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:
Plaintiff's "Motion," November 16, 2002, at 2.
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" before I bring this
matter to an end.
By my Order of October 17, 2002, I directed the law firm of Coburn
& Schertler to forward copies of all trial exhibits pertaining to, or
relating to, the accuracy of Barbara Riley's accounting. Order, October
17, 2002, at 1. On December 2, 2002, Mr. Coburn certified to this Court
that the documents were sent via UPS on November 13, 2002, to Mount's
Texas address; the expected arrival date being November 15, 2002.
Presumably, the documents are at the Texas address. Mount, however, has
recently left a phone message with chambers that she has been in a
hospital in California for the past three weeks. I will, therefore, grant
her time to either retrieve the documents from Texas or to return to
Texas to examine them.
Accordingly, within 30 days of this Memorandum Opinion, she will have
to provide this Court with a specific proffer of the evidence in the form
of a document, or testimony of a person other than herself, that Mrs.
Riley did not in fact receive checks, reflecting aliquot shares of the
mortgage and expenses, from her husband
and Mount. She must also provide
evidence that Mrs. Riley's accounting does not indicate the amounts she
actually received from her husband and Mount and then transmitted to the
mortgagor and other creditors. If she provides no such proffer, I will
enter final judgment dividing the proceeds as indicated in my Memorandum
Opinion of September 20, 2002.
On December 10, 2002, plaintiff, Maxine Mount, left a phone message
with chambers that she had been ill and in the hospital in California for
the past three weeks. Additionally, she indicated that she has not been
receiving filings made by the parties or by this Court.
Pursuant to my Order of October 17, 2002, I provided Ms. Mount with a
copy of the docket sheet and stated that the Texas address would be
considered good and sufficient service of documents. I cannot follow Ms.
Mount around the country in order to accommodate her. She must alight
somewhere for the service of documents upon her. I will, however, attach
to this order all filings and orders since November 19, 2002,*fn2 and
transmit them, on this one occasion, to the following address in
Maxine Mount c/o Tom & Nancy Smith 2122 Moreland
Road. Chico, CA 95926.
From this point on, however, the Court and her opponents will use the
Texas address she provided until she files in this Court and serves upon
her opponents a formal change of address.