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Crandell v. Resley - 804 P.2d 272 (Colo. App. 1990)

Rule:

There are several circumstances in which the incompetency of a witness under the Dead Man's Statute may be waived by acts of the adverse party. But, the mere taking of the deposition of an incompetent witness by the adverse party for the purposes of discovery is not a waiver unless the deposition is offered as evidence by the adverse party.

Facts:

Plaintiff Crandell, claiming to be decedent's common law wife, brought an action to quiet title to decedent's real property both as his surviving spouse and pursuant to an alleged oral contract. She also sought declaratory relief on the oral contract, claiming that it entitled her to a conveyance of decedent's personal property, injunctive relief prohibiting sale of decedent's realty by either the personal representative or by his mother as heir at law, and damages for conversion of personal property by the personal representative. The trial court ruled that the contract was unenforceable and that the Colorado Dead Man's Statute precluded the cohabitant from testifying about her conversations with the decedent.

Issue:

Can the defendants raise the Dead Man’s Statute to prevent plaintiff cohabitant’s claim based on oral contract?

Answer:

No.

Conclusion:

Decedent's representative and relatives waived the right to raise the Dead Man's Statute against a cohabitant claiming an oral contract for decedent's property where they used her deposition as their only support for their summary judgment motion. The court affirmed those portions of the judgment denying relief on the quiet title claim and the claims based on an alleged common-law marital status. The court reversed that part of the judgment denying the cohabitant's claim based on an oral contract and remanded the cause.

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