The Mountain. {Part 10}

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.

To read the previous installments, click here.

A pretty back-country drive not far from our mountain.

Neither Mr. Mom nor I could sleep that cold winter night in February 2010 when we found out we were on the brink of disaster. Our heads were spinning – at the seven-figure amount the Unfriendlys were asking the court to make us pay; at getting a second opinion and being told we had been screwed; at the pieces of the puzzle we couldn’t make fit together about the case and the attorney who failed us; at our separate but equally urgent attempts to find a new attorney and identifying the very same man.

After tossing and turning all night long and drinking an entire pot of coffee between us the next morning, Mr. Mom called Atticus Finch at 8:00 am MST. He got right through. He told Mr. Finch our unlikely story – about how he had wanted to hire Mr. Finch right after their phone call the day before, but I vetoed the idea. He told Mr. Finch about the series of connections that led me to him, which made Mr. Finch chuckle, and how we concluded our finding him was “meant to be.” He gave Mr. Finch our credit card number to pay a retainer and Mr. Finch promised he would file a motion before the deadline and told us not to worry. And, at my urging, Mr. Mom scheduled an in-person meeting with Mr. Finch in two weeks.

During the previous sleepless night, I determined that we were driving to Colorado – yet again – to meet Atticus Finch. I knew we had to hire him immediately in order to make the filing deadline and stave off the summary judgment, but I was hell-bent to sit across the table from him at our earliest possible opportnity and ask every question I could think of until I was satisfied. I blamed myself for being too “detached” from the whole road thing up until this point. I was foolish enough to think if had I been paying attention, I could have seen some of this coming and prevented it.

Forty-eight hours later, Atticus filed a motion on our behalf explaining we had no knowledge of our previous attorney’s actions. Claiming gross negligence, Atticus asked for a reasonable period of time to prepare a response.  He also asked for a new hearing regarding the injunction that had barred us from our property. Unlike every previous attorney we had worked with, Atticus called Mr. Mom frequently. He asked lots of questions and listened intently to the details. He shared drafts of every document he intended to file with the court and asked for our input before he filed them. He emailed us copies of every document he filed as soon as he filed them. Within a week of working with Atticus, we suddenly realized how a competent and skilled litigator operates.

Our next trip to Colorado was both comforting and sobering. Atticus and his firm had more than met our “fitness” test so far. His answers were thorough, but he seemed as befuddled as we did about how we managed to end up in this unlikely fix given the particulars of the case. He became the fourth attorney in five years who examined our deed and proclaimed we had a valid easement – and since he specialized in real estate litigation, we considered his opinion rock solid. He said it would take some work to undue the damage created by Mr. Moore, but he seemed confident he could turn the case around. Finally he gave us an estimate of what it would cost to take our case through trial – at which point we gasped and wondered how in the world we would ever pay our legal bills and stay solvent.

Since the Unfriendlys had named three defendants in their lawsuit – Mr. Mom, Mother and Jack – we would be responsible for a third of any judgement awarded to the Unfriendlys, as well as a third of the legal bills. We began to contemplate what in the world we could liquidate – or mortgage – to get us through this mess. We had no choice – we were being sued for a large sum of money and we had to defend ourselves. We began to regret our decision to try to work things out with the Unfriendlys in a neighborly way. We regretted our decision to trust Junior’s word on a handshake. We chided ourselves for being so naïve. It sounds cynical and it pains me to say this, but we realized we should have taken legal action against our neighbors before they did us. Now, we were on the defense and, as we would soon learn, it’s an expensive and time-consuming position to be in.

I honestly don’t remember how long we were on pins and needles waiting on a ruling from the judge regarding our motion. Whatever it was – a matter of a few weeks – we would discover it was but a blip in what would become the timeline of our case. When the judge finally ruled, it seemed like the first break we had gotten in five years: he agreed to let us respond to every motion our previous attorney ignored, and he scheduled a new hearing on the injunction for two months later (which we came to realize is fast in court terms). Atticus said the judge’s ruling was a “do-over” of sorts.  He was confident he could have the injunction lifted at the subsequent hearing, and then we would have the opportunity to stand before the judge at trial and plead our case.

In the weeks leading up to the hearing, Mr. Mom became a full-time assistant to Atticus. He poured over documents, did extensive research, and documented timelines and conversations, as well as every interaction he or Jack had ever had with the Unfriendlys. He read every draft of every document Atticus prepared, asked lots of questions, pointed out misstatements of fact, and tried to understand case law in order to formulate the strongest argument in our favor. And because over the years he had met and befriended a lot of people with property near ours or with an interest in forestry, mining and road-building, he was able to help identify and recruit witnesses, expert and otherwise, who would testify on our behalf.

Mr. Mom poured himself into the case. Although he believed Atticus was competent and trustworthy, Mr. Mom had been burned once and wasn’t about to put our livelihood in the hands of another attorney without strict oversight and without coming to understand on his own the law and the merits of our case. He quickly learned about the rights of landowners and the nuances of easements – including the differences between a prescriptive easement, an appurtenant easement, and an easement by necessity. Every night when I came home from work, for as long as I could tolerate it, he talked about everything he had learned that day, how it applied to our case, the strategy he and Atticus were discussing, and what progress had been made.  I was numb to the details long before the hearing arrived.

As it drew close, Mr. Mom and I decided he would travel to Pueblo alone. It was a busy time at work for me and I would have had difficulty taking time off. Plus, we would have needed to make arrangements for someone to stay with our kids. As much as we had on the line, and as much I wanted to stand beside Mr. Mom and look the Unfriendlys in the eyes as they testified, we decided I would stay home.

Mr. Mom traveled to Colorado alone in the late spring of 2010. As he drove away from our house, I was overwhelmed by the feeling that we had no control over our future and that whatever happened to us, our mountain and all of our assets might very well be the result of a decision that had nothing to do with the truth of our situation.

To be continued . . .

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Comments

  1. You have just put into simple terms the reality of why it is that folks are so often better off staying out of court. The legal system (in my gratefully limited experience) is precisely that – a system that renders then supports a decision that may have nothing to do with the truth of YOUR situation, but may rather reflect a judgement given that is based upon a strict set of impersonal criteria and the “facts” of law. Justice isn’t portrayed with her eyes wrapped because she had a migraine……

  2. I’m just so sorry this has happened to you Joan And Mr. Mom and everyone involved.
    Dana

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