Procedural Changes at The Arizona Registar of Contractors

September 16th, 2014

For those of you who have been involved in a matter before the Arizona Registrar of Contractors, you should be aware there are significant changes in the way in which a case proceeds before the ROC.

Previously, the ROC issued a Citation at the request of a Complainant. Now, however, the ROC itself will decide whether enough evidence exists to issue a Citation. And, the ROC will consider prior claims and decisions against a particular contractor, and how the contractor resolved those claims, in considering whether or not sanctions will be imposed and the nature and extent of those sanctions.

Unlike in the past, once a Complaint is filed, the ROC has the final say regarding how it is resolved. Even if the parties settle, the ROC has the power to accept or reject the settlement, and it has the authority to continue prosecuting the claim if it deems appropriate.

The ROC investigators now have the ability to determine if a Complaint has merit. Complainants should provide as much information to the investigator as possible. When an investigation is completed, the investigator's finding and recommendations will be submitted to the ROC's Legal Department for consideration. Then, the ROC will make a decision regarding appropriate action to be taken (from a Letter of Concern to a Citation and prosecution). The ROC can issue "Directives" (formerly Corrective Work Orders) for a contractor to make repairs. However, unlike before, even if the contractor fully complies with a Directive, the ROC now has the authority to issue a Citation nonetheless.

Summarizing, after a Complaint is filed with the ROC, it decides whether:

  1. Citation will issue,
  2. Hearing will be held,
  3. repairs or settlements complied with the parties' contract, and
  4. sanctions should be imposed, even if the contractor complied with its obligations and/or ROC Directives.

It now appears that the ROC's investigative process will be much more thorough and that the ROC will be able to consider more than just the facts of the case in imposing discipline and sanctions. These changes make it even more important that contractors get their attorneys involved early on in the process.

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Arizona Trucking Accidents & Improper Loading

May 10th, 2013

Have you ever noticed a truck ready to topple over, or with loose debris falling off and nearly hitting other vehicles? Unfortunately, you probably answered in the affirmative. Such conditions can not only be frightening to other drivers, it can also lead to severe and sometimes life threatening car accidents. Specifically, a large truck that is overloaded can greatly affect its ability maneuver, and since trucks already require more time to stop to begin with, this can lead to disastrous results. In other words, a truck that is already heavy as it is - some weighing in excess of 80,000 pounds - and is loaded past capacity is very likely to cause rear end and other types of catastrophic collisions.

Additionally, trucks that are improperly loaded or overloaded can also cause truck rollovers, which can sometimes crush other cars in its path. Said conditions can also lead to side swipe accidents, since a truck that is unbalanced due to loading issues is more likely to swerve into other lanes and cause collisions with other vehicles. Falling debris, spilled chemicals, loose rocks and cement, and unsecure tarp/debris covers can also cause serious accidents, especially when they come in contact with other drivers.

Most accidents of these types often occur at warehouse and store loading docks, where unsuspecting people are struck by falling debris while unloading a truck. As noted above, many of these accidents also occur on highways and other heavily trafficked roads, creating serious risks for everyone involved. Although accidents cannot always be avoided, there are ways in which truckers can avoid injuries, such as:

  1. Making sure that all goods, debris and other material are stable and properly secured.
  2. Inspecting your truck before taking off to make sure that it can sufficiently maneuver with heavy loads.
  3. Checking tire pressure, brake systems and other parts of your truck to make sure that they are in working order.
  4. Speaking to your employer to ensure that you are complying with all applicable state rules and regulations governing truck loading.

If you sustained personal injuries due to truck driver negligence, contact our office today at 602-263-0203 to schedule a confidential consultation. You can also feel free to contact us online. We will take the time necessary to advise you of your legal options and will also fight hard to help you receive the compensation you deserve. Do not wait until it is too late to bring those to justice who caused your injuries.

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How to Handle Land Encroachment Disputes in Arizona

May 8th, 2013

Let's say you lived next to your neighbor for 20 years without a problem. Next thing you know, he sells his property to a new person, who then proceeds to erect a fence on your side of the boundary line. What are your options moving forward should this happen to you?

Many Arizona citizens who find themselves in this situation first try the "friendly neighbor approach" by attempting to amicably work out an agreement with the offending neighbor. Those who choose to pursue this more peaceful route are typically successful if they have maintained a friendly relationship with the wrongdoer or, if the encroachment is rather minor. However, for those less familiar with their neighbors or who have not always gotten along over the years, this approach may prove to be less fruitful. Regardless of what an aggrieved landowner chooses to do, there are many problems that may arise in the future should the issue not be resolved in a more formal fashion, such as:

  • Enforcement: Oftentimes, agreements that are not manifested in writing or that are not drafted by a qualified legal professional may cause problems down the road. Specifically, if two landowners are engaged in a land dispute, they will likely consult their agreement. When an agreement is improperly drafted or drafted with ambiguities, it will be difficult for the parties to effectively enforce its terms.
  • Future Use: Sometimes, a neighbor who initially agrees to an encroachment on her property may subsequently want to reclaim the land for her use, perhaps to grow a garden or to install a swimming pool. This is crucial to consider when making informal agreements with neighbors over boundary lines.
  • Sale of the Property: If two neighbors many years ago informally agreed to an encroachment, subsequent purchasers may hesitate to purchase a property that is subject to potential land disputes.
  • Adverse Possession: Once land is encroached upon, the new owner can make a claim for adverse possession should the aggrieved party dispute the encroachment later on.

In light of the above, it is important to know that there are ways to prevent boundary disputes from happening, such as:

  • Checking with your local government: Before erecting a structure on or near your boundary line, check with your local city and state officials to be sure that you are in conformance with all applicable rules and regulations.
  • Having a land survey conducted of your property lines: A surveyor can easily come out to your property and review your boundary line. This way, there will be no questions as to which property is yours and which is your neighbor's.
  • Talking with neighbors: If you have had a friendly relationship with your neighbor and want to keep it in good standing, it is highly recommended that you speak with him or her of your intentions regarding the property line. This way you avoid any disputes or other disagreements regarding your boundary line.

If you are experiencing a dispute regarding your property line, contact our office today at 602-263-0203 to schedule a confidential consultation. You can also feel free to contact us online. We will take the time to evaluate the facts of your case and advise you as to the scope of your legal options.

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The Feds Crack Down on Misleading Mortgage Advertising: What Arizona Real Estate Consumers Should Know

May 6th, 2013

In late summer of 2011, the Federal Trade Commission (FTC) promulgated the Mortgage Acts and Practices - Advertising Final Rule. This rule applies to everyone, including mortgage companies and realtors who are involved in the marketing and sale of one to four family, owner-occupied homes. Overall, the new rule targets companies that engage in false and misleading advertising to mortgage consumers.

In light of the above, the FTC and the Consumer Financial Protection Bureau (CFPB) announced this past November that they had reviewed approximately 800 randomly selected advertisements for mortgage loans, refinance and reverse mortgages. Specifically, the ads were pulled from various sources, including Facebook, newspapers, and mail solicitations. Pursuant to their review of these marketing materials, both agencies issued 32 warning letters to mortgage lenders and brokers, advising them that their ads were highly misleading to consumers. Furthermore, investigations were opened on 19 additional companies that are alleged to have committed serious infringements of the above-referenced rule. Currently, the names of these offending companies have not been publically released.

In view of the problems that the agencies uncovered, they found that the above companies misrepresented one of the following to consumers: (1) government-backing of homeowner loans; (2) information about their interest rates; (3) the costs associated with obtaining a reverse mortgage; and (4) the amount of money and/or credit available to the consumer.

To avoid becoming a victim of misleading and/or false advertising, the following are a list of the most common "shady" mortgage lending practices that as a consumer, you should be aware of:

  • Advertisements and solicitations to senior citizens claiming that the lender can obtain a payment-free reverse mortgage. This is questionable since homeowners who have a reverse mortgage typically must continue to pay insurance premiums and property taxes.
  • Ads and solicitations containing government symbols/logos. Some companies are using marketing materials that appear to be an official government document but in fact, they are completely fake. This practice is commonly done in order to trick consumers into believing that the material is credible and worthy of pursuing.
  • Ads offering very low fixed rate mortgages that do not discuss the materials terms and conditions of their loans.
  • Ads that guarantee approval but do not disclose the terms of the offer.

For additional information, contact our Scottsdale firm online or by phone at 602-263-0203 to learn more about the firm's comprehensive real estate transaction and litigation services. We will take the time necessary to advise you of your legal options and also, to fight hard for your rights. We invite you to call us today to schedule a confidential case evaluation.

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Tips on Avoiding Auto Accidents with Impaired Drivers in Arizona

February 18th, 2013

There are several reasons why accidents occur. However, driver negligence is certainly one of the primary causes of auto accidents in Arizona. Negligence occurs when an individual decides to operate a vehicle while distracted, overtired, or in a reckless, rageful or careless manner. Additionally, driver negligence also occurs when an individual gets behind the wheel while intoxicated or impaired by drugs or alcohol. Undoubtedly, drunk driving can lead to serious consequences for drivers and innocent bystanders alike. In general, because drunk drivers are not as capable of reacting as those who are sober, fatal accidents often become an inevitable reality.

In Arizona a blood alcohol level of 0.08% or more will lead to arrest and potential conviction. If a person is caught driving while impaired by alcohol or drugs in Arizona, they could face significant jail time, the length of which depends upon whether it is a first time or repeated offense. The same goes for the amount of fines and penalties, which could be assessed at anywhere from $250 to several thousands of dollars, depending upon whether or not the person is a repeat DUI offender. License suspensions also follow the same analysis in that the severity of the punishment in this regard is contingent upon the status of the driver (i.e. whether a first time or multiple offender). Lastly, punitive damages can also be imposed upon a drunk driver in Arizona, but only an experienced personal injury attorney can help you understand the full extent of your legal options.

While avoiding a crash is not always possible, there are some tips you can follow that can help keep you and others safe when on the road. These are:

  1. Don't get into a car with a drunk driver. As much as you think your friend is ok to drive, there is no doubt that even buzzed driving is drunk driving. Be sure to have a designated driver take you home and also, make sure that your friend arrives home safely as well. By taking this small yet significant step, you are ensuring your own safety as well as that of your friend and others on the road.
  2. Report reckless and aggressive drivers. If you notice someone that is driving while impaired or in a manner to suggest same, contact the police immediately. Write down the make, model and license plate number of the driver so that they can be properly identified by police and promptly taken off the road.
  3. Avoid driving late at night and on holidays where heavy drinking is involved. It is also recommended that you avoid driving on heavy drinking related holidays such as Thanksgiving, St. Patrick's Day and New Years' Eve. Many accidents frequently occur on these holidays due to the increased number of people over-imbibing and then getting behind the wheel.

If you have been injured by an intoxicated driver in Arizona, it is essential that you speak with an experienced personal injury attorney who has the knowledge and skills necessary to handle your case. Only the most seasoned Arizona accident attorney can fully advise you of your legal options and fight for your rights, whether in trial or during settlement negotiations. With several decades of experience, the attorneys at Alvarez & Gilbert, PLLC have successfully helped victims of impaired drivers obtain the compensation they deserve for their injuries. For more information, contact our Scottsdale firm online or by phone at 602-263-0203 to learn more about how we can help you obtain the compensation you deserve.

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Tips on Avoiding Costly Business Entity Mistakes in Arizona

February 6th, 2013

Most business owners are aware that they need to protect their assets through the formation of a business entity, whether they choose an L.L.C., corporation (Inc.), or some other type of corporate form. However, when starting a business, many do not consider the likelihood of facing a commercial litigation dispute later on down the road. Specifically, business owners may lose their legal protections by virtue of not adhering to certain corporate formalities, which could end up costing them millions of dollars and ultimately, their businesses. How then, do business owners become vulnerable in this regard?

  1. Improper formation. It is crucial that business owners follow all necessary guidelines and procedures when forming their respective companies. Several individuals are shocked to learn that there are many more steps involved in setting up a business than simply just filing paperwork with the Arizona Corporation Commission. For instance, majority shareholders must check that their corporate name does not mirror that of another company before registering it, as it could lead to costly trade name infringement disputes. Publication of the Articles in an approved publication for the requisite period of time together with filing the necessary affidavit of publication must also be done. Hence, it is highly recommended that you consult with an experienced Arizona business attorney to ensure that you are following all procedures necessary to protect yourself and your company.
  2. Improper business maintenance & compliance. Each state imposes various compliance and maintenance requirements for businesses registered within their jurisdictions. For example, there are numerous ongoing responsibilities that must be satisfied once a business is formed, such as corporate recordkeeping, drafting meeting minutes, reporting changes in officers or directors, indicating a change in the name and/or contact information of the company's registered agent, etc. Corporations, although not limited liability companies, must also file an annual report with the Arizona Corporation Commission. When said formalities are ignored, whether intentionally or not, it can lead to the imposition of government fines, penalties and other legal consequences.
  3. Failure to "stand apart". When a business owner forms a corporation, they do so in order to segregate and protect their personal assets from those of their company. However, they must also segregate their personal finances from those of the company. For example, a corporation cannot pay its owner's mortgage on his or her home. The finances of the business and the individuals that run it must be kept separate at all times. Failing to do so could result in a creditor "piercing the corporate veil." This is one of the biggest mistakes that companies can make, as it can cause business owners to be held personally liable to corporation's creditors and litigants.
  4. Failure to inform of corporate status. Once you are incorporated, it is important that you let all your customers, clients and vendors know that you are no longer acting on behalf of yourself but rather are acting as agent on behalf of the company. Therefore, your business cards, stationery and email transmissions should all reflect the full name of the company including the reference at the end to "LLC" or "Inc." as applicable. Unless they are specifically informed by you that you are acting not in your individual capacity but on behalf of your corporation or LLC, they will fairly assume that you are continuing to act on behalf of yourself. That, in turn, will subject you personally to liability because they will not have been informed that they were dealing with an incorporated entity, an entity separate from you personally. Therefore, it is important to communicate with all with whom you deal that you are acting in a representative or agency capacity on behalf of the corporation or limited liability company, an entity separate and distinct from you individually.

If your company is in need of business advice in forming your business entity, contact our Scottsdale firm online or by phone at 602-263-0203 to learn more about our comprehensive commercial litigation services. At Alvarez & Gilbert, PLLC, our Arizona business attorneys have the skills and experience necessary to help you protect your corporate interests and assist you in making informed decisions during the pendency of your case. We look forward to meeting you and making a significant difference in your case.

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An Introduction to Shareholder Derivative Actions in Arizona

February 4th, 2013

Nowadays, corporations of all shapes and sizes can be negatively affected by shareholder derivative actions. Specifically, a shareholder derivative suit is a legal action brought by shareholders of a company against its officers or directors for their alleged mismanagement of the company. In other words, the litigating shareholders bring forth a lawsuit on behalf of the corporation due to the failure of its officers and directors to exercise their authority for the benefit of the company and its shareholders. These types of cases typically arise when there is a showing of fraud, mismanagement, self-dealing or dishonesty that has been continuously ignored by the officers and directors of a company.

Regardless of the circumstances, a shareholder derivative suit can range in severity. For instance, such an action may cause low level tension within a company or it could lead to a long and drawn out war between the corporation's shareholders and its officers and directors. With this in mind, shareholder disputes are occurrences that should never be taken lightly.

Both federal and state laws alike afford certain protections and rights to shareholders which may be supported by the terms of a corporation's shareholder agreements. Notwithstanding, shareholders are not omnipotent to the point where derivative suits cannot be proactively addressed and avoided at minimal cost the company and its officials. With this in mind, there are a number of steps you can take to protect your business when faced with a potential shareholder derivative suit. These are as follows:

  • Keep an open mind. Do not just consider the most heavy-handed approach when facing a derivative suit. Reflect upon all of your legal options and solutions before choosing to launch an aggressive counterattack. Oftentimes, remaining flexible, open-minded and patient can help your company weather the storm and emerge relatively unscathed. It can also prevent unnecessary litigation and may also result in a calm and peaceful resolution of the matter.
  • Continue to treat shareholders with respect. Regardless of the emotional and physical toll that the derivative suit may be having on your life, remain professional and calm at all times. Failure to do so could lead to huge legal mistakes which could end up costing your business millions of dollars and also, adversely affect its reputation.
  • Consider hiring an attorney. A corporation facing any type of shareholder dispute should never represent itself. Securing outside counsel is vital to the security and longevity of your company. Moreover, an attorney experienced in handling the complexities of shareholder derivative suits can advise you of your legal options and help keep you focused and level-headed during the entire legal process. This can make a huge financial difference in your matter, potentially saving your company a large amount of money.

For more information on the above, contact our Scottsdale firm online or by phone at 602-263-0203 to learn more about our comprehensive commercial litigation services. At Alvarez & Gilbert, PLLC, our Phoenix business law attorneys have the skills and experience necessary to help you protect your corporate interests and assist you in making informed decisions during the pendency of your case. We look forward to meeting you and helping to address all of your business needs and goals.

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Defending Against Breach of Contract Claims in Arizona

January 10th, 2013

In Arizona, breach of contract claims can have serious legal consequences for individuals as well as businesses, particularly costly and time consuming lawsuits. Having a better understanding of Arizona business contract law and the scope of legal defenses available in breach of contract actions can help avoid these types of claims. Moreover, it can also assist businesses in developing defensive strategies to fight against a breach of contract claim or in knowing what to expect when trying enforce the terms of an agreement.

In the event that you committed a breach of contract or wish to enforce a business contract, there are many types of legal defenses that can be raised, such as:

  • Lack of capacity. If a party to a contract is a minor, or is otherwise incapable of understanding the terms of an agreement (whether due to impairment or mental infirmity), the agreement will likely be rendered void.
  • Fraud. If a party was induced to sign an agreement by relying upon material facts that are false, deceptive or misleading, the contract can be deemed void and unenforceable.
  • Duress. If a contract was signed by a party due to threats, blackmail, or other forms of coercion, the contract may be rendered null and void.
  • Impracticability. If a person is unable to adhere to the terms of a contract due to issues or circumstances beyond his or her control, performance may be excused. This defense is usually raised if a party to the contract dies or a new law comes into effect making the subject matter of the agreement illegal. In other words, when it becomes impossible for one or both parties to a contract to perform, the contract cannot stand.
  • Mistake. If the parties to a contract are both mistaken about one or more of its material terms, then the contract may be voided.
  • Statute of limitations. In Arizona, litigants generally have six years to file a breach of contract claim when the contract is in writing, three years if it is an oral contract. However, one can have as little as two years to file a lawsuit depending on the circumstances or upon the terms of the contract at issue. If the time has passed for filing a breach of contract action, an aggrieved party will be judicially barred from recovering.

For more information on the above, contact our Scottsdale firm online or by phone at 602-263-0203 to learn more about our comprehensive business law services. At Alvarez & Gilbert, PLLC, our attorneys the skills and experience necessary to help you protect your legal interests and assist you in making informed decisions during the pendency of your case. We look forward to providing you with superior legal representation.

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Tips to Avoiding Injuries in an Arizona Motorcycle Accident

January 9th, 2013

While motorcycles can be fun and exciting, they can also cause serious and sometimes fatal accidents. According to the National Highway Traffic Safety Administration, motorcyclists are over 20 percent more likely than other drivers to die in a collision. Moreover, pursuant to a 2009 study from the Insurance Institute for Highway Safety, more than 40 percent of two-vehicle fatal motorcycle crashes involved an automobile turning left while the motorcycle was going straight, passing, or overtaking the vehicle. Why then are these statistics so high? Unfortunately, drivers do not always notice motorcyclists around them, leading to a higher incidence of collisions. Hence, if you are on your motorcycle, always assume that you cannot be seen by other drivers and maneuver accordingly.

In an effort to reduce the number and severity of motorcycle crashes, several states across the country require all riders to wear helmets. While Arizona is not one of them, the importance of wearing a helmet should never be ignored. For instance, helmets help prevent serious head and brain injuries by reducing the impact of a blunt force to the head. The statistics speak for themselves - the majority of motorcyclists that succumb to head and brain injuries were not wearing a helmet at the time of their accident.

In addition to wearing a helmet, there are other things you can do to reduce injury when faced with a potential collision, such as:

1. Braking quickly - make sure to use both your front and rear brakes to stop as quickly and safely as possible.

2. Avoid the full impact of a collision - If at all possible, steer clear from places or things that pose the most threat to your safety in the event of an oncoming accident. Attempt to stay on your motorcycle if at all possible.

3. Never lay your bike down - brake quickly rather than laying your bike down on its side, which statistically is more dangerous and life threatening. However, if you are going to fall off a cliff, overpass or bridge, placing your bike on its side rather than quickly braking may be the best way of stopping and preventing you from falling over.

4. The art of falling - If falling off of your bike is inevitable, don't clench up. Otherwise stated, if you loosen your muscles and allow yourself to stop, it may prevent more injuries than if you stiffen up and try to abruptly stop. When you fall, do not tuck and roll, as this could cause spinal cord or other serious injuries. After falling, do not stand up right away. Be sure to assess your condition and potential injuries, if any, before getting up. If you have been injured, standing up right away could make the situation worse.

If you have been injured in a motorcycle accident, give us a call at 602-263-0203 to schedule a confidential consultation or feel free to contact us online. Since 1993, our attorneys have been providing superior legal representation to personal injury victims located throughout the State of Arizona. Don't wait until it is too late to obtain the compensation you deserve. Contact us now to learn more about your rights, responsibilities and legal options. We look forward to providing you with excellent legal representation.

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Litigating Land Title Disputes in Arizona

December 9th, 2012

Individual and businesses alike should theoretically be able to purchase property that is properly zoned and not subject to the ownership claims of others. However, as experienced Arizona real estate attorneys, we understand that this is not always the case. As evident from the below, land disputes happen for many reasons. Accordingly, the following is an overview of the most common types of land disputes that occur in Arizona:

  • Boundary line disputes. Most mortgage lenders require a survey to be conducted on a property before approving a loan. Once the survey is completed, they sometimes demonstrate that the actual property boundary is different than what two or more adjoining landowners understood it to be. When this situation arises, lawsuits typically ensue to clarify who owns what in light of the newly revealed boundary line.
  • Easements. An easement is a right for another individual or entity to use a certain portion of another's land, perhaps to access a water body or public road. Believe it or not, many pieces of property come with these types of easement rights. Notwithstanding, when an easement exists on a piece of property, it can adversely affect its value and sometimes render the property unusable.
  • Adverse possession. In Arizona, adverse possession refers to a situation where a person takes possession of a piece of property and remains there for a certain period of time under a color of title. When this occurs, the rightful owner must file a quiet title action in order to regain possession of their property.
  • Disputes over title. In Arizona, claims may arise regarding the ownership of a parcel of land. For instance, people often are surprised to learn after they purchase their property that a portion thereof may actually owned by their neighbor. Hence, lawsuits are often raised to determine who has proper title over the piece of property in dispute.
  • Condemnation & eminent domain. The U.S. and Arizona Constitutions protect landowners from the unlawful taking of their property without just compensation. Despite the fact that property owners are promised to receive "just compensation", the reality is that this is not always the case. Hence, lawsuits often arise regarding the amount of money a person believes they are entitled to receive when their property is condemned or taken for public use.
  • Deed restrictions. In Arizona, deed restrictions are used to govern what people can and can't do on private property. These are often enforced against condominium owners or people who own property within a gated community. When a person is in alleged violation of a deed restriction, lawsuits often ensue.

For more information on the above, contact our Scottsdale firm online or by phone at 602-263-0203 to learn more about our real estate litigation services. At Alvarez & Gilbert, PLLC, our attorneys the skills and experience necessary to help you protect your legal interests and assist you in making informed decisions during the pendency of your case.

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How the Miller Act or Little Miller Act Could Affect Your Arizona

December 5th, 2012

What is the Miller Act?

The Miller Act dictates that all federal projects in excess of $100,000 must be bonded and the contractor must provide performance and payment bonds to the government. This requirement is meant to protect public funds by guaranteeing payment from the primary contractor, taking the risk away from subcontractors and materials suppliers. The Miller Act also curtails lawsuits instigated against the primary contractor and provides important notice requirements. Any contractor involved in government construction projects must be fully cognizant of the Miller Act or have counsel who understands the ramifications involved. Under this act, the contractor would be wise to record every contract, invoice delivery ticket or any other receipt or proof of work performed or materials purchased as well as keeping meticulous records of where the work is done and materials are used.

The payment bond, under the Miller Act, will be equal to the total amount of the contract and will cover subcontractors and suppliers as well. If the contractor is performing work in a foreign country, he may waive the requirements for performance and payment bonds. The Miller Act also states that the primary contractor cannot mandate that his subcontractors waive payment bond prior to the beginning of the job. Keep in mind that the primary contractor is not legally allowed to bring a claim under the Miller Act rather must bring a lawsuit against the government. First tier subcontractors and those who supply materials can sue under the Miller Act, however suit must be brought within a year from the last date materials or services were provided. Second-tier subcontractors only have a window of 90 days from the last date materials or services were provided to bring suit.

Recoverable Costs under the Miller Act

Any labor performed at the site as well as materials used or consumed on the project are considered recoverable, however professional services and office personnel without on-site related work are not. Rental costs associated with the bonded contract are considered recoverable and under certain circumstances delays and cost due to changes may be recoverable. Depending on the contract, attorney's fees could be recoverable, however materials never used or installed in the project are not recoverable costs.

The Little Miller Act

Many states in the United States have adapted aspects of the Miller Act for use at the state government level; these state statutes are known as Little Miller Acts. Arizona has adopted a Little Miller Act, A.R.S. §34-221 et. seq. Except when exempted by state statute, prior to any contract being executed for construction or repair of any public building, the primary contractor will procure a performance bond equal to the full contract amount to protect the public entity awarding the contract. The primary contractor must also procure a payment bond equal to the full contract amount for the protection of sub-contractors and material suppliers. The bond is provided in lieu of mechanic's lien which cannot be filed against state owned properties.

If You Believe You Are Entitled to File Suit under These Acts

If you believe, as a sub-contractor or materials supplier, that you are eligible to file a claim under the Miller Act or the Little Miller Act you must send a Miller Act Notice to the prime contractor within a year from the date you last furnished labor and materials or 90 days as a second-tier subcontractor or materials supplier. While it is not a legal requirement, many attorneys will advise that the notice also be sent to the surety providing the bond. Filing lawsuits under these acts can be quite complex and it is advisable to seek qualified legal counsel prior to filing a suit.

Call our Arizona business law firm to discuss your business or construction law needs today by calling (602) 263-0203.

Tags: Little Miller Act A.R.S. §34-221 et. seq., Recoverable Costs under the Miller Act, What is the Miller Act?
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The Legal Help You Need After a Motorcycle Accident in Scottsdale Arizona

November 11th, 2012

Most everyone knows-including the motorcycle rider himself-that riding a motorcycle is much more dangerous than venturing out in traffic in any other type of vehicle. There is practically no protection for the person riding a motorcycle when struck by a passenger vehicle or a commercial truck. While the person in a car has some protection in the form of a steel cage, airbags and safety harnesses, a motorcycle helmet and leathers are truly the only protection afforded the motorcyclist, and these small protections are no match for a several-thousand pound truck or car. While traffic accident fatalities have actually decreased slightly in the past few years, motorcycle accident fatalities has risen dramatically.

Further, motorcycle riders are no longer limited to the younger crowd and, in fact, the number of motorcyclists over the age of fifty has increased significantly in the past decade. More than 50,000 people are injured in motorcycle accidents across the United States each year; while less than one in five car crashes results in a fatality, as many as four in five motorcycle crashes result in the death of the driver or passenger. Injuries to the motorcyclist are usually severe and can include brain and head trauma, severe road rash which leads to life-threatening infection, broken bones and paralysis. Such injuries naturally lead to astronomical medical expenses as well as lost income as the injured motorcyclist attempts to recover his or her health.

What Causes Motorcycle Accidents

There is a certain stereotype which motorcyclists have that can make it difficult for them to get what they deserve in a courtroom. Jurors may have the notion that motorcyclists are inherently wild drivers who take unnecessary risks. In truth, a great number of motorcyclists are doctors, attorneys, grandparents and housewives who were just going about their own business when struck by an automobile. Because it is so difficult to see motorcyclists, many accidents occur when an auto driver turns into an intersection when the motorcyclist is approaching, or changes lanes without ever seeing the motorcyclist by their side. Other times, the automobile backs out of their driveway or from a parking space directly into the motorcyclist. Motorcyclists must be especially vigilant to stay out of trucker's blind spots and to give themselves the necessary space and time to respond when the other driver makes a move that puts the motorcyclist in harm's way.

What to Do Following a Motorcycle Accident

Medical treatment is always the first priority following a motorcycle accident; even if you do not have obvious injuries, you should be checked out by a medical professional. Next you must secure legal representation with a qualified personal injury attorney who can assist you in navigating the insurance claims process and getting back to your normal life as soon as possible. Next, you must file a claim with your insurance company in order to take advantage of witness testimony, accident reports and medical reports while they are still fresh.

It is important that you hire an attorney who has experience dealing in injury cases. Do not try to deal with the aftermath of a serious motorcycle accident on your own-have a knowledgeable personal injury attorney looking out for your rights and your future.

Consult a Statewide Leader in Litigation

Contact our Scottsdale law firm at (602) 263-0203 to find out more about what you can expect from our firm during your initial consultation. Alvarez & Gilbert, PLLC, is located at Raintree and Northsight in North Scottsdale, Arizona, just off the Loop 101.

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How Summer Boating Accidents in Arizona Can Lead to Tragedy

November 1st, 2012

Boating is a pastime that hundreds of thousands of Americans participate in, particularly during the summer. With more boats on the waters, boating accidents occur more frequently; in 2010 672 people died from boating-related accidents. Nearly 75% of those fatalities involved drowning and the vast majority of those who drowned were not wearing a life jacket. Approximately five thousand boating accident-related injuries occur each year as well, with many of these boating accidents involving the use of alcohol. Other causes of boating accidents include operator inattention, operator inexperience, excessive speed and improper lookout. Most of the boating fatalities occurred in motorboats less than 21 feet in length.

Maritime Laws Apply to Boating Accidents

Many people are unaware that the boat operator must file an accident report in the event a boating accident occurs, particularly if injuries or death resulted from the accident, if someone is missing as a result of the accident or if there is complete loss of the boat or damage to the boat is valued at more than $2,000. Maritime law applies to pleasure boating accidents even though many of us think it is only applicable to containerships, tugboats, tankers and other commercial vessels. A small sailboat can actually be subject to the same maritime laws as an ocean oil tanker and federal courts have even gone so far as to qualify a jet-ski accident as subject to maritime law. For these reasons, if you have been involved in a boating accident it's important that your chosen attorney have experience in maritime and boating laws with a clear understanding of how those elements could potentially affect the rights of the injury victim.

What to Do Following a Boating Accident

First and foremost you must stay in the area until law enforcement arrives following a boating accident. If you were not injured, check to see if others were hurt. If no one suffered injuries from the boating accident you can exchange insurance and personal contact information. All boating accidents must be reported to the local authorities. Injured parties should seek medical attention, even if they believe their injuries are not serious at the time. Often injuries can exacerbate in the following days, turning into a much more serious accident than first believed.

Legal Help Following a Boating Accident

If you were injured in a boating accident you have likely incurred medical expenses and may have lost wages from your inability to return to work. Boating accidents can result in broken bones, head and brain trauma, paralysis from spinal cord injuries and skin damages. Recovery from these severe injuries is usually lengthy and expensive. In some case wrongful death results from a boating accident. You may be eligible to receive compensation for emotional pain and suffering in addition to lost wages and medical expenses. As with any personal injury accident, a statute of limitations exists on reporting the accident and injuries. You deserve to have an experienced boating accident attorney on your side who will fight aggressively on your behalf, protecting your interests and safeguarding your future.

Consult a Statewide Leader in Personal Injury Litigation

Contact our Scottsdale personal injury law firm at (602) 263-0203 to find out more about what you can expect from our firm during your initial consultation. Alvarez & Gilbert, PLLC, is located at Raintree and Northsight in North Scottsdale, Arizona, just off the Loop 101.

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Is a Partnership Agreement Necessary in the State of Arizona?

August 27th, 2012

Although a general business partnership is a fairly flexible business entity, it provides little protection from liability. Many people enter into business partnerships with family members, friends or spouses therefore don't feel a partnership agreement is necessary. In fact, in these instances the partnership agreement is even more important to protect both parties and provide a method of dealing with disagreements regarding the business. While your attorney will better be able to assess your unique situation and draft a comprehensive partnership agreement which meets your needs, there are several things which should normally appear in a general partnership agreement.

Percentage of Interest in the Business

First of all, you will want to spell out the exact percentage of the business interest each party is entitled to. General partnerships are managed by each of the partners and the most important decisions are generally made by virtue of the percentage owned. This is not to say that the partners must vote on how much to spend on coffee or whether to buy paper for the office, rather a vote will become necessary when a dispute arises which cannot be informally solved. In this type of situation, majority vote normally prevails.

Once the voting interest of the partners has been established, the partnership agreement will detail the percentage of vote needed for an affirmative decision. Is simple majority enough or will unanimous agreement be required? It's probably not a good idea to require a 100% agreement unless there is an issue which is so critical that nothing less than total agreement will do. If one partner's rights equal exactly 50% you will have to include rules for tie-breaking.

Handling Disputes

In any partnership, no matter how great, it is a given that at some point disagreements will arise. The general partnership agreement must clearly spell out how these disagreements will be handled and the specific steps which will be taken in the event of a dispute. While partnerships are actually the only business entity which be formed with a handshake and an oral agreement, those involved who don't make the effort to engage in a formal business partnership agreement will almost always regret it down the road. Oral agreements can lead to misunderstandings and misunderstandings can lead to disputes. Those partnerships which are not memorialized with a written agreement which details how those disputes will be handled can end up in serious litigation with the partners spending huge amounts of money.


General partnerships are managed by the partners and are often known as owner management entities. Corporations rely on appointed or elected officers known as representative management. The number of partners may have nothing to do with the majority of the percentage owned by each partner: One partner may own sixty percent of the company while the other four partners each own ten percent. In a case like this, the partner with the lion's share will be able to control the decision-making for the company to a significant degree. Although partnerships don't require the level of formal meetings that corporations do, most partnerships will have periodic meetings in order to ensure everyone is up to speed on what is going on in the business.

What if a Partner Wants Out?

Just like a marriage, when a business is being formed none of the partners ever think they will want out. And, just like a marriage, in many cases the inevitable day comes when they want out badly. The partnership agreement should fully cover the process to be used in the event a partner wants out including how to value the business and whether the departing partner will be paid immediately, upon completion of certain events, at the end of the year or some other specified time. Although partnerships seem relatively simple when compared to more formal business constructions, having an ironclad partnership agreement is simply good business so ensure you have an attorney who can produce such an agreement, protecting everyone involved.

Call our Arizona business law firm to discuss your corporate or business law needs today by calling (602) 263-0203.

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"S" Corporations and How They Could Benefit Your Arizona Business

August 20th, 2012

Making the decision as to which type of corporation is the most logical for your business can be challenging and perplexing. For the purposes of federal taxes, the Internal Revenue Service recognizes both Subchapter C and Subchapter S Corporations. The S Corporation allows businesses to avoid being taxed twice by not requiring the business to be responsible for corporate income tax from company profits. All profits and losses are passed straight through to the company shareholders in the case of an S Corporation through a Form K-1 issued by the Company.

The shareholders are then responsible for filing their personal tax returns and paying taxes on their share of the profits. The business must file a return which is informational in nature and tells the IRS how much income each shareholder received. As far as taxation is concerned, the S Corporation is taxed in a similar manner to the way sole proprietorships, partnerships and most limited liability companies are. In order to benefit from the S Corporation status, Form 2553 must be filled out and submitted to the IRS prior to March 15th and must contain the appropriate signatures of all the shareholders.

Facts About S Corporations

In order to qualify for S Corporation status, the business must have no more than 75 shareholders and each shareholder must be a U.S. citizen or resident. This is, LLC's, other corporations or partnerships cannot be stockholders or hold stock in the S Corporation. An S Corporation may have a single shareholder if desired. A husband and wife can qualify. There can be only one class of stock in an S corporation, and all criteria must be appropriately met prior to submitting the form to the IRS. Should there be a violation of the provisions of the S Corporation status it will automatically lose its status as an S Corporation and be treated as a C Corporation which in turn could create serious tax ramifications. While some states do recognize the S Corporation for the purposes of a tax exemption, others do not so it is important to check out this fact prior to setting up an S Corporation.

There is some level of liability protection in an S Corporation and as to outside creditors it is treated the same as a C Corporation. Selling a business could be an overall part of a person's retirement strategy and an S Corporation allows the taxable gains on that sale to be significantly reduced at the time of the sale. In the beginning years of a business there are normally substantial start-up losses which can be offset against personal income under an S Corporation.

Negatives Regarding S Corporations

An S Corporation offers much less attraction for an outside investor, and since growing a business costs money, this can be a downside. If you need venture capital for your business you might consider a regular corporate structure instead of the S Corporation. While an S Corporation will avoid corporate taxes, you will nonetheless be required to file a tax return each year. You are still bound by the requirements which dictate regular meetings with good company minutes. There is a certain amount of additional time required in operating an S Corporation.

Should you decide to place your business under an S Corporation, you are recommended to speak to a qualified business attorney in order to determine whether this is the right form of corporation for your specific business. Your attorney may have other thoughts on the form of your corporation which would offer more benefits than the S Corporation. Should you decide to go with the S Corporation it must be set up legally and properly or you could find yourself with serious issues down the road.

Call our Arizona business law firm to discuss your corporate or business law needs today by calling (602) 263-0203.

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Benefits of Professional Limited Liability Companies in Arizona

August 13th, 2012

The professional limited liability corporation is a very popular choice of business entity and while not allowed in all states, it primarily benefits those in such industries as accountants, architects, chiropractors, doctors, lawyers and dentists. A professional limited liability company gives licensed professionals the ability to conduct their practice in a corporate manner, getting the benefits of a corporation under state and federal tax rules. While there were once significant tax benefits to setting up a PLLC, today those benefits are few.

How the Rules Have Changed

In the 1970's those who set up a PC or PLLC were able to establish corporate retirement plans which allowed large immediate deductions as well as the ability to borrow back from the funds contained in the plan. Over the next four decades these tax benefits have been all but eliminated by Congress and the IRS. PLLC's are somewhat useful for protection from lawsuits-not significantly for solo practitioners but for those who practice in a group or with another partner. The PLLC is efficient, easy to administer and more or less free of the tax problems associated with other types of corporations. Although C corporations in particular require meticulous record-keeping, accounting and tax details to avoid disastrous complications, these problems rarely exist with the PLLC.

Utilizing the PLLC

The PLLC can be utilized whenever the state you reside in requires that you have a license. You must run a business consistent with that licensing requirement-you can be an accountant, but cannot open up a quilting shop under a PLLC. If your state recognizes the PLLC business form, remember that all your partners must be licensed in the state to qualify. A licensed professional must be the organizer of the PLLC and must sign all organizational documents. As an example, state bar associations have specific rules about who can operate a law firm. Many states which allow the PLLC will restrict who can own stock in them. Arizona requires that all Members be licensed professionals themselves.

Some Protection from Litigation

A PLLC creates a separation of sorts between the individual professional and the business entity, meaning that in most cases the individual is not personally liable for business debts or litigation against the business. A PLLC does not protect the professional from claims of malpractice making malpractice insurance indispensable. Most banks will require a personal guarantee before they will loan money to a PLLC, meaning the signer of that guarantee will be personally liable for debts they guaranteed.

It can be very beneficial for a professional who is considering setting up a PLLC to consult a business attorney regarding the necessary requirements. Your attorney can advise you as to whether a PLLC will benefit you or whether there is another form of corporate entity that will work better. Do not try to set up a PLLC without benefit of legal assistance as the details can be complex.

Call our Arizona business law firm to discuss your corporate or business law needs today by calling (602) 263-0203.

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The Particulars of a Business Confidentiality Agreement in Arizona

August 6th, 2012

Depending on the type of business involved, it may depend on innovation and creativity in order to grow and increase its success. While it is hoped that the people a business employs will be honest and trustworthy, some turn out to be less than scrupulous. If information which is critical to the business is not legally protected through a confidentiality agreement, sensitive information could be used for the advantage of another business and the loss could be significant. A confidentiality agreement is often called a non-disclosure agreement ("NDA") and offers businesses the opportunity to expand its business relationships without the threat of loss of information or unfair competition.

Obviously not all information relating to a business is considered confidential. Although the office manager may make the best cup of coffee in the state, her secret could hardly be judged confidential-nor would it hurt the business if the secret got out. Further, when all the information relating to a business is included in a confidentiality agreement, it becomes very difficult to legally enforce. The standard confidentiality agreement will clearly define the levels of information security and both parties will understand exactly what is considered confidential and what is commonly known.

Businesses which must protect sensitive, technical or commercial information from being disclosed should absolutely implement confidentiality agreements. Along the same lines, a business which must prevent the forfeiture of patent rights must also ensure an ironclad confidentiality agreement is in place. The confidentiality agreement will spell out exactly what information can be disclosed and what information cannot be disclosed, and upon signing the employee or business entity is legally bound by the terms of the agreement. The most common types of information covered in a confidentiality agreement are those that are highly technical. There are other key provisions which must be included in a confidentiality agreement in order for it to protect the business owner:

  • Most confidentiality agreements include a very specific time period under which the information may not be disclosed. This is a specific starting and ending date rather than a more vague "two years."
  • A clause known as a "no implied license" clause is often contained in confidentiality agreements. This clause states the recipient of the confidential information has no rights of ownership and that upon completion of their work with the business owner, the information will be returned.
  • The confidentiality agreement should likely contain a statement which specifies which state law will govern should there be a breach of the agreement. This statement may also specify whether a breach will result in arbitration, mediation or a trial.
  • Since litigating a breach of confidentiality agreement can be extremely expensive, a clause which specifies that attorneys' fees will be awarded to the winning party will likely also be a part of the agreement.

Entering into business contracts and agreements can be not only time-consuming they can be much more legally complex than the average business owner can handle. A highly qualified attorney will be able to assist the business owner with all negotiations, protecting their rights while meeting their specified needs and requirements. The business owner's attorney will always work on its behalf to ensure the confidentiality agreement reaches is both enforceable and to the benefit of the business owner. Protect your business with a confidentiality agreement, but make sure you have covered all your legal bases before implementing such an agreement.

Call our Arizona business law firm to discuss your corporate or business law needs today by calling (602) 263-0203.

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Dealing With Employee Embezzlement in Arizona

July 25th, 2012

Some estimates put the number of employees who embezzle from their employer at a whopping 25-40%-those who would steal if they felt they would get away with it and had the opportunity. The cost of this theft runs into hundreds of billions of dollars per year, and while employee theft comes consists of a wide variety of types, there is usually a particular set of factors which precede employee theft. Employee theft can literally wreck an otherwise healthy business, damaging both their credit and their business relationships.

How Does Employee Embezzlement Start?

In many cases, a busy employer allows a trusted employee to oversee the bookkeeping for the company and there ends up being little oversight. The embezzlement may take the form of personal expenditures which are not permitted, diversion of funds or money taken from deposits. Employees engaged in theft will generally engage in fraudulent entries and balance sheets to cover their tracks, and in most all cases serious levels of embezzlement involve employees who have virtually unlimited contact to cash, credit and the employer's financial records. For this reason, employers should always seek to separate accounting functions between multiple employees, setting up a workable checks and balances system. In other words, the same employee should not be in charge of dealing with accounts receivable, writing checks for the company and balancing bank accounts. Many companies have a practice of mandatory vacation periods simply to ensure that another set of eyes sees the books in order to expose potential abuse or gaps in security.

Embezzlement Red Flags

Many times there is no indication of employee theft, particularly in larger companies. An audit can sometimes be the first hint of trouble, or in some cases the receipt of a letter from the IRS regarding unpaid taxes. If the employer finds himself having difficulty paying bills even though the business has appeared solid, then there could be a problem with employee theft. A reduction in cash deposits could also flag the employer. Should the employer have experienced any issues with mail delivery or if bills and invoices are being sent directly to the employee's residence then these are also warning signs and should be taken seriously. Although any one of these issues may not be a conclusive sign of employee theft, they do merit additional investigation.

Using Due Diligence in the Hiring Process

The first, and most important way to prevent employee theft is to practice extreme caution in the hiring process for any employee who will have access to financial records or cash. The employee's past work history as well as any prior financial problems such as bankruptcy, foreclosure, judgments or liens are all reasons to take a second look. Criminal background checks are fairly normal in this day and age, so take advantage of the technology which allows you to check up on your potential employees. Employers should also ensure they have sufficient coverage for employee embezzlement or theft in order to mitigate potential losses. Random audits, performed by outside professionals, should be a normal function of your business, and employees should never be in charge of auditing the financial records of your company. If you suspect employee embezzlement you should immediately seek legal counsel in order to minimize your eventual exposure.

Call our Arizona business law firm to discuss your corporate or business law needs today by calling (602) 263-0203.

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Seeking Legal Help Following an Automobile/Pedestrian Accident in Arizona

July 18th, 2012

Over sixty thousand pedestrians are injured every year in traffic accidents, and when a pedestrian is hit by a vehicle traveling over 30 miles per hour, more serious injuries and even fatalities can occur. In truth, however, even when a vehicle is traveling a mere 10 miles per hour, serious injuries can occur. Unless a driver happens to be driving under the influence and leaves the scene of the accident to avoid going to jail, most drivers are very upset after hitting a pedestrian and very concerned for the health of the person they hit. Following an automobile/pedestrian accident it's important that no medical treatment be administered to the pedestrian who was hit other than CPR if warranted. It's important that the driver remain calm, both to minimize liability as well as to ensure that the injuries are promptly and safely treated.

What to Do Following the Accident

Once medical care has been obtained, you must call the police and file a report then your next step should be to seek legal counsel. If the accident was obviously your fault and you could potentially face criminal charges, you will need the services of an experienced defense attorney. Until you've had the opportunity to speak with an attorney, say as little as possible to the police other than answering the basic questions politely. Don't admit fault, and don't spend time talking with the person you hit other than to ensure their safety. Simply saying something like "I'm so sorry," could subject you to tremendous liability which may not even be warranted. Don't speak with the pedestrian's attorney or insurance company.

Fault will generally be established through the law of negligence, meaning any person who has failed to practice a sensible standard of care under the specific circumstances may be judged negligent. In many cases, the pedestrian could have been illegally crossing the road therefore even if the driver was exceeding the speed limit, the fault for the accident could be shared-depending, of course on the state you reside in and their specific laws.

Interesting Facts Regarding Pedestrian/Auto Accidents

Pedestrians actually comprise more than 13 percent of all traffic fatalities yet there is no good data as far as how much actual time pedestrians spend walking or crossing streets, exposing themselves to the dangers of traffic. A decrease in pedestrian deaths could be due to advancements in education, behavior, facilities and law enforcement, or could be due to the fact that fewer people are walking. Nearly 70 percent of pedestrians killed are male, and at least 3/4ths of all pedestrian deaths take place in urban areas. Four states-Florida, New York, Texas and California-make up over 40% of the pedestrian fatalities, and nearly half of all pedestrian deaths occur on the weekend while 70 percent occur at night.

Driving Defensively

State laws swing widely regarding how insurance will pay out for a pedestrian/auto accident, so it's important that you understand your own policy. The best way to ensure you are never involved in a pedestrian/auto accident is to drive defensively when in an automobile, and to be aware of your surroundings if you are walking. Drivers must be especially wary of those who are walking, bicycling, rollerblading or roller-skating, riding an electric scooter, or children playing in the street, slowing down and paying particular attention to sudden, unexpected actions. It's never a good idea to have headphones on while walking in a city since you could miss a noise which in turn leads you right into an accident. In the end, whichever side of the fence you happen to be on, whether you are the driver or the pedestrian, contacting an attorney can both protect your rights and your future.

Call our Arizona personal injury law firm to discuss your corporate or business law needs today by calling (602) 263-0203.

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The Aftermath of a Trucking Accident

July 11th, 2012

Mechanical Factors Which Lead to Accidents

As many as 45,000 traffic fatalities occur each year in the United States which involved large, commercial trucks. Trucking accidents are caused by a combination of trucker error and mistakes on the part of the driver in the passenger vehicle combined with inherent mechanical factors seen in large trucks. As an example, large commercial trucks have huge blind spots which can lead to accidents, and in general, the larger the truck the larger the blind spots, particularly directly behind the truck, directly in front of the truck, and in some cases on the side directly in the middle. If other drivers on the road are unaware of these blind spots, tragic accidents can occur.

Brake failure can also lead to serious or fatal accidents and can be caused through improper installation, age or lack of maintenance.Truck brakes can heat up dangerously, particularly when the driver is in heavy traffic or going down a steep incline and a fully loaded truck will be even more likely to experience brake friction and eventual failure. Stopping distance can also be a factor in trucking accidents; the heavier the truck the greater distance needed to stop. Experts state that the stopping distance for a truck weighing up to 80,000 pounds, traveling between 25 and 30 mph on a dry level road is 100 feet. When that speed is increased to 65 mph, the stopping distance is a whopping 525 feet. This is one of the primary reasons so many large trucks are involved in rear-end collisions, and when you consider the difference in size between a large truck and a small passenger car, you can see why there are so many fatalities.

Driver Error and Driver Fatigue

Because commercial truck drivers typically drive up to eleven hours at a time it's easy to see how they can become exhausted, yet because they are always on time constraints they often may be unable to stop and rest. Truckers get paid only when they are driving, and the financial bottom line of trucking companies depends on their truckers delivering the loads in a timely manner. Truck drivers are also subject to the same types of driver error and driver distraction as any drivers. Due to their long hours on the road, truck drivers typically eat while driving, talk on their cell phones, fiddle with the radio, or try to watch the GPS in unfamiliar cities. Anything which takes the driver's eyes or attention from the road and the vehicles around him can lead to a serious accident.

What to Do Following a Trucking Accident

If you suffered injury from a trucking accident it's important that you contact a highly experienced personal injury attorney immediately so they will have the necessary time to gather the information which will help protect your rights and obtain the compensation you deserve. Of course you must first seek appropriate medical care in order to minimize the long-term effects of your injuries, but once you have done this, your attorney will need to instigate an investigation into the accident. Once an accident has happened, critical evidence may be removed, taking away evidence which could have proven fault in the accident. If you are able, take photos of the scene of the accident, the involved vehicles and your own injuries. It is also extremely important that you not speak with anyone, particularly the trucking company's insurance carrier prior to discussing your accident with a knowledgeable attorney. Trucking accidents can be life-altering, and the best way to minimize the fallout is to have an attorney by your side, fighting for your rights.

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Hiring an Attorney for a Breach of Non-Compete Agreement

July 4th, 2012

Many companies find that even though they have done everything right in the development of a sound non-compete agreement meant to protect their most valuable assets they may still find themselves dealing with ex-employees who are doing everything in their power to sway clients. Valuable business assets can include customer relationships, pricing information, marketing strategies and simple goodwill. Even when a properly executed non-compete agreement is presented to a resigning employee during the exit interview, companies find themselves shocked when mere weeks later a longstanding client calls to say that former employee has just made a sales call on behalf of a competitor. Many company executives feel that once a solid non-compete program is put together the battle is over. In fact, it is the enforcement of the non-compete agreement which is the most difficult.

Even when the laws of a certain state obviously back up the non-compete agreement, judges may neglect to enforce the agreement. In fact, plenty of judges choose not to interfere with an individual's ability to earn a living. For this reason it falls to the employer to present very compelling evidence that their business interests are in jeopardy should the court fail to offer legal protection. The most legitimate business interests are considered to be employer's trade secrets or information regarding customers, and if the employer can definitively show there has been misuse or disclosure of those valuable assets the courts are more likely to exercise their legal options. Employers must also be able to show that the employee's breach will lead to irreparable harm-something that can be difficult to do.

Bad Conduct on the Part of the Ex-Employee

If employers can present clear evidence of bad conduct on the part of their former employee including such things as copying sensitive documents, downloading information from a company computer or removing anything from their place of employment pertaining to trade secrets or client information. The judge might also consider "plotting" done by the former employee on the employer's time or using the employer's resources to be reason enough to back up the employer's threat of irreparable harm.

This type of bad conduct evidence can be very compelling in a courtroom, therefore employer's must ensure that everything related to violations of the non-compete clause are clearly documented. Employers must take appropriate steps to secure any e-mail correspondence sent from a company computer is preserved since many employees will attempt to cover their tracks by deleting incriminating evidence from the hard drive. In many cases forensic computer specialists may be able to recover the lost information, but this step must be taken as soon as possible in order to prove the employee knew his conduct was wrong and was attempting to conceal it.

How Non-Compete Agreements are Different from Regular Contracts

A non-compete agreement has the ability to inhibit commerce, and public policy favors workers having jobs and living in a productive manner. Non-compete agreements which attempt to prohibit the ex-employee from working anywhere across the globe is less likely to be enforceable than a non-compete agreement which prohibits the ex-employee from engaging in the same type of business within five miles. In other words, the non-compete agreement must be worded in a reasonable manner in order for it to be considered enforceable. The agreement must also be for a limited amount of time and all in all should be drafted by a qualified attorney so it can never be judged invalid. Should a company find themselves having to defend the validity of a non-compete clause, again, a knowledgeable attorney is the very best defense available.

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Resolving Landlord-Tenant Disputes

June 25th, 2012

Being either a landlord or a tenant can come with its fair share of challenges. Disagreements are likely to arise, and it can be a good idea to know how you will handle a dispute prior to it actually happening. Disagreements happen over rent increases, the tug-of-war over who is responsible for repairs, the return of security deposits or the necessity to break a lease. In order to avoid ending up in court, both landlords and tenants should know what they are responsible for in the landlord-tenant relationship and should also know what their individual rights are.

A clearly stated lease or rental agreement can be the first line of defense in avoiding potentially messy litigation. As a tenant, be sure you have read through the lease or rental agreement thoroughly prior to signing. If there are parts you don't understand, either ask the landlord to explain more fully or run the agreement by an attorney prior to signing. In any case never sign an agreement you don't understand or have questions about. Depending on where you live, your rights and responsibilities might be different under federal, state or local law.

Communication is Key

If a problem arises between landlord and tenant, the most important thing is to keep the lines of communication open. It's easy to let tempers escalate the situation to a point where there is no turning back, making future communications difficult at best. For instance, if the disagreement centers over a landlord entering the tenant's home, before jumping to conclusions, try to find out in a reasonable manner why the landlord felt the action was necessary. Once an explanation is issued, the entire situation could end up being diffused. Both landlords and tenants should take great care to keep copies of anything related to the rental or lease. If a tenant needs a repair taken care of it should be submitted in writing and a copy kept. On the landlord's side, the repair request should be kept, and a written copy of when and how the repair was resolved given to the tenant. Many times disagreements arise simply because one party was under a misconception or simply misunderstood the words or actions of the other.

What if the Dispute Cannot Be Resolved?

While both landlords and tenants always have the option of taking their grievance to small claims court, before using this method the parties should try alternatives. Arbitration is a possibility in that a neutral third party is brought into the dispute. The arbitrator listens to both sides, reviews all evidence, then makes a ruling which is legally binding to both parties. Arbitration is somewhat more formal than mediation as well as more expensive. Mediation also incorporates a neutral third party, however in this case the mediator's only task is to help the parties come to a mutually agreeable resolution. The mediator cannot issue a "ruling" like a judge or arbitrator can, however mediation is probably the least expensive of the three, and often allows everyone to walk away feeling like they didn't lose anything.

Consulting an Attorney

If you have a legal matter which involves landlord/tenant disputes, you may need to consult a knowledgeable attorney who can guide you in the matter. Landlords might need to retain an attorney in order to have a tenant evicted or to prepare a solid, legal lease or rental agreement. If a tenant has a landlord who refuses to make major repairs or has engaged in unlawful acts such as sexual harassment or discrimination, then they should definitely get legal help. Try open communication first when disputes arise, but before a disagreement goes too far, speak to an attorney.

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How You Will Handle Disputes Arising From the Sale or Purchase of a Business

June 18th, 2012

Those who go into partnerships with others when purchasing a business are probably well aware of the potential challenges involved. Differences of opinion and disagreements are almost a given, especially when discussing the details of the sale or purchase of a business. Partners in the business could have entirely different goals or ideas regarding the ultimate outcome of the business, therefore it's important that there be safeguards in place which detail how differences will be settled. There are several viable methods of settling business disputes, and it's important that you consider each of them carefully and agree on an acceptable process.

Direct Negotiation

Possibly the least expensive manner of settling disputes involves direct negotiation between partners. Unfortunately, this is rarely the easiest method. What it can accomplish is that when the partners engage in direct negotiation clear positions can be established. In other words if there was any doubt between the partners as to how each felt about the impending business sale or purchase, these doubts will be wiped away through direct negotiation. Each person states what they want for the business then all the cards are on the table. The most important facet of direct negotiation lies in being respectful of the other opinions even if they are not your own or you don't understand the reasoning. Direct negotiation requires open communication and good negotiation skills. Ask questions and listen to the answers during direct negotiation, and it's just possible you can end the dispute amicably.

Mediation as a Way of Handling Disputes

Should direct negotiation fail, mediation could be the next step in settling business differences. Mediation involves finding the best possible way to resolve the business dispute without identifying a party as either "right" or "wrong." In mediation a neutral third party meets with the parties in dispute and facilitates negotiations. This third party has absolutely no authority to make decisions for either party rather will only facilitate amicable conversation and suggest possible solutions. Even with a mediator in the room, the responsibility lies with the parties involved to resolve their business differences in a mutually acceptable manner. Mediation is a confidential process, and should it not reap a solution which is acceptable to all parties, what is said in mediation cannot be used in court later on. In other words, by engaging in mediation there is really everything to gain and nothing to lose. If mediation fails, then other options must be explored.

Settling Business Disputes Through Arbitration

If direct negotiation and mediation have rendered no viable solutions, arbitration could be the next step. An arbitrator is, like a mediator, a neutral third party, however unlike the mediator the arbitrator has the power to render a legally binding decision. The arbitrator will listen to all sides of the dispute, examine the evidence and give their decision which must be followed by all parties regardless of whether it is favorable to one or the other. Arbitration generally costs more than mediation but less than litigation.

Engaging in Litigation

In litigation, the judge will decide who is right and wrong, and the parties must abide by this decision. The primary drawbacks of litigation lie in the expense, the time involved, the stress of going to court, and the inevitable negative effect litigation will have on the future relationship of the parties. Since no two business disputes are ever the same it can be very beneficial to consult a knowledgeable attorney prior to deciding what course of action you will take in order to resolve your differences.

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Have You Been the Target of Whistle-Blower Retaliation in Arizona?

June 11th, 2012

Often clear violations of the law or even public health and safety dangers can go unreported because those who are aware of them are afraid to report them fearing retaliation. Since the vast majority of Americans are dependent on their jobs to keep a roof over their heads, food on the table and health insurance for themselves and their families, the fear of losing a job can be huge. There are laws, however, which protect employees, encouraging them to come forward if they have specific evidence which can make the workplace or even the world a safer, more ethical place.

The laws which protect workers-wage protections, anti-discrimination laws and health and safety laws-also make it against the law for employers to retaliate against a worker who has engaged in any sort of conduct protected under employee laws. Other laws which protect society rather than the workplace-government regulation of specific industries, environmental protections, and programs funded by taxpayers-also protect those who disclose information regarding the abuse of power, mismanagement, fraud, illegalities or dangers to the public. Nuclear power plants and the trucking or airline industries are just some examples of industries which affect the health and welfare of the entire public.

Whistleblowing Claims vs. Retaliation Claims

Although the terms are sometimes used interchangeably, there is a distinct difference between whistleblowing claims and claims for retaliation. Whistleblowing claims are seldom about an employer's retaliation against a single employee over personal dislikes or other such issues rather focus on conduct which is specifically prohibited under the law. On the other hand, whistleblowing claims can occur in the workplace, however it differs from the unlawful treatment of employees because the employee does not have to be a member of a specific, protected class. Other incidences which warrant a whistleblowing claim could encompass the misuse of tax dollars or a violation of public trust in government. The laws which govern the workplace give specific rights to individual workers, and when these rights are infringed upon a retaliation claim may be warranted.

Examples of Whistleblowing

Perhaps an employee exercised the right to free speech then found their employment situation became increasingly more precarious. Eventually the employee may have even been fired as retaliation for being a troublemaker. Although the employee wasn't discriminated against because of race, gender, religion, etc., their job is nonetheless on the line for speaking up against something wrong, illegal or unsafe in the workplace. In other instances, when environmental laws such as those which protect our clean air or water are ignored or blatantly broken, the person reporting such actions could become the target of retaliation. Should reports of corporate fraud, fraud regarding government contracts, military misdeeds or political fraud be reported which results in the person who reported those acts be retaliated against, then these are forms of whistleblowing retaliation.

What to Do if You are the Target of Whistleblower Retaliation

Whistleblower retaliation is actually a form of abuse which can have serious consequences to the targeted person. The perpetrators who engage in retaliation usually do so in a covert manner, seeking to emotionally torture the employee they feel wronged them. When the employee resists the intimidation efforts, the emotional abuse intensifies until the employee either leaves or lets the stress of the situation break them down. Anyone who attempts to tell the truth about neglect, abuse, unsafe conditions or fraud can be a target for retaliation and those who find themselves in such an unwelcome position should contact an attorney immediately in order to determine the best course of action. You may be counseled to file a federal or state action if there is enough evidence to warrant it. Keeping scrupulous records of every single incident which occurred can make or break your case, so write down everything that happened, no matter how insignificant it might seem.

Call our Arizona whistleblower law firm to discuss your corporate or business law needs today by calling (602) 263-0203.

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How Does a Lis Pendens Affect Arizona Real Estate Transactions?

June 4th, 2012

Lis pendens basically is a Latin term meaning "suit pending." An impending claim or particular circumstance which involves a public notification of litigation recorded in the same place as the title of the real property can be considered a lis pendens. As the expression is currently used, alis pendens is written notice of a lawsuit pertaining to real estate filed in the same jurisdiction as that real estate and regarding the property's title or a particular stated interest in a property. When a lis pendens is filed, this gives a potential buyer notice that the title to the property may be in question.

History of the Lis Pendens

The existence of a lawsuit regarding a particular property in effect puts everyone on notice that there may be potential issues which could affect the property's title. Before this became common practice, many unfortunate buyers found they had purchased property not realizing there was a cloud over the title. For this reason the lis pendens was enacted which required written notice, recorded in the same jurisdiction the real estate was located. Once a lis pendens is filed, nothing related to the ownership of the property can be changed so long as the lawsuit is pending, which effectively protects prospective buyers.

No reputable lender will loan money on land which is currently under a lis pendens and no title company will offer title insurance on such land. Since very few properties are paid for in cash this both keeps the owner from putting the property up for sale until the title has been cleared or usually from borrowing money against the property although he may be able to refinance the property in the event the mortgage payments have fallen behind. Although the existence of a lis pendens does not specifically prohibit the sale of property, it does make that sale dependent upon the outcome of the eventual litigation. While our current lis pendens statutes apply primarily to real property, specifically real estate, the common-law may still apply to personal property as well.

In the event a lis pendens is filed against the property for non-payment, this doesn't necessarily mean the property is doomed to foreclosure. What it does mean is that the procedure has been started, even though most state laws require quite lengthy time periods from when the documents are filed to when the actual foreclosure sale takes place. Should a lender start foreclosure proceedings due to failure to meet mortgage obligations, the owner can attempt to refinance the house or can try to sell their home under a short sale.

Avoiding Properties Under the Cloud of a Lis Pendens

Generally speaking those who are looking for real estate should steer clear of any properties which appear to be tangled up in litigation. Even if the potential buyer purchases the real estate legally and properly-and can prove that-they may nonetheless be dragged into the lawsuit and their title to the property could be in jeopardy. It's a good idea to have a qualified attorney handle the entire real estate transaction should you decide to move forward on a property under a lis pendens notice. Real estate attorneys can help address any title situation or litigation concerns and are well-skilled in clearing up title disputes and protecting the rights of clients. Should a lis pendens lien have been filed against your property unfairly, an attorney can take the proper steps to have it expunged, allowing you a clean title to your property once more.

Call our Arizona real estate law firm to discuss your corporate or business law needs today by calling (602) 263-0203.

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