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BUILDING SERVICES UNLIMITED INC. v. RILEY

December 18, 2002

BUILDING SERVICES UNLIMITED INC., ET AL., PLAINTIFFS,
V.
DENNIS J. RILEY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: John M. Facciola, United States Magistrate Judge

MEMORANDUM OPINION

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 person.

(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" ...


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