Wanezek, Jaekels, Daul & Babcock, S.C. Attorneys at Law — Founded 1908

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AMERICANS WITH DISABILITIES ACT

The Americans with Disabilities Act, Title III provides that public accommodations be accessible to Americans with disabilities. Title III covers businesses and nonprofit service providers that are generally accessible to the public. Businesses cannot discriminate through exclusion, segregation and unequal treatment. They buildings must be in code with architectural standards and must remove barriers in existing buildings when it is reasonable. The act covers both physical and mental disabilities, but requires documentation of them. It is unfortunate that discrimination occurs in today’s society. Our firm has extensive experience in resolving these disputes. In some instances relief through the Department of Justice can be obtained through an administrative complaint. However in more complex matters you may wish to file a law suit in Federal Court alleging a violation of the law. Attorneys usually work on a contingency fee arrangement, allowing the claimant to pursue these actions. Attorney David D. Daul handles these claims and would be happy to provide you with a free consultation.

WORKPLACE AND CONVICTION RECORDS IN WISCONSIN

Wisconsin’s Fair Employment Act protects people with felony conviction from employment discrimination. This protection is available only under state law as there is no federal equivalent. Employers are not allowed to discriminate based on past convictions or charges unless it “substantially relates to the job.” The substantial relationship is determined by comparing the circumstances surrounding the crime with the circumstances surrounding the job. If a felon convicted of embezzlement applied for an accounting position, it is likely that there would be a finding that the two positions are “substantially related.” However if that same felon applied for a job as a cook, there is little basis to claim the conviction is “substantially related” to the job. The healthcare industry has some additional requirements when it comes to employment as some offenses are automatically considered to be related under the Wisconsin Caregiver Law. When it comes to discrimination cases, the more documentation you have the better. Employers sometimes violate the Wisconsin Fair Employment Act by discriminating against those with criminal convictions or pending charges. Our firm has extensive experience in resolving these claims. Contact Attorney David D. Daul for a consultation.

THE FLAVORS OF PARTNERSHIP: A LIABILITY ANALYSIS

There are 3 kinds of partnership that exist today: the general partnership, the limited partnership, and the Limited Liability Partnership. Each offers unique advantages and disadvantages over the others with things like exposure to liability, and tax advantages vary from form to form. Our Green Bay, Wisconsin law firm can help you decide which form of partnership is best for your business and how to manage liability issues.

WISCONSIN PARTNERSHIP BENEFITS
Partnerships offer a lot of flexibility when it comes to distributing income and losses, unlike like corporations which are usually forced into distributions equaling shares held. All partnerships have flow through accounting of profits and losses and are reflected on their personal tax returns via the schedule K on their federal income tax returns. This avoids the double tax of the c-corp. Partnerships also facilitate the moving of capital in and out of partnerships efficiently via capital accounts maintained by the partners. Partnerships can be an effective way of doing business if structured properly. Exposure to liability is one of the key factors that change depending on what form of partnership is chosen.

The general partnership is what most people think of when they think partnership. In this form of partnership, both partners are personally liable for the debts of the partnership. This form is usually selected by people who are both actively involved in the managing and running of the business. This is also the default form of partnership. This form of partnership offers the most risk to all its members.

The limited partnership adds another layer to the partnership by adding limited partners to the pool of potential partners. The limited partner does not share the unlimited personal liability of the partnership, however this does limit the amount of losses he recognize up to his capital account balance. This usually prevents him from going below 0. The limited partner can only lose his investment and nothing more.  A limited partner is also restricted in what kind of roles they can play in the partnership. All limited partnerships require at least 1 general partner. This can put a lot or all of the risk on the general partner(s), but gives limited partners a reason to invest capital without exposing themselves to liability.

The Limited Liability Partnership (LLP) functions a lot like an LLC does. In this set up, all the partners have limited liability. This means they can only lose their initial investment. As a result this combines the protections of the corporation with the flexibility of a partnership.  This one has the least risk to the partners as none of them are directly liable for the LLP’s actions, barring some very unusual circumstances.  This is one of the best forms of partnership, but also requires the most planning. As a partnership that benefits from having what is essentially a corporate veil of its own an LLP has the least liability exposure amongst its partners compared to the other forms of partnerships.

GREEN BAY BUSINESS PARTNERSHIP ATTORNEYS
With all the flexibility partnerships have comes some inherent complexity. Our Firm has extensive experience with creating partnerships and with resolving that arise from them.  Contact local Green Bay, Wisconsin Attorney David D. Daul or Attorney Warren Wanezek for a consultation on creating a business partnership, or effectively managing legal issues involving your partnership. The attorneys at Wanezek, Jaekels, Daul & Babcock are ready to help you with the legal needs of your Green Bay area business.

CAPITAL ACCOUNTS AND PARTNERSHIPS

A capital account reflects your stake in the partnership. The exact behavior of a capital account will vary depending on the form of partnership selected. This reflects how a capital account will behave in a general partnership with no special allocation provisions. A capital account starts with your beginning balance that you have in your capital account. Then any contributions you add will be added to that total, thus increasing the value of your capital account. Next any distributions taken reduce the value of your capital account. Next you add your share of the net profit/loss as determined by the partnership agreement and this will adjust your capital account accordingly. You will have to pay taxes on the income and may get to recognize the loss regardless of whether you take a distribution. This occurs because a partnership is a flow through tax entity. That will take us to the ending capital account balance at the end of the year.

 It is very important to maintain these accounts accurately. This is extremely important when dissolving the partnership, as any remaining property is distributed according to these balances. Partner liability can also be determined along these lines assuming everyone has the ability to pay. Since limited partners generally can’t go below 0, they can end up owing more than that. Another important reason to maintain these properly is to keep the clear distinction between equity and debt as each has different rights associated with it, and can be handled in a different manner.  A capital account represents the current dollar value of your stake in the partnership. As always good records make it easier to defend yourself when problems arise later. Often partners get involved in disputes involving these accounts. Our firm has extensive experience in resolving these disputes. Contact Attorney David. D. Daul or Warren Wanezek for a consultation.

HOLDING PRISON OFFICIALS RESPONSIBLE FOR VIOLATING YOUR CIVIL RIGHTS

Prison officials are obligated under the Eighth Amendment of the Constitution to provide prisoners with adequate medical care.  This principle applies regardless of whether the medical care is provided by governmental employees or private actors under contract with the jail or prison.

In order to prevail on such an Eighth Amendment claim, the prisoner must show that the prison officials were deliberately indifferent to a serious medical need.  A prison official is deliberately indifferent to an inmate’s medical condition if that official recklessly disregards a substantial risk of harm to the inmate.  This requires that the prison official knows of and disregards an excessive risk of harm.  A serious medical need exists whenever the failure to treat the prisoner’s condition could result in further significant injury or the unnecessary and wanton infliction of pain.  There are several of factors that are considered to determine if the inmate has a serious medical need.

The above information is just a general overview of Eighth Amendment claims for violation of a prisoner’s civil rights.  If you believe that your civil rights have been violated, contact our office.  The lawyers at Wanezek & Jaekels advise you of your legal options.

DOMESTIC PARTNERSHIPS AND INHERITANCE RIGHTS

In 2009, the Wisconsin Legislature created a series of statutes which govern domestic partnerships. These statutes establish the procedure for the creation of a domestic partnership. Because of this, same sex domestic partnerships are now offered some of the protections and rights afforded to married couples. In addition to a variety of other rights and protections, same sex domestic partners gained many probate and inheritance rights.

To establish a same sex domestic partnership, five separate requirements must be met. First, each person entering into a domestic partnership must be of at least 18 years of age or older and capable of consenting to the partnership. Second, neither partner can be married or in a domestic partnership with someone else. Third, the two individuals must share a common residence, although both do not need title to it nor have it as their primary residence. Fourth, the partners cannot be second cousins or of a closer relationship. Finally they must both be of the same gender to enter into a same sex domestic partnership. After 30 days and with the proper documentation they can then file and become a domestic partnership.

Once a same sex domestic partnership is established, a surviving partner receives the benefits and protections of probate and inheritance enjoyed by married couples. They will be allowed a family allowance, access to select personal items, and assignment of the property interest in the property the domestic partners. When there is no will, the surviving partner will have rights similar to a surviving spouse. Failure to provide for a surviving same sex domestic partner in a will or similar instrument created before the partnership will still allow the surviving partner to receive an intestate share. However, should a domestic partnership be terminated, provision for a domestic partner in a will, trust, insurance contracts and other things will be revoked. Same sex domestic partners have gained many of the probate rights of married couples by the passage of this legislation.

Tags: Probate Estate Planning

SMALL CLAIMS LIMIT IN WISCONSIN INCREASED TO $10,000

For civil actions, classification of the lawsuit depends upon the amount of money sought by the plaintiff.  A lawsuit would be brought in small claims court when the amount claimed by the plaintiff was $5,000.00 or less.  If the amount claimed by the plaintiff was greater than $5,000.00, the case would be in large claims court.  Small claims court provides for a process in which cases can be handled much more efficiently and under a shorter time frame. 

Recently, Governor Walker signed a bill into Wisconsin law which increases the small claims limit from $5,000.00 or less to $10,000.00 or less.  This limit of $10,000.00 applies to cases filed on or after July 1, 2011.  The increase of the limit for small claims cases does not apply to third-party complaints, personal injury claims, or tort claims. 

Because of this change, it is expected that a shift of cases will likely occur from large claim cases to small claims cases.  This new law will likely provide for a quicker and more efficient resolution of greater number of plaintiffs’ claims. 

If you have a right to assert a claim against another for damages, our office can help you recover the amount you are entitled to receive.  Call us for a free initial consultation. 

PROPOSED BILL COULD CHANGE STANDARDS FOR CUSTODY AND PLACEMENT

In Wisconsin, when a court makes custody and placement determinations for children, the court examines the best interests of the children.  When examining the best interests of the children, the court considers numerous statutory factors.  In addition, when allocating periods of physical placement with the parents, the court must try to maximize the amount of time the children may spend with each parent, taking into consideration geographic seperation and accomodations for different households. 

A proposed bill may change the manner in which Wisconsin courts reach decisions regarding legal custody and physical placement.  This bill is 2011 AB 54.  If this bill passes, courts would be required to presume that a placement schedule that equalizes to the highest degree the amount of time the child may spend with each parent is in the child’s best interest.  This presumption could only be overcome if the court found, by clear and convincing evidence, after consideration of the statutory factors, that equalizing physical placement would not be in the children’s best interest. 

 

This proposed bill has caused significant controversy between proponents and opponenets.  Proponents of the bill believe that it will provide both parents with equal footing at the start of a court’s determination of custody and placement.  Opponents of the bill think the bill places the interests of the parents before the children while creating a situation in which parents who are not capable of taking care of their children are given equal shared placement. 

If this bill is passed into law in Wisconsin, it could significantly alter the landscape for how courts decide custody and placement cases.  Our office routinely assists clients who are seeking custody and placement of their children.  Call or email Greg for a consultation. 

Tags: Family Law

CLAIMS AGAINST WISCONSIN GOVERNMENTAL BODIES

Claims against municipalities such as a Town, Village or City may come in several forms. A claim could arise as a result the negligence of a city employee or because the city acts in a way that causes citizens harm. Such claims may be as simple as a minor automobile scrape due to a negligently driven municipal vehicle such as a garbage truck. Or claims may be quite serious involving personal injury. Wisconsin laws require that such claims must be made directly against the city or other municipality within 120 days of the injury or be barred. You must act quickly in making such claims against the city or other municipality therefore. Further if the claim is ultimately denied by the municipality a formal complaint must be filed in circuit court within 6 months of the denial or be time barred. These claims tend to be very difficult to prove. The government is entitled to many types of immunity for its conduct and most tend to be reluctant to pay legitimate claims. Tightening municipal budgets are making this more and more common. Considering the difficulties and time limitations in bringing such claims you may wish to consider retaining Wanezek and Jaekels to assist you. Our lawyers, Attorney David Daul in particular has handled many of these claims and is prepared to advise and assist you. Do not lose your right to compensation from the municipality because of a technicality. Call or email for a free consultation.

LANDLORDS AND LIABILITY FOR TENANT’S DOG BITES

A Wisconsin Court of Appeals recently refused to extend liability to landlords when their tenant’s dog bites and injures a person. Normally, the injured person could sue the landlord for negligence if that person was injured by the dog on the landlord’s property.  A case brought by the injured person requires proof of four elements of negligence: duty, breach, causation and injury.  The landlord’s duty of care would be to refrain from acts that unreasonably threaten the safety of others. Second, the landlord must breach that duty of care by actions or in actions that results in the landlord having threatened the safety of others. Third, there must be a causal link between the breach and the injury sustained.  In other words, the injury occurred because the landlord did or failed to do something. Finally, the injury must result in actual loss or damage. If the injured person can prove the elements of negligence, the landlord would be liable for the damages of the dog.  However, a Wisconsin Court of Appeals has determined that certain public policy exceptions exist which prevent landlords for being responsible for the injuries caused by their tenant’s dogs.

 

The Court found a public policy exemption to terminate the liability of landlords for their tenant’s dogs. The Court decided to limit liability to those landlords who have control and dominion over the tenant’s dogs. This person is typically the owner or keeper of the dog. The Court decided to limit the liability of landlords to owners and keepers of the dogs because it is difficult to determine the landlord’s level of awareness of a dog’s aggressive nature and to create a clear line in determining liability. The Court will not find a landlord to be liable for the tenant’s dog unless he is either the owner or keeper of that dog.

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