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Eck v. Godbout7/21/2005
the suit brought by Bisson. The claim was not "unknown" to Eck at the time he executed the release.
Eck contends that equitable principles should allow him to set aside the release because, he contends, Kellem still had a fiduciary duty to him at the time the release was executed and had continued to advise him that the language in the Bisson purchase and sale agreement would protect him. However, Kellem did not represent Eck at the time of the release. To the contrary, Eck was suing Kellem, and Eck was represented by independent counsel (Godbout) in both the suit against Kellem and in his defense of the lawsuit brought by Bisson. As such, he cannot avoid the release by claiming that he relied on Kellem's advice in connection with that release. See Naukeag Inn, Inc. v. Rideout, 351 Mass. 353, 356-357 (1966).
Finally, Eck contends that, if the release extended to Kellem's alleged malpractice in the Bisson purchase and sale agreement, it was the product of a "mistake." A release may be rescinded or modified based on a mutual mistake of the parties, but not on one party's unilateral "mistake" about how future contingencies might make the release inadvisable. See Tupper v. Hancock, 319 Mass. 105, 107-108 (1946). Again, the mere fact that a release as worded extends to matters that the parties did not specifically have in mind at the time of execution does not operate to exclude those matters from the scope of the release. See Schuster v. Baskin, 354 Mass. 137, 140 (1968); Naukeag Inn, Inc. v. Rideout, supra; Radovsky v. Wexler, 273 Mass. 254, 257 (1930); Atlas Tack Corp. v. Crosby, 41 Mass. App. Ct. 429, 433-434 (1996). That they do not have those matters in mind at the time, and are thus in some sense surprised when the release is later applied to exclude such claims, does not make the execution of the broadly-worded release a "mistake."
We thus conclude that Eck's present claim against Kellem is barred by the terms of the 1990 release, and that summary judgment on that claim was properly entered in favor of Kellem.
b. Appeal from the Judgment in Favor of Godbout
Although we granted further appellate review limited to the issue of the interpretation of the release, Godbout has argued that, in the event we conclude (as we have done) that the release is a general release, we should proceed to affirm the judgment in his favor. Because Eck did not seek further appellate review, Godbout argues that that judgment is now final and "should not be disturbed."
Given the limited scope of the present further appellate review, it is beyond the purview of this opinion to address any aspect of the claims against Godbout. The Appeals Court did not address the merits of the appeal with respect to Godbout, because, by its interpretation of the release, the premise of the malpractice claim against Godbout was eradicated. In light of our opinion, the Appeals Court's rationale for not addressing claims of error with respect to the verdict in favor of Godbout no longer applies. We take no action with respect to those issues, leaving it to Eck to petition the Appeals Court for a rehearing with respect to errors claimed on appeal that were not addressed in the Appeals Court's original decision.
3. Conclusion
We therefore affirm the entry of summary judgment in favor of defendant Lawrence Kellem.
So ordered.
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