Melvin J. Laney and Carolyn A. Laney - Page 26

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            suggested that, if Laney wanted to offer the affidavit as an                              
            expert witness report, then the time to do so was when Henry                              
            appeared as a witness, as we had been informed would be the                               
            situation.  In the absence of agreement by respondent, the Court                          
            declined to receive the affidavit into evidence on the first day                          
            of the trial.                                                                             
                  Before the trial in the instant case, Laney had sought to                           
            reopen his prior Court of Claims case.  In support of his motion                          
            before the Court of Claims (see supra note 6), Laney presented                            
            what appears to be the same Henry affidavit that petitioners                              
            offered into evidence in the instant case.8   We note that, in                            
            the opinion denying Laney’s motion to reopen, the chief judge of                          
            that court quoted from the affidavit and concluded that the                               
            Department of Justice attorney did not make a settlement offer                            
            and further “[concluded] that no settlement agreement was ever                            
            consummated.”  Laney v. United States, 26 Cl. Ct. 318, 322, 323                           
                  On the record in the instant case, we conclude, and we have                         
            found, that petitioners did not enter into a binding settlement                           

                  8     Compare Rule 143(b), that ex parte affidavits are not                         
            evidence, with, e.g., Rule 121 to illustrate proper use of                                
            affidavits in certain aspects of motion practice before this                              
            Court.  Unless otherwise indicated, all Rule references are to                            
            the Tax Court Rules of Practice and Procedure.                                            

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