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Legal Recourse of a Dog Bite and More Free Legal Advice – Free Joe 1/6/12

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

Joe: I was invited to do a paranormal investigation on a family owned cemetary. I shot some video that shows strange activity,(attack on a women from an unkown origin). I signed a waiver for not responsible for accidents, and that was all. I have a friend that wants to use a portion of the video in his documentary and the family that owns the land will sue if he releases the video. He stated that he will not use any names and hints on locations of where it was shot. There is no visuals of any of the land owners in the video.(they were present at the time the video was shot) The family says it will sue if the video is used. THere was a charge for ghost hunting to help raise funds for cleanup of the area., THey held two other invited hunts which people took pictures and they paid for the entrance of the area. Can they sue me and the other person if this video is used. THanks

Joe Escalante: They can sue you, but what are their damages? They can only recover certain and provable damages. They could try to get an injunction to prevent you from using it, but again, what are their damages? They will have show the judge that they will suffer irreparable harm if the video is used. They’re blowing smoke most likely.

If you want more on this topic, call my radio show, or put more questions in the contact section at http://www.barelylegalradio.com/. This is the kind of law we focus on.

Danny: Joe, I am sending this concerning my workers comp. I got hurt on the job in 1994 and i have had nothing but problems with trying to recieve my comp. I ve been through numerous attorneys where my files just set on a shelf an gether dust. I am totally disabled according to my doctorsr records. I have been to all the comp drs, To each one i seen they hav NEVER had any e-rays or mri s to go by to examine me or any records from my doctor. One phsychiatris failed me because i know how to work a computer. The governor of WV sold comp cases to Breekstreet insurance, which they sold my case to another insurance co, Sedgewick insurance. My case is still open, but i can t find an attorney who will fight for my case. Sedgewick has stopped me seeing a Phsychiatric doctor and they refuse to pay my emergency room doctors. I am hoping there is a way you can help me i am just about at the end of my rope. Thanks

Joe Escalante: In West Virginia, a formal complaint can be filed with West Virginia’s Offices of the Insurance Commissioner’s Consumer Service Division. If they can’t find a solution, the state’s Consumer Advocate may provide legal representation on your behalf at administrative hearings arising from your complaints. Send the Consumer Advocate an email and get the process started. Good luck.
Consumer.Advocate@wvinsurance.gov

Chris: I currently have a single member LLC but am considering moving to an S-Corp and adding my wife as a company officer. Would you suggest trying to convert my existing LLC into the S-Corp or dissolving the LLC altogether and just create a new S-Corp from scratch? Thanks.

Joe Escalante: This is tax advice. Don’t make any decisions until you run this by your tax professional.

Tom: manufacturer/distributer, who promised (verbally) that we’d make a ton of money. He introduced the product at a big trade-show in 2010, reportedly generating much excitement but only a few immediate sales. Since then, he’s virtually stopped all marketing efforts. Is there any way to get out of our 7-year contract? There’s no language in it obligating him to making an effort. His lawyer wrote it. I trusted, as a 10-year friend, that he would make the required effort. Royalty checks of $40/quarter ain’t cuttin’ it.

Joe Escalante: You have described a pretty hopeless scenario. If there is no written language requiring him to do more, no court is going to impose it. You could deal with it, or pay a lawyer to go over the agreement and see if there are any holes in it. Perhaps your lack of legal representation in the process can be exploited as a way to get out of it. Good luck.

Gilbert: good morning Joe question ill be suing lowes whats the best way to get there names for the complaint.

Joe Escalante: The North Carolina Secretary of State lists this as their agent of service:CORPORATION SERVICE COMPANY
Office Address: 327 HILLSBOROUGH STREET
RALEIGH NC 27603

Gwendolyn: Thanks..Is it possible for my childs father to register our child to receive access to his military benefits( health care, military id..etc) even though we are not married and even though their is no legal custody ruling by the courts?

Joe Escalante: I don’t know what the language of his benefits package includes, but if it can be established that he is the biological father of the child, or if he legally adopts the child, I can’t see any reason why the child would be denied military benefits.

Andrew: I leased an apartment with a co-signer for a year, with the lease ending about 6 months ago. After leaving the apartment, it turns out that they believed there to be damages in excess of my security deposit. Neither myself, nor my cosigner received an invoice, letter, email, or phone call informing us of the issue. The account was sent to collections before myself or my cosigner were informed that we owed anything. It has negatively impacted both of our credit ratings, despite the fact that I paid the “debt” when the collections agency first called to be rid of the hassle. What kind of recourse, if any, do I have?

Joe Escalante: You could sue in small claims court for the damages that you did not cause, but paid for. Each state has specific formalities that a landlord must follow dealing with the return of a security deposit, or a detailed explanation of what was deducted. Regarding your credit getting dinged, the extent of those damages is harder to prove. And it may take you out of small claims, and require an attorney. In other words, probably not worth it.

David: Scenario: Worked as a paralegal for a major law firm in California for over 15 years. Began working from home and did so for a couple of years until the economy slowed, was then “released” from job but asked to continue working as an independent contractor. This new status was offered at a set hourly rate (the firm said they could not pay more than offered) as well as compensation for office materials (paper, ink) used in performing job. A monthly stipend was also offered to help offset the loss of health insurance. Continued to log into same computer at the firm, was still required to receive annual performance reviews, continued education seminars, conference calls and business meetings related to firms paralegal requirements, etc. Work continued under the direct supervision of same firm attorneys. Was still required to submit hours worked every week so as to get pay check on time. Independent contractor or employee?

Joe Escalante: They are really walking a thin line here. You could file a complaint with the State Labor Commission. They are the only ones who will know for sure. I’m sure these attorneys think they’ve got their bases covered. They probably are thinking that since they don’t tell you when to work and where, that you are a I.C. They may be mistaken, especially since theoretically, you are using their computers by logging into their system. This is an interesting case. Good luck.

Judi: Good Morning, Joe: I have a court ordered spousal support wage attachment. My ex has decided not to pay. He has left his job . I want to transfer the wage assignment order to his Social Security. The Court Clerk said to take a copy of the order to social Security but Social Security says it only accepts things directly from the court. The Court clerk said to just send it from outside their office to Social Security which I did. I sent a copy of the order to Social Security but nothing is happening. Is there a special document I need to send beside the wage assignment order? Thanks.

Joe Escalante: They are slow, you just have to keep on them. I don’t know of any other special document that would speed up the process. Sounds like a pain. Sorry.

Tammy: Hi Joe,

I have some legal questions. Do you know if it is illegal for a Judge (Magistrate) who is hearing a case against you (the 2nd party) to have a CLOSED meeting with the 1st party without the knowledge of the other (2nd) party prior to a hearing and then have the attorney for the 1st party come out and get you (the 2nd party) and your witnesses from the waiting area? Then have the 1st parties attorney take you back out to the waiting room to give you an ultimatum…after which upon entry back in to the hearing chamber the 1st parties attorney looks at the Judge and shakes his head no to him? Then have the Judge treat the 2nd party like they are totally beneath him and the 1st party…including the 2nd parties 7 year old disabled child (which is who this case is ultimately about in the 2nd parties opinion?) and the township Zoning Officer who is there to support the 2nd party? If it is illegal does anyone know how to report this Judge? Oh and I need to also mention that this Judge had recently been fired? You would have to watch our local news report on that one!

Thanks for any help in advance! My apologies for the length of this post… but I am desperate! I feel this Judge discriminated against my handicapped daughter and I feel he needs to be reported!

Joe Escalante: There should be a judicial disciplinary council of some kind enforcing a code of judicial conduct in your state. The person who answers the phone at the courthouse should be able to tell you where to start. From your story, I can’t really tell if anything illegal happened. But since the judge was fired (impeached?), it sounds suspicious. Good luck.

Jeff: In my business I had a cabinet maker build something from my design and he is now building it for a rival store. Any recourse?

Joe Escalante: You would need to register a design patent to get really tough on the guy for something like that. Otherwise, you are stuck with state claims of breach of contract (if there was one that prohibited this), or unfair competition, etc. You do not own a copyright in the design. If he copied your written “plans,” that would be a copyright violation. If he just builds something from the plans, that’s not the same thing unless the design itself is protected. It’s tricky.

Danette: If you take someone to court for an unpaid loan can you add interest and late fees incurred as a result of non payment even though it wasn’t agreed upon?

Joe Escalante: You don’t have an absolute right to them, but a court could award them if they thought it was fair. Late fees are probably never going to fly, but a fair rate of interest based on current rates might. However, current rates of interest are so low, it’s not going to make you rich.

Angela: I was told that i had to be out of my apartment by a certain date, i was never given writen notice. I ended moving out and two days later i tried to go the rest of my selfs but they change the locks. Can they do that. And can i take them to court

Joe Escalante: According to this version of the story, you could probably prevail in small claims court against them. Come up with a value of the stuff you lost. That is your damages.

Melissa: I’m thinking about making the move from a sole proprietorship to an LLC. Do you think it’s best to wait for the start of a new year (I know, kind of missed the boat for Jan 1) or can it be done at any time? I’m just thinking from a tax perspective…

Joe Escalante: Don’t get your tax advice from a skull with two gavels behind it. Talk to your tax pro about this. Thanks!

Harold: Bite by nieghbors dog (unleashed) how to procede? located in Massachusetts
thanks Joe

Joe Escalante: Get a medical exam. Keep track of all your expenses incurred as a result of the dog bit. Those are your damages. Send the dog owner a bill. If he doesn’t pay, take him to court. Hopefully you can go to small claims. You also need to file a report with Animal Control.

Sheri: Is there any website that would allow me to get information on marriage and divorce records that does not cost?

Joe Escalante: You probably cannot find this stuff on line. You probably have to go to your state’s Department of Vital Records central depository and dig around.

LegalZoom: That’s it for Free Joe Friday! Have a great weekend and join us next week for more free legal advice from Barely Legal Radio w/ Joe Escalante. You can also check out Joe’s radio show. Get the schedule on the Free Joe tab: http://zoo.mn/FreeJoe

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January 10th, 2012 at 1:18 pm