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Laprade v. Rosinsky9/1/2005
ed to the Office of the Secretary of the District of Columbia in connection with its consideration of the application of Jean Stamback for reappointment of her license as a notary public. LaPrade's 1986 affidavit fails to state whether she personally witnessed the placement of Mr. Rosinsky's signature on the May 1976 deed. It states that Jean Stamback observed the signing, but does not purport to make that statement on personal knowledge.
As LaPrade's 1986 affidavit does not create a genuine issue regarding Mr. Rosinsky's signature, we must determine whether other evidence supports LaPrade's position. LaPrade did not adduce the testimony of an expert on handwriting or any other evidence that bore directly upon whether Mr. Rosinsky signed the May deed. The record contains the January 27, 1976, contract, which, on its face, appears to have been entered into by the Rosinskys and LaPrade. Pursuant to that contract, the Rosinskys agreed to convey to LaPrade an undivided one-half interest in the premises (which the Rosinskys did not yet own). While the existence of this document suggests that Charles Rosinsky would have been willing at some point to join in the conveyance of a one-half interest in the property, it lends no substantial support to the contention that Charles Rosinsky actually signed the May 1976 deed.
Mrs. LaPrade also states in her affidavit that she "made a number of payments" on the Rosinskys' monthly note on the premises. Charles Rosinsky testified that LaPrade acted only as real estate agent to rent the basement apartment of the premises. The resolution of this dispute in LaPrade's favor would not substantially advance LaPrade's position regarding the execution of the deed.
In short, after considering together all the bits of evidence that arguably might tend to support appellant's opposition to defendants' motion for summary judgment, we agree with the trial court that no genuine issue of material fact was presented by the evidence as a whole, and that the undisputed evidence showed that Charles Rosinsky neither signed the May deed nor authorized anyone else to sign it for him.
Before we leave the issues that surround the trial court's entry of summary judgment against appellant on her complaint, we note that LaPrade broadly asserts that the Rosinskys are barred by laches from asserting in 2000 that the May 1976 deed was void because Charles Rosinsky had not signed it or authorized another to sign it in his behalf. In her motion for summary judgment, LaPrade argued, inter alia, that all of the Rosinskys' counterclaims and defenses were barred by laches.
Appellant is not in a position to assert laches in support of her complaint. Laches may be used as a shield, but not as a sword by one seeking affirmative relief. See 118 East 60th Owners, Inc. v. Bonner Properties, Inc., 677 F.2d 200, 204 (2d Cir. 1982) (as party seeking declaratory relief is "aggressor" in litigation, equity precludes use of time bar as sword); Short v. Rapping, 135 A.D.2d 624, 625 (N.Y. App. Div. 1987) (laches may be invoked as defense against stale claims but not used to obtain dismissal for want of prosecution of medical malpractice action by infant plaintiff stationed overseas in military service); Howorka v. Harbor Island Owners' Ass'n, Inc., 356 S.E.2d 433, 436 (S.C. Ct. App. 1987) (plaintiff cannot urge laches to bar right asserted as defense); Corona Properties of Florida, Inc. v. Monroe County, 485 So. 2d 1314, 1318 (Fla. Dist. Ct. App. 1986) (laches acts as shield to action and has no application to case where it is intended to be used as sword); see generally 30A C.J.S. Equity ยง 128 (1992).
Thus, LaPrade cannot use her broad assertion that the Rosin
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