The Tale Of The Prick Who Cried "Wolf" - Hostage, My Ass
By DON WINNER for Panama-Guide.com - You know, one of the things that really pissed me off is when I get "played." People contact me all the time when they want help in one matter or another, and God Dammit if I'm going to take the time to try to help someone, then the very least they can do is be totally straightforward and honest with me. In the case of Dan and Jean Miller who bought a house in the El Banco area in the District of Dolega, province of Chiriquí, it has now become apparent this conflict between the Millers and the Citricos S.A. company, represented by Guillermo Cárdenas Pelaez, has actually been fought in the courts for more than two years. In fact, it now seems that the Millers won the case initially but then lost the case on appeal. Actually they have lost the case on two appeals, one to the Governor of Chiriqui and another to the Third Superior Tribunal in David. Now, they have a pending appeal before the Supreme Court of Panama. It took me a couple of days to get all of the documents, which, by the way, were sent to me by the represenatives of Citricos S.A., and to figure this whole situation out. Now, I learn that in fact the lawyers for the Millers have filed and lost several appeals to legal decisions, and in fact they now have an appeal pending before the Panamanian Supreme Court. And when I just spoke to them again about all of this, I'm supposed to believe that they didn't know all of this was going on? I'm supposed to believe they didn't know they had lost their appeal to the Superior Court? I'm supposed to believe they didn't know they had filed an appeal to the Supreme Court? Yeah, right - bullshit. This isn't the first time someone has gone running to the press with a sob story in an attempt to gain sympathy for a cause they have lost in legal channels. Man, I'm Pissed: Do you have any idea how much time I've wasted on this bullshit? The fact of the matter is the Millers simply don't want to build a new access road through the property to their east, and they are trying to convert a private road used by Citricos S.A. into a public access road for their own personal use. No one else uses that road (except Citricos S.A., of course, to harvest their oranges.) but I mean there are no other houses at the end of that road except for the Millers. The Millers point to a letter from the MOP dated from January 2007 which was considered in evidence but dismissed. It's come to a head just now because the Millers have lost on all of their appeals, and the only thing they have left to do is appeal to the Supreme Court, which they have done. But since that can take years to be decided, in the meantime the Citricos S.A. company is perfectly within their legal rights to close that road to the Millers. So what do the Millers do when they lose the case in court? They tore down a gate that has been there on the Citricos S.A. property for more than 12 years. In response, the company dug the ditches.
A "Police Action" This case started as a "police action" and the Municipal court level, and initially they won the case in the form of a decision by the local Mayor. Citricos S.A. then appealed that decision to the Governor, and they won on appeal in a resolution handed down by the Governor on 25 May 2009. Dan Miller then appealed that decision to the Superior Tribunal, which they lost in a decision dated 26 June 2009. The Governor then handed down another ruling on 29 June 2009, and the combination of those two rulings, the most recent one from the Governor and the decision by the Superior Court, define the current status of the case.
The "Finca Madre" and "Servidumbre" - When the Miller's purchased their property several years ago, it was owned by a woman who had three sons. She divided the property into three parcels. The Miller's purchased the parcel that was in the "back" of the property. The family that has owned and farmed this property for generations has always gained access to the property on the eastern side, where the red arrow indicates and the image above is annotated "road access on this side." According to Panamanian law every parcel of land has to have what's called a "servidumbre" which basically translates to "right of way." According to Citricos S.A., when this parcel of land was subdivided, they never properly established a "servidumbre" as required according to Panamanian law.
What The Governor Did: I know there's a tendency to think "the big bad rich company paid somebody off to get the Governor to decide in their favor." Well, not so fast. What the Governor actually did was send out third party inspectors to figure it out and report back. They determined that in fact when the Millers bought their land just a few years ago, it was separated from a larger farm, and at that time the sellers failed to properly establish a right of way as required by law. And, now, the Millers pretended to basically "usurp" the access road used by Citricos S.A. to gather their harvest and convert that into a public road, which it ain't.
Go Buy Some Road Building Equipment: My advice to the Millers now is that they should drop all of this "woe is me" bullshit, own up to the fact that they took their case to the Panamanian legal system and lost, and start working on building a road to their property to the east, through the farmland of the guys who sold them this bill of goods. I also advised them that, in my opinion, they should drop their appeal to the Panamanian Supreme Court because it now seems, upon an objective review of the legal documents, that they will most likely lose. So, why throw more good money after bad. Basically, they don't have a leg to stand on. And, they know it. Of course, the Millers will have to build an access road to get to their property, and in short they simply "don't want to." There is an existing access road which passes through the citrus orchard, owned by the Citricos S.A. company, and the Millers simply started using that road to get to their farm. They didn't want to have to incur the expense of having to build a road, but in fact they probably should have known that when they bought the land. Now that argument has been heard and lost. Get over it.
Saying And Doing All The Right Things: I spent a lot of time this afternoon talking to representatives from the Citricos S.A. company and Guillermo Cárdenas Pelaez, who is the President, legal representative, and manager of that company. He told me they would be willing to "reopen the road right now" if Mr. Miller does in fact have a pressing humanitarian need or medical issue," provided that the Millers sign a document acknowledging the permission is being granted by Citricos S.A. is provisional, that they are doing it as a humanitarian gesture for 60 days, that the Millers recognize and acknowledge that they have in fact lost their legal case, and that their use of this access road is temporary in nature. When I presented that to Mr. Miller, he said he would "not be prepared" to sign such a document. When I explained the entire position of Citricos S.A. to Dan Miller, he said "I understand that is their position" but he refuses to accept it. If the Millers were smart, they would sign such a document today, ask for forgiveness, and ask the Citricos S.A. people very nicely if they could please, pretty please, be allowed to use the access road while they build their own new access road to get to their farm. They should drop this whole "we are the victims" charade, stop wasting everyone's time, and sign any document the Citricos S.A. guys put before them. Then, they should identify an access right of way to the east, and start building a road.
"Police Action" vs. "Judicial Action" First of all, what is a "police action" in this case. The local Mayors have relatively wide ranging powers to resolve administrative disputes over things like this, specifically land access and rights of way. As you can probably imagine people fight over this kind of stuff all the time. And decision handed down by a local mayor is referred to in Panamanian law as a "police action" because specifically the Mayor is not a judge. And, if you don't like the decision that was made by the Mayor then you can appeal his decision to the Provincial Governor. that's the pecking order. In a letter sent by Citricos S.A. to the Mayor of Dolega, they explained how Article 1741 of the Administrative Code describes how and when resolutions handed down as part of a "police action" have precedence and jurisdiction, and when and how those types of decisions can be overturned or overruled. With regards to rural rights of way, specifically referring to land access in cases such as the Millers, the law clearly states that the resolution handed down in the "police action" will remain in effect if and until the results of that decision are struck down by a court from Panama's Judicial branch of government. They go on to explain that since Citricos S.A. won their case on appeal to the Governor, then the only course of action remaining to the Millers would be to address the matter in the Judicial branch with a legal claim, which they did with their appeal to the Superior Tribunal, and they lost that appeal. Therefore the decision of the Governor and the decision of the Superior Tribunal will stand as the legal outcome of this case until the Supreme Court decides, which should happen by about 2015 or so.
The Millers Should Not Be Surprised: This has been going on for more than two years. This is not a new conflict. The Millers have had ample chance and opportunity to do what they quite simply do not want to do - build a road through the "finca madre" to the east, using the "servidumbre" which should have been legally allocated to their land. They have no legal right to continue to access their property through the orange groves owned by Citricos S.A. According to Guillermo Cárdenas Pelaez, "Mr. Miller is simply trying to use the press to win a case he has lost in court."
Happy Now? I hope the Miller's are happy about all the press attention they have managed to attract to their "plight." There's only one other option - there exists the slight possibility they were either lied to or misled by their lawyers. That the lawyers kept them in the dark. That they didn't know they had actually lost the case in the Superior Tribunal. That's a possibility, but I'm not buying it at this point. I think the Millers simply didn't like the answer they got so they took matters into their own hands and paid someone to yank down a metal gate, prompting all of this drama. So please, stop wasting my damn time on these kinds of things. I'm very sorry to hear Dan Miller has health problems, but that doesn't change legal rights over access to land and rights of way. There's also the argument of "we didn't understand what our lawyers were saying." Well, maybe you should have gone down that road before calling in the press. In other words, take the time and effort to figure out what's actually going on before wasting all of our time.
We All Got Played: Everyone who owns a website and covered this story. Everyone who wrote and email in support. Basically, I'm not happy. Can you tell? Screw this... I still get suckered into this kind of bullshit every now and again. The only difference is that now it takes me less time to figure it out.
Copyright 2009 by Don Winner for Panama-Guide.com. Go ahead and use whatever you like as long as you credit the source. Salud.
