Two Years.

Dear friends,

2015-calendar

Two years ago this month, Mr. Mom and I had just returned from a week in Colorado for a second District Court trial in our decade-long mountain saga. Mr. Mom was optimistic about our chances. I was not.

Some three months later, my pessimism confirmed reality when the court ruling arrived via email and we learned we had lost. I gathered up all my brave and wrote this post.

We were immediately advised by our attorney to appeal the ruling. The appeal has been almost two years in the making. A multitude of documents and briefs and motions have been prepared and edited and filed on our behalf. A mountain of legal bills have been paid. Mr. Mom has spent countless hours and untold sleepless nights helping our attorneys build and refine our argument. Last month, the Appellate Court held oral arguments in our case. We watched a live stream of the proceeding as our attorney answered questions posed by the three-judge panel.  Then we closed our browser and began yet another waiting game.

Mr. Mom was again hopeful. The only way I know how to describe my feelings is lost and afraid. So much of the saga is over my head, as we long ago descended into the depths of arcane boundary law. Mr. Mom has dug in with a ferocity that is unmatched among laymen. He has read and researched and learned nearly every aspect of case law that applies to us. He has always possessed a nearly photographic memory and he can recall the tiniest details related to our case with ease and accuracy. He watched the oral arguments attuned to every nuance. For me, it was a lot of words I couldn’t follow. I found myself reacting like a child with thoughts such as “She seems like a nice judge. Maybe she’ll rule in our favor.”

For the last month we’ve been on pins and needles, wondering when a ruling would arrive. Our attorney said his instinct told him we’d hear in 30-45 days. He was correct. The ruling arrived this week.

I can’t say we won. I can’t say we lost.

The final verdict hinges on one tiny fact that — based on the evidence in the trial record — couldn’t be proven or denied by the Appellate Court. It all depends on whether a particular road near our property is private or public.

If private, we win.

If public, the Unfriendlys win.

Thus, our case has been remanded — once again — to District Court for determination.

During our second District Court trial, a witness for our side (a landowner) testified the road is private. A witness for their side (Junior Unfriendly himself) testified it’s public. The Appellate Court ruled there was insufficient evidence for them to make a determination. Obviously, whether a road is public or private should be a matter of public record and we believe we can prove it’s private. But I’ve also learned over 10 years that even simple facts can be distorted and challenged in ways that are highly effective in litigation, so I fully expect the Unfriendlys to unveil a convoluted (and fallacious) argument for why the road is public.

Our fate is once again in the hands of a District Judge. We’re 0-2 on that front, by the way. (Interestingly, we are 3-0 in the Appellate Court. I learned not long ago that only 15% of all appeals are successful in getting a verdict overturned. That we’re batting 1.000 with the Appellate court tells you a lot about the District Court in Pueblo.)

The whole public-private thing may seem confusing but it’s really quite simple. For the Unfriendlys to prove we have access via another route, the route has to originate with a public road. We’ve known for 40 years the road in dispute isn’t public (the locked gate that controls access to the road is just one sign) but, once again, we expect the Unfriendlys to dispute our claim.

We don’t know how long it will take to get a date in District Court. We might be looking at 2016 and we might not.

Several weeks ago I lamented to Mr. Mom how difficult a year 2015 was. Between the court case, difficulties with our house in Oklahoma that still hasn’t sold, my father’s death, and my illness and surgery, I wished out loud that 2016 would be the year we got rid of the house and the mountain saga ended in our favor. It’s only April, but I can’t help but speculate that the wish gods aren’t on my side.

Still, as our attorney said after the ruling “We’re still swinging!”

With gratitude {for another chance to not only claim our stake but actually be able to drive to it},

Joan, who watched The Revenent recently and really related to the scene where the nearly dead Hugh Glass clawed his way out of a grave to continue the fight

PS: I’ve condensed this post down to a tiny fraction of what’s been happening legally. The Appellate Court ruling is 48 pages, for Pete’s sake. As the Dude says “There’s, uh, a lot of ins and outs, man.” Mr. Mom could explain it to you but, trust me, you wouldn’t enjoy it.

 

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Comments

  1. Something Bilbo Baggins said in The Hobbit comes to mind: “So comes snow after fire, and even dragons have their endings.” I don’t know if this is meant to evoke measured optimism or pessimism, but it reminds me of your mountain saga.

  2. That’s the thing about sagas I suppose. The length of the story arc can dwarf our short term demands for satisfaction. After all, we’ve had decades of Hollywood and network television teaching us our problems could/should be resolved within a span of no less than two hours at most. Laugh tracks optional.

    Ongoing wishes for this problem to resolve, promptly and for all time, in some way that allows you to enjoy your wild property to the fullest. In the meantime, kudos to Mr. Mom (who will now always be thought of as The Gratitude’s Grinder” in my mind).

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