Author: hbosen

Cruise Line Sued For Medical Negligence

September 21, 2015

A cruise line may be held responsible in a Roanoke City, City of Salem, Roanoke County, Botetourt County, or Montgomery County court if a passenger receives poor medical care onboard.  This comes from a ruling in a federal appeals court in Atlanta.

The case was brought by the family of Pasquale Vaglio, an elderly man who banged his head while on a Royal Caribbean ship docked in Bermuda.  The family claimed that the onboard medical staff refused to provide treatment until they obtained credit card information, and were so careless in the treatment they did provide that Pasquale died when his life could easily have been saved.

Back in 1988, another federal appeals court had ruled that a cruise line wasn’t legally responsible for the actions of a ship’s doctor or nurse. A passenger could still sue the individual medical provider, of course – but the doctor or nurse might be based in another country and be hard to track down, or might not have enough assets or insurance to provide full compensation.

But in Pasquale’s case, the court said the old rule needed to be changed because cruise lines have evolved tremendously since 1988.

Back then, many ships didn’t have any onboard doctors or medical facilities. Today, however, cruise ships are more like floating cities, and lines such as Royal Caribbean often boast of their state-of-the-art medical care. The court said it would be wrong to let cruise lines brag in this way and then take no responsibility when things go wrong.

Parents, Party Hosts and Others Might Be Responsible For Guests’ Drinking

August 21, 2015

If you or someone you know has been injured by a drunk driver in Roanoke City, Roanoke County, or Montgomery County, you might know that you may be able to sue the driver for damages. You might also know that if the driver had been drinking at a bar, and the bar kept serving the person even though it should have known he or she was drunk, the bar might be liable, too.

But what if the driver was drinking at a party, or in someone else’s home?

In some cases, a private person who carelessly provides alcohol to a driver who later injures someone can be held responsible for the harm.

This is important to know, because it might result in the injured person having an additional source of compensation if the driver’s auto insurance doesn’t fully cover the loss.

The most common situation is which a private person could be held responsible is if he or she gave alcohol to someone who was under the legal drinking age. Every state in the country makes it illegal to provide alcohol to minors, and most states also have laws that in some way make people financially responsible for the harm if they break this law.

For instance, if parents let young people drink in their home, the parents might be responsible if a minor gets drunk and later injures someone in a car crash. Some parents have the attitude that young people will drink anyway, and they would rather provide the alcohol themselves so the young people can drink in a controlled environment. But regardless of whether this is a wise attitude or not, it won’t necessarily prevent legal liability if the parents break the law and someone gets hurt.

There have been cases where parents have been held liable even though they didn’t serve the alcohol – and weren’t even at home – but they had alcohol on the premises and should have known that young people were likely to “party” with it while they were away.

Parents aren’t the only ones who can be sued. Other people who organize a party or act as a social host may be responsible for underage drinking. And in addition to drunk driving, parents and social hosts may be responsible for other types of harm that can result from being drunk, such as falls and other accidents.

Of course, if hosts make other types of intoxicants available to young people, that can also lead to liability. The growing prevalence of medical marijuana means that people who use it need to take care not to let minors have access to it.

And in some states, the law says that a social host may be responsible if an adult guest gets drunk and later injures someone. If the host controls the liquor supply and should realize that allowing the guest to continue drinking creates a danger to the community, the host may be legally responsible for the consequences of allowing the person to drink.

All these types of claims may be covered by the host’s homeowner’s insurance policy – so it may be possible for a victim to be fairly compensated without bringing a lawsuit that bankrupts the host.

If you or someone you know has been injured by a drunk driver or in another situation involving alcohol, it’s always good to talk to an attorney, because it’s not always clear who may be responsible until an attorney has investigated all the facts.

For instance, in one recent case a 20-year-old California girl threw a party at her parents’ vacation home while they were away. One of the guests got drunk, drove off, and struck another guest.

Under California law, businesses can be sued for selling alcohol to a drunk minor, but a minor can’t be sued for giving alcohol to another minor.

However, it turned out that the 20-year-old had asked a friend to stand by the gate and collect $3 to $5 from each guest to help pay for the booze. The California Supreme Court said that this turned the party into “a pop-up nightclub that required a cover charge for entry,” and thus the girl could be legally responsible as a careless seller of alcohol.

This case is significant because it’s very common for guests at informal college and high-school parties to be asked to pony up a few dollars each to help pay for drinks.

 

Landowner Responsible For Hazard On Someone Else’s Property

July 21, 2015

The Elephant Rock Beach Club is a private club in Massachusetts. It’s named after Elephant Rock, a natural formation about 250 feet offshore.

Many members swim out to the rock. One day a guest swam out to the rock, dove off it, and injured herself on a dangerous part of the rock that was submerged just under the water. She sued the club for not warning of the danger.

The club claimed that it couldn’t be held responsible for the accident because it didn’t own the rock. The rock was beyond its property line, in waters owned by the state.

But a federal court said that the club had effectively taken control of the rock, because it had established rules prohibiting small children from using it, and because lifeguards often whistled people away from it on days when there were difficult swimming conditions.

Although the rock wasn’t on the club’s property, the court said landowners sometimes have a legal duty to prevent people from being hurt on a neighboring property. For instance, it pointed to an earlier case where a city was sued for not putting up a fence between a city-owned playground and a railroad track.

Parents May Be Liable For Child’s Posts On Facebook

May 21, 2015

Parents may be held liable in a Roanoke County, Montgomery County, Botetourt County, Roanoke City, or City of Salem court for damages for things their children post on Facebook, stemming from a recent decision from the Georgia Court of Appeals.

Seventh-grader Dustin Ahearn created a fake Facebook page for a classmate, Alexandria Boston. The page used a “fat face” app to make the girl look obese, and included posts suggesting that she used drugs, was racist and promiscuous, and had mental health problems.

Alexandria’s parents complained to the school, which suspended Dustin for two days and told his parents. Dustin’s parents punished him, but they neglected to make him take down the site, which remained online for almost a year until Alexandria’s parents sued them.

The court said that Dustin’s parents couldn’t be held liable for the fact that Dustin created the site in the first place, because he did it without their knowledge. However, once they knew about the site, they may have had a legal duty to supervise Dustin’s Internet use, including making him take the site down, the court said.

Recreational-Use Immunity for Golf Injury

June 13, 2014

The purpose of recreational-use tort immunity statutes, which are common across the country, is to encourage private and public landowners to make their property available for public recreational use. To advance this public interest, these laws usually immunize the owners or occupants of real property from negligence liability toward people entering the land for recreation, often on the condition that the property is made available for use free of charge.

Typically the statutory immunity stops short of protecting defendants from liability for greater degrees of wrongdoing, such as acts or omissions that can be characterized as willful, malicious, or grossly negligent. Originally the perceived need for immunity arose because of the impracticability of keeping large tracts of mostly undeveloped land safe for public use, but the concept has evolved so that it need not necessarily involve vast expanses of wilderness.

The conditions for recreational-use immunity can vary somewhat with the wording of the states’ statutes, requiring case-by-case rulings depending on the facts before a court and the wording of each state’s law. In keeping with a commonly recognized rule of statutory construction, because recreational-use immunity statutes limit common-law liability that predates such laws, a court must strictly construe language in the statutes in order to avoid any overbroad statutory interpretation that would give unintended immunity and take away a right of action for injured persons.

When a golfer at a city-owned golf course slipped and fell on a walkway leading to a tee box, he claimed that the walkway was dangerously steep and narrow, causing his injuries. The city defended on the basis of a state recreational-use immunity law. Before an intermediate appellate court, the city prevailed on one issue, about the golf course’s coming within the statute, but the case was sent back to the trial court for resolution of a second issue, concerning the legal status of the injured golfer.

The golf course was sufficiently similar to “park” lands to be included in the definition of “premises” under the recreational-use immunity statute even though there is no express mention of golf courses by the legislature. The golf course fit within the common definition of a “park,” as it was a parcel of property kept for recreational use that was designed and maintained for the primary purpose of allowing users to engage in a recreational activity. Not only that, but the statute’s list of types of land uses constituting covered “premises” includes a catch-all reference to “any other similar lands.”

However, for the immunity to apply to the city, it was also necessary for the golfer to have been a “recreational user” under the law. This, in turn, meant that the golfer must have paid either no admission fee or no more than a “nominal fee,” to use the term from the statute. In this case, there was no question that a fee was paid to play golf, but since the lower court had not reached the question of whether that fee was “nominal,” it would have to decide that issue.

Generally a nominal fee is one charged only to offset the cost of providing the educational or recreational premises covered by the immunity statute. Some of the factors affecting this issue might include, for example, the amount of the fee, the extent to which it approximates the value of the service received in exchange for it, and the fees charged for similar recreational uses in the community.

In something of an ironic twist, if it were to be found that the golfer had paid no more than a “nominal fee,” then in exchange for that inexpensive round of golf, the golfer will have ultimately paid a higher “price” in the form of being precluded from recovering damages from the golf course owner for negligence.

Tax Free Gains from Home Sales

May 13, 2014

One of the most significant tax advantages to owning a home comes at the back end of ownership, when you decide to sell it for a profit. A homeowner can exclude up to $250,000 of such profit from the federal capital gains tax. For married couples filing a joint tax return, the exclusion jumps to $500,000.

This big tax break does come with some basic requirements. It applies to the sale only of a principal residence, not of a vacation home or investment property. With some limited exceptions for poor health, job changes, and unforeseen circumstances, the taxpayer must have owned and used the home as a primary residence for at least two of the five years preceding the sale of the home. (But the two years need not be an uninterrupted time span.)

If the history of the home includes some business use, the owner cannot exclude that part of the gain that is equal to the depreciation claimed while the house was used as rental property. This scenario could arise when the owner rents out the house for a period of time but then moves back in, sells it, and otherwise qualifies for the exclusion related to that sale.

There is another two-year rule that comes into play after a taxpayer claims the home-sale exclusion. There is no limit to the number of times that the exclusion can be claimed for multiple sales, but, as a rule, once the exclusion is claimed, the taxpayer must wait two years before claiming another such exclusion.

For a married couple to qualify for the exclusion, it is sufficient if either spouse meets the ownership requirement. However, both spouses must meet the use requirement. Neither spouse is rendered ineligible for the exclusion because he or she had already excluded the gain on a different primary residence during the two years preceding the date of the current sale.

Public Use Required for Eminent Domain

April 13, 2014

“Eminent domain” is the power of the federal, state, or local governments (and, in some limited circumstances, private parties, such as utilities and railroads) to take, or to authorize the taking of, private property for a public use without the owner’s consent and upon payment of just compensation. That right to compensation is rooted in the federal and state Constitutions. While the delegation of the power of eminent domain is for legislatures, the determination of whether the condemnor’s intended use of the land is for “the public use or benefit” is a question of law for the courts.

The public use or public benefit issue has spawned countless legislative and judicial reactions, especially since a controversial U.S. Supreme Court decision on the topic in 2005. In that case, owners of condemned property challenged a city’s exercise of eminent domain power on the ground that the takings were not for a public use but, rather, for the benefit of private developers.

The Court held that the city’s exercise of eminent domain power in furtherance of an economic development plan satisfied the constitutional “public use” requirement even though the city was planning to lease the condemned land to private developers for execution of the city’s plan. The plan nonetheless served a public purpose, in the form of enhanced economic development, including such beneficial effects as the increased tax revenues and new jobs expected to come with such redevelopment.

Recently a city withstood a similar challenge to its use of eminent domain to acquire an easement on a private landowner’s property in order to expand a sewer system by connecting city-owned property to a sewer pump station underneath the landowner’s property. The taking was for a public use even though the city ultimately planned to sell its property to a private affordable housing developer, because the sewer easement area would be available to the public at large in accordance with the appropriate rules, regulations, and standards of a metropolitan sewer district.

Apart from the constitutional requirements, the taking of the easement satisfied a state statutory mandate that a taking by a governmental entity must be for a “public use or benefit.” Under the public benefit test for eminent domain, the city’s desired use of the condemned property was for “the public use or benefit” because that use would contribute to the general welfare and prosperity of the public at large, not just particular individuals or estates.

In the case before the court, extending the sewer lines would allow development of the city’s neighboring property, which the city sought to sell to the private developer to construct affordable housing. The existing pump station had sufficient capacity to service the city’s land, and requiring the city instead to construct a sewer pump station on its land would have resulted in wasteful and unnecessary duplication of the city’s resources. These facts added up to a public use or benefit justifying the taking, notwithstanding some benefits undeniably accruing to private parties as well.

Before You Start a Business…

March 13, 2014

Both heart and mind must be working well if the owners of a new small business are to experience success. While it is only human nature–not to mention fun–to indulge one’s imagination about what a new business started from scratch could be like, would-be entrepreneurs need to engage in some cold, hard thinking and planning before taking the plunge. At the risk of pouring cold water on some of the anticipation and excitement, what follows is a guide for how to plan for, and think through, the many decisions that must be made well before you have that “Grand Opening” sign made.

Why?

This may seem obvious, but you should know just what your reasons are for wanting to start a new business. If the motivations are weak, odds are the business will be a bust, whereas well-founded reasons can help a business persevere through good times and bad. Some common reasons for starting a new business include escaping the whole nine-to-five routine (though it may be replaced by an eight-to-eight routine), answering to no one else, upgrading your standard of living, and being convinced that you can provide a needed product or service.

Why Me?

Let’s face it, not everyone is cut out to be a captain of industry, or even captain of a small business. Maybe you need not subject yourself to an intensive psychological and life-experiences evaluation, but be honest with yourself about whether you have the necessary characteristics, skills, and experience. A few examples give you the idea:

* Can you make yourself pull the trigger on an important decision?

* Do you see competition as exciting or just stress-inducing?

* Are you willing and able to plan ahead?

* Do you like interacting with people you don’t know?

* Do you have the perseverance, not to mention the physical stamina and health, to put in long hours if that’s what is needed to make the business succeed?

* Are you, and anyone else financially dependent upon you, prepared to risk your savings in pursuit of the business dream if that’s what it takes?

* Unless you are planning a one-man band of a business, are you comfortable with hiring, supervising, and possibly having to fire other people?

* Are you reasonably well organized?

* Do you know anything about the paperwork and legal side of running a business, such as payroll and accounting, the permits or licenses you will need, or the regulations and laws that may apply to the business?

Why This Business?

You may have the best motives and a skill set that would be the envy of any MBA graduate, but if there is no niche for your planned business or, simply put, if not enough people will want to buy what you are selling, the new business will fail. The variables here include timing, location, and simply whether your business is feasible or practicable, so that you can be the one to fill that niche that you have first identified. Don’t make your business the equivalent of carrying coals to Newcastle.

In economic terms, you want to do some investigation to determine whether there is some currently unmet demand for the product or service you want to supply. Then you want to meet that demand with a product or service that is competitive in quality, selection, price, and/or location.

In short, learn as much as you can about the market you will be in. Learn who your customers will be, and try to understand their needs and desires. Anticipate how your fledgling business will compare with any established competitors. What can you do in setting up and running the business to make sure you get your share of whatever market there is for your product or service?

How?

Turning the idea into bricks and mortar (literally or figuratively) involves a lot of decisions, some of which are best made only after getting professional advice. Still, you should acquire at least a layperson’s understanding of the pros, cons, and consequences of each decision.

Choose a name for the business that you find appealing but also one that is informative for someone hearing it for the first time. Select the most appropriate business form, such as a sole proprietorship, a partnership, or a corporation. Investigate which local, state, and federal laws and regulations will apply to the business. This will run the gamut from laws of universal application (e.g., taxes) to laws specific to your business.

Make an unflinching and detailed examination of your financial picture. How much do you have now, how much will you need to start the business, and how much will you need to stay in business? Projecting cash flow into the future means taking into account such variables as seasonal trends in sales, the amount of cash taken out of the business for personal expenses, whether and when to expand the business, and the rate at which customers will pay off accounts if credit is extended to them.

Find a location for the business that is convenient for customers, appropriate in size and configuration, and zoned so as to allow your type of business. When you have settled on the product or service you will sell, calculate the inventory you should create, and maintain and locate reliable suppliers.

Finally, if you go to all the trouble and expense involved in creating a small business, don’t forget to think about protecting against losing the business from such threats as fire, theft, robbery, vandalism, and liability for an accident. This means taking measures to provide security but also arranging for the appropriate types and levels of insurance.

Salem, VA Locksmith Acquitted of All Child Sexual Abuse Charges

February 13, 2014

Read news coverage from the Roanoke Times on the original charges and the final case results.

Read coverage of the case from Virginia Lawyers Weekly.

Background

In July 2012, a 41 year old Salem locksmith, Robert Marshall Hickson, Sr., was charged by indictment with one count of Animate (Digital) Anal Penetration involving one of two nieces and five counts of Aggravated Sexual Battery involving one of his daughters and two nieces.  All accusers were under 18 years of age.  The Virginia Department of Criminal Justice Services immediately revoked his locksmith’s license.  Based on the alleged ages of the accusers, he faced a maximum possible punishment of life plus 100 years.  Sixteen months later, after a three day jury trial and seven and a half hours of jury deliberation, at approximately 9:00 p.m. on Friday, November 15, 2013, a jury of seven men and five women found him Not Guilty on all counts.  There were several notable features about this case.

Four of the indictments broadly alleged the crimes were committed over approximately four year periods, while the two involving his daughter alleged specific dates in July 2012. Two indictments charged Aggravated Sexual Abuse of a Child Less Than 13 Years of Age.  One charged Sexual Abuse of a Child of At Least 13 Years of Age But Less Than 15 Years of Age.  Due to the chronologically vague nature of the crimes broadly alleged to have occurred over four years, the defense sought to pin down the alleged crimes described by the accusers to specific events and time frames in the lives of the defendant, accusers and witnesses.  The defense sought to isolate the events with specificity from the vague indictments as a foundation for a specific defenses and then to prove that Hickson could not have perpetrated the crimes alleged to have occurred at the time of these specific life events.  The defense hoped to argue that if one could not believe abuse had occurred at the time of a specific event as identified by an accuser during her testimony, then how could one believe any accusations from the accusers that any abuse occurred at all?

Broad Allegations Narrowed Down To Specific Events

The defense benefitted from the fact that it not only had the initial statements of the accusers given to the police, but also that the cases had originated on warrants and that a preliminary hearing  held in the Juvenile and Domestic Relations District Court.  The defense, of course, had a court reporter present during that hearing, it had the court reporter sworn by the Judge, and had that transcript prepared for use at trial.  During trial, there were a number of inconsistent statements made by the accusers when compared to both the preliminary hearing transcript and their initial statements to the police.  During the preliminary hearing, the defense was able to pin down the specific allegations of sexual abuse as having occurred during specific events with specific details of those events, with the accusers asserting the vents were precisely why they could remember the abuse incident.

One such event was a day when the defendant supposedly abused a niece while she was in a bunk bed with two other younger children of the Defendant’s girlfriend in his basement apartment in his parents’ home and at a time when the defendant’s girlfriend had supposedly left the premises with the defendant’s daughter.  However, the defense was able to prove that on that particular day, which was the morning after the only night ever when that niece spent the night downstairs, he actually was on a weekend camping trip with friends (who all testified) approximately 45 miles away.  Furthermore, although his girlfriend had left the premises that morning with all of her children and the defendant’s daughter to go clean an apartment she had recently rented under a lease, which cleaning was part of a free first month’s rental payment, she had sent the niece upstairs to the defendant’s parents because she did not have room in her vehicle to transport all of the children.  The grandparents testified they specifically recalled these details and the child coming upstairs that morning, and they affirmed that had been the only night ever that said niece spent the night downstairs.

Another occasion of alleged abuse (the animate penetration charge) supposedly occurred on a Friday in 2009 in the defendant’s basement apartment.   However, at this time the defendant’s girlfriend was with his children downstairs in the apartment and was making a t-shirt that contained the hand prints of all of his children, which was to be a surprise for the defendant the following Father’s Day (Sunday).  The defense produced work records in the form of invoices and payments showing that the defendant had been on “lock calls” all that day, which was supported by his girlfriend testifying that he was not present during the making of the t-shirt because, after all, it was a surprise.  The girlfriend remembered the niece coming downstairs, staying only a few minutes, and returning upstairs.  The defendant’s mother remembered the niece coming back upstairs and asking the niece why she did not stay down there any longer than she did, to which the niece replied that there was not enough room for her down there due to everyone else being down there.  The defense was fortunate in that the defendant’s girlfriend had found the t-shirt in storage and so she and the defendant were able to display the shirt to the jury with all of the children’s hand prints, including those of the accusing daughter, and with “09” centered on the front.

One more occasion of note when abuse allegedly occurred on that same niece in her upstairs bedroom, where she often stayed with the defendant’s parents, was in 2011.  Here, the defense showed that the defendant did not have a key to any of the doors leading to that part of the house, which were consistently locked, and that although he was a locksmith, he could not have gained access to keys for that part of the house because they had Medco locks and so would not have been able to get keys made due to Medco technologies, policies, and procedures.  The defendant’s father testified that he had put Medco locks on all of his doors years ago when a State Trooper was killed nearby on Interstate 81 and the killers broke into the home behind his, killing the husband of that family and abducting and later killing the wife.  He testified that, as was his custom, he checked all the door locks before he left for a doctor’s appointment that morning at the VA in Salem (he had his appointment schedule and VA records at trial) and he further testified that his son had not had a key to the upstairs portion of the house since approximately 2005, when the locks were re-keyed, because the defendant’s daughter (who was an accuser in this case) would steal things and lie about it and they did not want her to have access to a key through her father when she visited him in his basement apartment.  Supposedly, according to the niece, when she woke up in her bed Hickson was in bed with her and abuse her and after Hickson had molested this niece on this occasion, she then rode with him to a shopping mall in Christiansburg for a “lock call”, rode with him to visit an uncle in Christiansburg (she gave conflicting testimony about even being at that visit, but the uncle’s girlfriend testified she recalled the visit and noted the niece acted normal), and then rode with him to a store near her friend’s home in Floyd County to go on a pre-planned trip with the friend, which she also denied was pre-planned.  It was shown at trial by the defense that she could have driven her own car, which she owned, used, and which was present at the Hickson home on that very date.  When asked on cross at trial why she would ride with Hickson on this trip immediately after he abused her she stated: “I just wanted to get out of there”, to which defense counsel retorted, “Why didn’t you just drive your own car when something so terrible had just happened to you?”

There were numerous other discrepancies as to the defendant’s opportunity to have done specific acts alleged for specific time periods and specific events.  The defense produced evidence and testimony with specificity to combat each allegation as was done in the preceding three example instances.  If other evidence was not available, the defense produced “lock call” records to cast doubt on the various stories given.

Accuser Motivation

The defense also put on evidence for possible motivation on the parts of the accusers, one of which was the elder niece consistently wanting the defendant to move out of his basement apartment so she and her friend could move into it, and another being the hatred of the daughter for her father after he confronted her boyfriend and her lying about her sneaking over to the boyfriend’s house whenever she visited her father, which resulted in the defendant barring the boyfriend from his home.  The father and the daughter had an intense argument on July 5, 2012 after defendant got home from work because he forbade the boyfriend from picking his daughter up, the very day that the accusers first reported allegations of abuse to the defendant’s parents upstairs.  Testimony revealed that she had stated to him “I hate you, this isn’t fair”.  Both of the defendant’s parents testified at trial that when the girls were making their reports to them, they were laughing, smiling, and texting, causing both grandparents to think the reports must have been some sort of joke.  Seven days later when one of the niece’s sister learned of the allegations, all of the accusers’ mothers were informed, and the police were called, thus beginning the legal momentum against the defendant that was not stopped until trial and the ultimate verdict.

The defense was able to get this accusing daughter of the defendant to admit on cross examination that she was “a liar and a thief”, that she “hated” her father, and that the issues with the boyfriend was part of what lead her to report the allegations to her grandparents.  When this witness testified on rebuttal, the defense had a Facebook posting made made the first day of trial which stated:  “Two more days until I put him in jail”, which posting was put into evidence and used on cross.  The jury became wide-eyed on that evidence being presented.

Sexual Abuse Prevalence and Jury Selection

An interesting aspect of the case was a pre-trial motion filed by the defense asking the Court for individual voire dire or at least three person voire dire.  The defense produced a scholarly article analyzing a Los Angeles Times national survey which found that 26% of women and 19% of men had been sexually abused or had been the victim of some sort of sexual misconduct.  The Court granted 3 person voire dire.  During voire dire, 20% of the women in the first 30 jurors called expressed an inability to dispassionately serve because of their own personal history with sexual abuse or misconduct.

The defense was consistently concerned about tainting jurors against the defense during voire dire by asking “personal questions” about their, their families, and their friends’ histories as to sexual abuse and misconduct.  The defense attempted to resolve this issue by advising each set of three jurors that personal questions had to be asked of them by defense counsel to gauge their fairness and fitness to hear the case because the prosecution had asked that a jury be impaneled to hear the case.  Defense counsel believes this took the edge off the defense having to ask such questions and put the onus on the prosecution.

Jury Deliberation

During their deliberations, the jury sent out questions on three different occasions, approximately two hours apart each.  The first set of questions asked for the specific dates of birth of each accuser.  Defense counsel suspected throughout the case that the ages of the alleged victims at the times of the alleged specific crimes did not fit the age ranges specified in the indictments, which events the defense was able to pin down to specific dates.  With the alleged victims’ testimony as to their birth dates presented at trial confirming the defense’s previous suspicions, the defense agreed that the jury should be given the dates of birth by the Judge as requested because it was apparent the jury was concerned about the specificity of the ages in the charges and the date ranges of the alleged crimes.  The Commonwealth had argued during closing that the girls had testified that the abuse was ongoing over the date ranges specified in the indictments and that the jury did not have to find the defendant guilty of one specific crime for each indictment, but the defense had argued if the jury did not believe the abuse had occurred at the time of a specific event by the child during her testimony, then how could they believe any abuse occurred at all even during the date ranges.  The stated reason the defense used in agreeing that the Court could give the jury the birth dates was because the defense was certain that the birth dates had already been testified to anyway and it did no harm in giving them evidence already presented.  The Judge gave the dates of birth to the jury.

The second set of questions asked specifically about two of the instructions and whether the ages of the girls fit the charge for each instruction, which affirmed the defense’s conclusion as to why the jury wanted the birth dates in the first set of questions.  The defense agreed with the Judge that the jury should be instructed that the burden was on the Commonwealth to prove all of the elements of the crimes charged and if all the elements of the chrimes are not proven, then the defendant should be found Not Guilty.

The third set of jury questions came an hour and a half before the verdict.  These questions were:  “What is the definition of circumstantial evidence?” and “Is witness testimony circumstantial evidence?”  The defense agreed that the Judge should tell the jury that they had all of the evidence and all of the instructions before them and they should decide the case based on what they have,  The defense felt that it would be even more confusing to the jury to give them additional definitions or responses.

Postscript

Defense counsel assisted the defendant in getting his state locksmith license reinstated with the Criminal Justice Services Department.

In addition, an appeal was filed with the Social Services Department for Roanoke County which had made an investigation into the girls’ complaints and made a “founded” Child Protective Services decision that would have labeled him a sex offender in their records for between 12 and 18 years.  The initial appeal was denied by the local department head and that decision was appealed to a hearing officer for the Commonwealth of Virginia.  After a nearly full day hearing by video conference, the founded complaints were reversed and he was totally cleared of all allegations within that Department.

Limited Liability Companies – The Best of All Worlds?

January 13, 2014

A limited liability company (LLC) is a business structure that combines some of the best features of sole proprietorships, partnerships, and corporations. LLC owners, like their counterparts for partnerships or sole proprietorships, report profits or losses on their personal income tax returns. Like a corporation, however, the owners of an LLC have “limited liability,” that is, they are shielded from personal liability for debts and claims arising from the business.

Limited Liability

The limited liability for LLC owners is not absolute. Owners still can be held liable if they (1) personally and directly injure someone; (2) personally guarantee a loan or business debt on which the LLC defaults; (3) fail to deposit taxes withheld from employees’ wages; (4) intentionally commit a fraudulent or illegal act that harms the company or someone else; or (5) treat the LLC as an extension of their personal affairs rather than as a separate legal entity.

The last exception to limited liability is the most significant. It carries the potential for complete removal of the protections for individual owners. If the line between LLC business and personal business becomes too blurred, a court could find that a true LLC does not exist, leaving the owners personally liable for their actions.

Ownership

Most states allow a single individual to be the sole owner of an LLC. An LLC makes the most sense in circumstances where there is a concern about personal exposure to lawsuits stemming from operation of the business. Most laws prohibit establishment of an LLC in the banking, trust, and insurance fields.

Unlike corporations, LLCs can carry on their business without holding regular ownership or management meetings. Of course, formal meetings backed up by written minutes still may be advisable to document important decisions, such as a change in membership or a major expenditure.

Formation

Setting up an LLC is relatively simple. Articles of organization must be filed with the appropriate state office, usually the Secretary of State. The articles of organization include the name and principal office for the LLC, the names and addresses of its owners, and the name and address of the person or company that agrees to accept legal papers on behalf of the LLC.

Even if it is not legally required, the owners should prepare an operating agreement that spells out the owners’ rights and responsibilities. The absence of an operating agreement will mean that state statutes will govern the operation of the LLC by default. An operating agreement acts as a guide for resolving common issues that an LLC will face, and thereby helps to avert misunderstandings between the owners. It also underscores the authenticity of the LLC itself, which can be helpful when a judge is deciding whether the owners are protected from personal liability.

A standard operating agreement includes the members’ percentage interests in the business; the members’ rights and responsibilities; the members’ voting power; allocation of profits and losses; how the LLC will be managed; rules for holding meetings and taking votes; and “buy-sell” provisions that control what happens when a member wants to sell his interest, becomes disabled, or dies. Although it is frequently overlooked when an LLC is created, a buy-sell agreement is important as a sort of “premarital agreement” among the owners. The buy-sell provisions can clarify and ease the transition when the inevitable changes come to the members of the LLC.

Taxes

Since an LLC is not considered separate from its owners for tax purposes, the LLC pays no income taxes itself. Like a partnership or sole proprietorship, an LLC is a “pass-through entity.” Each owner pays taxes on a share of profits, or deducts a share of losses, on a personal tax return. The IRS regards each member as a self-employed business owner, not an employee of the LLC. There is no tax withholding, and owners must estimate taxes owed for the year, then make quarterly payments to the IRS.

Conversion

By converting to the LLC business structure, sole proprietors and partnerships can gain the protection afforded to LLC owners without changing the way their business income is taxed. Conversion usually can be accomplished either by filling out a simple form or filing regular articles of organization. Federal and state employer identification numbers will have to be transferred to the name of the new LLC, as will such items as sales tax permits, business licenses, and professional licenses or permits.

The process for creating an LLC is streamlined and free of highly technical considerations. However, there is an important place for professional advice concerning such matters as choosing an LLC over other business structures, preparing or reviewing the operating agreement, and setting up accounting systems.