Graves Palmertree PLLC

Graves Palmertree PLLC

The firm is an AV-Preeminent firm rated by Martindale-Hubbell Legal Directory for both legal ability and ethical standards. Our attorneys practice in all levels of state and federal courts in Mississippi and Tennessee. #businesslawyersthatmeanbusiness

Breach of Contract,
Business Torts,
Landlord/Tenant Matters,
Non-Compete Agreements,
Insurance Disputes,
Collections,
Estate Litigation,
Will Contests,
Real Estate Disputes,
Property Boundaries,
Negligence,
Defamation,
Alienation of Affection,
Land Use & Zoning

Operating as usual

02/05/2021

When you hear “visitation rights”, you may picture a non-custodial parent visitation arrangement. While this is true in many cases, it is also common for grandparents to seek visitation rights with grandchildren. If you are a grandparent and desire to obtain court-ordered visitation rights in Mississippi, the following is a summary of the legal requirements for doing so.
In Mississippi, grandparent visitation is governed by a specific statute which permits grandparent visitation under two circumstances. The first circumstance is where the grandparent’s child---i.e., one of the parents of the grandchild---has died, lost custody, or lost parental rights, and the court finds that it is in the best interest of the child to have visitation with the surviving grandparent(s). In making the determination as to whether grandparent visitation is in the best interest of the child, the court will consider all relevant facts and circumstances, specifically including the following:

1. The amount of disruption that extensive visitation will have on the child’s life (i.e., school activities, summer activities, or disruptions between the interaction of the parent and the child).

2. The suitability of the grandparents’ home with respect to the amount of supervision received by the child.

3. The age of the child.

4. The age and physical and mental health of the grandparents.

5. The emotional ties between the grandparents and the grandchild.

6. The moral fitness of the grandparents.

7. The distance of the grandparents’ home from the child’s home.

8. Any undermining of the parent’s general discipline of the child.

9. Employment of the grandparents and the responsibilities associated with that employment.

10. The willingness of the grandparents to accept that the rearing of the child is the responsibility of the parent, and that the parent’s manner of child rearing is not to be interfered with by the grandparents.

The second circumstance in which a grandparent may be granted court-ordered visitation is where the grandparent can show an established, viable relationship with the child, and the parent or custodian of the child has unreasonably denied visitation rights to the grandparent. Also, as previously discussed, the court must find that it would be in the best interest of the child for the grandparent to be awarded visitation rights.
As with any other legal matter, consultation with an attorney prior to making a decision or taking action is the best course.
This article is not legal advice, is not intended to be legal advice, and should not be considered as legal advice. Free background information available upon request.


Photo By: Ekaterina Shakharova on Unsplash

When you hear “visitation rights”, you may picture a non-custodial parent visitation arrangement. While this is true in many cases, it is also common for grandparents to seek visitation rights with grandchildren. If you are a grandparent and desire to obtain court-ordered visitation rights in Mississippi, the following is a summary of the legal requirements for doing so.
In Mississippi, grandparent visitation is governed by a specific statute which permits grandparent visitation under two circumstances. The first circumstance is where the grandparent’s child---i.e., one of the parents of the grandchild---has died, lost custody, or lost parental rights, and the court finds that it is in the best interest of the child to have visitation with the surviving grandparent(s). In making the determination as to whether grandparent visitation is in the best interest of the child, the court will consider all relevant facts and circumstances, specifically including the following:

1. The amount of disruption that extensive visitation will have on the child’s life (i.e., school activities, summer activities, or disruptions between the interaction of the parent and the child).

2. The suitability of the grandparents’ home with respect to the amount of supervision received by the child.

3. The age of the child.

4. The age and physical and mental health of the grandparents.

5. The emotional ties between the grandparents and the grandchild.

6. The moral fitness of the grandparents.

7. The distance of the grandparents’ home from the child’s home.

8. Any undermining of the parent’s general discipline of the child.

9. Employment of the grandparents and the responsibilities associated with that employment.

10. The willingness of the grandparents to accept that the rearing of the child is the responsibility of the parent, and that the parent’s manner of child rearing is not to be interfered with by the grandparents.

The second circumstance in which a grandparent may be granted court-ordered visitation is where the grandparent can show an established, viable relationship with the child, and the parent or custodian of the child has unreasonably denied visitation rights to the grandparent. Also, as previously discussed, the court must find that it would be in the best interest of the child for the grandparent to be awarded visitation rights.
As with any other legal matter, consultation with an attorney prior to making a decision or taking action is the best course.
This article is not legal advice, is not intended to be legal advice, and should not be considered as legal advice. Free background information available upon request.


Photo By: Ekaterina Shakharova on Unsplash

12/09/2020

Going to Court? Stay at home.

Michael K. Graves
Graves Palmertree, PLLC

In today's business climate and litigious society, it should not be either unexpected or unanticipated by any business to be involved in a lawsuit with a customer or another business. Commonly litigated issues for businesses are collections, breach of contract, breach of warranty, and misrepresentation actions.

Should a business find itself in the position of needing to pursue legal action to enforce its rights, or in the position of being sued, it would be in the best interest of the business for the litigation to be conducted in a court near its geographical location. This is not because the business should expect a "local" court to be more favorable, but because of numerous legitimate business concerns, including, but not limited to, the additional travel expense of litigating in a distant court; increased disruption to normal business operations when the owner and/or employees are required to provide testimony in a distant court; the need to retain legal counsel in another jurisdiction with whom the business has no prior relationship or familiarity; possible application of the law of another jurisdiction which may very well be different than the law of the business' local jurisdiction; and, witnesses and evidence being much more costly to obtain.

To attempt to avoid these types of issues, a business should consider with legal counsel including in its contracts a “forum selection clause” (a work order, invoice, or other document used in a particular business may be a “contract”). A forum selection clause is a provision included in a contract which specifies that any legal action relating to the contract must be brought in a specified court of a particular jurisdiction. While Mississippi recognizes the enforceability of such clauses, the clause must be carefully drafted consistent with Mississippi law, or a court may find that the clause does not preclude litigation in another jurisdiction.

Certainly, the ideal solution is to avoid litigation if possible. However, should litigation become necessary or unavoidable, it would be in the business’ best interest to “stay at home” with an appropriately drafted forum selection clause.

This article is not intended to be legal advice. Legal advice is dependent upon the facts of any particular situation and the state of the law at any given moment. The information provided should only be used as a guide regarding the issues individuals and businesses may face and should not be relied upon as legal advice.

Free background information available upon request.

lexology.com 11/24/2020

CDC Issues Guidance on Holiday Celebrations and COVID-19 Safety | Lexology

This article includes a summary of the CDC's guidelines for COVID-19 era holiday celebrations.

#businesslawyersthatmeanbusiness

lexology.com Is this week’s COVID-19 news giving you flashbacks to early pandemic stress and anxiety? You are not alone. With the holidays approaching - and being…

lexology.com 11/18/2020

Growth of New Businesses | Lexology

While our firm has continued to see ongoing development in Desoto County, this is a somewhat surprising article on commercial development from a national perspective.

"Business Lawyers That Mean Business"

lexology.com America is currently experiencing what some are calling a "startup boom." That's right — even with a raging pandemic and an ugly recession…

lexology.com 11/12/2020

FDCPA Claims Based on Collection of Time-Barred Debt Claims Result in Class Settlement | Lexology

DEBT COLLECTION: While the class action settlement discussed in this article includes a provision that the creditors/defendants will include a specific notice in all future debt correspondence if the collection of the debt is time-barred, there is no such requirement under the federal Fair Debt Collection Practices Act ("FDCPA") relating to the collection of consumer debt (as defined by the FDCPA). However, the attempted collection of a consumer debt beyond the applicable time period for collection is a violation of the FDCPA which can result not only in the debt being extinguished but also an award of damages against the creditor seeking to collect the time-barred debt. Partial payments on the debt may affect the time within which the debt or a portion of the debt is time-barred, but that can only be determined on a case-by-case basis. In short, both creditors and debtors alike should be aware that there are specific time limitations for collection of a consumer debt, and creditors do not always understand or recognize that attempts to collect such a debt beyond a certain period of time may be a violation of the FDCPA inuring to the benefit of the debtor.

Michael K. Graves
Graves Palmertree, PLLC
"Business Lawyers That Mean Business"

lexology.com Two collection agencies agreed to new disclosure requirements when attempting to collect on time-barred debts, in a settlement agreement…

lexology.com 11/11/2020

Revisiting force majeure and other contractual considerations amid covid-19 | Lexology

The "Practical Considerations" addressed in this article provide great guidance for businesses affected by COVID-19. #businesslawyersthatmeanbusiness

lexology.com In addition to the tragic human toll that it has caused, the coronavirus pandemic has also wreaked havoc on businesses throughout world, leaving…

lexology.com 11/09/2020

CDC Changes Definition of “Close Contacts” for Contact Tracing Purposes: What Does This Mean for Employers? | Lexology

"Close Contact" for COVID-19 quarantine purposes is now more strict.

lexology.com On October 21, 2020, the CDC published a new definition of “Close Contact” for contact tracing purposes. This new definition will affect how employers…

11/06/2020

Get A Fresh Start On Bad Debt

Michael K. Graves

Worse than no sales or no work is not getting paid for your goods or services. Not only do you not get paid, but you have then also either absorbed the cost of the goods or sacrificed the sweat of your brow without compensation. Nothing in business is worse. While no business can wholly avoid “bad debt”, you should at least start out the new year with a plan to attempt to do so and a contingent plan when the inevitable bad debt arises.

One of the biggest issues facing businesses when considering the collection of debt is the age-old adage of “throwing good money after bad”. This is certainly a valid consideration, but one that can be largely avoided by proper planning.

First and foremost, know to whom you are extending credit before doing so. If the person/business is not financially capable of honoring his/her promise to pay, you have lost money before you even started. Although some businesses may not be comfortable requesting a credit application before providing goods or services on credit, it is certainly more uncomfortable to not get paid.

Also, while the collection of certain types of debt, as a matter of Mississippi law, includes the recovery of at least a portion of the attorney’s fees incurred in collecting the debt, that is by no means the general rule. A business should have a provision included in its contract or on its invoice consistent with Mississippi law which expressly provides that the business will be entitled to recover all attorney’s fees incurred in collection if legal action is necessary to collect the debt.

Before pursuing collection, you should also consider whether a judgment could in fact be collected against the debtor—another aspect of “throwing good money after bad”. If the debtor has no assets or net worth and no job, you very well may not be able to “get blood out of a turnip”. Of course, as previously mentioned, this is something that should have been considered on the front end before ever agreeing to sell goods or provide services on credit. Having said that, however, a judgment can be renewed every seven years for an infinite period of time, so most people will eventually marshal some assets, get a job, or try to buy/sell a house, and the judgment will therefore likely become collectible later.

As your business looks forward to the beginning of a new year, develop a plan for avoiding bad debt, and then plan to collect the inevitable bad debt.

Michael K. Graves
Graves Palmertree, PLLC
Hernando, MS
662-429-9302
www.gpfirm.com
“Business Lawyers That Mean Business”
This article is not intended to be legal advice. Legal advice is dependent upon the facts of any particular situation and the state of the law at any given moment. The information provided should only be used as a guide regarding the issues individuals and businesses may face and should not be relied upon as legal advice.
Free background information available upon request.

lexology.com 11/05/2020

Debt Collection Servicers Settle CFPB Charges for Improper Practices | Lexology

Creditors at times attempt to collect debts without proper documentation of the debt (and/or amount of the debt) and/or beyond the date on which the debt could be legally collected. Debtors have rights, know and exercise yours.

lexology.com Encore Capital Group and its subsidiaries, Midland Funding, Midland Credit Management and Asset Acceptance Capital Corp. settled CFPB charges for…

lexology.com 10/26/2020

Happy Prime Day: Trump Directs Federal Government to Pursue Legislation Making E-Commerce Platforms Liable for Counterfeit Sales | Lexology

This would be really important legislation for small retail business owners who have to compete with online sellers.
#businesslawyersthatmeanbusiness

lexology.com In a recent post, we summarized recent developments in litigation and legislative activity concerning whether online Marketplaces may be directly…

lexology.com 10/22/2020

COVID-Related College Tuition Refund Claims Dismissed | Lexology

If you were counting on a college COVID-tuition refund . . . might be best to make other Christmas plans!

lexology.com Since the global pandemic forced most college campuses to resort to online Instruction in March 2020, college students across the country have filed…

10/19/2020

Consult Before You Choose: Protecting You and Your Business Through Business Entity Formation

Starting a business can be overwhelming. In addition to practicing law, I have owned and/or operated several start-up businesses. So I truly appreciate the many challenges facing new enterprises. The initial choice of business entity is one of the most important decisions a prospective business owner can make.

The number of legally recognized business entities have expanded due to increased liability risk, increasingly complicated tax measures, and the tax treatment of various types of entities. This brief article addresses only the most commonly used entities, but numerous other entity types are available which may better suit your business plan and needs. The only way to be certain to make the right entity choice for your business will be to consult with legal, tax, and accounting professionals before selling—or even ordering—your first widget.

The most common forms of business entities are sole proprietorships and partnerships. These are most common because they can be formed simply by one or more persons “opening” a business and beginning operations. However, these entities offer essentially no protection from liability. In essence, what is owed by the business – whether by debt, judgment, or otherwise—is also personally owed by the owner(s). Therefore, the owner’s personal assets are fully subject to the collection of any liability of the business.

Further, partnerships offer very little regulation of the operations of the business between the partners. While you may have gone into business with your best friend, mixing business with pleasure is often like mixing drinking with driving. While the Uniform Partnership Act (in states which have one) provides some guidance on the operation of a partnership, without a carefully drafted partnership agreement to the contrary, the partnership (and each partner) is bound by any action take by any partner while acting for and/or on behalf of the partnership. While both of these types of entities have the benefit of flow-through taxation (i.e., the business is not taxed separately on its earnings), there are other available entities which do not have unlimited personal liability of the entity’s debts and which accomplice this same result.

On the other end of the legal spectrum are corporations. To form medium to large businesses, corporations are often used because of their flexibility and extensive liability protections. Corporations are excellent personal-liability shields because the corporation has its own “corporate existence” separate and distinct from its owners, or shareholders. To maintain this benefit of corporate existence, however, corporations are required by law to maintain a number of relatively burdensome and expensive corporate formalities. These formalities are why corporations may be problematic for small, closely-held businesses.

From a tax perspective, corporations are subject to “double taxation” in that both the corporation is taxed on its earnings and the shareholders are taxed on any dividends or distributions earned and paid to the shareholders. Although a corporation may be formed under Subchapter S of the Internal Revenue Code (“S-Corp”) which allows it to be taxed as a flow through entity, the requirement of corporate formalities remains, and may legal restrictions exist regarding the ownership of S-corp shares and other business interests which an S-corp may own.
Possessing many of the benefits of a partnership and a corporation but legally less restrictive is the most popular business entity—the Limited Liability Company (LLC). LLCs have the benefits of flow-through taxation like partnerships and the protection against unlimited personal liability like corporations, but the requirements for formation and daily operations are not nearly as burdensome or expensive as corporations. The operation of an LLC is controlled by the terms of a written LLC agreement which is entered into by all members of the LLC. Consequently, all members know the scope and limitations of the operations of the LLC. When circumstances warrant change, the LLC agreement may be amended very easily and relatively inexpensively (dependent, of course, upon the nature of the amendment). Be mindful, however, that an LLC is not a one-size-fits-all answer to forming a business. Members of the LLCs are often required to pick and choose benefits in order to maintain favorable tax treatment, which can make an LLC unduly limiting as compared to corporations.

In choosing the best entity type for a planned business, one would be well advised to consult with legal, tax and/or an accounting professional. Making the right—or wrong—first decision in beginning a business can affect the operations and profitability of the business in going forward.
This article is not intended to be legal advice. Legal advice is dependent upon the facts of any particular situation and the state of the law at any given moment. The information provided should only be used as a guide regarding the issues individuals may face and should not be relied upon as legal advice.
Free background information available upon request.

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140 W. Center Street
Hernando, MS
38632
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