Just for the record, what is the length of the statute of limitations in MO?

". As a side note the Form 990's for both of these groups don't seem to clearly indicate if they are funding these lawsuits - it would be a neat trick if people are giving tax deductible donations to pay for the lawyers."

Not really. There's plenty of prohibitions on how a tax exempt MAKES money, but very little on how it is SPENT, so long as it isn't directed to related parties or is clearly unrelated to their exempt purpose.

Whatever the merits of the case, one-including a TE has a right to pursue their interests. I'm a CPA, not an attorney but I think if a client of mine received a letter from the IRS threatening their tax status on the basis that they were pursuing litigation, I'm pretty sure I'd send them to an attorney to see if anything could be done about a denial of due process rights.

For the record, actions for replevin (retaking of an item of personal property) must be commenced within five years.
http://www.moga.mo.gov/statutes/c500-599/5160000120.htm

The clock started ticking when the Chapter made a request for the return of the locomotive, and MOT declined, in 1995 or 1996. Either way, the Chapter had until 2000 or 2001 to file suit.

With regard to Mr. Rowland's comments, having a lot of money or determination doesn't garuntee you end up in front of John Roberts and the Supremes. Statistically speaking, it's over.

Your point re: statisticly it being over is now doubt correct and I certainly defer to your knowledge of the legal game and its mechanics.

HOWEVER, knowing the principals behind this effort I can assure you that however long the odds are against them they WILL expend the effort to get it heard by Mr. Roberts and Associates.

Should they succeed it would be fascinating if the highest court actually included in the deliberations the core issue here at hand and that is what happens when one "loans" someone an artifact and one or more of the conditions attached to that "loan" are not kept, what right(s) does the original owner have in demanding the return of that artifact.

There's zero question that the MOT allowed the 952 to deteriorate to a shamefully neglected state which prompted this whole dust-up to commence in 1995 and this fundamental issue has never been legally argued as the different courts to date have limited the discussion to the technical issue of the Statue of Limitations, NOT the core issue.

My totally amatuer guess is that IF by some million to one chance the Supreme Court hears this case they might well rule in the Chapters favor and decide that the MOT must return the artifact to its owner as it clearly failed to meet the conditions ( one of which was that it be maintained in WORKING order!!) of the loan and thus must return it to the R&LHS in working order????

At the very least it would certainly generate a ton of media coverage. The great locomotive race of 2010!!!!


IMHO-Ross Rowland

I agree that statutes of limitations are necessary and proper. In this situation, though, it seems that we are dealing with an item that is otherwise regulated under the commerce clause and owned by a non-MO entity. Is the location of the item the only determining factor in determining venue and applicable law?

Perhaps Mr. Wilkens or trainlawyer could answer my question.

Best,
Mike

Okay, I'm getting ready to go and play some 1860 rules vintage base ball today, so I'll keep my reply short:

1. New River's comments/questions: Without going into a whole long discussion of venue, applicable law, minimum contacts, etc, this is what I'll say. The original cause of action is replevin, the return of an item of pesonal property. You typically bring the action in a court where the item is located. Even if you brought a breach of contract action, since a significant part of the "agreement" took place in Missouri, you'd have a pretty good argument to apply Missouri contract law. Upon review of the legal file of the case, I haven't seen where the Chapter argued to apply Pennsylvania or some other state's law. Without doing more research, PA may have a shorter statute.

Your understanding of interetate commerce is misplaced. While railroads are interestate commerence, an artifact in ownership dispute isn't one of them.

2. Mr. Rowland's comments. I can't tell whether he's trying to goad me into an arugment or not. His understanding of what appellate courts do is wildly uninformed. I'm going to chalk it up to a misunderstanding of how the court system works. If the Supreme Court hears that case, the sole question will be did the lower courts err in granting judgment as a matter of law on the issue of the statute of limitations. They will not re-try the whole case (which hasn't been tried in the first place) and won't judge the merits of the case. As such, the best the Supreme Court could do is find an error and remand (return) it to the trial court here in St. Louis to rehear. At that case, they might actually have a trial to determine ownership.

3. Working orer-At no point in this 15 year saga has anyone actually produced a written agreement that sates that the locomtive has to be returned in working order. At no point in the legal proceedings has the Chapter demanded that remedy. I don't know who keeps telling him this, but this has been debunked multiple times on this board.

What's the significant differences with today's game?

I don't think my understanding is misplaced regarding the commerce clause, though I may have not clarified my thought - I was merely asking how venue and applicability is determined in a case such as this and whether myriad existing regulation and case law regarding interstate commerce had any application here.

Best,
Mike

BTW, I don't know that Ross is trying to incite a debate, but merely pontificating his thoughts in written form...

What yesterday was my speculative opinion is today a fact. I spoke this morning "with the horses mouth" and as I suspected would be the case it will be appealed to the Supreme Court.

I accept Mr. Wilkins learned opinion on the legal mechanics and guess I'm just really hopeing against hope that at some point the core issue here ( the borrower not keeping their end of the loan bargain), gets adjudicated. Evidently that's not in the cards unless the Supreme Court remands it back down with an order to try it on the core issue,which I take it is a super long shot.

I have personally held and read the original loan agreement signed by among others Mr. Perry Shoemaker then the CEO of the DL&W RR which amongst its provisions clearly states that the locomotive was to be " kept in good repair and running condition". Where that issue/document would be introduced if and when a trial on the core issue is ever held I don"t know, but trust me, it certainly exists!!

Guess if we're young enough we may witness whether the high court will hear it someday. In the interim the lawyers are happy!!

Ross Rowland

Not knowing any of the individuals involved, I still have to wonder aloud if cooler heads can't prevail. The MOT is at least owed a thanks for keeping the 952 intact all these years, if not always in the best condition. After perusing MOT's website, it's clear that their focus is primarily on the midwestern railroads. The 952 would then seem to be quite out of place. Is there not someway that another piece of equipment could be exchanged with MOT in order to have the 952 sent east to its "ancestral" home? With the DL&W's 150th anniversary fast approaching, it would certainly be welcome in Scranton. Is there no way this can be resolved without the "help" of lawyers?

Sincerely,
Charles Smith

Assuming that the case is appealed to the Supreme Court and the justices decline to hear arguments, does that mean that the saga is finally over once and for all?

Assuming that the case is appealed to the Supreme Court and the justices decline to hear arguments, does that mean that the saga is finally over once and for all?

No, I think the Pope and a neutral Swiss observer have to sign off on it.

Pure insanity!

Mike - Since David may still be out playing, I'll answer that one of the most significant differences is that no baseball gloves are used. When David returns, he can probably tell of other differences.

Les

I've often had the same thoughts as Newark Branch speaks to and a few years ago I attempted to act as a "friend of the court" and see if there wasn't some way to arrange a deal that would satisfy the MOT and the 952 guys. I had the 952 sides authority to offer the MOT a quite generous cash donation for allowing the engine to be released to them plus they would assume all expenses to get it moved etc.

Very unfortunatly the MOT is a gummit owned/controlled entity and the offer fell on deaf ears. The County that controls it is a typical gummit operation and now that its gotten itself deaply invested in this legal battle it doesn't have the wherewithall to quit. AND remember its not their personal money that's being spent on all this legal effort...it's the taxpayers!!

Guess its now got to go all the way to the top (if they agree to hear it?) before the fat lady sings.

If there is a silver lining here I guess it is that if you borrow something and agree to take good care of it....you'd better keep your promise!!!

Sad but true!!

Ross Rowland

It's a good thing that the Supreme Court doesn't have really important cases to hear. I'm sure they are salivating at the thought of getting a serious case for a change.
This proves the definition of insanity is dead on. Keep trying the same thing over and over and expecting a different outcome.

Remember that the issue of the loan is not at issue. This all has stopped at the fact that the complaint was after the statute of limitations had expired. The Supreme Court does not say "oh let's look past that and get to the interesting stuff". Remember the guy who want the Supreme Court to rule on school kids saying the Pledge of Allegiance? They didn't hear the case because it turned out the guy did not have custodial parental rights and thus no standing. This one is easy because they failed to meet the deadline.

If they had asked each year for the return of the locomotive and then filed a suit would that have worked?

I also wonder if the two groups that act as figureheads for this will continue to exist once the Supreme Court boots it?