Eck v. Godbout

• Decision Date: 21 July 2005
• Citation: 444 Mass. 724,831 N.E.2d 296
• Parties: David W. ECK & another<SMALL><SUP>1</SUP></SMALL> v. Blake J. GODBOUT & another.<SMALL><SUP>2</SUP></SMALL>
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

831 N.E.2d 296

444 Mass. 724

David W. ECK & another¹ v. Blake J. GODBOUT & another.²

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 3, 2005.

Decided July 21, 2005.

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Scott Douglas Burke, Boston (Steven J. Bolotin with him) for Lawrence A. Kellem.

Robert L. Sheketoff, Boston, for the plaintiffs.

Kenneth B. Walton, Boston, for Blake J. Godbout.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, SOSMAN, & CORDY, JJ.

SOSMAN, J.

As a defense to a claim alleging legal malpractice, the defendant Lawrence A. Kellem contended that the claim was barred by a release that the plaintiff David W. Eck had executed in his favor in settlement of an earlier malpractice case. A judge in the Superior Court agreed, and entered summary judgment in favor of Kellem. In an unpublished memorandum and order pursuant to its rule 1:28, the Appeals Court reversed, concluding that, in light of Leblanc v. Friedman, 438 Mass. 592, 781 N.E.2d 1283 (2003), the reference in the release to the litigation being settled operated to limit the scope of the release to the claims in that specific litigation. Eck v. Godbout, 61 Mass.App.Ct. 1112, 810 N.E.2d 863 (2004). We granted Kellem's application for further appellate review, limited to the issue of the release.³ For the following reasons, we hold that the broad language of the release encompassed Eck's present claim against Kellem, and therefore affirm the entry of summary judgment in favor of Kellem.

1. Facts and procedural background. Over a period of years, attorney Kellem represented Eck in various real estate transactions. In 1985, Eck sold real estate in Norwood to one Stephen Bisson. Kellem represented Eck in that matter, and drafted the purchase and sale agreement that governed the transaction. At the time, Eck was concerned about his potential liability for hazardous waste on the property, and asked Kellem to include in the agreement a provision that would protect him from future claims by Bisson with respect to any such hazardous waste. Kellem assured Eck that the agreement contained language that would so protect him.

The following year, Kellem represented Eck in connection with a separate transaction involving real estate in Hull. Two years later, Eck sued Kellem, alleging legal malpractice in connection with the Hull transaction. Eck was represented by Attorney Blake Godbout in that litigation. In June, 1989, while that malpractice action was still pending, Bisson sued Eck seeking to recover damages for alleged hazardous waste on the Norwood property. Attorney Godbout defended Eck in that matter, and took the position (consistent with Kellem's prior advice) that the language of the purchase and sale agreement precluded any liability to Bisson.

On May 22, 1990, Eck settled his malpractice action against Kellem. In connection with that settlement, Eck executed a release in favor of Kellem (and others). The operative provisions of the release are as follows:

"I hereby remise, release and forever discharge the said [Kellem] of and from all debts, demands, damages, actions, causes of action, suits, accounts, covenants, contracts, agreements, damages and any and all claims, demands and liabilities whatsoever of every name and nature, both in law and in equity, which against the said [Kellem] I now have or ever had from the beginning of the world to this date and more specially for personal injuries sustained by [Eck] as the result of [Kellem's] alleged negligence and breach of contract arising out of the sale of the real estate locate[d] at 48 A Street, Hull, Massachusetts, as more specifically set forth within Plymouth Superior Court Civil Action No. 88-1991 B."

Godbout represented Eck in the settlement of that action, and negotiated its terms (including the terms of the release).

In June, 1993, three years after the release was executed, the environmental lawsuit brought by Bisson against Eck proceeded to trial. Godbout represented Eck at that trial, and Kellem testified as a defense witness. Notwithstanding the claimed protective language in the purchase and sale agreement, Eck was found liable to Bisson, and a judgment against Eck in the amount of $451,262 was entered in January, 1994. That judgment was affirmed. Bisson v. Eck, 40 Mass.App.Ct. 942, 667 N.E.2d 276 (1996).

Thereafter, Eck filed the present action, alleging malpractice against Kellem in connection with his failure to draft the purchase and sale agreement in a manner that would provide protection against Bisson's environmental claims. In the same action, he sued Godbout for alleged malpractice in connection with his failure to retain any expert witness for his defense of the Bisson lawsuit, and in connection with his representation of Eck and Eck's wife in an unrelated malpractice lawsuit against yet another attorney. Kellem initially moved for summary judgment on the theory that Eck's claim was barred by the statute of limitations, claiming that the statute began to run in 1989, when the Bisson lawsuit was filed. That motion was denied, and the denial was affirmed on interlocutory appeal. Eck v. Kellem, 51 Mass. App.Ct. 850, 748 N.E.2d 1047 (2001). The Appeals Court held that the statute of limitations did not begin to run until judgment was entered against Eck in the Bisson lawsuit in January, 1994, as it was only the judgment that inflicted cognizable harm on Eck. Id. at 855-856, 748 N.E.2d 1047.

Thereafter, Kellem amended his answer and filed a further motion for summary judgment, contending that the release executed by Eck in 1990 was a general release that operated to release all claims, including the present claim of malpractice in connection with the Bisson purchase and sale agreement. The motion was allowed. Meanwhile, Godbout had also moved for and been granted summary judgment on the theories of malpractice originally alleged against him. However, in the wake of the allowance of Kellem's motion for summary judgment, Eck was allowed to amend his complaint to state a new theory of malpractice against Godbout, namely, that Godbout had been negligent in advising Eck to sign the release without warning him that it was a general release or taking steps to exclude from its scope any claims against Kellem in connection with the Bisson transaction. That malpractice claim was tried to a jury in January, 2003, resulting in a verdict in favor of Godbout.⁴

On appeal, the Appeals Court determined that the 1990 release executed by Eck was not a general release, but rather was limited to a release of claims arising from the separate Hull real estate transaction and the specifically mentioned malpractice action arising from that transaction. The court therefore reversed the order allowing Kellem's motion for summary judgment. With respect to the claims against Godbout, the court affirmed the order of summary judgment in Godbout's favor on the malpractice claims alleged in Eck's original complaint. As to the claim in Eck's amended complaint that Godbout had committed malpractice in connection with the release, the court determined that it did not need to address the issues raised by Eck's appeal from the jury's verdict. The conclusion that the release did not bar the claim against Kellem, and that it operated only as a limited release, effectively removed the premise of that remaining claim against Godbout.

2. Discussion. a. Scope of the release. The central issue before us is whether the inclusion of the language in the release specifically referencing the Hull transaction and the earlier malpractice suit stemming from that transaction ("and more specially for personal injuries sustained by [Eck] as the result of [Kellem's] alleged negligence and breach of contract arising out of the sale of the real estate locate[d] at 48 A Street, Hull, Massachusetts, as more specifically set forth within Plymouth Superior Court Civil Action No. 88-1991 B") operated to limit the scope of the broadly worded release that preceded it (releasing Kellem from "all debts, demands, damages, actions, causes of action, suits, accounts, covenants, contracts, agreements, damages and any and all claims, demands and liabilities whatsoever of every name and nature, both in law and in equity, which against [Kellem] I now have or ever had from the beginning to the world to this date").

We have interpreted virtually identical language—i.e., a general release followed by "and more especially on account of" an identified matter—as a general release. See Glendale Coal Co. v. Nesson, 312 Mass. 293, 294, 44 N.E.2d 691 (1942). As is often the case, a release may be prompted by the settlement of a specific dispute or resolution of a specific issue, but broad wording in the release operates to settle all other, unrelated matters, even if they were not specifically in the parties' minds at the time the release was executed. See Schuster v. Baskin, 354 Mass. 137, 140, 236 N.E.2d 205 (1968); Naukeag Inn, Inc. v. Rideout, 351 Mass. 353, 356, 220 N.E.2d 916 (1966); Radovsky v. Wexler, 273 Mass. 254, 257, 173 N.E. 409 (1930); Atlas Tack Corp. v. Crosby, 41 Mass.App.Ct. 429, 433, 671 N.E.2d 954 (1996). See also Tupper v. Hancock, 319 Mass. 105, 107-108, 64 N.E.2d 441 (1946). The mere fact that the release itself identifies the specific matter that prompted the parties to execute a release, does not, by itself, operate to restrict the scope of a release that contains broad language releasing all claims of whatever nature the party executing the release may have against the party to whom the release is given.

Moreover, in the present case, the specific identification of the claims related to the Hull transaction is introduced by the conjunctive "and"—it thus expressly states that, in addition to the broadly described category of "all" claims being released, Eck is also releasing Kellem from the specific malpractice claims associated with the Hull transaction. In effect, the use of "and more specially for" operates...