The Mountain: Please, God, tell me it’s not really 2018 and this thing is still going on.

Dear friends,

2018 - 1

It’s been 20 months since I last wrote an update about our mountain saga. You might have forgotten about it. You might have thought that it was over. You might have thought — if you read my last post — the case had been resolved in our favor.

<insert rueful laugh here>

HELL to the NO on all counts.

A lot’s been happening, none of which I’ve been interested in writing about. In part because of the Great Clean Out of 2017, wherein I pretty much gave up writing in favor of a major home re-organization and purging project. In part because . . . what can I say? I hate this case.

But last week a new friend told me she had read my mountain story in its entirety and I started thinking about how unraveled the whole narrative is and how much still hasn’t been told. So I decided to dip my toes back in the story, ease into the memory of it all, and share the parts I can remember and bear to tell.

In this post, I told you about another landowner on the downhill side of the Unfriendlys who had discovered our nasty neighbors had encroached on his property, creating a cloud on title and complicating his efforts to sell his lot. Mr. Mom and his brother Lloyd bought the two-acre parcel from the frustrated owner and undertook the legal action to force the Unfriendlys to move their fence and their fancy locked gate back to its rightful place — off what is now our parcel and off the county road. The process meant we spent yet more money on yet more (and different) attorneys — and like everything legal, it took forever — BUT we prevailed. The end result was that Junior Unfriendly was highly annoyed when he was forced to spend some $18,000 to move his fancy electric gate. (Seriously, the damn thing looks like the entrance to South Fork, clearly an attempt to signal “Important People Own This Property.”) But, more importantly, it meant we now owned property adjacent to the Unfriendlys that was accessible by a county road, which rendered our ownership of the Unfriendlys mineral rights usable and relevant again. It felt like a small victory. We hoped it was a signal things would start moving in our direction.

At some point it became clear that following the Appellate Court’s ruling in our favor in August 2013 that the Unfriendlys had no intention of settling with us. Rebuffing Mr. Mom’s efforts to negotiate a financial payment for the easement and avoid yet another bench trial, the Unfriendlys made it clear they’d see us in District Court. So last March, Mr. Mom and I made the long drive to Pueblo for yet another week in court.

(I want to pause just a moment here to give emphasis to a point that’s easy to skim over. The Appellate Court ruled in our favor in August 2013 and remanded the case back to District Court. And it was three and a half years later in March 2017 when that subsequent trial took place. I honestly can’t remember what happened in that span of time and why it took so long. I could look up the details, but the point is . . . it represented more delay, more frustration, more pointless legal bills, more years in which we couldn’t access property owned by our family for more than four decades).

I know I took notes during the trial last March. But I recall very little. Here’s what I do remember. One, it was clear from the beginning the same judge who had ruled against us in the previous district court ruling was now gunning for us. Two, Mr. Mom kept saying the whole thing was an open-and-shut case, but I could sense we were in for another screwing. The Appellate Court ruled we would prevail if we could prove the road the Unfriendlys wanted us to use as an alternate route was private (and therefore not legally accessible to us). We felt like the evidence was irrefutable. The evidence included both documents and testimony the road was built and maintained by private landowners, was gated and locked and was not used by the public, and the landowners in question had for decades paid taxes on the property containing the road. A County Official even testified the road was NOT on their books and they did not maintain it or claim it.

The Unfriendlys claimed it was a public road because, among other things, a county snowplow had a few times driven down the road for a distance (we pointed out and the snowplow driver testified — in search of an easier place to turn around), and utility workers had occasionally used the road (we pointed out and documents proved — by permission of the landowners), as well as other spurious and silly claims.

It took four days for us to say our piece and the Unfriendlys to say theirs. During the entire show, I focused on three things. 1) The Judge. 2) Our attorney, Matt O’Malley, and 3) the Unfriendly’s attorney, Dick Slick. (You can read this post if you want a recap on the bumbling, lying, snake-of-a-Dandy I’ve dubbed Dick.)

The judge seemed frustrated we were back in her courtroom. (Her previous verdict was overruled. Who wouldn’t be?) She made continuing snide comments about how this case has gone on for far too long and had been a “travesty” and I could tell her sympathy didn’t lie with us.

As for our attorney, he didn’t seem on his game. Or maybe I should add he didn’t look well. I privately told Mr. Mom that O’Malley looked like a walking-talking heart-attack and I fervently hoped he didn’t expire.

Dick Slick was most definitely on his game. His old assistant, Sven, was gone, and his new guy seemed a lot less on the ball. But Dick was as groomed and bombastic and sarcastic and melodramatic and . . . awful . . . as ever. I refused to speak to him, even when he tried to exchange insincere pleasantries with me. He made me clench my jaw and seethe with anger every time he told a new lie. During one break while we were all cooling our heals in the hallway, Mr. Mom and Dick both ducked into the men’s room at the same time. (Awkward, I thought.) When Mr. Mom returned to my side, I said quietly “I wondered if both of you would come out alive. I half expected you to kick his ass in the bathroom and call it good.”

Mr. Mom laughed and whispered to me, “Listen, that guy is . . . not right. I mean it. You should have heard him. He was on the toilet grunting and straining and moaning. Like, he seriously was in distress. I think his karma is all bound up in his bowels.”

I laughed out loud. It was a terrible thing to take delight in, but I admit I did. His hair may be as perfect as the Werewolf of London, and his suit may be expensively tailored and his lies effective, but his gut . . . his gut knows the truth.

We came home from Colorado prepared for another long wait, but the verdict came relatively quick. By late summer, O’Malley gave us the news that the judge had ruled against us. I wasn’t surprised. I didn’t cry. I didn’t even curse or get upset. I had foreseen it. Facts mean nothing in this case — at least they mean nothing in this District Court. And I had sat through a week’s trial knowing O’Malley was lining up all the chess pieces for a strong appeal and that — we prayed — the Appellate Court would once again see through the charade and would enforce case law.

But because we lost, the Unfriendlys filed another claim for us to pay their attorney’s fees. So in December, Mr. Mom drove to Pueblo yet again for a hearing on that matter.

This is important for me to say out loud. For you to know. Because it is emblematic of everything I despise about this case. The Unfriendlys claim to have spent nearly three times what we have on legal fees. Yet neither they nor Dick Slick can produce any shred of evidence that the transactions have occurred. There is no letter of engagement or retainer agreement. There are no billings. There are no cancelled checks or bank records (from either the law firm or the Unfriendlys). They are all missing. A couple of years ago when Mr. Mom had to go to court for an earlier hearing on this topic (before it became a moot point because the Appellate Court overruled the District Court), Dick Slick testified that Ukranian hackers destroyed his computer records. Yeah. He said that out loud. Ukranian hackers ate his homework. This time around, however, he blamed it on Sven. Just so you know, our attorney, O’Malley said in court, “I just want to get this straight. In the last hearing you said you could produce no records because of Ukranian hackers. Now you’re blaming an ex-partner?” (I know it won’t surprise you to know we can document every dime we’ve spent on attorney’s fees, both through billings and bank records.)

So, yeah, we could end up owing tens of thousands of dollars in legal fees for the Unfriendlys that no one can document or prove were owed, charged or paid. It’s inexplicable but I’ve learned in this case, sometimes, the absurd is reality. It’s all in the hands of a judge.

And in yet one more twist that no one will believe (or maybe you will if you’ve followed along this far and this long, and therefore you grasp that this case is not normal), we learned yesterday that our attorney, Matt O’Malley, died suddenly this week. For those counting, he’s the second attorney who’s died in the middle of our case. (He’s the third who’s expired, if you remember Dave Moore, the guy who had a mental breakdown and stopped responding to filings and showing up in court unbeknownst to us back in 2009.)

So, yeah, we’re less than two weeks away from our appeal deadline and our attorney is dead. There’s just no delicate way to say that. And no need to gnash my teeth about it. I suppose one of his partners will seek an extension and take over. Maybe I should be more solemn or reverent about the loss of a human life. But I called it. Almost a year ago I called it. And I’m numb to it.

And numb, right now, is a lot better than the alternative.

With gratitude {for whatever gets me through the night},

Joan, who spent a good portion of December on the sofa watching Christmas movies on the Hallmark channel and Turner Classic Movies, and who gulped their cheesy optimism and happy endings as a tonic to real life, especially Miracle on 34th Street, where the courts run smoothly and the judge is sensible and kind, and a happy ending for all is guaranteed

PS: I am well aware this post is dark. And I’m not usually dark. I’m working on it. I’ve taken up Yin Yoga and I’m meditating and walking regularly and it really is helping. Equanimity may not be just around the corner but it’s out there somewhere and I’m actively seeking it. You may not be surprised to learn I had some blood work done recently and my results were concerning. Three years ago, all my numbers were in the “green” (good) range, and now several are in the yellow (concerning) and red (problem) range. My doc looked at my scores and asked me if something bad happened last year. I laughed out loud. “I laid off 10 people and stopped running and gained 15 pounds. Oh, and I lost a court case.”

Maybe that explains why I was obsessed with my house last year. It was a convenient diversion, and the clean and clear space brought a sense of calm and order to my world. It’s the perfect environment for me to get back to normal in. And I will. If I know anything, it’s that I fervently believe in the power of goodness and love, and I’ll hang on until the scale tips to that side. Maybe I’ll start writing more regularly. It has always helped me make sense of the world.

And, for the curious or concerned, Mr. Mom is doing fine. Like me, he gained weight last year. But, heck, we’re getting older and we eat like kings, so whattya gonna do?