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Kevin Elliott Parks

Kevin Parks’s Answers

687 total

  • Do I need a lawyer for purchasing a restaurant business?

    Not sure if I need a lawyer or only a paralegal asst when I want to purchase a business from a relative whose business not going so well. If I do need one what kind of lawyer should I looking for. I just want to make sure that I don't have to res...

    Kevin’s Answer

    Purchasing a business of any size is a potentially complicated and time-intensive undertaking; purchasing a business experiencing financial hardships can make the transaction SIGNIFICANTLY more complicated and precarious, with numerous potential (and costly) pitfalls if you're not ensuring a smooth ownership transition while maintaining cash flow.

    Just SOME of the pertinent questions/issues include:
    - What are the business' assets (equipment, fixtures, inventory, real property (leases), personal property, intellectual property, etc.)?
    - What are its liabilities (contract obligations, employees, loans, vendors' accounts, etc.)?
    - How is cash flow?
    - Have you reviewed (and are comfortable with) the business' financials -- P&Ls, etc.?
    - Are you prepared to seamlessly transition operations? (Accounting/bookkeeping, business/liquor licensing, human resources/payroll, insurance, etc.)
    - Are you purchasing an interest in an existing business entity, or creating a new business entity and purchasing the existing entities' assets?
    - How is the buy/sell agreement worded and structured?

    A paralegal is NOT going to be able to assist you, other than under the direction of an attorney. The type of attorney you'll need is, likely, a general business attorney with experience in small business transactions, ideally with specific in the restaurant industry. Additionally, you'll likely need to retain an accountant to review, organize, and maintain the financials both of the existing owners' business prior to purchase, as well as of your own operation once you commence ownership.

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  • I hired a 1099 contractor to create some email promotion graphics. We sent them 1-2 times now she says we cant use them. Legal?

    She created the promotion pieces for us and now she is saying that she owns them and we have to make deal to use them again. She created an art work on our website and email pictures. We paid her per hour to create them for us and now she says she...

    Kevin’s Answer

    My colleague has provided a good answer as to the likelihood of ownership. Ultimately, it likely depends on what language was in the independent contractor agreement you may have signed, if any. If there was no written agreement, the likelihood is that the creator of the work maintains ownership.

    Certainly when you hired the contractor and purchased the work, you were purchasing some license or title to use the work she created and provided -- it simply depends on the extent and scope of that license or title you purchased to determine whether or not your current use of the product has gone beyond the scope of your ownership/use, or if you cannot use it anymore.

    Unfortunately, your analogy regarding a fence doesn't really take into account all the various ways that the "product" in this situation -- especially intellectual property -- could be utilized.

    For instance, when you hire a contractor to build a fence, sure -- typically the contractor builds the fence, you pay the contractor for the construction of the fence, and then you own that specific fence in your own backyard, and that's that. What matter ultimately, though, is your use of the fence.

    Consider the following: Would you own all of the design elements of the fence that the contractor utilized, so much that you could create identical copies of the fences in other places? i.e., Perhaps there was some novel, unique copyrighted construction process or designs utilized in creating the fence. Simply because you own the specific fence in your backyard doesn't necessarily enable you to utilize and/or sell an identical copy of the fence to, say, your neighbor.

    In your situation, depending on what the promotional pieces are, you may likely want to think of this more like painting or a movie. When an artist creates a painting or a director/studio creates a movie, an individual can buy all of the rights of ownership of that painting or movie (which is often very, very expensive.) Rather, more typically an individual can purchase a limited right to utilize the creative work -- say, a ticket to a museum or theater to see the painting or movie, or a print of the painting or a DVD of the movie -- that then cannot be legally reproduced without infringing upon the rights of the works' owner.

    Ultimately, you're going to want to review the written agreement with an attorney, as well as all of the attendant facts regarding your past and intended future use of the product, etc., to determine specifically what your rights are and what your options are moving forward.

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  • My new commercial tenant, after 2 months into 24 month lease, wants to close the doors, sell the restaurant. Abandonment?

    Can tenant legally sell business after only 2 months into lease? Can this landlord deny sale of business and hold tenant financially responsible for the remaining 22 months on lease. Does landlord have to accept any prospective buyer? Or can la...

    Kevin’s Answer

    As my colleague Mr. Stevens identified, commercial real estate transactions -- and, specifically, your legal rights and, thus, your tenant's legal obligations -- are almost entirely dependent upon the terms of the commercial lease agreement you've signed.

    Some leases prevent tenant business owners from selling or transferring an ownership interest in the business without the landlord's written authorization, while others are completely silent on the matter. Ultimately, you'll likely not be able to prevent the tenant business from closing, if they otherwise need to do so, though your remedies (i.e., collecting the remaining rental amounts) can vary depending upon the default language, your own mitigation of damages, and whether you've secured personal guarantees from the business owners individually, as opposed to the business entity itself.

    Typically, if the landlord has any rights in restricting the sale of a tenant's business, its rights are limited to approving or denying lease assignments and, again, individual guarantors, which typically cannot be unreasonably withheld. (Though, depending on financial considerations, there can be a range of reasons why one might not assent to the sale, etc.)

    Ultimately, again, all of this comes down to what's on paper; the terms of the lease agreement are going to determine what you can do, and what you can't. Ideally, your lease was already prepared and drafted by a lawyer, so you should likely have that attorney review the situation with you and go over the details. If you don't have a lawyer, there are likely a number of attorneys in your area who practice in commercial real estate transactions.

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  • I am disabled and wheelchair bound. my landlord refuse's to install a wheelchair ramp into my apt. is it legal he can do that?

    I rent by the month

    Kevin’s Answer

    My colleague, Mr. Bodzin, is right on.

    Yes, there may be some circumstances where a disabled tenant is allowed under the ADA to compel landlords to install (and pay for) certain accommodations, but those situations are somewhat rare and always very fact specific. Thus, specific factual issues concerning the type and size of your apartment complex, the age of the building, the length of your residence, the specifics of your accommodation needs, the context of the installation, the term of your lease, the availability of other units, etc., may all ultimately play a part in whether making the landlord pay is even an option. Often it is not.

    In most cases, rather, the situation tends to work out that a reasonable accommodation can be allowed for your use, but it's ultimately your responsibility to facilitate and pay for that accommodation (i.e., a landlord can't refuse to allow you to pay for installation of a reasonable accommodation in your unit, or upon common areas, etc.) Even then, however, ultimately it becomes a very fact-specific question, as what's reasonable in certain circumstances isn't always reasonable in others, etc.

    When it comes to the installation of wheelchair ramps, specifically, many landlords often prefer to offer tenants with disabilities the option of moving to a ground-level unit.

    All told, you should communicate with your landlord in writing about your needs for an accommodation. You might also consider contacting contractors to get a bid on the work, so you'll have more information with regard to installation costs, etc. My guess is that the landlord will respond by allowing the accommodation, but requiring you to pay for it. If the landlord flat-out prohibits the accommodation, you should consult with a local attorney or other organization that focuses on landlord/tenant and/or disability rights.

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  • If testimony about a statement made by someone not in court is not admissible, what about an action by someone not in court?

    I believe it is hearsay for a defendant to testify: "Fred told me he sold the car on Friday." What if the testimony was simplified to: "Fred sold the car on Friday" without first establishing the basis for that claimed knowledge such as: "I know ...

    Kevin’s Answer

    You're getting into an extremely technical area of legal practice, and ultimately the likelihood of whether the testimony will be able to be admitted as evidence is going to depend on the circumstances of the case and what facts (and why this testimony) is necessary, as well as whether or not the declarant is available to testify, etc.

    If a witnesses testifies that "Fred sold the car on Friday" -- and that statement is in any way a material fact, disputed, or otherwise an important issue in the case -- then the statement may likely be objected to by opposing counsel for lack of foundation, lack of personal knowledge, relevance, or the like.

    A witness can always testify to what they saw and, in many situations, to what they heard (subject to the hearsay exceptions, of course). It's not clear then as to whether or not a hearsay exception would apply in this case.

    In this case, if the witness was there, they can testify to what they saw. i.e., On Friday I was with Fred, we were at such-and-such place, he met with John Doe, John Doe handed him a check, and Fred handed him the keys and title, etc.

    Is Fred available to testify? Is the purchaser of the car? If the witness only heard about the sale from Fred, why not subpoena Fred and put him on the stand to confirm?

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  • Whan to know if I should take legal action agents my employer?

    I work in a wholesale re-distribution co. Started from bottom and worked up. Every time I was ready I asked "what can I do to increase my salary (move up)?" They'd say do this. I did. But it only got me so far. We have had several Managers. I aske...

    Kevin’s Answer

    If I'm interpreting your question correctly, the basic facts are that you're still employed, you received a promotion with a new title and a raise, and you are now questioning whether your employer can be held liable because two other individuals also received that same title and pay raise, but you had to take a test of some kind to qualify and they did not?

    If that's the situation, you likely don't have much of a case, if any.

    Perhaps you can point to some internal policy or procedural rule (you should consult your employee handbook/manual) that your employer might have violated, or perhaps there are other facts that might tend to indicate that the promotional practices of your employer were/are illegally discriminatory against you in some way or another. Even then, however, that you still received the promotion and raise likely make any potential illegality, at least practically speaking, a rather moot point.

    I'm certainly not saying that your employer didn't act badly or improperly -- they may well have -- but the practical situation is that bringing suit against your employer while you're still employed is often a nightmarish situation for employees, and thus attorneys are often reticent to take on such cases, especially not pursuant to a contingency fee agreement. Further, one of the main components in most employment lawsuits is monetary damages, and since you still have a job and got a raise, the calculation of your damages is shaky at best.

    All told, if you believe that your employer is acting illegally in some way, you can report suspected violations of the law internally, to your supervisor and/or HR (again, consult your manual) and you can report violations to BOLI. While you're technically protected from adverse employment action (i.e., termination or demotion) for whistle-blowing, that doesn't mean that your work situation, however, will not be affected in any way; rather, it likely will, and perhaps significantly. If you do decide to pursue some claim, you should likely consult with an attorney to assist you, and you should absolutely make your complaints in writing.

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  • Is this considered subleasing?

    I lease a commercial building for my business. I have extra space I am not using, so I would like to sublease a portion of my unit. Unfortunately my lease says no subleasing without approval from the landlord, and he will not cooperate. What if...

    Kevin’s Answer

    It's hard to tell how a judge or jury would decide these issues, if they were ultimately presented with them. Certainly, your landlord would likely consider that subleasing, and thus may opt to pursue rights and remedies provided in your lease, which could include any number of things.

    Ultimately, it sounds to me like a reasonable person would find that 1) you have extra space, 2) you wish to sublease it, 3) you can't sublease without breaching your lease, 4) you're now deciding to be crafty and trying to get around the sublease clause, and 5) you're attempting to make a contract with a third party to sublease space, for the price of $800 minus the cost of a bottle of water.

    Ultimately, feel free to sell $800 bottles of water all you can, obviously. But be very careful when including related provisions that run counter to your lease, especially that the landlord has already specifically disapproved.

    Perhaps there's a way to negotiate with your landlord to obtain written consent; or perhaps there's simply another route to consider which may well accomplish what you're intending. Certainly, however, there's no lawyer that will tell you that the water bottle plan is not considered subleasing, as it likely is.

    You should consult with an attorney to review the situation in detail and provide you specific advice on how to proceed.

    Also, this is not residential, and thus I'm changing the practice area for your question. I opted for "Business"; in addition, Commercial Real Estate, Contracts and Agreements, and the like are also right on point.

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  • Auto insurance company sued wife, she didn't know, so default judgement was awarded in 8/2013. Can we fight it? She is innocent

    She was involved in a minor auto accident. The other party didn't want to have her claim insurance and accepted fault, so he paid for her car to be fixed by an auto shop and also rented her a car. She has all the documentation to prove this. Soon ...

    Kevin’s Answer

    You can file a motion to try to set aside and/or vacate the judgment and thus re-open the case, but it's not necessarily clear that you'll be successful in doing so. (Having set up a payment plan almost one year ago isn't going to help your arguments, unfortunately, and neither is the DMV address issue.)

    All told, you should get copies of all the documents, letters and/or emails you may have received from your insurance, his insurance, and the insurance company lawyer, and also go to the courthouse and get a copy of the case file itself, and then schedule a consultation with an attorney to review the situation with you, see what specifically happened (and when,) and then diagnose the problem and provide you some options for seeking a resolution.

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  • My former employer isn't reimbursing me for expenses. Can I take them to small claims court?

    They deducted money from my paycheck for a health savings program, but neglected to sign me up for the program - so they owe me for that. And they need to reimburse me for cell phone expenses. We were allowed to submit phone expenses every month, ...

    Kevin’s Answer

    You need to see a plaintiff's employment attorney, and as you're no longer employed there, most all of us provide free consultations on these matters, and aim to provide services on a contingency fee basis.

    In short, if wages were withheld from your paycheck(s) for a benefit you didn't receive, you absolutely have viable claims there -- for the unpaid wages and, likely, penalty wages, costs, and attorneys fees as well.

    Expense reimbursements are a technically different issue, as it's essentially a breach of contract claim (so an attorney would need to review the employee handbook and any documents/communications that described the reimbursement procedures), and pursue the claim that way. Likely, however, the amount is small enough to apply an attorneys fee provision to it, as well.

    In short, you can absolutely take your wage claims and contracts claims to small claims court. Though there is likely additional leverage (procedurally and monetarily) to be utilized by having an attorney analyze your case and represent you, and thus it's advisable that you do so.

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