiffs demanded that defendants mitigate the amount of stormwater that was migrating to their property. Stanton and DiLorenzo exchanged ideas, calculations and design concepts to address plaintiffs' concern.

The parties in Stocker I agreed that Stanton would design a stormwater recharge system, and HT&Y's insurer would bear that expense. The parties further agreed that Stanton's design would be provided to DiLorenzo for his review and approval. Stanton designed the system and provided his design to DiLorenzo, who provided comments that were added to the final design. It appears that plaintiffs contracted with Total Billing Services, LLC (TBS), to implement the design.

On October 5, 2009, counsel for the parties appeared before the court to place their settlement on the record. Plaintiffs agreed to dismiss their claims against the individual property owners in exchange for the payment of specified sums. They agreed to dismiss their claims against HT&Y and individuals associated with that firm in exchange for payment of the remediation costs incurred to construct the stormwater recharge system. Counsel told the court that, if there was any dispute concerning "contingencies" or "unforeseen circumstances" in constructing the system, Stanton's decision as to whether any change was required would be final.

Stocker was in court and the court questioned him about the agreement:

THE COURT: You've heard the terms of this agreement?

MR. STOCKER: Yes.

THE COURT: You're satisfied with those [terms]?

MR. STOCKER: Yes, I am, Your Honor.

THE COURT: Do you understand that upon completion of these agreements there will be no further remedy against any of these defendants; do you understand that?

MR. STOCKER: Yes, sir.

THE COURT: Do you understand you're giving your release to any and all claims, . . . current or future claims against these defendants as a result of the allegations set forth in the Complaint and they will be responding to paragraphs one and two in liquidated damages indicating a sum certain, and obviously paragraph three as was discussed on the record? Did you understand that discussion?

MR. STOCKER: I understand that.

THE COURT: Do you have any questions of your counsel or the Court before we proceed?

MR. STOCKER: No, Your Honor.

THE COURT: Are you satisfied with the representation you've received in this matter?

MR. STOCKER: Very much so.

THE COURT: You're asking the Court to approve this Settlement and the Stipulation to Dismiss against those defendants?

MR. STOCKER: I am.

The court stated that it was satisfied "as to the voluntary nature of the Settlement." The court found that the settlement was appropriate under the circumstances and approved it.

Thereafter, plaintiffs, HT&Y and the defendants associated with HT&Y (Robert G. DuBois and John L. Yoder) executed a settlement and mutual release agreement dated November 9, 2009. The agreement stated that the HT&Y defendants would pay plaintiffs $30,875, in accordance with TBS's proposal, plus any additional costs that Stanton deemed reasonable and necessary.

In exchange, plaintiffs agreed to unconditionally release and discharge the HT&Y defendants

and each of their respective affiliates, predecessors, successors, parent entities, subsidiaries, owners, officers, directors, supervisors, managers, employees, agents, attorneys, insurers and representatives, and all persons acting by, through, under or in concert with any of them (collectively referred to as the "Releasees"), from any and all charges, complaints, claims, counterclaims, third-party claims, liabilities, obligations, promises, agreements, controversies, damages, actions, causes of action, suits, rights (excepting the right to discovery in support of the Litigation against the remaining parties), demands, costs, losses, debts and expenses (including attorneys' fees and costs actually incurred) (collectively called the "Released Actions"), that were, or could have been, asserted in the litigation, including but not limited to rights under federal, state or local laws.

The agreement additionally provided that plaintiffs would execute all papers necessary to effectuate the dismissal with prejudice of all pending claims.

On or about November 30, 2009, TBS completed construction of the stormwater recharge system, and Stanton recommended that TBS be paid in full. In December 2009, a check in the amount of $32,606 was forwarded to TBS. In the months that followed, Mr. Stocker expressed concerns about the performance of the system. As a result, Stanton visited the site on March 31, 2010 to observe the performance of the system.

Stanton issued a report dated April 13, 2010, to plaintiffs' attorney, stating in part that that system had been installed in accordance with the plans he prepared. Stanton attributed the accumulation of surface water to what he considered an extraordinary amount of rain that had fallen over the preceding month, which surpassed previously recorded precipitation events.

Plaintiffs refused to execute the documents required to dismiss the claims against the HT&Y defendants in Stocker I with prejudice. As a result, the HT&Y defendants filed a motion in the trial court to enforce the terms of the settlement. The court granted the motion and entered an order dated June 11, 2010, dismissing the claims against these defendants. The court found that the HT&Y defendants had complied with the terms of the agreement and were entitled to dismissal with prejudice of all current and future claims.

II.

On November 29, 2011, plaintiffs filed a pro se complaint in this matter against OSA, Stanton, TBS, Joseph Stauder (Stauder) and John Cavalier (Cavalier). According to the complaint, Stauder and Cavalier are principals and employees of TBS. Among other things, plaintiff alleged that defendants failed to design and install a stormwater system that would correct the reckless destruction of their property. They claimed that Stanton was negligent in designing the system.

On March 1, 2012, OSA and Stanton filed a motion for summary judgment. They argued that the claims asserted against them in the litigation were barred by the releases executed in Stocker I, which precluded plaintiffs from asserting claims against HT&Y's insurers and representatives, as well as any person acting by, through, under or in concert with them. OSA and Stanton argued that they were at all times in the employ of HT&Y's insurance carrier and therefore were protected by the releases from the claims asserted against them. It appears that plaintiffs did not oppose the motion. On March 30, 2012, the trial court granted the motion and dismissed the claims against OSA and Stanton with prejudice.

Thereafter, plaintiffs retained counsel and on October 1, 2012, they filed a motion to vacate the March 30, 2012 order for summary judgment. In a supporting certification dated September 17, 2012, Stocker stated that the purpose of Stocker I was to obtain money to protect the property from the flooding condition caused by the defendants in that case, as well as compensation for the damage caused by the flooding.

Stocker said the settlement agreement provided that HT&Y's insurance carrier would hire an engineer to design the system to alleviate the flooding problem, as well as the contractor to construct the system. The insurer hired OSA and Stanton to design the system, and IBS was retained to construct it. Stocker said that the system was built and completed in 2009, but it quickly became apparent that the system did not correct the flooding problem.

Stocker said that he was suffering from various ailments due to the flooding conditions of his home. He said that because of his worsening ailments and high stress levels, he traveled to Costa Rica on February 2, 2012 and did not return to New Jersey until March 4, 2012. He went to stay with his daughter, and did not return to his home until March 14. He denied that he or his wife received the motion papers. He claimed that the signature on the certified mail receipt, dated March 5, 2012, was not his wife's signature.

Counsel for OSA and Stanton disputed Stocker's claim that he had not received the motion. Stocker responded in a reply certification dated October 19, 2012. Stocker said he and his wife "cannot be held accountable" for failing to receive the motion for summary judgment. He also said that the release in the prior litigation did not bar the claims asserted against OSA and Stanton because the defendants in this case were "entirely different" from the defendants in the earlier case.

The trial court considered plaintiffs' motion on January 25, 2013. The court determined that plaintiffs' claims against OSA and Stanton were barred by the settlement and the release executed in Stocker I. The court stated on the record that OSA and Stanton had prepared the plans for the stormwater recharge system. Plaintiffs' expert in Stocker I had reviewed the plans and was satisfied with them. Plaintiffs' counsel said that the plans had been negligently designed, and the system was not working, but the court said that plaintiffs had the opportunity to review the system before it was built, and waived any claim that it had not been properly designed. The court entered an order denying plaintiffs' motion.

On February 20, 2013, plaintiffs filed a motion for leave to appeal from the trial court's order. We entered an order dated March 14, 2013, denying the motion. On June 21, 2013, plaintiffs dismissed their claims against the remaining defendants in the current litigation. This appeal followed.

III.

Plaintiffs argue that the trial court erred by denying their motion for relief from the order of March 30, 2012, granting summary judgment to OSA and Stanton. They contend they did not receive the motion papers and therefore the order granting summary judgment should have been set aside.

We note that the trial court did not resolve the dispute between the parties as to whether plaintiffs were properly served with the motion for summary judgment that OSA and Stanton filed on March 1, 2012. It is undisputed that plaintiffs obtained the motion papers and moved to vacate the order granting summary judgment. Plaintiffs presented the court with their arguments on why summary judgment should not have been granted, and the court considered those arguments on the merits. Thus, even if plaintiffs had not initially received the motion papers, the trial court did not err by refusing to set aside the order for that reason.

Plaintiffs further argue that the court should have set aside the order of summary judgment because there was a genuine issue of material fact as to whether they had agreed to waive claims against OSA and Stanton arising from the design of the stormwater recharge system. Again, we disagree.

Summary judgment may be granted when there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c).

Here, plaintiffs argue that summary judgment should not have been granted to OSA and Stanton because they were not parties to the earlier litigation. Plaintiffs contend that the release did not apply to the claims against OSA and Stanton, and there was no evidence showing that they waived their right to pursue claims against these parties.

However, it is undisputed that plaintiffs brought suit against HT&Y and others in Stocker I, alleging that their property was damaged by water flowing onto their property as a result of the construction of the Kara Homes development. They claimed that the stormwater management system that HT&Y designed was deficient. It is undisputed that HT&Y's insurance carrier retained OSA and Stanton to provide expert engineering services with regard to the claims asserted against HT&Y.

It is also undisputed that the parties agreed in mediation that Stanton would design a stormwater recharge system to address the flow of water onto plaintiffs' property, and plaintiffs' engineering expert would review and comment on those plans. The record indicates that Stanton did, in fact, design the system, plaintiffs' expert reviewed and commented on the plans, and the parties agreed to the construction of the system that Stanton designed.

The record supports the trial court's determination that the release plaintiffs and the HT&Y defendants executed in Stocker I barred the claims that plaintiffs asserted against OSA and Stanton in this case. As noted previously, plaintiffs agreed, in exchange for the payment of the cost of constructing the stormwater recharge system that Stanton designed, to release HT&Y and other parties of any present or future claims.

The release covered claims against, among others, HT&Y and HT&Y's insurer, as well as "all persons acting by, through, under or in concert with" them. Since HT&Y's insurer retained OSA and Stanton as experts for HT&Y, they were clearly acting by, through or in concert with HT&Y and its insurer, and the release unequivocally barred plaintiffs from asserting claims against OSA and Stanton related to the design or construction of the stormwater recharge system.

Thus, the court's determination that plaintiffs had waived their claims against OSA and Stanton was supported by the plain language of the release, and there was no genuine issue of material fact as to the application of the release to the claims asserted against OSA and Stanton in this case. Accordingly, we conclude that the court did not err by refusing to set aside the order granting summary judgment in favor of OSA and Stanton.

Affirmed.