I'm going to court this week

[Gary_in_Indiana]

Re: I\'m going to court this week

Bill,

The only thing I can think of in the bed is my snowplow blade (for that truck) and a piece of firewood I dumped over the wood side extensions with my FEL just to see if I could get the bucket over those sides or not.

I have to admit, you've made me about curious enough to go out and look right now. /w3tcompact/icons/hmm.gif

 

[webbmeister]

Re: I\'m going to court this week

"OR failed to tell the woman who is essentially the complaining witness to my "transgressions.""

Gary:

With all due respect, I have another perspective on this.

You know you are right, and it is possible that this woman - as cantankerous as she may be - just doesn't have a clue about why you might be out there. Worse, she might be a little "off-balance." In either case, outside of some short-lived joy from having successfully retaliated against her, what will you have that handling this with grace and compassion won't get you? She sure doesn't sound like the type who could come up with $$$ in the event you win a judgement against her. I think your attorney had the right idea, and taking care of it with a call to the woman's attorney would be a far more effective and less messy way to deal with the problem.

Best Regards,

Jim

 

[DaveNH]

Re: I\'m going to court this week

Maybe part of my up-bring here, but I always thought it
was part of a lawyers job - to settle and keep you from going to court.
When all else fails, then you go to court.

I maybe totally out in left field regarding this but appears to me that if a simple phone call and maybe some paper swapping would clear the entire issue, why bother with the costs of time and money. I'd followed
the advice of the lawyer, after all that's why you hired him.

Just my opinion, I might be wrong./w3tcompact/icons/smile.gif

 

[rmorgan]

Re: I\'m going to court this week

Alex--

Not to be too hasty to inject reality into this discussion, non-clients cannot sue a lawyer for malpractice. There are provisions for frivolous litigation, but that ain't one of them.

 

[Gary_in_Indiana]

Re: I\'m going to court this week

Jim,

I should have mentioned earlier that this is part of a larger foreclosure action I have filed against the man from whom I bought my land regarding adjacent property on which I hold a first mortgage. This is not an isolated instance at all. A good part of my goal in this is to show the judge how ridiculous these people can be as he's the same one who'll preside over the foreclosure trial. I would have thought someone on that side of the table would have taken the time to at least look at the public records and see who owns what there.

Lest you think I'm not at all open to what is probably good advice, I'm going to be downtown tomorrow and intend to stop and see my attorney now that some time has passed and I'm not quite so incensed by this.

In point of fact, the part of this that irritates me as much as any is that she could easily have approached me and asked what I was doing there rather than running to file this. I'm actually pretty easily approachable. She could have spoken with me there.

She knows my name. My phone number is in the book. She's been to my office. My office number is on the side of my office building. There were any number of opportunities to handle this without filing that motion.

Quite frankly, I have no problem being enjoined from entering his buildings or property. I do, however, greatly resent the implication that I have done so.

I do intend to seek a similar restraining order against them as they have already admitted to trespassing on my property. It'll be interesting to see them walk through a field to get to their buildings rather than using MY driveway to get there.

They are not landlocked. They have roadfront just like I do. The difference, however, is that I own the driveway, having bought it when I bought my property. I had no problem with them using my drive so long as they were living there. Well, now things have changed, the house is empty and condemned and I no longer want them on my property since they've made it very clear they don't want me on theirs.

I'd be curious to know if I'm required to grant them an easement over my drive when they own property exactly parallel to it on which they could gain ingress and egress. If I'm required to grant that I'll be rather upset. As the drive was at one edge of my land there would have been no point in my buying it if I could have just claimed an easement of convenience ("This drive is already here and I don't want to put in my own").

 

[webbmeister]

Re: I\'m going to court this week

Gary:

Thanks for the reply and for the background. Clearly, what was on the table for us to see before was the "tip of the iceberg."

My wife, a great contract-type, does an awful lot of very heady negotiations. No matter how complex they are, or how inflammatory the other side, she always keeps her cool. She treats them with dignity (that sometimes they clearly don't deserve) and she does what she can to listen to and understand their arguements. Where there is room for compromise, she works hard for a win-win, and where there isn't, she uses her understanding of their arguement to further hers. Whether there is an arbitrator involved or not, this approach almost always ends up with all parties walking away calm and my wife having "won" the major points for her client. Especially where an arbitrator is involved, a less-than-dignified approach always works against the agressor.

And then there's Karma. This woman will "get hers" if it's due her. Surely you don't need to cloud your own Karma with activities you'd hesitate to tell your mother you'd participated in?

I'm glad you're calmed down some, and that you're thinking about letting the attorney handle this. If s/he understands the scope of your problem, perhaps it can all be taken care of with one pass and the least amount of pain - financial and emotional - possible for all involved. I wish you the best!

Jim

 

[Kodiak]

Re: I\'m going to court this week

Gary:

If per say that you do have to Grant them an access easement, Word it for a dedicated number of days 90,120,etc. With provisions that they will then have to file for another temporary right to easement. This will prevent them from obtaining a writ of eminent domain where they might eventually obtain title to the easement. As well as wear them down from the costs of repetitive filings.

 

[mdbarb]

Re: I\'m going to court this week

OOOHHH BOY
It's deja vue all over again
See my thread: "Help! I need legal advice re: easements"
I'm just a few filings ahead of you on a very similar situation.
No final decisions yet but a few things I have learned from my first experience with the legal system.

1. It's gonna cost you, even if your right.
2. What appears totally logical and right can be turned on its ear in a second.
3. See 1. above.
4. Nothing happens quickly
5. See 1. above

 

[JohnMiller3]

Re: I\'m going to court this week

Hi mdbarb...

This is one of those things where you have to experience first hand...

Years back, I was 110% right and everything was on my side... but my friends told me it's not a "walk in the park"... I just knew they were wrong... but how wrong could I have ever been... /w3tcompact/icons/blush.gif

The wheels of the justice system turn forever slow... and expensive... but nobody will ever believe it or you... until they are in your boots... and walked your prior path... /w3tcompact/icons/wink.gif

This has got to be the most expensive game of chess... I've ever played in my life.../w3tcompact/icons/eyes.gif

 

[northcreek2624]

Re: I\'m going to court this week

Gary, Whatever you do,don't ask her to try putting the gloves on..........Mike

 

[dgood1]

Re: I\'m going to court this week

Gary,

Some words of wisdom that I got from an attorney. "You never know what will happen in court."

The other gem was in a law magazine that I saw back in the 70's. There was a cartoon showing an attorney talking with a client. The caption read. "Just how much justice can you afford" That unfortunately seems to be the case more often then not.

Good luck and keep your head down so they can't hit you.

 

[Gary_in_Indiana]

The latest news

I spoke with my attorney today who had done his research and here's the scoop.

I can do nothing and wait for the TRO. If it comes the other side should be required to post a bond. My attorney can then go after the bond for his fees when we prove ownership. I looked at that as good news and somehow poetic justice.

Here's the downside to that. IF the wording on the TRO enjoins me from entering HIS property and buildings at {address} then I could be OK. IF it states "pole barn" specifically I could have a problem as mine is the only pole barn even near that address. Then, even though I clearly own it, going there might still be considered a violation of the court order. Further, emboldened by such an order, the other party's agents might take it upon themselves to break the locks off the pole building and do whatever to or with the contents. Not a pretty scenario there.

So, not knowing what the wording might be and given the uncertainties inherent in anything like this, I'm going to file a response to their motion Thursday morning showing the deed and survey. Unfortunately, doing this precludes any chance of collecting attorney's fees for having been forced to do so. Once again, I'm 100% right and still get to pay the freight. /w3tcompact/icons/hmm.gif

 

[MDNY]

Re: The latest news

Gary,

You could go after them in small claims court for your legal fees. But I would get this cleared up without too much delay as they could just rob you blind since you can't go on the property once the TRO is issued to you.

Good Luck.

 

[Gary_in_Indiana]

Re: The latest news

That was the deciding factor for me. As I said, the answer to their motion will be filed Thursday morning, which should fall well within an appropriate time frame for my reply.

As to my additional expenses, there is no statutory basis for seeking damages (in any court) for costs of defending against even a spurrious motion.

I'm not going to worry about it at this point. It's probably another few hundred dollars on top of what is already thousands spent. If we prevail and my foreclosure action is upheld OR if we reach a reasonable settlement (meaning me paying them to go away) and I get the property it will all have been worth it. It's that on which I have to keep my focus here.

 

[dmccarty]

Re: The latest news

Gary,

The whole thing stinketh......

Now we don't know what a court will do but HOW can
some one get a TRO to stop you from using your property
without proving ownership first? Given the scenerio you
threw out, if the other side did manage to get a TRO on
the property how does that give them OWNERSHIP of
the property and what is contained in the barn? Seems like
if they managed a TRO against you and then damaged or
stole from the property that would then fall under a criminal
statute....

Has the lawyer said anything in this regard?

If there is no way to sue them for the cost of defending
yourself agains a spurrious lawsuit then our system is even
more screwed up than I already knew it to be......

Good Luck!
Dan McCarty

 

[Gary_in_Indiana]

Re: The latest news

Dan,

Well, I don't think the court is going to do the research on this so it's up to me to provide them with the information on ownership. If I didn't respond they could possibly get the order and, as I said in an earlier post, if it specified the pole barn I might be in technical violation if I went there.

I don't think there would be any claim of ownership of property in the barn, etc., but, if they actually believe they own this then they might feel emboldened by the order and might well want in to "their" barn to see what I've done there.

At that point I'd be more concerned with the reality of what COULD happen and the difficulty of proving they did it, quantifying damages, obtaining a judgement in that amount and then collecting that judgment.

As to trying to escalate this into something potentially criminal on their part, I'm just not interested for a number of reasons including the difficulties I mentioned above. Too much downside risk for me. I was out there today and got to looking around and would estimate somewhere in the neighborhood of $30,000-$40,000 replacement cost for everything I have in there.

As to suing for costs of defending a spurrious lawsuit, that option is not available because this is not a suit but a motion appurtenant to a valid suit I filed. The only way to sue for costs against it would be to allow the TRO to be ordered first. As I said, I don't want that to happen so I get to pay the tab.

 

[dmccarty]

Re: The latest news

Gary,

I now understand the spurious lawsuit issues.

I did not mean to suggest you should escalate any of this
into some sort of criminal action. My point was that
IF they got the TRO it seems to be a big step from keeping
you from the barn to assuming that they own everything in
the barn. Obviously you don't want them to damage or steal
your property but if they did I don't see how the TRO gives
them the "right" to do so. And if they did damage or steal
said property that would be a criminal offense.

Of course proving it could be difficult but maybe not either.

Let us know what happens.....
Dan

 

[Gary_in_Indiana]

Re: The latest news

Dan,

You're right that a TRO wouldn't give anyone a "right" to enter my real property or remove any of my personal property therefrom. My concern was more along the lines of what they might perceive to be their rights to at least enter my land and building. Right now it would seem they believe this land to be theirs and not mine anyhow, so, even with the absolute purest of intentions, they could well trespass and not even be aware they are doing so.

If the situation were reversed I could imagine me going on to "my" land and breaking a lock off "my" building to see what was going on inside and then resecuring the building with my own locks.

The TRO issue should be resolved tomorrow and I have to believe it will be resolved without a TRO being issued or any hearing being set.

 

[chim]

Re: The latest news

Sure hope they didn't lock ya up, Gary. Kinda expected a report by now. Could be you're off celebrating the victory?........chim

 

[Gary_in_Indiana]

Re: The latest news

Well, here's the latest. I signed a response to their motion for the restraining order this morning. I also provided a copy of my duly executed deed (recorded in January of 2000) and the survey showing property lines, corners and the location of MY pole building clearly within those boundaries. I would imagine it was recorded and sent to the judge before noon. In all likelihood, the final result will be a denial of the motion for the restraining order.

I'm being deposed Tuesday morning on the larger suit. After that I'll probably make some decisions regarding requesting a restraining order of my own and whether or not I want to issue interrogatories to the other party or depose them.