The opinion of the court was delivered by: John M. Facciola, United States Magistrate Judge
In my memorandum opinion of September 20, 2002, I directed plaintiff,
Maxine Mount ("Mount"), to provide "specific documentary evidence in the
form of a cancelled check, receipt, or other document that shows that
Mrs. Riley's accounting or any entry in it is wrong." Id. at 9.
In response, Mount concedes that Mrs. Riley's arithmetic is correct,
but raises for the first time in this litigation, which is heading into
its ninth year, a new issue. Mount says:
The Riley tax treatment for the ownership of the condo
cannot be used to calculate the parties cash
contributions. The numbers used by the court reflect
the deductions Riley took on his personal taxes based
on his 50% ownership. Barbara Riley's arithmetic is
correct. The defendant's tax treatment is flawed, and
cannot be used to calculate cash contributions. Mount
contributed 100% of the cash prior to 1993, Riley put
in $15,000 in 1993, and thereafter, until the sale
Mount paid 100% of all condo expenses.
Plaintiff's "Motion," November 16, 2002, at 2.*fn1
Mount gave no such testimony at either jury trial or at the post-trial
hearing I held devoted to the distribution of the proceeds of the sale of
the condominium. To the contrary, it was a given that Mount and Riley had
made joint payments to the condominium when they were still lovers. At no
time, did Mount ever suggest that Mrs. Riley did not premise her payment
of the mortgage and other expenses on checks given to her by Mount and by
checks drawn on Riley's account. Nor has Mount ever asserted until now
that Mrs. Riley's accounting is based on anything other than what Mrs.
Riley received from her husband and from Mount and, in turn, paid to
mortgagor and other creditors. There certainly has never been any
testimony that Mrs. Riley accounted for the contributions of her husband
and Mount by accurately indicating what Mount paid, but premising Riley's
contribution on Riley's direction to his wife as to an imputed 50%
contribution that he did not make yet wanted to appear to have been made
to secure a tax advantage.
Moreover, her testimony concerning what Riley allegedly said or did is
barred by the simple application of the District of Columbia's "dead
man's statute." It provides:
§ 14-302. Testimony against deceased or incapable
(a) In a civil action against:
(1) a person who, from any cause, is legally incapable
of testifying, or
(2) the committee, trustee, executor, administrator,
heir, legatee, devisee, assignee, or other
representative of a deceased person or of a person so
incapable of testifying, a judgment or decree may not
be rendered in favor of the plaintiff founded on the
uncorroborated testimony of the plaintiff or of the
agent, servant, or employee of the plaintiff as to any
transaction with, or action, declaration or admission
of, the deceased or incapable person.
D.C. Code § 14-302 (2001). See e.g., Hosford v. Estate of Campbell,
708 F. Supp. 7, 8 (D.D.C. 1989).
The purpose of the dead man's statute is to protect against potentially
fraudulent suits based only on a claimant's word that the deceased was
somehow obligated to the claimant. Gray v. Gray, 412 A.2d 1208, 1212
(D.C. 1980). Mount can escape from the statute only if she can provide
evidence that would corroborate her position, rendering it substantially
more credible. Id.
Because she proceeds pro se, I will afford Mount one final opportunity
to meet the demands of the "dead man's statute" ...