The Mountain. {Part 17}

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.

Late one night in April 2011 – nearly seven months after the trial to resolve our dispute with our Colorado neighbors was over – I received a text from Mr. Mom telling me we had lost the case. It was like a bullet in the gut. I was sitting on my air mattress editing a document on my laptop when my phone buzzed with the terrible news. I read the message and gasped. I felt disoriented and light-headed, then I read the message three more times and, each time, the words seemed more ominous.

The judge ruled today. We lost the case. Call me.

The judge ruled today. We lost the case. Call me.

The judge ruled today. We lost the case. Call me.

It was late and I was alone in our empty new house. Mr. Mom was back home, 300 miles away, in the midst of packing up our household and finishing up the school year. I guessed he’d sat on this news most of the day and he was just now telling me. I was immediately overcome with fear for Mr. Mom’s well-being. I had no idea what the news meant for us legally or financially, but I knew my husband would be devastated.

We had fought this battle for more than five years. Attorney after attorney had told us our case was mind-boggling because it appeared to be so clear-cut and it was unimaginable how things kept getting worse and worse.  We had hired an attorney who had gone off the rails and put us within 72 hours of a summary judgment that would have been disasterous, then we had scrambled to identify and hire a competent litigator practically overnight. We’d been barred from our property for almost two years (in an injunctive ruling by the judge that our attorney declared “illegal” in real estate cases), then Mr. Mom’s best friend shot himself and we spent months reeling from the shock of his death while trying to get our case back on track with our new attorney.  Mr. Mom had thrown himself into the trial preparation and had lain awake countless nights considering details and possible contingencies. For almost a year, he had endured the stress and anxiety of our situation without morale support from me because the whole thing had become too much for me to deal with and I tuned it out. And as if that wasn’t enough, my mother fell ill and died and I became a kind of zombie-spouse.  Now I was living more than four hours away, desperately trying to build a new life for us where I could become a saner mother and wife, and the worst outcome to our dispute I could imagine had just happened. Needless to say, it was unexpected in a way that made me dizzy. Our case seemed so obvious and so compelling in the courtroom months ago. How could we have lost?

Oh god,” I whispered quietly while wondering “what have we lost?” The Unfriendlys had sued us, Mother, and Jack (our friend and adjoining neighbor) for more than a million dollars. Would we all be financially ruined as result of a stupid dispute over a road? I don’t recall how long I sat contemplating the answers to all my questions before I finally mustered up the courage to call Mr. Mom, but I remember being sick to my stomach as I dialed the phone.

To my surprise, Mr. Mom’s voice was calm and measured.  After he said hello, I could think of nothing more to say than “Oh my god, how could we lose?” I had surprised myself by keeping tears at bay, but my voice was weak, barely above a whisper, and it was clear I was shaken to the core. By contrast, Mr. Mom, who’d already had hours to absorb the news, had moved on and was in problem-solving mode.

“I’ve talked at length with Atticus about this and it sounds like bad news, but really, there’s a good side,” he explained.

“How can losing be good?” I stammered.

“Well first of all,” he said, “the judge said it was clear we had an agreement of some sort with the Unfriendlys. It was impossible for him to tell exactly what the agreement consisted of since it was verbal and since our testimony was so different. But because the judge believes we had an agreement — that for whatever reason went bad — he only awarded damages of one dollar. So . . . we can breathe easy knowing they’re not going to get all our money and our land.”

My head was spinning. We lost but we weren’t subject to a large financial judgment? “I don’t understand,” I said to Mr. Mom, my voice gaining strength.

“But here’s the thing,” he explained. “The judge also ruled we don’t have an easement of any kind, so we are officially landlocked. Atticus says that’s good because now we can sue the Unfriendlys through condemnation proceedings.”

I sat in silence for what seemed like a long time.  Finally I said, “So we went through all this heartache and spent all this money on lawyers, and now we’re landlocked?”

“Pretty much,” Mr. Mom said. For the first time since he picked up the phone, he sounded really tired.

As we continued to talk, he explained that condemnations are highly procedural matters that are typically much more clear-cut than our current situation had been. He said Atticus assured him that a good condemnation attorney could get our case moving quickly and, though this ruling seemed like a set-back, there was now a clear path to securing access to the road.

“So now we have to sue the Unfriendlys for an easement?” I asked.

“Yes,” Mr. Mom said.

“Even though a string of attorneys have already told us we have a valid easement in our deed?” I said scornfully. My hate for all attorneys had been building over the years and it erupted at that moment.

“It doesn’t matter,” he said patiently. “The judge ruled the easement didn’t pass to us when my parents bought the land, and our use of the road didn’t constitute a prescriptive easement, so we’re landlocked. However, it’s unconstitutional in the State of Colorado for a piece of property to be landlocked, so we have the right to condemn an easement.”

“And that’s our only option?” I asked.

“It’s our best option,” Mr. Mom said.

“Great,” I said sarcastically. “How much is that going to cost?”  Our family had already spent a six-figure sum defending ourselves from the Unfriendly’s claims. Now we were at a virtual stalemate and we would have to spend more money to gain access to our property?

“Maybe 30 grand,” Mr. Mom said, “not including the purchase price of the easement.”

“Thirty thousand dollars?!” I shouted. “On more lawyers? Hell, no!”

I was done. Put-a-fork-in-it done. I wanted nothing to do with that god-forsaken mountain in Colorado ever again. I wanted to pay our $1 judgment and never think about the Unfriendlys and their lying, scheming tactics again. I wanted to spit on Dick Slick, but I would be content if I simply never had to look at him again. I wanted to ruefully laugh in Atticus Finch’s face and tell him our justice system was a farce and he was its biggest fool. I wanted to move on, right now, to build our new life in our new state without the stress and heartache associated with litigation. I wanted to go to sleep right that minute and when I woke up, I wanted to never again have to speak the word lawsuit.

Mr. Mom launched into an explanation about condemnation proceedings but I begged off. I said I had an unfinished document that was due to my boss at 8:00 am, and that was true. But mostly I wanted to sit and stew and feel angry and sorry for myself without Mr. Mom as a witness.  I wanted to cry. I wanted to pull the covers over my head, all of which I did during the next restless eight hours after I hung up the phone.

“Damn,” I thought to myself over and over as I tossed and turned. “I’ve been waiting five years for this to be over and it’s not over.”

I was mad at the world and, at that moment, I seriously contemplated staying good and mad for a very long time. Maybe, I thought, I would be mad about the mountain until the end of my days.

To be continued . . .


  1. OK I was starting out to make some “voice of reason” comment here about how the litigation process sets up and then knocks down obstacles in a very particular way, (perhaps even a mysterious way its wonders to perform?) then realized this is neither the time nor the place. So I’ll just go with this:

    Stupid Awful Lousy Crappy No-Good to the point of becoming Obscene Not Being OVERness! Aaaaaargh! Fist to sky “As the universe is my witness, my friend Joan-Marie shall nevuh EVUH go roadless again!”.

  2. Gotta love that texasdeb. Somehow I don’t think Joan-Marie would ever eat a rotten root vegetable….

  3. I can’t even begin to imagine how I would feel after going through all of that just to begin again. I was sitting there on the floor with you Joan. I hope I never ever have a reason to use the courts. Your story just fuels my feelings about actual justice ever being served.

  4. How totally exhausting! To go through all of that emotionally and financially, etc. and to not win the case. It’s just insane. I’d have pulled the covers over my head too.

    I really hope this story has a happy ending.

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