ELLIOTT & TRAINOR, P.C. -BRIDGET C. TRAINOR ATTORNEYS AT LAW -RALPH E. ELLIOTT 1005 W. Loras Drive Freeport, IL 61032 TEL. 815.233.1022
ELLIOTT & TRAINOR, P.C.                                    -BRIDGET C. TRAINOR   ATTORNEYS AT LAW                                         -RALPH E. ELLIOTT    1005 W. Loras Drive                                                                   Freeport, IL  61032                                              TEL. 815.233.1022

 

 

LAW NOTES

FALL 2013

                                                             TRAINOR BECOMES SHAREHOLDER IN FIRM

 

                We are pleased to announce that Attorney Bridget C. Trainor has become an owner/shareholder in the firm. The name of the firm has been changed to Elliott & Trainor, P.C. Bridget has also become an owner in the building in which the law firm is located.

 

                Ms. Trainor has engaged in the general practice of law with the firm for the past six years. Her practice emphasizes estate planning, business organizations, agriculture, real estate litigation, personal injury, and family law.

 

                Bridget stated, "I wish to express appreciation to all of the clients that I have worked with in our firm which have made our success possible.  It is the opportunity to work with people and business in our community in solving their legal problems which is the most rewarding to me."

 

                Bridget graduated from the University Of Iowa College Of Law. While attending the University of Iowa, she was a member of the Iowa Law Review and the Organization of Women Law Students and Staff. Her undergraduate studies were completed at the University of Iowa, where she received a Bachelor's Degree with the highest distinction.

 

                In addition to her law practice, Bridget is active in her community. She is president-elect of the Board of Directors of the Freeport Area Chamber of Commerce and sits on its Finance and Strategic Planning Committees. She also serves in the Campaign Cabinet for United Way of Northwest Illinois, is a member of the Freeport Networking Group, and is on the Lincoln Douglas 5k Planning Committee. She is a member of the Stephenson and Winnebago County Bar Associations and the Illinois State Bar Association.

 

                Bridget formerly served on the Board of Directors for the Boys & Girls Club of Freeport and Stephenson County (2008-2012) and the Freeport Area Chamber of Commerce Ambassadors (2007-2012), and was honored to serve as the 2011 Ambassador President. Bridget also formerly served as Treasurer of the Stephenson County Bar Association.

 

                Ms. Trainor looks forward to serving new and existing clients in her new capacity as shareholder. She and her husband, Pete Servatius, are Freeport natives and are proud to call northwest Illinois home.

 

                 

NEW TAX LAWS FOR ILLINOIS SENIORS HAVE BENEFITS AND DRAWBACKS

 

              First, the benefit: For 2013 property tax year, the maximum annual reduction amount for the Senior Citizen Homestead Exemption has been increased from $4,000 to $5,000 in all Illinois counties.

 

                Now, the drawback: In response to a recent Illinois appellate court decision involving taxation of “snowbirds” (Illinois residents who spend the winter months in warmer climates), the Illinois Department of Revenue (DOR) has changed its regulations in attempt to prevent snowbirds from avoiding payment of Illinois income tax. The amended regulations are effective as of April 19, 2013. The first regulation change is that any resident of Illinois who is receiving the owner-occupied property tax exemption is presumed to be an Illinois resident.

               

                Another regulation change is that a person who is an Illinois resident in a given tax year is presumed to be a resident of the state the following year if he or she is present in Illinois more days than he or she is present in another state. If either one of these presumptions are applicable, the taxpayer must file an Illinois income tax return so that the DOR has the information it needs to determine if the snowbird claiming non-resident status is responsible for a tax deficiency.

 

                Any person who maintains a residence in Illinois but spends significant periods of time in other states should consult with an attorney regarding potential income tax liability under these new regulations.

 

EMPLOYERS NOW ABLE TO OBTAIN ORDERS OF PROTECTION TO

PREVENT WORKPLACE VIOLENCE

 TO PREVENT WORKPLACE VIOLENCE

 

Effective January 1, 2014, the Illinois Workplace Violence Prevention Act provides that employers may now seek Orders of Protection to prohibit violence or threats of violence by persons in the workplace.

 

                In the past, persons who were the victim of domestic violence could seek the protection of Orders of Protection under the Illinois Domestic Violence Act.  Now employers can obtain the relief provided by the Illinois Domestic Violence Act in the workplace under certain conditions. The purpose of the new law is to assist employers in protecting their workforce, customers, guests and property by limiting access to the workplace by potentially violent individuals.

 

                The employer may seek an Order of Protection to prohibit further violence or threats of violence by a person if (1) the employee has suffered unlawful violence or a credible threat of violence from the person or (2) if the unlawful violence has been carried out at the employee's place of work or the credible threat of violence can reasonably be constructed to be carried out at the workplace.  A "credible threat of violence" is defined as a statement or course of conduct which causes a reasonable person to fear for the person's safety or the safety of the person's immediate family.

 

                Employees protected under the Act include someone who is paid to work, a member of the board of directors, volunteers, independent contractors, agency workers and others.  The benefit of being able to use the Order of Protection procedure is that it is an expedited procedure intended to provide quick relief through the Illinois Courts.  There is a well established process in our local courts for handling domestic violence which should now serve employers well in their efforts to prevent workplace violence.

       

 

 

ILLINOIS LAW TO PROVIDE LANDOWNERS GREATER LIABILITY PROTECTIONS

 

 The Recreational Use of Land and Water Areas Act has been amended to provide protections to landowners who permit members of the public to use their property for recreational or conservation purposes without charge.

 

Effective January 1, 2014, a landowner who permits members of the general public to use her land for recreational purposes without charge will not be construed as extending any assurances than the premises are safe for any purpose. Further, the landowner shall not incur liability for any injury suffered by the user of the land as a result of an act or omission by any person, or as the result of any natural or artificial condition, structure or personal property on the premises.

 

In contrast, landowners who invite people onto their property to the exclusion of the general public, or who charge for admission onto their property, will not enjoy the liability protections listed above. And, all landowners, regardless of whether they invite or permit people to use their property for recreational purposes, are liable for willful or wanton failure to guard or warn against a dangerous condition on the property.

 

Questions about liabilities in a landowner’s specific fact situation should be discussed with an attorney.

 

 

TRUST MODERNIZATION ARRIVES IN ILLINOIS

 

As of January 1, 2013, the State of Illinois has adopted new estate planning techniques which will allow people to tailor their trusts to meet their unique estate planning goals. These new techniques are already allowed in many other states, bringing Illinois into a more modern era of trust creation and administration.

 

The first new estate planning tool is called a directed trust. In a typical living trust, the person named as the trustee makes all decisions about how the trust property is managed and distributed. A directed trust is a trust that designates specific people, called trust advisors, to advise the trustee on those issues. The trustee can then rely and act on the trust advisors’ advice without being liable for the consequences of the actions taken. The trust advisors are legally bound to act in the best interest of the trust beneficiaries, just like trustees under a typical living trust. The trust advisor could be an investment advisor or other trusted professional or family member.

 

Another estate planning tool allowed under the new law is called trust decanting. Trust decanting is the ability of a trustee of an irrevocable trust to move the property of one trust to a different trust for the purpose of meeting the estate planning goals of the person who created the trust. The ability of the trustee to do so depends on the authority granted to the trustee under the terms of the trust document. There are also certain requirements regarding the identity of the beneficiaries of the original trust and the trust to which the trustee is transferring the property. Further, decanting cannot be used to infringe on the rights of the original trust’s beneficiaries.

 

Decanting enables the trustee to distribute the trust property in a way that accommodates changes in circumstance or changing needs of the trust’s beneficiaries.  For example, if changes were needed in a trust for tax purposes after the original trust was created, the trustee could in an appropriate case transfer some of the trust property to another trust to achieve tax planning goals.

 

A trustee who wishes to exercise decanting authority is required to give notice to the beneficiaries of the trust that the authority is being exercised. The trustee may also request permission from a court to exercise the authority.  Of course, there are a number of circumstances in which decanting is not allowed and a discussion of those circumstances is outside the scope of this article. Deciding whether these new tools will be helpful requires an in-depth discussion with an estate planning attorney.

 

Proper estate planning involves careful consideration of a client’s individual circumstances and the tools available to meet the client’s estate planning goals. The addition of directed trusts and decanting trusts are some additional estate planning tools that our firm can use to meet our clients’ unique goals.

 

 SNOW REMOVAL  - WHEN DOES SHOVELING RESULT IN LIABILITY?

 With winter fast approaching, it’s a good time to discuss the responsibility of property owners for snow removal on their properties. Illinois courts have considered case after case regarding who is liable when a person suffers injuries due to snow and ice on the property of another. A recent Illinois case has made the question of liability a bit easier to analyze.

 

The general rule is that a landowner has no duty to remove natural accumulations of snow, ice or water from his property. If a landowner chooses to remove snow and ice from sidewalks, driveways, parking lots, etc., he may only be responsible for another person’s injury due to those conditions if the removal of the snow results in unnatural or artificial conditions or aggravates a natural condition.

 

In a recent Illinois appellate court case, a woman exiting her vehicle at a gas station slipped and fell on a patch of ice next to her vehicle. There had been a snowstorm in the area a couple days beforehand. The gas station owners had the property plowed following the snowstorm. The parking lot had two large metal plates covering gauges underneath the parking lots which were slightly below the surface of the parking lot. The plowing caused snow and ice to be packed on these plates. Despite the efforts of the gas station employee to remove the packed snow and salt the ice, the plates remained slippery and covered with ice and slush.

 

The injured woman claimed that salting the plates resulted in an unnatural accumulation of ice, and that the gas station owners had a duty to warn her about it. By failing to warn her about it, she argued, the property owners breached a duty owed to her and were liable for her injuries. The court disagreed. It stated that the mere sprinkling of salt on ice, even though it may cause the ice to melt and refreeze, does not aggravate a natural condition. Therefore, merely plowing and salting icy areas did not make the gas station owners responsible for her injuries.

 

Part of the rationale behind the court’s decision was that it wants to encourage landowners to remove snow and ice during the winter months. The court acknowledged that a landowner will never be able to completely remove all snow and ice. Requiring perfect removal of snow and ice or imposing liability for shoveling and salting ice would encourage the opposite result—doing nothing.

 

The decision in this case made the law of property owners’ liability for removal of snow and ice a bit more clear. However, there still may be situations of liability left where the particular facts relating to the snow removal result in unnatural conditions or aggravation of a natural condition. Property owners who have questions about their snow-removal procedures or other land-use liability questions are encouraged to consult an attorney.

 

 

ILLINOIS COURTS FURTHER CLARIFY ENFORCEABILITY OF NONCOMPETION AGREEMENTS

 

In the Spring 2012 edition of Law Notes, we discussed the enforceability of non-competition clauses in Illinois following the Illinois Supreme Court decision in Reliable Fire Equipment Co. v. Arredondo.  Non-competition agreements are documents signed by employees promising not to engage in competitive business activities with the employer for a period of time and/or within a certain geographic area after they cease to work for the employer.

 

Generally, the enforceability of non-competition agreements is determined by looking at three aspects of the agreement: the length of time it is effective, the geographic scope it covers, and the kind of  business activities it restricts.  The more limited the restrictions on time, geographic scope and activities (i.e., the more “reasonable” the restrictions), the more likely it is to be enforceable. In the Reliable Fire case, the Court directed that the test of whether an agreement was reasonable also had to consider the legitimacy of the employer’s business interests. If the restrictions in the agreement were not stricter than necessary to protect a “legitimate business interest,” the agreement could be enforceable.

 

                In June, 2013, the First District Appellate Court further clarified the test of enforceability.  Before even considering whether a non-competition agreement is reasonable, the court must make two determinations: 1) whether the restriction is ancillary to a valid employment contract and 2) whether the restriction is supported by adequate consideration. Due to the particular facts of the case, the appellate court only had to consider the second factor; that is, whether the agreement was supported by adequate consideration. “Consideration” is a benefit or right for which the parties to a contract must bargain. In order for a contract to be valid, it must be founded on an exchange of one form of consideration for another, e.g., an agreement to fix a leaky faucet in exchange for payment of $100. Getting the faucet fixed is a benefit to the homeowner, and getting $100 is a benefit to the plumber.

 

In the context of non-competition agreements, the court noted that under Illinois law, employment for a significant period of time is sufficient consideration to support a restriction in an employment contract. It further noted that continued employment for over two years is adequate consideration. In other words, a non-competition provision can be enforceable if the employee who is restricted has been employed for two years or more.

 

In addition to holding that the consideration to support enforceability of a non-competition agreement is employment of two years or more, the court also made two other important decisions in this case. One was that there is no distinction between non-competition agreements signed during employment and after employment when determining enforceability. The other is that where the employment is at-will, there must be consideration other than continued employment for a non-compete provision to be enforceable.

 

Both employees and employers alike are encouraged to have restrictive covenants in employment agreements reviewed by an attorney if there are questions about their enforceability.

 

 

VEHICLE LAW UPDATE

 

                The state of Illinois has recently passed several laws that could affect your daily commute. The following summary of these laws will help you avoid running (or driving) into trouble.

 

1. Effective July 1, 2013, drivers caught going more than 25 miles per hour over the speed limit in urban areas or more than 30 miles per hour over the limit on highways will face higher fines and will no longer be eligible for court supervision for those offenses. This means that drivers found guilty of those offenses will no longer be able to avoid a traffic record.

 

2. Effective January 1, 2013, the law regarding unlawful use of disability license plates and decals was expanded to expressly prohibit drivers from using plates, decals, or devices issued to individuals who are now deceased. The fine for unauthorized use of a disability plate or decal belonging to a living person is $600 for a first offense and $1,000 for a second or subsequent offense. The fine for use of those items belonging to deceased individuals is $2,500 and is a Class A misdemeanor crime.

 

3. Effective January 1, 2014, the speed limit on interstate highways is increased from 65 mph to 70 mph. However, the counties of Cook, DuPage, Kane, Lake, McHenry, and Will are permitted to establish maximum interstate speeds that are less than prescribed by law. There is significant dispute as to the use of the new speed limits in these areas. Be sure to follow posted signs in the area in which you are driving.

 

4. As of August 24, 2013, motorists are allowed to show proof of insurance via a mobile-electronic device, such as a smartphone or tablet. In the past, proof of insurance by way of a paper insurance card was required.

 

5. Effective January 1, 2014, drivers are prohibited from using a hand-held cell phone or personal digital assistant while driving. However, drivers will still be able to use those devices in hands-free or voice-operated mode. Electronic communication devices that are activated by pressing a single button to initiate or terminate a voice communication are also permitted. Any second or subsequent conviction of this crime will be a moving violation. The fine is a maximum of $75 for the first offense, $100 for the second offense, $125 for the third offense, and $150 for the fourth or subsequent offense.

 

 TETHERING OF ANIMALS

 

                Laws regarding the tethering of dogs will be put into effect on January 1, 2014. The additions to the Humane Care for Animals Act set forth how a dog is to be legally tethered outside. The law requires that dogs be tethered in a way that will prevent them from being entangled with other dogs, tethered with a lead that doesn’t exceed 1/8 of the dog’s body weight and is at least 10 feet in length; tethered with a properly fitting harness that is not a pinch, prong, or choke-type collar, and tethered in a way that will not allow the dog to reach the property of the another person, a public walkway, or the road.

 

                These new requirements do not prohibit walking a dog with a handheld leash, nor do they prohibit restraint of dogs related to cultivation of agricultural products as long as the restraint is necessary for the safety of the dog. The law also does not prohibit tethering of dogs at lawful animal functions or compliance with tethering requirements of camping or recreational areas.

 

                If a person is convicted of these new laws, he or she will be guilty of a Class B misdemeanor, which can include up to 6 months of jail and/or up to a $1,500 fine.

 

OFFICE NEWS

 

 

Heather A. Magee has joined Elliott & Trainor, P.C. as an Office Manager. Ms. Magee grew up in Stockton, Illinois. She is a graduate of Northern Illinois University and was enrolled in the Paralegal certification program through Roosevelt University. She has been employed with Elliott & Trainor, P.C. since  July, 2012. The next time you are in the office, please stop and welcome Heather!

 

NEW OFFICE CONTACT INFORMATION

 

Website:  http://etpclaw.com

 

 

Ralph’s email: ree@etpclaw.com

 

                                                                               Bridget’s email: bct@etpclaw.com