Author’s note: This story, at its essence, is about a mountain and the people who loved it. It is inspired by our experiences with the legal system, which are a matter of public record. However, I have fictionalized the details of this story and the characters (except for my family), both for narrative convenience and for privacy reasons. Also, I am not an attorney. If you are, and if you read this story and note that I have used the words “district court” when I should have said “appellate court,” well — perhaps, you should read a John Grisham novel instead. My point in telling this fictionalized account is not to discuss the finer points of the law, but to relate some of the life lessons learned by two ordinary people who were trying to achieve a modest dream and found themselves at the mercy of our nation’s legal system.
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Five days after I managed to side-step the most devastating tornado in American history by less than 15 minutes – all because I was waiting on a load of towels to dry – I woke up on a Friday morning in our new home with a light heart and a sense of joy that I hadn’t experienced in a very long time. The moving trucks were coming, and along with them, my family!
We spent the long weekend of Memorial Day 2011 unpacking the contents of untold boxes. After a two-month separation, I was ecstatic to be under the same roof as my family. I loved our new home, I was settling into my new job, and I had the sense that a very good year was ahead of us. It would be a little tricky getting through the summer since the kids didn’t know a soul, but numerous colleagues had reached out to me suggesting social and athletic activities for my teenagers and offering to make introductions to their kids. We’d been welcomed to Missouri with open arms and were anxious to build a new life.
As Mr. Mom worked to get our household and children’s social lives in order, he also continued to spend countless hours on the phone and Internet pursuing our condemnation proceedings against the Unfriendlys. Our new attorney, Matt O’Malley, was extremely knowledgeable, and the information he was regularly sharing with Mr. Mom made him more encouraged and optimistic than he’d been in years.
According to O’Malley, condemnations are highly procedural matters. As we understood it, we’d go through a step-wise process with more predictable timing and outcomes. In a nutshell, an appraiser would specify a fair price for the road based on an established calculation governed by law. Then we would make a good faith offer to the Unfriendlys to purchase the easement based on the appraiser’s valuation. They could accept our offer or negotiate the price (within a strict set of guidelines). If the Unfriendlys refused, we could request a hearing to condemn an easement, in which the burden of proof shifts to them. In a court of law, they would have to prove that there is an alternate and legal route that is more direct, is feasible, connects to a public road, and offers the “highest and best use” of the property. If they could not meet the burden of proof, they would be forced to accept the fair price and give us the easement. Worst case, O’Malley thought, it could take a year.
Some of these matters had been partially explored in the Unfriendly’s trespass case against us, but there was still a good deal of work to be done with surveyors, expert witnesses, and the like to prepare our condemnation case. During the early weeks, we were encouraged. We were the plaintiffs (meaning we had switched from defense to offense) and it seemed our case was moving in a positive direction. Still, it would be difficult to fully relax until the deadline for appeal had passed in the Unfriendly’s lawsuit against us.
When the deadline passed with no appeal from the Unfriendlys, we breathed a sigh of relief and felt we could finally, fully put the lawsuit behind us. That chapter of our lives was closed, it seemed, and we believed the condemnation case would proceed smoothly and in our favor. Mr. Mom and I went out to dinner to mark the occasion with steaks and cocktails. Little did we know we were still in for a bumpy ride.
First, a few days later, the Unfriendlys filed a late appeal, challenging the $1 award for damages. When Mr. Mom told me, I cursed. I wanted to scream and then I wanted to kick something. Just when we thought the case was behind us, it wasn’t, which meant more legal fees, all the while paying the fees associated with our condemnation. We would now be paying two attorneys — Atticus Finch to handle our defense of the Unfriendly’s appeal and Matt O’Malley to handle the condemnation — and it felt like we were being bled dry.
Then one evening as I returned home from work, I noticed Mr. Mom was on the phone in what sounded like a conversation with a lawyer. I went to the bedroom to change and as I sat down on the bed to remove my shoes, Mr. Mom came in and sat down beside me. “Well,” he said, “we got some bad news today.”
I jerked my head sideways to look at his facial expression. It seemed the bad news in our life was often associated with the mountain and I couldn’t imagine what had happened now.
“What?” I asked urgently.
Mr. Mom dropped his head and looked puzzled. “Atticus died yesterday.”
“What?” I asked, incredulous. “How?”
“Pnuemonia, apparently,” Mr. Mom said. “He got sick, then got worse, and he died while in the hospital.”
“He’s dead?” I asked, as if the answer might be different if I asked again. “Who’s going to handle the appeal?” I wondered out loud. I don’t know if I was more shocked by the fact that Atticus had died suddenly or by the fact we were in the middle of an appeal without our attorney.
But before Mr. Mom could answer, I said, not quite under my breath, “Holy cow, how many attorneys can we go through?”
Mr. Mom shook his head as if to say “Who knows?”
Our first attorney had bowed out, saying litigation wasn’t his specialty. Our second attorney had experienced a breakdown of some sort and trainwrecked every case he was handling, including ours. Now, our third attorney had just died unexpectedly. We sure hoped O’Malley, our fourth attorney, could handle both the appeal and the condemnation and wouldn’t expire on us.
Six years and four attorneys later, I began to wonder if we would outlast our efforts to claim the mountain.
To be continued . . .