10/20/11
Legal Alert: Recovery of Attorney Fees in cases involving commercial transactions under Idaho Code Section 12-120(3)
The usual rule in the United States concerning recovery of attorney’s fees in litigation provides that each party pay for their own fees, whether they win or lose, unless the parties agree otherwise or a statute provides otherwise.
One such statutory exception under Idaho Code Section 12-120(3) provides that a prevailing party is entitled to attorney’s fees in any case involving a “commercial transaction.”
What happens then, when a plaintiff claims at trial that there was a commercial transaction, but the jury concludes there was no commercial transaction and thus the defendant prevails?
A recent Idaho Supreme Court case, Garner v. Povey, held that because plaintiff claimed the parties entered into a commercial transaction, even though the defendant ultimately prevailed based on the jury’s finding that no commercial transaction existed, the plaintiff must still pay the defendant’s attorney fees under I.C.§ 12-120(3).
The Court reasoned that the alleged commercial transaction was integral to plaintiff’s claims, was the basis on which plaintiff attempted to recover and was specifically pleaded as the gravamen of plaintiff’s lawsuit. Therefore, plaintiff’s allegations triggered application of the statute, regardless of the ultimate finding that no commercial transaction existed.
This article is for general informational purposes only, it is neither legal advice, nor is it intended to be legal advice; and it is not an exclusive statement of statutory or regulatory provisions or case law. Any questions should be submitted to an attorney for his/her analysis.
10/20/11
Legal Alert: Do Not Be Misled–The Obama Administration’s Immigration Announcement is NOT an Amnesty Program!
The Obama Administration recently announced on August 18, 2011, the creation of a joint committee made up of the Department of Homeland Security and the Department of Justice that will review nearly 300,000 immigration cases currently in removal proceedings. The committee will determine which cases are “low priority” and can be administratively closed.
While this is a positive step, it is important for immigrants to know that the Obama administration announcement is not an amnesty, it does not grant legal status, and it is not something you can sign up for.
The announcement does not provide any way to “apply” for a work permit or Employment Authorization Document (“EAD”). Nor does the announcement provide a new way to apply to remain in the United States. The change announced is not about giving people work permits or legal status. The announcement applies only to cases already in the system, ensuring that low priority cases do not continue to clog up an already overburdened immigration court system.
It is therefore important not to believe anyone who claims they can sign you up for a work permit or EAD or get you legal status based on this announcement. Anyone who says this should not be trusted.
There is no “safe” way to turn yourself in to immigration and there is no guarantee that your case will be considered “low priority.” Any person who comes into contact with immigration authorities may be arrested, detained or even removed.
Even if a friend, neighbor or coworker encourages you to act, do not try to contact immigration authorities or fall for a scam. At this time, there is no application to fill out, no form that can be filed, no filing fee that can be paid and no guidance from immigration authorities at all as to how the review of cases will happen.
Remember: Only a qualified immigration attorney can evaluate your case and advise you regarding your rights.
Do not seek legal advice from an immigration consultant or notario.
This article is for general informational purposes only, it is neither legal advice, nor is it intended to be legal advice; and it is not an exclusive statement of statutory or regulatory provisions or case law. Any questions should be submitted to an attorney for his/her analysis.
10/20/11
Legal Alert: Who can help you with your immigration case? When looking for immigration help, the wrong help can hurt.
Beware: There has been a recent increase in “immigrations scams” by people claiming they are authorized to give legal advice or represent you before the U.S. Citizenship and Immigration Services (USCIS).
Who can represent you: By law, the ONLY people who can give you legal advice or represent you before the USCIS are licensed attorneys or non-attorney representatives who are accredited by the Board of Immigration Appeals (BIA).
Who cannot represent you: “Notarios,” notary publics, and immigration consultants may NOT provide legal advice or represent you before the USCIS. While in some countries “notarios” are attorneys, this is not true in the United States. Notary Publics in the United States are not attorneys and do not have the same authority to give legal advice as “notarios” in other countries.
Watch out for common immigration scams: Immigration scammers often make promises that sound too good to be true. They may tell you they have a special relationship with the government, or can get you a green card or work permit very quickly, or can help you get benefits for which you do not qualify.
10/20/11
Legal Alert: Parking legally may not be parking safely; Carrier liability may still arise if a driver fails to use ordinary care
Notwithstanding that a truck may be legally parked, a carrier may still be found negligent when one of its driver’s has created an obstructed view.
In the case of Lawson v Safeway, 119 Cal Rptr 3d 366 (Ct App 1st Dist CA 2010), the court upheld a jury’s verdict that the truck driver was partially at fault, 35%, for a collision between a car entering an intersection and a motorcycle. The tractor trailer was parked legally on the side of the highway; however, the position of the trailer blocked the view of oncoming traffic for a driver attempting to cross and turn onto the highway.
Liability for an accident may arise for a carrier any time a driver fails to use ordinary care to prevent others from being injured as the result of his/her conduct. More than just following the law should be considered. In addition to the traffic laws, drivers should also take into account weather conditions, traffic conditions, and general public safety.
In this situation, the Court reasoned that it is readily foreseeable that parking a large, commercial truck near an intersection may obstruct the views of passing motorists and cause them to collide. Such conduct involves an unreasonable risk of foreseeable harm.
Stated otherwise, a legally parked truck may still create an unnecessary hazard. From the Court’s perspective, the drivers of commercial vehicles are or should be professionally trained to be aware of the risk of blocking other drivers’ sight lines when parking.
Five other jurisdictions have rulings similar to this recent California case. Only two other states have accepted legal parking as a defense.
This article is for general informational purposes only, it is neither legal advice nor is it intended to be legal advice; and it is not an exclusive statement of statutory or regulatory provisions or case law. Any questions should be submitted to your attorney for his/her analysis.
10/20/11
Legal Alert: New Court Rule requires perspective guardians or conservators to complete an on-line class before a court will issue permanent letters of guardianship or conservatorship.
A new Idaho Court Administrative Rule regarding guardianships and conservatorships went into effect this summer. The new rule, I.C.A.R. 54, requires anyone seeking appointment as a guardian or conservator to take the Idaho Supreme Court’s on-line training course as a prerequisite to becoming a guardian or conservator. Rule 54, as recently amended on September 7, 2011, does not apply to cases involving the guardianship or conservatorship of a minor.
The course outlines the duties and responsibilities of a guardian and conservator. The website for the course is http://www.isc.idaho.gov/guardian_conservator.htm. The course costs $25.00. People seeking appointment as a guardian or conservator must file a certificate of completion of the course with the court prior to the issuance of permanent letters of guardianship or conservatorship. “Professional” guardians or conservators only have to complete the course once and may use the certificate of completion in subsequent cases.
This article is for general informational purposes only, it is neither legal advice, nor is it intended to be legal advice; and it is not an exclusive statement of statutory or regulatory provisions or case law. Any questions should be submitted to an attorney for his/her analysis.
