Farah v. Stout

WILNER, Chief Judge. This appeal presents several evidentiary questions. The three principal issues are whether the Circuit Court for Washington County, in a suit by appellant Elizabeth Farah against the estate of John M. Sanderson, Jr., erred in declining to admit (1) Elizabeth’s testimony concerning her reasons for performing services for Mr. Sanderson and his wife, (2) testimony of Elizabeth’s husband, J. Ramsay Farah, concerning conversations he had with Mr. Sanderson and Elizabeth, and (3) testimony of three non-party witnesses concerning statements made by Mr. Sanderson of his intention to give money to Elizabeth and Ramsay. Items (1) and (2) require us to determine whether the trial court properly.prohibited Elizabeth and Ramsay from testifying under Md.Code Cts. & Jud.

Proc. art., § 9-116, commonly referred to as the dead man’s statute. The third item presents a hearsay question. The relevant facts are largely undisputed. On July 23, 1993, Elizabeth filed two claims against Mr. Sanderson’s estate in the Orphans’ Court for Washington County.

The dispute arose over an alleged contract by Mr. Sanderson to make a bequest of $110,000 to Ramsay and Elizabeth in exchange for Elizabeth’s agreement to care for Mrs. Sander-son. After Mr. Sanderson died on February 25, 1993, the Farahs learned that he had failed to make the promised bequest in his will. The first claim for $100,000, filed jointly by Elizabeth and Ramsay, was based on Mr. Sanderson’s oral promise to leave Elizabeth and Ramsay $100,000 upon his death as payment for services Elizabeth had rendered to Mr. ¹¹¹ Sanderson and his wife. The second claim for $10,000, filed by Elizabeth individually, was based on Mr. Sanderson’s oral promise to reimburse Elizabeth for items she had purchased for the Sandersons.

The evidence at trial showed that the Farahs and Sander-sons developed a close friendship after they met at a church function in 1985. Shortly thereafter, Mrs. Sanderson’s health began to decline, and the Sandersons employed several home care agencies, which, for various reasons, proved unsatisfactory. Around 1989, Elizabeth assumed daily responsibility for Mrs. Sanderson’s care and for all the Sandersons’ household chores, including laundry, meal preparation, and cleaning. The Farahs maintain that Elizabeth undertook those responsibilities in return for Mr. Sanderson’s promise to make a bequest of $100,000.

On May 16, 1995, the Orphans’ Court transmitted the following two questions to the circuit court: “1. Did the decedent herein, John M. Sanderson, Jr. make a valid, enforceable contract during his lifetime to bequeath to the claimant, Elizabeth Farah, the sum of $10,000.00? 2. Did the decedent herein, John M. Sanderson, Jr. make a valid, enforceable contract during his lifetime to bequeath to the claimants, Elizabeth Farah and J. Ramsay Farah, the sum of $100,000.00?” Prior to trial, Ramsay and Elizabeth Farah assigned and transferred their joint interest in the $100,000 claim to Elizabeth individually, thereby making her the only plaintiff/claimant in the circuit court proceeding. Despite the assignment of interest to and substitution of Elizabeth in the $100,000 claim, the circuit court ruled in limine that Ramsay was still a “party” under Maryland’s dead man’s statute and barred him from testifying at the trial about any statements made by or transactions with Mr. Sanderson.

At trial, Elizabeth testified on direct examination that for approximately two and a half years “she cared for and performed numerous household chores on a daily basis” for Mr. ¹¹² Sanderson. 1 She was then asked “why did you do, at the Sanderson home, all the things that you said you’ve done on a daily basis, and weekends and sometimes at night?” After defense counsel objected, plaintiffs counsel proffered that Elizabeth would testify that she did those things “because she understood she was going to be compensated.” The court sustained the objection. Ramsay’s testimony at trial was also riddled with objections from defense counsel. In addition to prohibiting Ramsay from testifying about conversations he had with Mr. Sanderson regarding compensation for his wife, the court sustained appellee’s objections to questions about a conversation Ramsay had with Elizabeth regarding her decision to care for Mrs. Sanderson. “Q. [0]n what basis did you ask your wife if she would do the job? [Objection sustained.] Q. Without any reference to Mr. Sanderson, what did you tell your wife? [Objection sustained.] Q. As a result of your discussion with your wife, what did she do? A. She accepted the work.

Q. What work are you referring to? A. To take care of Mrs. Sanderson and Mr. Sanderson. [Objection and motion to strike.] THE COURT: Sustained, jury will disregard.” ¹¹³ The court also prohibited Ramsay from testifying about whether he ever talked with Elizabeth about compensation for caring for Mrs. Sanderson. At the conclusion of direct examination of Ramsay, appellant’s counsel proffered the following: “[I]f asked, Dr. Farah would testify that he had a conversation with Jack Sanderson at the time home care services were, uh, having a problem with those, that Jack Sanderson asked him if Elizabeth would care for Delores on a daily basis as needed and if she would agree to do so for compensation. And that he, Ramsay, Dr. Farah would testify, uh, agreed that there would be a payment of a hundred thousand dollars ($100,000.00) for their services, for the rest of Delores’ life, and, uh, further that Dr. Farah told Jack Sanderson that he preferred not to have the payment during Jack Sanderson’s life but at his death, uh, for tax reasons.” The court sustained objections to admission of that testimony based on the dead man’s statute.

The court also excluded as hearsay the testimony of three other witnesses who would have testified that Mr. Sanderson told them that he was going to give the Farahs $110,000.00 in return for their services. In response to appellee’s motion for a directed verdict at the conclusion of appellant’s case, the circuit court filed an opinion and order on November 16, 1995 that answered in the negative the two questions posited by the Orphans’ Court and granted appellee’s motion for judgment. In the opinion, the court found: “[T]he Plaintiff, Elizabeth Farah, as well as Elizabeth Farah and J. Ramsay Farah, together, have failed to establish the existence of a contract between them and John M. Sander-son, Jr. for either ... $10,000.00 ... or for ... $100,000.00. The Plaintiffs in this case have simply been unable to adduce testimony of the existence of a valid, enforceable contract.” From this order appellant appealed to this Court.

We now affirm the circuit court’s decision. ¹¹⁴ DISCUSSION I. Elizabeth Farah’s Testimony The Maryland dead man’s statute, codified in Md.Code Cts. & Jud. Proc. art., § 9-116, provides: “A party to a proceeding by or against a personal representative, heir, devisee, distributee, or legatee as such, in which a judgment or decree may be rendered for or against them, or by or against an incompetent person, may not testify concerning any transaction with or statement made by the dead or incompetent person, personally or through an agent since dead, unless called to testify by the opposite party, or unless the testimony of the dead or incompetent person has been given already in evidence in the same proceeding concerning the same transaction or statement.” The purpose of the dead man’s statute is to seal the lips of a party in a proceeding “by or against” a personal representative about facts that could be disputed only by the deceased. Reddy v. Mody, 39 Md.App. 675, 679 , 388 A.2d 555 , cert. denied, 283 Md. 736 (1978). In Reddy , we recognized that the statute can create an “injustice to the survivor” and, therefore, must be construed strictly in order “to disclose as much evidence as the rule will allow.” Id. at 681-82 , 388 A.2d 555 .

We are, nevertheless, mindful of the statute’s underlying purpose: “preventing self-interested perjury.” Id. at 679 , 388 A.2d 555 . Obviously, the dead man’s statute barred Elizabeth from testifying that she had an agreement or contract with Mr. Sanderson. Based upon the statute, the trial court also excluded the proffered testimony of Elizabeth that she had performed services for Delores because she understood that she was going to be compensated. The distinction between the clearly prohibited statement — “Mr. Sanderson contracted with me” — and the proffered one — “I cared for Mrs. Sander-son because I expected to be paid” — is not discemable for purposes of the dead man’s statute when the only basis of the ¹¹⁵ expectation of payment was an agreement by Mr. Sanderson to make the payment.

Absent that inferred basis, the testimony would have been irrelevant. We find, therefore, that Elizabeth’s testimony that she “understood she was going to be compensated” as a direct result of an agreement with Mr. Sanderson was properly barred.

II

Exclusion of Ramsay Farah’s Testimony Prior to trial, the circuit court ruled that, despite the fact that Ramsay and Elizabeth assigned and transferred their interest in the $100,000 claim to Elizabeth individually, Ramsay was still a “party” for purposes of the dead man’s statute, and, therefore, he was barred from testifying about a conversation he had with Mr. Sanderson regarding compensation to be paid to Elizabeth. Elizabeth also challenges the court’s exclusion of Ramsay’s testimony regarding conversations he had with Elizabeth about her decision to care for Mrs. Sander-son. The gist of each of those conversations was that, in return for caring for the Sandersons, Elizabeth would receive payment on Mr. Sanderson’s death. Elizabeth argues that the court erred in excluding Ramsay’s testimony about his conversation with Mr. Sander-son because, after the assignment of his interest in the $100,-000 claim and his withdrawal from the case, Ramsay was no longer a party and his testimony was not subject to the restrictions of the dead man’s statute.

We do not dispute Elizabeth’s claim that, by its express terms, the statute applies only to the “testimony of a party to a cause.” Montgomery Co. v. Herlihy, 83 Md.App. 502, 512 , 575 A.2d 784 , cert. denied, 321 Md. 164 , 582 A.2d 499 (1990). We previously explained that, “[t]he persons excluded from testifying [by the dead man’s statute] are not those with an interest of any sort, but rather traditional real parties in interest and their representatives.” Trupp v. Wolff, 24 Md.App. 588, 602 , 335 A.2d 171 , cert. denied, 275 Md. 757 (1975). The spouse or child of a party has been permitted to testify in his or her spouse’s or ¹¹⁶ parent’s favor, for example, even though the witness possibly stood to benefit in the proceedings. E.g., Snyder v. Cearfoss, 187 Md. 635 , 51 A.2d 264 (1947) (husband permitted to testify as to promises decedent made to wife); Marx v. Marx, 127 Md. 373 , 96 A. 544 (1916) (son permitted to testify regarding promises decedent made to mother); Trupp v. Wolff, supra (mother permitted to testify in daughter’s claim against stepfather’s estate).

Consequently, any financial benefit Ramsay expected to receive as Elizabeth’s husband from her recovery would not, in and of itself, disqualify him from testifying. Nevertheless, we believe that, in this case, the court did not err in barring Ramsay from testifying about conversations with either Elizabeth or Mr. Sanderson. This is,