The office address is 1106 Meridian St, Suite 251, Anderson, IN 46016 (follow that link for a map.)
Telephone: 765-641-7906
Fax: 765-374-3811
The best time to reach me by telephone is (usually) after 4:00 pm.
My traditional web page is here.
You may also want to take a look at my Yahoo Local listing here.
Want to know more? I have more information on web page at page for more background. Also I have a Naymz page here:
If you do want to hire, please use my client questionnaire.
Yes, the Federal Trade Commission publishes its Franchise Rule Opinions online. The FTC plainly labels the page: Recent Franchise Rule Opinions (1995 to Present). If you researching federal franchise law, you need to take a look at this page.
Some employers decide that classifying workers as subcontractors instead of employees saves them money by not needing workmen's compensation insurance. For employers this decision exceeds the bad business judgment of replacing Coca-Cola with New Coke.
Workmen's compensation exists to protect employers from tort suits by employees. Without workmen's compensation, employers expose themselves to a potential tort claim. Just something to think about on this last day of January.
An interesting article from Business Week on those gift cards that never seem to get used. The Scramble for Gift-Card Cash:
"A lot of states—roughly half—claim that at least part of the unspent balances should go to them under their unclaimed-property laws. Other states let that excess dribble back onto retailers' income statements under varying conditions. Naturally, stores issuing the cards are scrambling to ensure the most advantageous accounting."Not that this helps those buyers of cards from businesses who go under before the anyone can use the cards.
I noticed A Befuddlement of Liquor Laws published by The New York Times. I have had no time to notice if Indiana's General Assembly has any legislation pending regarding interstate sales, but the Times article s provides a tantalizing glimpse of legislation elsewhere:
Of course, retailers are not calling for the end of regulation. They want regulated interstate shipping, as in Virginia, which now issues licenses to out-of-state retailers, who collect and pay sales tax to Virginia. Washington State is considering a similar bill, which would permit consumers to make legal purchases from an out-of-state retailer.
“It’s very difficult if not impossible to enforce compliance off the Internet,” said Rick Garza, deputy director of the Washington Liquor Control Board. “We know it happens, so creating a license for it, and permits and requirements is probably the best course, rather than ignoring it.”
Checking in at Wineries of Indiana shows nothing about any new legislation.
Since it is free, I see no reason to mention Financial Management Made Easy from Dell Small Business. The site describes the program like this:
Are you doing everything you can to automate and secure your business finance processes?
Accounting and financial data and process management are essential parts of running a successful small business. Also, compliance and reporting requirements are more stringent than they’ve ever been.
Let experts from PC Magazine and the American Institute of Certified Public Accountants (AICPA) demystify business finance and accounting.
This three-part course consists of three on-demand lessons, each of which is accompanied by downloadable coursework. Best of all, this course is free! All you need is a Web browser to participate, and you can go through the lessons at your leisure.
Indiana appellate opinions suffered from some technical problems last week. The Indiana Lawyer Daily provides the write up here: Court: business license fee not a tax.
"In the opinion, David Paul Allen v. City of Hammond, 45A03-0708-CV-372, it states that on July 28, 2005, Allen filed a complaint for declaratory judgment against the city to invalidate the ordinance requiring businesses to have a license."
***
On Sept. 29, 2006, he filed a motion for partial summary judgment. The city responded and moved for summary judgment Nov. 21, 2006. The trial court conducted a hearing June 7, 2007, on the cross-motions for summary judgment. On July 3, 2007, the trial court denied Allen's motion for summary judgment and granted the city's motion for summary judgment. Allen appealed.
If the city was charging an additional tax to business owners, it would not be allowed under Indiana's Home Rule Act, which states the city is not permitted to impose a tax that is "greater than that reasonably related to the administrative cost of exercising a regulatory power," according to Indiana Code 36-1-3-8(a).
The parties agreed about the Home Rule Act but disagreed as to whether the business license fee is a valid regulatory fee and not a tax, and if the fee is greater than that reasonably related to the cost of exercising the regulatory power.
***
The Court of Appeals affirmed the trial court's July 3, 2007, decision to deny Allen's motion for summary judgment and grant the city's motion for summary judgment, concluding that "Allen has not established that ordinance 8590 is invalid," wrote Judge Barnes.
"Because there are no genuine issues of material fact and the city has established it is entitled to judgment as a matter of law, the trial court properly granted the city's motion for summary judgment and denied Allen's motion for summary judgment. We affirm."
From yesterday's Indianapolis Star, Nurses file whistleblowing suit against jail company:
Six Indianapolis-area nurses filed a whistleblowing and racial discrimination lawsuit today against Corrections Corporation of America, which operates Marion County Jail #2 in Indianapolis.No mention of whether the plaintiffs filed the case in state or federal court, or any mention of plaintiffs' attorney. I assume that it was a state law filing since the federal qui tam statute puts the initial filing under seal.
The plaintiffs allege they were retaliated against because they complained to CCA supervisors about inmates who were not provided their medication, inmates who were given the wrong medication, and inmates who were given other patients’ medication to save CCA money.
Let me say that for most of the past fifteen years I have been thinking Indiana's Deceptive Consumer Sales Act is pretty useless. That was when I tried a case on another subject - home improvements fraud - that also comes under the Deceptive Consumer Sales law and the judge implied an intent requirement where the statute does not require any such intent.
I find the Act's problems lying in the following provision and the general public's ignorance of the Act:
IC 24-5-0.5-5(a): No action may be brought under this chapter, except under section 4(c) of this chapter, unless (1) the deceptive act is incurable or (2) the consumer bringing the action shall have given notice in writing to the supplier within the sooner of (i) six (6) months after the initial discovery of the deceptive act, (ii) one (1) year following such consumer transaction, or (iii) any time limitation, not less than thirty (30) days, of any period of warranty applicable to the transaction, which notice shall state fully the nature of the alleged deceptive act and the actual damage suffered therefrom, and unless such deceptive act shall have become an uncured deceptive act.I know that is a big chunk of statute to digest. Let me pick it apart a b it. First, the consumer must know that a certain act comes under the Act. Second, the consumer must write a letter explaining to the party providing the consumer good or service (that is the supplier mentioned above) explaining how they were injured within the time frame set out above. Unless, of course, the act is incurable. The statute brings an intent requirement into its definition of "incurable deceptive act":
IC 24-5-0.5-2(a) (8): "Incurable deceptive act" means a deceptive act done by a supplier as part of a scheme, artifice, or device with intent to defraud or mislead. The term includes a failure of a transferee of structured settlement payment rights to timely provide a true and complete disclosure statement to a payee as provided under IC 34-50-2 in connection with a direct or indirect transfer of structured settlement payment rights.
I read Operating Agreement for LLC? which gives links to forms. I followed these links and now I am reporting back:
A. How To Form An LLC website:
NOTE: THE FORMS AVAILABLE IN THIS ARCHIVE ARE SUBJECT TO OUR TERMS OF USE AND ARE NOT A SUBSTITUTE FOR THE ADVICE OF AN ATTORNEY. LEGAL ADVICE OF ANY NATURE SHOULD BE SOUGHT FROM COMPETENT LEGAL COUNSEL IN THE RELEVANT JURISDICTION. THESE FORMS ARE PROVIDED "AS IS."
I had not thought of till I ran across US Public Records. This site provides a good example of what the Internet contains for finding records. I have no ideas about the quality of the information provided - I am old enough to remember GIGO - so I am a bit leery. As should any potential employer. (GIGO = Garbage In, Garbage Out).
The informational problems notwithstanding, these sites and their services provide the means for about any size business to get information on potential employees. I am not aware of any cases where a business has not gone to a pay site but been liable for negligent employment. I suspect we will see that some day. I suggest reading my earlier articles on background checks: Does your business do background checks? and Kroll study on background checks.
Indiana law declares how one inherits a funeral plot.
Generally, the buyer owns what they purchase ("...the burial rights in a lot, plot, burial space, crypt, or niche...") with two exceptions. First, the buyer has "more than one (1) interment, entombment, or inurnment space" and has have a spouse at the time of purchase. See IC 23-14-39-2 and IC 23-14-39-3. The spouse loses this right upon divorce unless the decree of dissolution provides otherwise. In twenty years of practicing law, funeral plots never figured into any of my divorces.
Where more than one person purchases burial rights together, the law presumes they have a joint tenancy (a tenancy by the entirety for married persons)with rights of survivorship. Note this: the law does not change if the person purchasing the burial rights are of the same sex. By creating a joint tenancy with right of survivorship, these burial rights pass to the survivor without need of probate. See IC 23-14-40.
If the owner has no wife or joint tenant, the owner can pass through the owner's probate estate (whether dying with or without a Will). The statute has several exceptions making quotation of the statute easier than paraphrasing:
IC 23-14-42-4 Upon the death of the record owner of the burial rights in a burial plot, the burial rights pass as part of the estate of the owner if:Bottom line: another person can inherit burial rights either as joint tenant or through a probate transfer.
(1) the record owner did not dispose of the burial rights by:(A) a specific devise in the last will and testament of the record owner; or(2) the burial rights have not become vested in another individual under IC 23-14-39 or IC 23-14-40;
(B) a written designation or transfer of ownership recorded with the cemetery under section 2 or 3 of this chapter;
(3) the burial plot does not become a family burial plot under IC 23-14-41 before the instrument referred to in subdivision (4) is recorded with the cemetery; and
(4) an instrument that:(A) is prepared in accordance with IC 29-1; and
(B) documents the person or persons entitled to become the new record owner or owners of the burial plot and to receive the burial rights as part of the deceased record owner's estate;
is recorded with the cemetery.
The Indianapolis Star reports, Temporary receiver named for Nelms properties, about the Johnson County court appointing a temporary receiver in the Nelms case.
Johnson County Circuit Court Judge Mark Loyd selected attorney Lynette Gray as a temporary receiver over Memory Gardens Management Corp., which includes Forest Lawn Memory Gardens in Greenwood and other cemeteries in Michigan and Ohio.Robert E. Nelms, 39, and Debora Johnson, 48, were charged in Marion County Jan. 17 with nine felony counts each. The counts include theft and violations of a cemetery perpetual-care fund.
The receiver may, under control of the court or the judge:(1) bring and defend actions;in the receiver's own name, and generally do other acts respecting the property as the court or judge may authorize.
(2) take and keep possession of the property;
(3) receive rents;
(4) collect debts; and
(5) sell property;
For the more web-centric or the less Internet-phobic business owners or aspiring business owners, take a look at 4 entrerpeneur Blog. As I have to watch over my own marketing, I found the marketing sites interesting.
From Adam Smith: Unintended or Unanticipated? While I support the laws mentioned in the post, I must agree that just passing a law is not all that is needed to solve a problem. It is the easiest action but not necessarily the best solution.
So you want to change the business' name. Check with the Internal Revenue Service about notice to them:
Business owners and other authorized individuals can submit a name change for their business. The specific action required may vary depending on the type of business.
In some situations a name change may require a new Employer Identification Number (EIN) or a final return. See Publication 1635, Understanding Your EIN, to make this determination.
Or calling about a former spouse's credit card debts?
Unless the credit card was a joint card (both names on the credit card), you do not become liable for the other spouse's debt just because of marriage. For an example, read Woman Pursued For Deceased Ex-Husband’s Debt from The Divorce Blog.
As I read the facts, the creditors could have violated the federal Fair Debt Collections Practices Act. I say could have for the reason that the creditor seems to have stopped at telephone calls. The better FDCPA case requires a bit more:
The creditor continues trying to collect a debt that is fifteen years old. The law says the statute of limitations for a written contract is ten years and six years for an account. What gives?
The statute of limitations say when a creditor must start collecting a debt, not when it must be completed. Otherwise, the debtor can merely skip about and relieve themselves of their obligations.
Statute of limitations exist for getting the person with the injury to act rather than wait.
Please check out my firm's updated web page. In addition to this blog, I also have a more traditional web page with more background information and a description of my practice. I have begun to update the Articles page with Frequently Asked Questions (FAQ's) and more formal articles than you might find here.
My civil litigation practice focuses on business related litigation such as non-compete agreements, contracts, third party interference with contracts and business interests, trade secrets, and franchises. I generally limit my litigation practice Madison (Anderson, Elwood, Pendleton, Chesterfield), Delaware (Muncie, Yorktown, Eaton, Albany), Blackford (Hartford City), Grant (Marion, Swayzee, Gas City, Upland), Howard (Kokomo, Greentown, Russiaville), Henry (New Castle, Middletown, Mount Summit), Randolph (Winchester), Wayne (Richmond, Centerville), Hancock (Greenfield), Marion (Indianapolis), Hamilton (Noblesville, Atlanta, Carmel, Fishers), and Boone (Lebanon). Other counties require a case by case decision on my part.
My non-litigation practice includes business start ups, business succession planning (estate planning for businesses), contracts, assignments for benefit of creditors and franchises. I do not limit my non-litigation practice by county.
Cemetery ownership found themselves in the news this past week with headlines like Cemetery owners charged with fraud. What happened?
So far I have seen only one news story pointing out that these are cemetery funds and not pre-paid funeral trust funds. That story, Pirkle: Management problems don’t apply to local funeral home, came out of Washington, Indiana:Robert Nelms, 39, and Debora Johnson-Nelms, 48, face multiple counts of theft, fraudulent or deceitful acts, violations of a cemetery perpetual care fund and using a perpetual care fund for prohibited loans. Nelms is president and chief executive officer of Memory Gardens Management Corp., which has Indiana locations in South Bend, Fort Wayne and Greenwood, where it owns Forest Lawn Memory Gardens.In December 2004, according to court documents filed today in Marion Superior Court, the couple agreed to purchase the company for $27 million from owner Fred Meyer of Indianapolis. The Nelmses, who already had operated funeral homes in New Jersey and New York, arranged a bridge loan for the $13.5 million down payment, a probable cause affidavit says.After the purchase, the loan was repaid using money from the company's trust fund, the affidavit says, even though that fund must be used to care for grave sites and cemetery grounds. That trust fund was transferred to a new bank, and all of the money in the account was withdrawn by April 2005, the affidavit says.
Michelle Brown with Gill Funeral Home said, “Nothing (misappropriated funds) has come from here because we’re not a cemetery. All (prepaid funeral arrangements) are bank trusts and are backed by a certified copy of death.”
The funeral home can’t access the money paid in to prepay for funerals until the bank is presented with a death certificate, according to Brown. Nelms, nor anyone else in the business, could access the money.
Since I advocated pre-paid funeral trusts as part of estate planning, emphasizing the difference between funeral trusts and perpetual cemetery funds is important for the public.
Indiana law describes with specificity how the cemetery is to set up and run a perpetual care fund.
That specific criminal penalties apply to misusing perpetual care funds does not clearly appear in the newspaper stories. The Indianapolis Star buried this paragraph towards the end of today's Cemetery case could spur other charges:
Keown, from the cemetery association, said the Nelms investigation prompted him to work with Indiana legislators to pass tougher penalties during the 2007 session. As a result, some of the charges against Nelms and Johnson were boosted from infractions to Class C felonies.
That statute reads as follows:
IC 23-14-48-9 Violation of chapter
Sec. 9. (a) Except as provided in subsections (b) and (c), a person who knowingly violates this chapter commits a Class A misdemeanor.
(b) A person who makes a false or fraudulent representation as to the existence, amount, investment, control, or condition of a perpetual care fund of a cemetery for the purpose of inducing another to purchase any burial right commits a Class C infraction.
(c) A person who knowingly or intentionally uses funds in a perpetual care fund or an endowment care fund established under this chapter for purposes other than the perpetual care of the cemetery for which the perpetual care fund or endowment fund was established commits a Class C felony.
Indiana does not list all its crimes in its criminal code and this serves as a reminder that bad business behavior may have criminal consequences.
Take a look at Interesting Policies On Recording Time from In Search of Perfect Client Service. The time spent recordig time takes away from doing work for clients. I find that an inconvenient fact that makes hourly fees even less attractive. Which just adds to the arguments for flat fees I wrote about in A Lawyer for Your Business and How to Afford One.
Take a look at The Small Business Wiki.
What is a wiki? Think collaboration with lots and lots of people. Wikipedia starts its description of wikis with this:
A wiki is software that allows users to create, edit, and link web pages easily. Wikis are often used to create collaborative websites and to power community websites. They are being installed by businesses to provide affordable and effective Intranets and for Knowledge Management. Ward Cunningham, developer of the first wiki, WikiWikiWeb, originally described it as "the simplest online database that could possibly work".[1] One of the best known wikis is Wikipedia.[2]What has this to do with business? If this wiki develops as others have (think Wikipedia), this may be a good resource for businesses - especially small businesses.
Since I often touch on intellectual property topics (trademarks, trade secrets, copyrights), IPWatchdog.com gives even more information:The purpose of this blog is to make visible the links between business and law. It uses current events and stories and to help you learn from other’s mistakes and raise awareness of the legal environment of business — how it can help you and how it can hurt you. The goal is to bridge the gap between these two disciplines to help you unleash the power of Legal Leverage®.This blog is based on the book The Business Guide to Legal Literacy: What Every Manager Needs to Know About the Law (Jossey-Bass, 2006). As the Wired GC wryly noted, “It’s cheaper than a lawsuit” and is available through your favorite bookseller, including Amazon.
IPWatchdog.com is dedicated to providing a free, reliable and easily understandable resource on intellectual property law and related topics. We promise to demystify intellectual property and explain to you what it is, why you would want to consider obtaining intellectual property rights and how to go about obtaining worthwhile intellectual property protection. We also explain various pitfalls to avoid, as well as what you can do to help yourself.
The founder of IPWachdog.com is Gene Quinn, who is a patent attorney, law professor and author. He launched IPWatchdog.com in October of 1999, and since that time the site has been a trusted resource on intellectual property for over 1 million unique visitors who have come here for information and news.
So you got into a LLC and now you want to get out?
This could be a problem and the solution depends on a few things:
IC 23-18-6-6.1Think about this for a moment: you cannot withdraw from a post June 30, 1999 limited liability company unless there is an operating agreement that allows for withdrawal or the dissolve the LLC. Dissolving an LLC is not so easy to do. Think about this as a very, very good reason for having an operating agreement. (You might want to take a look at my article Starting a LLC (Limited Liability Company), Attorney Fees, and Online Services for a bit more of a discussion about needing an operating agreement).
Withdrawal of member; companies formed after June 30, 1999
(a) A limited liability company formed under this
article after June 30, 1999, is governed by this section.
(b) Unless otherwise provided in a written operating agreement, a
member may not withdraw from a limited liability company before the
dissolution and winding up of the limited liability company. A member may
withdraw from a limited liability company only at the time or upon the
occurrence of events specified in the operating agreement and in
accordance with the operating agreement.
CNN Money spotlighted the new energy bill and small business: Energy bill promises lower-cost biz loans The Small Business Administration is charged with drafting new loan and training programs to help small businesses boost their energy efficiency - and this time, the SBA faces deadlines..
WASHINGTON, D.C. (FORTUNE Small Business) -- The Small Business Administration (SBA) and other government agencies are currently at work fleshing out plans for the new small-business training and grant programs mandated by the sweeping, years-in-the-making energy bill signed into law last month by President Bush.
The Energy Independence and Security Act of 2007's major focus is on long-term measures to reduce energy consumption, such as more stringent fuel-economy requirements for cars and light trucks and mandated increases in ethanol production. But scattered in the fine print of the 822-page bill are several provisions aimed at small businesses, the primary one of which is a loan-expansion program that reduces the fees and speeds up processing time for SBA loans earmarked for projects that increase a business's energy efficiency.
I suggest reading the full article for the full details. I suspect - not having read the energy bill - that its benefits flow more to the businesses consuming more energy.
What is the Civil Rights Litigation Clearinghouse? The site covers a lot of territory. Here is how Civil Rights Litigation Clearinghouse describes itself:
"The Civil Rights Litigation Clearinghouse is a collection of documents and information about civil rights cases in selected case categories across the United States. Currently, the categories include: Child Welfare, Disability Rights-Pub. Accom., Education, Election/Voting Rights, Equal Employment, Fair Housing/Lending/Insurance, Immigration, Jail Conditions, Juvenile Institution, Mental Health Facility, Mental Retardation Facility, Nursing Home Conditions, Other Criminal Justice, Policing, Prison Conditions, Public Benefits, Public Defenders, Public Housing, School Desegregation, Speech and Religious Freedom."I suspect that something here will be of interest to some of you.
Following up here on my Whistleblower Law Blog and Medicare Fraud, is this collection of law blogs writing about whistleblowers. This collection does not necessarily collect all the blogs - the Internet is too big for that - but is my stab at getting as many as I can. Secondly, do not take my list as indicating a pecking order or a ranking of quality. The order indicates nothing more than the order I came to the blog. I include only those I think are worth reading and that worth is a combination of information and presentation.
For an answer to this question, read What Market Segments is Franchising a Good Model for? on Blue Maumau.
Do you want success for your business? Then you need a lawyer. Let me explain why.
Too many legal issues have the potential for swamping the business. Getting legal counsel before needing a trial lawyer can prevent many of those legal issues.
Other legal matters may make the difference between a profit and a bigger profit. Again, asking for legal advice, counsel, helps the business.
Time spent by you trying to keep up with the legal matters that affect your business while trying to run the business is not time well-spent. Outsource that job to the people who know what they doing. Here, try this: turn this scenario around to where I - the lawyer - are trying to do the work you do for myself while also running my law practice. Does this make sense to you for me to do this?
Update 1/19/2008: Talking About Flat Fees - Record Time.
If you are still thinking you do not need a lawyer, I suggest you read Does Your Company Need a Business Attorney?. A good checklist for deciding when you need a lawyer and some of the services you should expect.
I think Legal: Does Your Business Need a Business Lawyer? It may sound expensive, but it could save you money in the long run should be read even though I have some disagreements with the article. I agree with his criteria for selecting a business lawyer and I have absolute agreement with this list:
Why do I need a business attorney? Because he or she can:
I think the list is not exhaustive but it covers a lot of territory. How many of these did you think of needing for your business? Who is handling this work now and how well are they doing their job?
- Ensure compliance with company or corporate formalities. A business attorney will draft resolutions, minutes, etc.
- Prepare and review business documents and contracts. Although there are quite a few self-help legal guides and pre-printed forms do exist, you should not rely on these materials exclusively. The law can be complicated, and mistakes can be costly.
- Prepare employment agreements and employee policies/handbooks protecting you from wrongful discharge and discrimination lawsuits.
- Amend or replace basic agreements like shareholder agreements or operating agreements and purchase agreements.
- Provide immediate access to legal counsel with knowledge of your business in times of crisis to evaluate situations as they arise and provide you with timely advice and guidance.
- Provide a confidential sounding board to help assess company issues, strategies and plans.
- Point out potential problems that you may not anticipate with your company, its employees, operations, policies and procedures.
- Negotiate on your behalf for the sale of your company or the acquisition of another company or its assets.
- Negotiate financial arrangements.
- Navigate the sometimes complex landscape of obtaining State and Federal licenses your business may need.
Attorneys handling business matters typically charge more than $200 per hour for their services. This may sound expensive, but the key considerations are the value of the services provided and efficiency of use.They popped enough as is. the writer recognizes only an hourly billing rate when many business services can be provided on a flat fee basis. In this age of computers, most document preparation services should be billed on a flat rate basis. I do that and have no rational explanation for the firms who still bill on the hourly basis.
If a contractual or employment dispute were to arise for a business, the cost of litigating the matter may well run from $20,000 to over $50,000. Having properly prepared contracts at the outset may prevent the matter from ever leading to a lawsuit.But what you want for your business is to not go to court. So you weigh the upfront costs of a running meter at the attorney's office with the possibility of a lawsuit and opt not to talk to an attorney. That works so long as you do not get sued.
Having written about Quiznos here and here, I noticed Another former Yum exec surfaces at Quiznos from the Louisville Courier Journal.
David Deno, formerly chief operating officer at Louisville-based Yum, will become president at Quiznos, reporting directly to the company’s CEO.Blue Maumau comments on this at Quiznos Board Member Becomes President.
Deno resigned from his post at Yum in early 2006, citing “family reasons” for his departure. Denver-based Quiznos said in a statement that it has created an “extraordinarily seasoned management team” over the last year, drawing heavily from former Yum managers. The list of Yum Brands alumni at Quiznos also includes Mike Elliott, Steve Provost and Kevin Dearth.
The federal Seventh Circuit Court of Appeals handed Indiana employers a tricky job. Employers must distinguish between an alcoholic's absences for abusing alcohol and absences for treatment of alcoholism. I want to re-read the case - things were a bit hectic yesterday - and may do a follow up. For now, the following is from The Indiana Lawyer:
An Indiana man sued his former employer for firing him on grounds that he missed too much work, arguing that he was covered by the federal medical leave act because he was getting treatment for alcoholism.
But the 7th Circuit Court of Appeals determined today that the Family and Medical Leave Act doesn't protect workers from being dismissed. Because he missed three days of work just prior to being admitted for alcoholism treatment and that time combined with previous absences was enough for his employer to dismiss him, the court ruled.
The unanimous three-judge ruling in Richard L. Darst, as Trustee for the Bankruptcy Estate of Krzysztof Chalimoniuk v. Interstate Brands Corp. and Tonia Gordon, No. 04-2460, affirms the previous judgment from U.S. District Judge John D. Tinder in Indianapolis, who'd granted summary judgment in favor of the defendants.
***
At issue in the case was whether his three days of missed work prior to being hospitalized classified as "treatment" under the FMLA, which allows eligible employees up to 12 weeks of unpaid leave a year for various reasons, such as a "serious health condition" that the Department of Labor states can apply to substance abuse treatment.
"On the other hand, absence because of the employee's use of the substance, rather than for treatment, does not qualify for FMLA leave," Circuit Judge Ilana Diamond Rovner wrote, noting that Chalimoniuk provided no evidence that he was admitted to any facility for treatment on those three days. "Because he had exceeded the number of points allowable under IBC's absenteeism policy, the defendants were free to terminate his employment without running afoul of the FMLA."
Indiana's Secretary of State has a program called Ca$holution$. Here is a bit more information on it:
View a copy of the 2008 Ca$holution$ poster here. We have also created a "Ca$holution$" for students, which can be viewed here.
Estate planning includes funerals? Yes. Medicare exempts pre-paid funeral plans from the money the federal government can grab. If nothing else that ought to make them attractive to the public.
Can I just put all that in a Will? No. The Will sees probate after the death and not before.
Does a lawyer set up a funeral trust? No, you can do that through a funeral director. See FUNERAL PLANNING on the Indiana Funeral Director Association's website.
Reading Funeral costs can be headache for families unprepared in the Muncie Star-Press brought all this to mind.
The struggles of a local family trying to bury their loved one should serve as a cautionary tale when planning a funeral, funeral experts say.
Betty Randolph, 68, died Friday, Dec. 21. Her daughter, Shirley Morris, and sons Ronnie and Jerry Randolph, made arrangements for their mother's burial at Garden View Funeral Home.
***
Because of the Christmas holiday, Garden View could not immediately verify whether Randolph's insurance policies would cover her burial costs. The funeral home allowed the family to have a visitation and funeral service for Randolph, but when the policies failed to cover those costs, Morris and her brothers didn't have the money to pay for her burial.
"We thought she had a $5,000 insurance policy, but it was no good because she had let it lapse," Morris said. "Another she took out in 2006 will only pay about $1,000 because she had to be alive two years to get full benefits."
The other option for families is to plan ahead, says Curtis Rostad, executive director of the Indiana Funeral Directors Association.Rostad encourages people to pre-pay for their funeral arrangements -- an option that alleviates the cost and stress of decision-making for family members after the person is deceased.
(The article also mentions that Indiana's township trustees provide money for funerals of low income people.)
Indiana law has two kinds of pre-paid funeral trusts. One funded by cash and the other by an insurance policy. I have an article dealing more specifically with the law here. I think (but have no evidence to back me up here) most people are using insurance policies to fund the funeral trust. For an example of a pre-arrangement program see MASTERCHOICE® FUNERAL TRUST.
Setting up a pre-paid funeral trust means going to the funeral home and selecting the sort of funeral you want. Before going to the funeral home, you should read the Federal Trade Commission's Funerals: A Consumer Guide. The FTC's Funeral Home Rule requires a funeral home to display a price list that includes all goods and services the funeral home will provide to the buyer. The funeral trust funds whatever the buyer selects.
Employers, please read Prompt Response After Harassment Complaint Gets Chili's Off Hook.
Chili's Grill & Bar responded promptly and appropriately to an employee's sexual harassment complaints and therefore is not liable even though the worker established a prima facie case of harassment in her lawsuit, the 1st Circuit has ruled.
The appeals court said there was ample evidence that Allison Forrest was subjected to sexual harassment since the actions she alleged occurred because of her sex.
However, because Chili's responded promptly to Forrest's complaints it was entitled to assert an affirmative defense to her allegations, the court said.
Read Limited Liability Company 101 first. A general article that will not lead you astray about Indiana's law on Limited Liability Companies. What formalities does my LLC have to follow? provides an even more condensed outline on starting an LLC.
Some terms you should know for LLC's:
A written operating agreement may do the following:The next question needing answered is: to have managers or not. I think an LLC with more than one member needs a manager but I will leave that explanation to another day.
(1) Eliminate or limit the personal liability of a member or manager for monetary damages for breach of a duty provided for in section 2(a) of this chapter.
(2) Provide for indemnification of a member or manager for judgments, settlements, penalties, fines, or expenses incurred in a proceeding to which a person is a party because the person is or was a member or manager.
Let us look at a few things the operating agreement brings to running the LLC. I already discussed several situations where not having an operating agreement may cause problems for the LLC's members in Getting Out of An Indiana Limited Liability Company. Now about some good things the operating agreement brings to the LLC.
The written operating agreement provides through Indiana Code 23-18-4-4 the essence of a limited liability company:
A written operating agreement may do the following:(1) Eliminate or limit the personal liability of a member or manager for monetary damages for breach of a duty provided for in section 2(a) of this chapter.
(2) Provide for indemnification of a member or manager for judgments, settlements, penalties, fines, or expenses incurred in a proceeding to which a person is a party because the person is or was a member or manager.
Notice the statute does not specify how the LLC shall implement these powers in the operating agreement's language. If and then how the LLC's members decide to implement these powers complicate creating an operating agreement. That other statutes offer options for the LLC's members to include or not make an LLC operating agreement a tailor made product.(1) The manner in which the business and affairs of the limited liability company shall be managed, controlled, and operated, which may include the granting of exclusive authority to manage, control, and operate the limited liability company to managers who are not members.
(2) The manner in which the members will share in distributions of the assets and the profits or losses of the limited liability company.
(3) The rights of members to assign all or a portion of their interests in the limited liability company.
(4) Classes or groups of at least one (1) member having certain relative rights, powers, and duties, including voting rights, and may provide for the future creation, in the manner provided in the operating agreement, of additional classes or groups of members having certain relative rights, powers, or duties, including voting rights, expressed either in the operating agreement or at the time the classes or groups are created, including rights, powers, or duties senior to those of at least one (1) existing class or group of members.
(5) Classes or groups of at least one (1) manager having certain relative rights, powers, and duties, including voting rights, and may provide for the future creation, in the manner provided in the operating agreement, of additional classes or groups of managers having certain relative rights, powers, or duties, including voting rights, expressed either in the operating agreement or at the time the classes or groups are created, including rights, powers, or duties senior to those of at least one (1) existing class or group of managers.
(6) The circumstances in which an assignee of a member's interest may be admitted as a member of the limited liability company.
(7) The procedure for the following:(A) The right to have a member's interest in the limited liability company evidenced by a certificate issued by the limited liability company.(B) Assignment, pledge, or transfer of an interest represented by the certificate.(8) The method by which the operating agreement may be amended.
(C) Any other provisions dealing with the certificate.
A website for employers and employees to check out: WorkLife Law. Here is how the site describes itself:
Remember to check out the other employment law articles on this blog - the details do matter in knowing if a trend applies in Indiana and then how to apply it!"Family Responsibilities Discrimination is employment discrimination against workers who have family responsibilities. Pregnant women, mothers and fathers of young children, and employees with aging parents or sick spouses/partners may find themselves discriminated against. They may be rejected for employment, demoted, harassed, passed over for promotion, or terminated – despite good performance evaluations – simply because their employers make personnel decisions based on stereotypical notions of how they will or should act.Here are some examples of Family Responsibilities Discrimination:
- firing pregnant employees or telling them to get an abortion if they wish to remain employed;
- giving promotions to less qualified fathers or women without children rather than to highly qualified mothers;
- developing hiring profiles that expressly exclude women with young children;
- terminating employees without a valid business reason when they return from maternity or paternity leave;
- giving parents work schedules that they cannot meet for childcare reasons while giving nonparents different schedules; and
- fabricating work infractions or performance deficiencies to justify dismissal of employees with family responsibilities.
The Center for WorkLife Law is a nonprofit research and advocacy organization. WorkLife Law works with employees, employers, attorneys, legislators, journalists, and researchers to identify and prevent Family Responsibilities Discrimination. WorkLife Law is supported by grants, university funding and private donations.
So reports the New York Times and I suggest those with mortgages read this article.
The Countrywide Financial Corporation fabricated documents related to the bankruptcy case of a Pennsylvania homeowner, court records show, raising new questions about the business practices of the giant mortgage lender at the center of the subprime mess.
***The documents were generated in a case involving Sharon Diane Hill, a homeowner in Monroeville, Pa. Ms. Hill filed for Chapter 13 bankruptcy protection in March 2001 to try to save her home from foreclosure.
After meeting her mortgage obligations under the 60-month bankruptcy plan, Ms. Hill’s case was discharged and officially closed on March 9, 2007. Countrywide, the servicer on her loan, did not object to the discharge; court records from that date show she was current on her mortgage.
But one month later, Ms. Hill received a notice of intention to foreclose from Countrywide, stating that she was in default and owed the company $4,166.
Court records show that the amount claimed by Countrywide was from the period during which Ms. Hill was making regular payments under the auspices of the bankruptcy court. They included “monthly charges” totaling $3,840 from November 2006 to April 2007, late charges of $128 and other charges of almost $200.
A lawyer representing Ms. Hill in her bankruptcy case, Kenneth Steidl, of Steidl and Steinberg in Pittsburgh, wrote Countrywide a few weeks later stating that Ms. Hill had been deemed current on her mortgage during the period in question. But in May, Countrywide sent Ms. Hill another notice stating that her loan was delinquent and demanding that she pay $4,715.58. Neither Mr. Steidl nor Julia Steidl, who has also represented Ms. Hill, returned phone calls seeking comment.
I caught this in today's Muncie Star-Press, Attorneys to offer free advice Jan. 21:
The Indiana State Bar Association will sponsor "Talk to a Lawyer Today," a pro bono program to provide legal assistance to the underserved, on Monday, Jan. 21 as an annual tribute to Dr. Martin Luther King Jr.
The program is an opportunity for attorneys statewide to offer free legal consultations to members of the general public who might not otherwise be able to afford the counsel of an attorney.
Attorneys will provide a 10- to 15-minute consultation to answer general questions and offer general legal information for those who use this service.
The program will be offered locally on Jan. 21 at these sites:Delaware County: Vivian Conley Library, 1824 E. Centennial Ave., Muncie, 10 a.m.-2 p.m. Grant County: Clarence Faulkner Community Center, 1221 W. 12th St., Marion, 9 a.m.-noon. Henry County: First United Methodist Church, 1324 Church St., New Castle, 9 a.m.-1 p.m. Madison County: Mounds Mall, 2109 S. Scatterfield Road, Anderson, 10 a.m.-4 p.m. In addition to the district site locations, the public can call a statewide hotline, 1-800-266-2581 between 9 a.m. to 5 p.m.
The surviving spouse does not take everything.
If a spouse died with a Will, the law controlling this situation is IC 29-1-3-1. The surviving spouse takes one-half to one-third. How much the surviving spouse takes depends on if there are also children and if the children are from a prior marriage.
When a spouse dies without a Will, then IC 29-1-2-1 controls the issue. The same concept applies: how much the surviving spouse gets depends on if there are children and if the children are of a prior marriage.
If you do not like how IC 29-1-2-1 deals with your property, then you need to get a Will. If you have children from a prior marriage, you need a prenuptial agreement. If you are married, a post-nuptial agreement may be the solution.
If you wish to consult with me on a Will, or a prenuptial or post-nuptial agreement, please give me a call.
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A statute setting the time limit for filing a lawsuit bars a claim after that date. That kind of statute is not a statute of limitations.
Attorneys call a statute of limitations an affirmative defense. Defendant has the job of pleading the defense and proving it. The plaintiff wins if defendant either does not plead or pleads but does not prove. (See Indiana Trial Rule 8(c)).
JOHN R. SAND & GRAVEL CO. v. UNITED STATES (html format) gives us the example of a statute creating a deadline for filing a lawsuit against the federal government. The following paragraphs from the United States' Supreme Court opinion contain the facts:
The Government initially asserted that petitioner's several claims were all untimely in light of the statute providing that "[e]very claim of which the United States Court of Federal Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues." 28 U. S. C. §2501. Later, however, the Government effectively conceded that certain claims were timely. See App. 37a-39a (Government's pretrial brief). The Government subsequently won on the merits. See 62 Fed. Cl. 556, 589 (2004).Petitioner appealed the adverse judgment to the Court of Appeals for the Federal Circuit. See 457 F. 3d 1345, 1346 (2006). The Government's brief said nothing about the statute of limitations, but an amicus brief called the issue to the court's attention. See id., at 1352. The court considered itself obliged to address the limitations issue, and it held that the action was untimely. Id., at 1353-1360. We subsequently agreed to consider whether the Court of Appeals was right to ignore the Government's waiver and to decide the timeliness question. 550 U. S. ___ (2007).
The court cannot raise the issue of an affirmative defense but it can always raise the issue of having jurisdiction over a case. Justice Breyer explains the legal differences here:
You can find most of Indiana's statute of limitations by following this link here.Most statutes of limitations seek primarily to protect defendants against stale or unduly delayed claims. See, e.g., United States v. Kubrick, 444 U. S. 111, 117 (1979). Thus, the law typically treats a limitations defense as an affirmative defense that the defendant must raise at the pleadings stage and that is subject to rules of forfeiture and waiver. See Fed. Rules Civ. Proc. 8(c)(1), 12(b), 15(a); Day v. McDonough, 547 U. S. 198, 202 (2006); Zipes v. Trans World Airlines, Inc., 455 U. S. 385, 393 (1982). Such statutes also typically permit courts to toll the limitations period in light of special equitable considerations. See, e.g., Rotella v. Wood, 528 U. S. 549, 560-561 (2000); Zipes, supra, at 393; see also Cada v. Baxter Healthcare Corp., 920 F. 2d 446, 450-453 (CA7 1990).Some statutes of limitations, however, seek not so much to protect a defendant's case-specific interest in timeliness as to achieve a broader system-related goal, such as facilitating the administration of claims, see, e.g., United States v. Brockamp, 519 U. S. 347, 352-353 (1997), limiting the scope of a governmental waiver of sovereign immunity, see, e.g., United States v. Dalm, 494 U. S. 596, 609-610 (1990), or promoting judicial efficiency, see, e.g., Bowles v. Russell, 551 U. S. ___ , ___-___ (2007) (slip op., at 7-8). The Court has often read the time limits of these statutes as more absolute, say as requiring a court to decide a timeliness question despite a waiver, or as forbidding a court to consider whether certain equitable considerations warrant extending a limitations period. See, e.g., ibid.; see also Arbaugh v. Y & H Corp., 546 U. S. 500, 514 (2006). As convenient shorthand, the Court has sometimes referred to the time limits in such statutes as "jurisdictional." See, e.g., Bowles, supra, at ___ (slip op., at 5).
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FRB: Foreclosure Resources for Consumers:
"If you are having difficulty making your mortgage payment, one of the most important things you can do is seek assistance. The following resources provide information and links to agencies and organizations that may be able to help you."
From Entrepreneur Magazine comes Final Answer:
"Take the guesswork out of franchising with answers to these top 10 franchise questions--guaranteed to put you in the know."I have another question to add to these: do you have a lawyer to examine the franchise circular? Everything else may look good but there may be things behind the curtain that are not so pretty. Having a lawyer looking at the franchise circular and agreement gets behind that curtain.
1. Is it a good product or service?
2. Do I have the skills franchisees need on a daily basis, and do I have the temperament to follow the directions of the franchisor when operating the business?
3. Do I have the financial means to grow the business and reinvest in it when necessary?
4. Will the franchise help me reach my business and personal goals?
5. To what degree does the franchisor exert operational control over the franchisee?
6. Given what you know today, would you purchase this franchise again?
7. What did it actually cost you to develop your franchise?
8. Can you describe the training program?
9. Does the franchise system's management have experience managing other franchise systems?
10. Is the franchisor selective about whom they sell franchises to, or are they simply selling to whomever is willing to buy?
Remember that on Mondays the Indianapolis Star publishes the week's business bankruptcies.
Chapter 7 (liquidation)
United Mortgage Co. of IN Inc., 407 Amelie Drive, Jeffersonville. D, $158,208; A, none.Zemon Enterprises Inc., 757 E. Lewis & Clark Pkwy., Clarksville.USF Worldwide Holdings Inc., 5151 W. U.S. 40, Greenfield. D, $7,105,357; A, none.S.B. Brother's Inc., 600 N. Lincoln Road, Rockville. D, $44,523; A, none.4 SGC LLC, 66 Harmony Road, Carmel. D, $112,292; A, $13,165.Chapter 11 (reorganization)
Thomas K. Helton Inc., d/b/a Home Lumber Co., 101 W. Lincoln St., Danville.
Thomas Keller and Shirley Rohrs v. Daniel Keller - (PDF format)
"Defendants-Appellants Thomas Keller (“Tom”) and Shirley Rohrs (“Shirley”) appeal the trial court’s order finding that the family farm (“the Farm”) could not be partitioned and should be sold at a public auction. We affirm."
Tom, Shirley, and Daniel Keller (“Dan”) are siblings. Each owns an undivided one-third interest in the Farm as tenants in common. The Farm consists of approximately one hundred and sixty acres of land located in DeKalb County, Indiana. It is zoned CI-1 Open Industrial. Single-family residences are not permitted in this type of zoning district in DeKalb County.
***
It is also significant to note that in its order, the trial court provided that Tom and Shirley could bid on the Farm at the public auction. This gave Tom and Shirley a reasonable opportunity to keep the Farm within the Keller family. Given the discretion the trial court is afforded under Indiana Code § 32-17-4-12(a) to determine whether property should be sold through a public or private sale and based on the evidence presented at trial, we cannot say that the trial court’s judgment was clearly erroneous or an abuse of discretion.
If the commissioners report to the court that the whole or part of the land of which partition is demanded can not be divided without damage to the owners, the court may order the whole or any part of the land to be sold at public or private sale on terms and conditions prescribed by the court.
