The Mountain. {The Bombshell}

Aug 27, 2012

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.

In the fall of 2011, we were settling into our new home and getting acquainted with our new community. We were making friends and finding so much to our liking about our new place. Kate had started her senior year at a new high school and was still mourning the end of life as she knew it in our hometown, but Mr. Mom, Parker and I were excited about the possibilities that awaited us.

After we found out that our real estate litigator, Atticus Finch, had died in the middle of an appeal by the Unfriendlys, we sought the help of our condemnation attorney, Matt O’Malley. He agreed to help us, though we realized it would take considerable work for him to pick up where Atticus left off. (“It’s only money,” I said with mock blitheness.) O’Malley juggled both cases simultaneously, and Mr. Mom spent the fall fretting over 1) our defense of the Unfriendly’s appeal of the verdict in their trespass case against us and 2) our condemnation case against the Unfriendlys, which we believed would be the successful culmination of our attempt to gain access to the road leading to our property.

As had been the case for years, I was on a “need to know” basis related to the legal details. I found the whole thing so taxing, so infuriating and so stressful that I ignored most of it. Mr. Mom handled the cases alone while I worried about my new job. If something major happened, he looped me in. Otherwise, I asked few questions and was too impatient to listen to complicated answers.  In keeping with my attitude over the last five years, I just wanted the ordeal to be over. I had pinned my hope to the idea that a condemnation hearing would get us over the finish line in speedy fashion (“speedy” being a relative term in legal matters).

As fall turned to winter, there were three important decisions in our favor related to our cases. First, a district judge (the same one who tried the Unfriendly’s lawsuit against us) granted us a court date regarding our condemnation case. We requested a hearing for “immediate possession” of the road leading to our property because we had been effectively banned from our property for the years during and after the Unfriendly’s lawsuit. O’Malley argued that due to fire danger, we had a compelling reason to be given access to the road and to begin our forestry improvements. The judge agreed to hear our case and the hearing was scheduled for April 2012. I couldn’t help but laugh bitterly at the irony of scheduling a hearing for “immediate possession” five months into the future. Still, the hearing date represented progress.

Second, the appellate court dismissed with prejudice the Unfriendly’s late appeal of the damages awarded in their trespass suit against us. “Dismissed with prejudice” meant we could finally put that expensive and infuriating (and pointless) lawsuit against us squarely in the “over” column, and we would never again have to worry about paying more than the $1 in damages decided by the district judge.

Third, the district judge denied what was a predictable motion by the Unfriendlys to dismiss our condemnation case against them. Things seemed to finally be moving in our favor and we celebrated Christmas 2011 with a heightened sense of expectation and optimism for 2012 – although the long wait for our hearing date in April meant spring dragged along in our world.  Still, we had been used to long waits in our quest to claim the mountain and this was just another one.

***

If you read this post, you know Mr. Mom got halfway to Colorado for the April hearing only to learn it had been postponed until June. We tried not to interpret the delay as a bad sign, but it was hard not to see it that way given how many times in the past five years a delayed hearing had turned out to be ominous foreshadowing of bad things to come. In June, Mr. Mom made it all the way to Colorado before he learned that hearing was also postponed. A short time after Mr. Mom returned from that trip, we received the worst news of all: the judge dismissed our condemnation proceeding and, in doing so, ruled in favor of a recent motion from the Unfriendlys for a summary judgment against us.  The bottom line was that we were told our condemnation attempt was illegal and, therefore, we were liable for the Unfriendly’s legal fees to defend it. The judge had effectively ruled we were permanently landlocked with no way to redress it.

Our heads were spinning. The same judge who had ruled in the Unfriendly’s lawsuit and who had refused to levy more than $1 in damages against us in that case — and who had granted a hearing in our attempt to condemn an easement while denying the Unfriendly’s motion to dismiss our condemnation case — had just reversed himself by throwing out our condemnation case and ordering us to pay the Unfriendly’s legal fees in defense of that matter.

This result was beyond dizzying to us. A year after the judge ruled we were landlocked, which our attorney said gave us a clear legal path to secure an easement through condemnation — and several months after the same judge granted our condemnation hearing – he contradicted himself by saying, in essence, “Sorry. No go. Pay the defendant’s legal fees and go home. You will never have a legal easement to drive to your property.” It was a stunning and disorienting setback that knocked us for a loop.

Mr. Mom and I spent hours and hours over many days discussing our situation. I was ready to quit and suggested this option immediately. “It’s over,” I declared. “It’s unimaginable that we have to pay their legal fees, but let’s pay and move on.” I asked Mr. Mom to consider at what point we say enough is enough, both financially and emotionally. I had been ready to say uncle and walk away years ago, but I kept going because of Mr. Mom’s and Mother’s refusal to let the Unfriendlys deny our family access to our property – property that our family owned and used freely for two decades before the Unfriendlys moved in and started causing problems. Giving up was as unimaginable to Mr. Mom as the judge’s latest decision was to me.

Mr. Mom had spent years figuring every angle in this case. He knew there were at least a few more options (including the wild card of the Unfriendly’s mineral rights, which we still owned), all of which he was ready to pursue vigorously. The least expensive and most direct options were to file a motion to reconsider with the judge, and if that failed, to appeal the judge’s ruling.

It is complicated to summarize why the Unfriendlys were successful in convincing the judge to reverse himself and to throw out our condemnation case. To boil it down to its essential element, the Unfriendlys claimed that our condemnation proceeding was illegal because the matter of the easement had already been decided in their trespass suit against us. Therefore, we were not entitled to “a second bite at the apple” with a condemnation proceeding.

O’Malley subsequently filed a motion to reconsider the ruling by asserting in a very detailed, very complicated, very compelling brief why the Unfriendly’s argument was not correct. Our motion to reconsider hinges on a key legal concept known as “collateral estoppel” (or issue preclusion).  The Unfriendlys claimed we are attempting to try the same legal point twice. O’Malley cited a lengthy list of reasons with applicable case law why this was not true, including a Supreme Court ruling that trespass and condemnation matters could not be combined.  The Unfriendlys responded with another brief stating why our response was incorrect. O’Malley then responded with a brief stating why their argument was incorrect. This is how the system works – one side files something and then both sides argue back and forth with various written responses until time for response runs out. Then a judge eventually rules after weeks or months, and the ruling is often followed by more motions (to reconsider, to dismiss, to appeal, etc.) and the flurry of responses begin again. It is a mind-numbingly, heartbreakingly tedious and expensive process for the average bystander. It’s why people like me (of average intellect and constitution and financial resources) give up and why people or organizations with deep pockets (the Unfriendlys) often win.

Thus, as of August 17, 2012, our motion to reconsider and multiple responses were on the judge’s desk awaiting a ruling, for which he may take up to 63 days to respond. If the judge does not rule in that time frame, it is considered a denial of our motion to reconsider. If denied, O’Malley is prepared to file a motion to appeal with the appellate court.

So that’s it. My story has caught up with real time. Real time involves a lot of waiting. Waiting doesn’t make for a very interesting story.

In the mean time, Mr. Mom is already looking ahead – what to do if the motion to reconsider is denied, if a motion to appeal is denied, if the appeal is heard but the appellate court sides with the original ruling. Mr. Mom and O’Malley (and a host of other players I haven’t bothered to write about, including a surveyor and expert in right-of-ways who has been doing a lot of research on our case and says he’s never seen anything like it and is convinced there’s something more to the story – perhaps corruption or vastly undervalued mineral rights sitting underneath all our properties) are planning contingencies. At least once a week, Mr. Mom tries to explain some new fact they’ve discovered, a new piece of the puzzle and how it relates to a possible outcome. I half-listen because the story is only bearable to me in summary.

Detail by detail, law by law, ruling by ruling, the story is excruciating. I developed a low threshold to the case’s pain years ago and, like a woman with a sensitive tooth who stops drinking cold beverages, I avoid as much legal detail as I can.

Six years ago, had the Unfriendlys only encountered me, they would have claimed victory long before now. Instead, they met up with Mr. Mom. If you’ve ever watched the John Cusak movie “The Jack Bull,” you have seen in the character “Myrl Redding” an approximation of Mr. Mom. My husband is on many days more like a Bull Terrier than a stay-at-home dad. He considers the mountain his birthright and the lawsuit an arm-wrestling match. He’d rather have his arm broken than say uncle and be denied access to what is rightfully his. He refuses to give up and, as our neighbor Jack once said about Mr. Mom, “There’s no quit in ’im.”

So on he soldiers, while I try to make sense of the story. When I started writing some 20 weeks ago, back when the hearing for possession had been scheduled, I thought the story would be over by now, neatly concluded with a “happy” ending. I thought Mr. Mom and Parker would spend this summer timbering our land and preparing to build a cabin. I thought resolution was within reach.

Instead, we’re still grasping . . . Mr. Mom for access to his family’s property, me for peace and understanding.

To be continued . . .

Epilogue:

So much of the last six years of our family’s life has been colored by this dispute that I’m a long ways from clarity on the topic. I keep trying to support Mr. Mom with every ounce of energy I can muster while simultaneously wanting to allow the nasty neighbors to win. I often think if they can live with their karma, so can I.

We learned last week that a nearby landowner who tried to sell his property recently lost the sale because there was a “cloud” on his title. Why? Unbeknownst to the property owner, the Unfriendlys moved their fence and gate on to this gentleman’s property in 2010, causing a dispute over property boundaries. Now the gentleman has no recourse but to sue the Unfriendlys for trespass and force them to move their fence. (He could ask nicely, I suppose, but that approach didn’t work for us.) His property was under contract for sale for $47,000. My guess is he will spend twice that amount and many years litigating the matter with the Unfriendlys. In some ways, knowing of this situation makes me want to fight the Unfriendlys to the death. In other ways, I want to tell the gentleman “Walk away now. Sure you have property that is virtually worthless due to the Unfriendly’s scheming. So do we. At least you can get from a public road to your property. We have to hike many miles over steep terrain. Count your blessings, neighbor.”

And that’s what I’m doing. Counting my blessings. It’s why I started this blog. And it’s what I’m going to keep trying to do, in spite of whatever twists or turns we encounter on the mountain.

What is this you call property? It cannot be the earth, for the land is our mother, nourishing all her children, beasts, birds, fish and all men. The woods, the streams, everything on it belongs to everybody and is for the use of all. How can one man say it belongs only to him?

– Massasoit (The Great Leader Yellow Feather)