KEITH W. BREWER v. CHESTER E. ANTHONY, Personal Representative.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-859

KEITH W. BREWER

vs.

CHESTER E. ANTHONY, personal representative.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In May of 2021, ninety-five year old Natalie MacKenzie

(decedent) executed a durable power of attorney. The decedent

named Keith W. Brewer as her agent and, on her death, granted

Brewer the right to purchase her Milton residence, "if he is

interested," for the sum of $1,000. The decedent passed on

January 18, 2022, while under a conservatorship, and thereafter,

Chester E. Anthony was appointed as the personal representative

of the estate.

Just before the decedent passed, her conservator filed an

eviction proceeding in the Housing Court against Brewer, who had

been living in the decedent's home for approximately nine years

and was not paying rent. After the decedent passed, her

1 Of the estate of Natalie MacKenzie.
conservator filed a motion to substitute the personal

representative (Anthony) as the plaintiff. Brewer was

represented by counsel and both he and his counsel signed an

agreement for judgment, for issuance of an execution, that was

approved by a Housing Court judge. As part of that written

settlement agreement in the Housing Court, Brewer would not be

held responsible for paying any past rent or associated living

costs and in turn he agreed to vacate the residence. Brewer

also agreed that he "waives and releases any and all claims they

had or has against the Plaintiff. Both parties waive all rights

to stay or appeal."2

Brewer then filed a complaint for equitable and declaratory

relief in the Probate and Family Court, arguing that the

decedent's power of attorney made clear that Brewer was to be

given an opportunity to purchase the home for the sum of $1,000

in recognition of his years of care of and companionship for the

decedent. The judge entered summary judgment in favor of

Anthony, concluding that the estate was not required to convey

the real estate to Brewer because the durable power of attorney

became ineffective on the decedent's death and, to the extent

that Brewer claimed the existence of an enforceable contract,

2 The agreement also noted that the parties assented to the
motion to substitute parties.

2
Brewer signed a valid and binding release, which barred

recovery. The judge denied Brewer's motion for reconsideration.

Brewer appeals from the grant of summary judgment and from

the order denying the motion for reconsideration, arguing that

the release he signed in the Housing Court was ambiguous and

does not bar recovery in an action in the Probate and Family

Court and that the judge erred in denying his motion to expunge

certain records.3 We affirm.

Standard of Review. We review the grant of summary

judgment de novo. See Gallagher v. South Shore Hosp., Inc., 101

3 Brewer argues the judge erred in failing to expunge
certain records of an investigation by South Shore Elder
Services into elder abuse of the decedent. Other than noting
that the judge did impound the records and did not rely on any
information in the reports in granting summary judgment, we do
not address this issue, because these arguments do not rise to
the level of appellate argument. Brewer does not cite to any
authority that expungement is required in situations akin to
those here. See Mass. R. A. P. 16 (a) (9) (A), as appearing in
481 Mass. 1628 (2019). The only case Brewer cites to establish
that the court was required to order expungement, Police Comm'r
of Boston v. Municipal Court of Dorchester Dist., 374 Mass. 640,
661 (1978), states only that a court "may" order expungement
"where the utility of the records for law enforcement purposes
is likely to be minimal or nonexistent." Brewer cites no cases,
nor does our independent review reveal any such cases, that
would require expungement. Additionally, even if such a case
existed, our review of the records that Brewer sought to expunge
could be utilized by law enforcement in the future, and thus are
not the type of record discussed in Police Comm'r of Boston,
supra. Although Brewer makes several constitutional arguments
why the Department of Elder Affairs, a nonparty, might be
required to expunge its records, we do not see how any ruling to
expunge the records currently held and impounded by the Probate
and Family Court could affect records held by a nonparty.

3
Mass. App. Ct. 807, 810 (2022). The grant of summary judgment

is appropriate where "viewing the evidence in the light most

favorable to the nonmoving party, all material facts have been

established and the moving party is entitled to judgment as a

matter of law." Id., quoting Lev v. Beverly Enters.-Mass.,

Inc., 457 Mass. 234, 237 (2010).

Discussion. At the outset, it is important to note that

Brewer does not challenge the validity of the agreement he

signed in the Housing Court or claim that he signed it under

duress or fraud. Instead, Brewer claims that the language of

the release was ambiguous and that signing a release in the

Housing Court only related to the eviction matter and does not

bind him in an action in the Probate and Family Court relating

to the transfer of the residence. We disagree.

The language of the release Brewer signed is clear and

unambiguous and released Anthony from "any and all claims" that

Brewer had or has against Anthony. Brewer cannot now create an

ambiguity simply by claiming that the terms "any and all claims"

and "judgment" only pertain to the eviction. See Boazova v.

Safety Ins. Co., 462 Mass. 346, 351 (2012) ("[A]n ambiguity is

not created simply because a controversy exists between the

parties, each favoring an interpretation contrary to the other"

[citation omitted]). Brewer argues that since the Housing Court

does not have jurisdiction over the transfer of property by an

4
estate, the agreement signed by the parties in the Housing Court

cannot bar a claim in the Probate and Family Court of

entitlement to property. Brewer misunderstands the effect of

the release. Simply stated, where Brewer signed the release is

irrelevant. Whether Brewer signed the agreement containing the

release while he was in court or somewhere else, such as in a

law office with counsel by his side, the binding nature and

scope of the agreement is derived from its language and the

fundamental tenets of contract law, not from the power of the

court where it might have been agreed on and in which it was

initially filed.

Even if Brewer did not foresee that his claim would be

barred, a release is "to be given effect, even if the parties

did not have in mind all the wrongs which existed at the time of

the release" (citation omitted). Schuster v. Baskin, 354 Mass.

137, 140 (1968). The release language Schuster, supra at 139,

is like the language signed by Brewer. While Brewer claims that

the release was intended to release Anthony only in the eviction

action, the plain language of the release cannot be construed as

narrowly as Brewer would hope. See Eck v. Godbout, 444 Mass.

724, 732 (2005) ("[T]he 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"). To prevent the very

5
issue Brewer now confronts -- that parties may sign a release

and not realize that the broad language may sweep in other

matters not in play at the time of signing and releasing those

claims as well -- courts have made clear that any exception to

or reservation of rights in a general release should be clearly

noted in the release itself. See Tupper v. Hancock, 319 Mass.

105, 107-108 (1946). Here, the terms of the release were "broad

and general" and did not contain any exceptions or reservations

of rights. Schuster, supra at 140.

Next, Brewer appears to argue that summary judgment was

improper because a disputed issue of fact existed as to the

scope of the release. However, failure of a party to fully read

or comprehend the release before signing does not affect its

validity. While Brewer may have misunderstood that releasing

Anthony from "any and all claims they had or has" was limited to

claims in the eviction matter, "[i]t is the rule in this

Commonwealth that the failure to read or to understand the

contents of a release, in the absence of fraud or duress, does

not avoid its effects." Lee v. Allied Sports Assocs., Inc., 349

Mass. 544, 550-551 (1965).

We conclude that the release bars Brewer from bringing an

action against Anthony arising out of the decedent's former home

6
and therefore need not discuss other errors alleged by Brewer,

which are not relevant to this analysis.4

Judgment affirmed.

Order denying motion for
reconsideration affirmed.

By the Court (Sacks, Singh &
Walsh, JJ.5),

Assistant Clerk

Entered: April 4, 2024.

4 We note briefly that it matters not whether the judge, in
denying the motion for reconsideration, erred in relying in part
on claim preclusion. The judge correctly relied on the language
of the release, which was sufficient to bar this action.
Likewise, it matters not whether Anthony was the proper party to
implement the language in the decedent's power of attorney
regarding sale of the property to Brewer. It is Brewer who
chose to bring this action against Anthony, and it is this
action that the judge correctly held was barred by the release.

5 The panelists are listed in order of seniority.

7