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Free Joe Friday 11/19/10 – Adult Adoption, Malpractice, and More

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Every Friday, attorney Joe Escalante answers legal questions for free on the LegalZoom Facebook Page. Did you miss last week’s Free Joe Friday? Don’t worry. We’ve got it all right here.

Greg asks: Hi Joe, I’m a general contractor I just had a case where a supplier gave me a quote for a window and then I wrote a contract with my customer and when I went to order the window my supplier now tells me the window is going to be $250.00 more, do I have any recoarse ??
Joe Escalante: Hi Greg,
It depends on whether it would be reasonable in your industry to rely on the quote. If it is, and your supplier knows that, he would be liable for the amount you lost for reasonably relying on the quote. It might take going to court to find out if it’s reasonable but a thorough study of the industry and facts could probably be determine it. Construction lawyers know this off the top of their heads.

Often price lists however are judged to be “invitations to bargain” and not really guaranteed prices. For example, if you go to a restaurant and the chili size is on the menu $5.00 but the waitress says it’s going to be $10.00 when you actually order it, that’s OK. She’s done nothing illegal, but she has varicose veins from standing all day so give her a break.

Josh: Hi Joe i have an important question, why is it that when I eat my children the police arrest me and send me to jail?
Joe Escalante: Don’t let people fool you. We do not live in a free society.

Julane: Hi. How do you get your lawyer to file, when she procrastinated?

Joe Escalante: If she missed a deadline that has hurt your case, she’s looking at some malpractice liability, but if you mention that, you better be willing to go all the way or have her hate you. If you are just impatient then you can always ask her if she would like to unload the work to someone else who is less busy. She’ll get the hint, but be careful, she may say yes and the next lawyer could be slower. The job sucks so try to give her the benefit of the doubt unless she’s missing deadlines.

Carl: Hey Joe,How,s it going? I recently had some serious medical issues and it ended up me having to have major abdominal surgery and be in the hospital for 17 days. The 1st ER I went to when the symptoms started to appear didn’t even pull bloodwork on me(which would have shown an incresed white blood count) to possibly identify the issue. If we would have caught it at that time the surgery may have been avoided,how hard is it to persue medical negligence lawsuits against a major hospital?

Joe Escalante: Sorry about your medical issues Carl. :( but your legal issues may be worse for your health. From the fact you’ve described it seems possible to establish negligence but it would be very time consuming, aggravating, and expensive. You would have to gather other doctors willing to testify that “but for” this ER guy’s negligence, you would not have suffered what you suffered.

The way to find out is to explain the facts to a medical malpractice attorney, if he or she will take the case on contingency, it’s a good case. If they will only do it on a retainer, it’s a bad case. But either way, it will take a tole on your general health so really think it through with a good malpractice attorney.
Where would you find one? Wow, they have them at Attorney Connect through Legalzoom.

Lucia: Can our landlord spend our deposit money on wear and tear improvements on the house without notifying us and is there a time limit on a deposit? Our landlord is saying that because our deposit is 5 years old, we’re not getting it back and she’s trying to evict us because we’re missing way less than half of the rent for the month of November. Rent is 2350, we’re missing 550 of it.

Joe Escalante: She can evict you for unpaid rent, even if it’s a little bit. However, in all states I’m familiar with normal wear and tear cannot be deducted from the deposit. The fact that you’ve been there for 5 years works in your favor for the wear and tear issue. You’re allowed more wear and tear for 5 years than you would be for 1 or 2. The deposit is only for damage to property behond normal wear and tear.

Mary Anne: I would like to know how to cut 2 of my “children” from my will. Can I by-pass to their kids?

Joe Escalante: If you can articulate desires such as these, you can easily change your will and your wishes will be fulfilled. However, since these “children” are evidently so awful, I suggest you create a trust where you could really manipulate the family from beyond the grave.

You can have it set up so that the trustee doles out cash to your grandkids as long as they don’t give any of it to the brats you are trying to cut off. You could even penalize them if they visited your “children” more than you wish after your death. A trust is for you. Have some fun with it.

Jason: Hello, Joe. As the manager of an up and coming, already hugely popular regional musician (Nashville, Bristol, Johnson City), what legal steps/contracts do I need to be his manager/agent&producer? I want both of us to be fully protected. I have already produced an album for him and have the producer credit on the album and the producer copyright. Thank you.

Joe Escalante: I have a couple suggestions for you Jason. #1 is that Legalzoom has a personal management agreement in the entertainment section of their business forms area for $14.95! : www.legalzoom.com/legalforms/personal-management-agreement.html If you plan on doing any work in California, or many other states, you cannot be the manager and the agent. It’s illegal and it may invalidate your right to commission the work of your client.
#2. You have to start listening to my radio show where I cover this kind of stuff each week. You can call in and talk to me on the air as well. and go back and listen to the podcasts if you have time. For more info: www.barelylegalradio.com. Good luck cowboy.

Candice: How can I go about getting a divorce since I moved out of the state I got married in and I was told I have to go back for the divorce, yet I don’t have the finances or car to go there? Plus, I know my “husband” isn’t going to cooperate and make it easy and we haven’t been together in over two years now. And we do have a kid together but his sister has temporary custody, how would that work?

Joe Escalante: Wow Candice, what a mess. You can file for divorce in your state but your husband may contest the jurisdiction because it may be super unfair to make him go to your new state to deal with this. if you want to do this, you are going to have to have a serious conversation with a family law attorney in your state. If he ever decides to cooperate, use legalzoom for your divorce. It’s awesome. But in the mean time, I shall pray for your reconciliation, or a reality show based on you guys at least. If you want to find a family law attorney in your state who is not a bum, try Legal Zoom’s Attorney Connect.

Zebrina: Wanted some information and advice on what all you would need to start a business & foundation wit no money to invest or start up with

Joe Escalante: That’s a big question but I would just start small and keep good records. If it’s a non-profit organization you are looking to start, read the info about non-profits on legalzoom.com. There’s a lot of free info there and eventually you will want to set up your foundation this way so that when people donate to your cause, they can get a tax deduction for it. This is crucial to fund-raising.

Holly asks: My sister and I inherited our parents home. Title is in both our names. She took out a loan on another house for her kid. She doesn’t make that much money so now I’m wondering how she got the loan. Could she have used our parents home as collateral without my knowledge or approval?

Joe Escalante: Hi Holly, if your name is on the deed, no one can encumber that property without you knowing about it. Check the county records to see if there are any encumbrances so you can sleep at night without worrying about some fraud your sister may have pulled. You’re right to be suspicious because it’s super hard to get a loan these days unless you know the Russian mafia. I go to payday loans and sell gold when I need money. ;)

Mark: To what extent can you manipulate a trademarked image so that it can be used for print/profit? I see a lot of t-shirt stores out there using images of things from old TV shows, faces of celebrities, etc. and I know they are most likely not paying royalties.

Joe Escalante: First, never assume those other guys didn’t get permission, or are not in the middle of a life ruining lawsuit. For an example of how nasty people can get if you even do a legal “parody” of their trademark, check out the lawsuit against my sad punk band at www.vandals.com.
There’s no hard and fast rules. Be familiar with the Fair Use Doctrine of the U.S. Copyright for parameters but angry corps will sue you anyway, even if you are protected by the 1st Amendment.
Celebrities also have a right to control their image in a commercial arena and some states even protect dead celebrities. For more on this type of stuff, listen to my radio show, or call in. www.barelylegalradio.com

Joseph asks: How can I get out of a Morgage with out much damage to me money wise.walk away for Missouri,what the penalty? talking to the Morgage company what can I achieve??

Joe Escalante: I don’t know what Missouri’s “short sale” requirements are but this is one possible avenue for you. The basic thing you need to focus on is not being liable for the difference between what you owe and what the house sells for. If the bank sells it, they might be able to come after you for the difference and then your life sucks. But if you negotiate a short sale where the bank agrees to take whatever the selling price is to satisfy 100% of your debt on it, your life will be a lot better. good luck. :)

Jarrett: How can I file my own bankruptcy in MI without having to pay a high priced attorney?

Joe Escalante: You should be able to represent yourself, that’s the way this country is supposed to work, but sometimes inexperience costs you more than an attorney. Search for self help services in your state on the internet and you should able to do it, but I can’t say whether it will really be less expensive in the long run. try legalzoom’s evaluation service as an alternative: www.legalzoom.com/bankruptcy/bankruptcy-overview.html

Jean-Claude: An ex girfriend gave me permission to store some items in her garage. I did and she called the police and had me arrested for burglary. I went to a jury trial and was foung not guilty by unanimous vote and the judge. What remedies are available to me. I lost my job and all my belongings as a direct result of her actions.

Joe Escalante: Your case must have been quite compelling for the judge to join the jury on that one. There are many causes of actions in a civil court I could think of to go after her with, but it’s probably not worth it.
How do you prove your damages? That’s what you have to think through. It would be very expensive to prove that she committed some sort of fraud to get you in this kind of trouble, AND that it was this fraud that directly caused a specific amount of damage that a court could award you. It could be done, but it would take tens of thousands of dollars to even get started in my state.

And does she even have any cash? It would be even worse to sue someone with no assets to recover if you were able to win.

Jeanne asks: Hi Joe, My brother is Power of Attorney in my Mom’s affairs. She passed in ’08. Is the P of A still in effect after her death? This question is asked in regards for asking “permission” of my bro for burial of my Mom. The cemetary said that I cannot bury my Mom next to my Dad, w/out my bro’s permission. Is this so? Thanks for you help! :-)

Joe Escalante: No. A power of attorney ends upon death. Thereafter your mom’s will, or the law of intestacy, governs the handling of your mom’s estate, including who controls where your mom gets buried. So look at the will, if there is no will, your state’s intestacy laws will govern, but this P.O.A, is totally ineffective at this point.

Denise: hi joe . my daughter has a girlfriend who doesnt have any parents brother sisters etc was in foster care her whole childhood now she is 26 and wants me to be her mother she also has a son who is 2 . she need love support someone there for her. and someone to call mom . what is the steps i can take to help her in her request, and can she have our last name thank you denise from bucks county pa

Joe Escalante: You cannot adopt an adult, but you could make her feel special by placing her in your will, as an equal to your other kids if you like, and having her change her last name to yours. You can do both those things at legalzoom and live happily ever after.

From Rachel: Recently divorced; actually yesterday. Would I be able to file a civil case against the ex spouse?

Joe Escalante: There will be no shortage of lawyers willing to sue your ex in civil court if you can pay them. However, make sure he has committed a tort first. You can’t just sue people you don’t like willy nilly without risking a counter suit for malicious prosecution or something like that.

Last question! This one’s from Edward: can a date of a domain name help in a coppy right dispete?

Joe Escalante: Yes. It would be pretty good evidence to establish who created something first. But you might be talking about a trademark here, in that case it would also be great evidence as to who is using the mark first. To learn a little about the difference between copyrights and trademarks click this link and watch me explain it. http://blog.legalzoom.com/small-business-tips/whats-the-difference-between-a-copyright-and-a-trademark/ and listen to my radio show where we talk about this kind of thing. www.barelylegalradio.com

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November 23rd, 2010 at 12:36 pm