Buying a Business? Make Sure Your Written Agreement Protects You from Future Competition! By: Tim Odil

Otis, Bedingfield & Peters, LLC is pleased to announce that Brynne Gant joins the firm as a litigation associate.

Otis, Bedingfield & Peters, LLC is pleased to announce that Brynne Gant joins the firm as a litigation associate.

She graduated magna cum laude from Brigham Young University and earned her J.D. from the J. Reuben Clark Law School at Brigham Young. Before law school, Brynne worked for a firm specializing in family and criminal law along with real estate and business law. During law school, she interned for the Lehi City Attorney’s Office and the Denver District Attorney’s Office in the Family Violence Unit. She was Runner-Up in the school’s trial competition and was the President of multiple clubs. She comes to Otis, Bedingfield, & Peters after a fellowship with the Jefferson County District Attorney’s office-Appeals Division and after working over three and a half years for the Weld County District Attorney’s Office, most recently as one of the Special Victims Unit DA’s. She has handled over 40 jury trials, including everything from misdemeanor harassment to homicide. Brynne is also an artist of all sorts and enjoys writing, dancing, drawing, painting, and playing piano.

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Otis, Bedingfield & Peters, LLC provides a range of legal services throughout Northern Colorado. OBP has 16 attorneys spread across its two offices in Greeley and Loveland. For more information, contact Brynne Gant at bgant@nocoattorneys.com or Jennifer Lynn Peters at jpeters@nocoattorneys.com or call 970-330-6700 or visit www.nocoattorneys.com.

Otis, Bedingfield & Peters, LLC welcomes attorney Katie Butler to the litigation team

Otis, Bedingfield & Peters, LLC is proud to announce that Katie Butler has been admitted to practice law in Colorado.

Katie worked as a law clerk for the firm for about a year and she recently has been admitted to practice law in Colorado.

Katie graduated from the University of Arkansas School of Law. She received her Bachelor of Arts degree in Spanish and English from the University of Texas at Arlington. Before joining Otis, Bedingfield & Peters, she was In House Counsel for CrossFit, Inc., where she managed a large international trademark portfolio and navigated the company in its business issues. While in law school, Katie worked as a student attorney for the Transactional Clinic, aiding nonprofit businesses with organizational legal issues. Also, Katie served as a law clerk to the City Prosecutor in the home of her Alma Mater where she prosecuted misdemeanors and minor felony offenses. She currently volunteers at the Boys and Girls Club of Weld County.

 

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Otis, Bedingfield & Peters, LLC provides a range of legal services throughout Northern Colorado. OBP has 16 attorneys spread across its two offices in Greeley and Loveland. For more information, contact Katie Butler at kbutler@nocoattorneys.com or Jennifer Lynn Peters at jpeters@nocoattorneys.com or call 970-330-6700 or visit www.nocoattorneys.com.

Do I Have To Go Through Probate? (And What Is Probate Anyway?) By: Lee J. Morehead Esq.

Lee 120In Colorado, whether or not probate is required depends on the type and value of the property a deceased person (“decedent”) owns when they die. All of a decedent’s property is classified as either probate or nonprobate property. Generally, nonprobate property includes property owned in joint tenancy with others, life insurance proceeds, contracts with payable-on-death (POD) provisions, and property owned by a trust. Probate property on the other hand is property owned by the decedent individually or with others but not in joint tenancy. As the name implies, nonprobate property is not part of any probate. If a decedent owns only nonprobate property, then there is nothing to probate and you do not have to go through probate.

If a decedent owns any probate property, however, whether you have to go through probate depends on the type and value of the probate property. If any of the probate property is real property, then you have to go through probate. Real property is principally land and buildings. If none of the probate property is real property, then the value of the probate property determines if you have to go through probate. If the probate property is worth less than $64,000.00, then you do not have to go through probate. Instead, the probate property may be distributed using an affidavit. The $64,000.00 threshold is accurate for 2015 and changes annually based on the consumer price index.

If probate is required, don’t despair. Probate is simply a statutory process to finalize the decedent’s affairs because the decedent is not here to do it on their own. Finalizing a decedent’s affairs includes collecting the decedent’s probate property, using that property to settle the decedent’s debts, and distributing the rest to those who are entitled (“beneficiaries”). Because the decedent is not here, a court appoints someone, called the personal representative, to finalize the decedent’s affairs under the court’s supervision. The personal representative has a fiduciary obligation to the decedent’s creditors and beneficiaries to hold the decedent’s probate property for their benefit. Probate ensures creditors and beneficiaries do not end up with more or less property then they should.

To start a probate, an interested person files a petition with the district court for the county in which the decedent last resided. An interested person includes the decedent’s spouse, children, beneficiaries and creditors. The petition, among other things, nominates someone to be the personal representative. Colorado law prioritizes who may serve as the personal representative with the highest priority going to whomever the decedent nominated in their will. If there is a will, the original must be lodged with the court. If the decedent did not have a will, the next highest priority is the decedent’s spouse, followed by any beneficiary, the decedent’s heirs, and lastly the decedent’s creditors. After the petition is filed, the court will appoint someone as the personal representative and issue letters showing the court authorizes the personal representative to handle the decedent’s affairs.

Part of the petition is to elect between formal or informal probate. Formal probate has more court oversight of the personal representative compared to an informal probate. It is up to the person filing the petition to decide between formal or informal probate.

Once appointed, the personal representative informs the beneficiaries and the decedent’s creditors of the probate and appointment. The Decedent’s creditors then have four months to let the personal representative know if the decedent died with a debt. The personal representative then collects the decedent’s probate property and files a list of that property with estimated values with the court. By the end of the four months, the personal representative knows about all of the decedent’s probate property and all of the decedent’s debts. The personal representative then settles the debts using the decedent’s probate property.  If the probate is formal, the personal representative may need prior court approval before settling any debts.

Once the debts are settled, the personal representative distributes the decedent’s remaining probate property to the beneficiaries. If the probate proceeding is formal, the personal representative may need prior court approval. The personal representative will distribute the probate property according to the will, but if there is no will, then pursuant to statute described below

  • The decedent’s spouse inherits everything if (1) the decedent died without parent or child, or (2) all of the decedent’s children are the only children of the spouse.
  • The decedent’s children inherit everything if the decedent died without a spouse.
  • The decedent’s parents inherit everything if the decedent died without a spouse or child. The decedent’s siblings inherit everything if the decedent also died without a parent.
  • The spouse inherits the first $335,000 worth of probate property plus 75% of the remainder if the decedent died without a child but was survived by a parent. The parent inherits the rest.
  • The spouse inherits the first $251,000 worth of probate property plus 50% of the remainder if all of the decedent’s children are also children of the spouse, but the spouse has children that are not children of the decedent. The decedent’s children inherit the rest.
  • The spouse inherits the first $167,000 worth of probate property plus 50% of the remainder if the any of the decedent’s children are not children of the spouse. The decedent’s children inherit the rest.

The amounts above are accurate for 2015 and change annually based on the consumer price index.

Once the remaining probate property is distributed, the probate case may be closed. The process for closing the probate depends on whether the probate is formal or informal. One year after closing the probate case, the personal representative is relieved of the obligation to handle and care for the probate property for the benefit of the creditors and beneficiaries.

Involving Litigation Counsel Early on in a Dispute Can Help Keep You Out of Court- By: Jennifer Lynn Peters

BW Thought Leaders JLP

Otis, Bedingfield & Peters, LLC attorney Christian J. Schulte appointed to the Greeley Chamber of Commerce Board of Directors

christian-120x180 2Otis, Bedingfield & Peters, LLC is proud to announce that attorney Christian J. Schulte has been accepted to The Greeley Chamber of Commerce Board of Directors.

The Greeley Chamber of Commerce is an investment organization that is driven to meet the needs of the businesses in our community. The chamber is a great source of information for assisting and promoting businesses.

The Greeley Chamber of Commerce Board of Directors develops and oversees the implementation of the Chamber’s Strategic Plan. They identify policies and initiatives for the benefit of all Chamber investors.

“I am truly pleased to be involved with the Greeley Chamber, because it does so much to help our city thrive. It’s a great group of people to work with, and I’m looking forward to doing my part,” said Christian J. Schulte.

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Otis, Bedingfield & Peters, LLC provides real estate law and business law services throughout Northern Colorado. OBP has 13 attorneys spread across its two offices in Greeley and Loveland.  For more information, contact Christian J. Schulte at cschulte@nocoattorneys.com or Jennifer Lynn Peters at jpeters@nocoattorneys.com or 970-330-6700 or visit www.nocoattorneys.com.

 

Otis, Bedingfield & Peters, LLC welcomes attorney Nathaniel Wallshein

Nathaniel Wallshein 120X120

Nathaniel Wallshein joins the firm as a litigation associate. Before joining Otis, Bedingfield & Peters, Nate worked as a judicial fellow for the Honorable Norman D. Haglund. He most recently served as law clerk for the Honorable R. Michael Mullins of the Denver District Court.

“We are excited to bring a talented young lawyer like Nate to Northern Colorado and our firm,” says managing member Jennifer Lynn Peters. “Nate’s energy and passion for the law is infectious, and in the short time he has been with us he has already made a big contribution to our ongoing complex cases.”

Nate was born and raised in Northern Virginia. He received his undergraduate degree from the University of Connecticut and he earned his J.D. from the University of Colorado Law School. During law school, he worked as a law clerk for the Office of the Solicitor at the U.S. Department of the Interior, and as a law clerk for the Office of Chief Counsel at the U.S. Department of Energy.  Nate also worked as a student attorney for the Natural Resources Law Clinic. There he represented a variety of organizations in litigation concerning Forest Service approval of two coal leases within the Thunder Basin National Grassland.

Nate is admitted to practice in Colorado and is a member of the Colorado Bar Association. His practice at the firm will focus on complex commercial litigation, probate litigation and appeals.

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Otis, Bedingfield & Peters, LLC provides real estate law and business law services throughout Northern Colorado. OBP has 12 attorneys spread across its two offices in Greeley and Loveland. For more information, contact Nathaniel Wallshein at nwallshein@nocoattorneys.com or Jennifer Lynn Peters at jpeters@nocoattorneys.com or 970-330-6700 or visit www.nocoattorneys.com.

So You Think You Can Sue? Beware of Laches!

 

The Statute of Limitations May No Longer be Your Deadline to Bring a Claim

 


By:  Lee J. Morehead, Esq.

I remember sitting in my first year civil procedure class when Professor John Greabe said,

“The way to remember the statute of limitations defense is S.O.L. If you do not bring your claim before the statute runs, your client is S.O.L.”

In Colorado, this is still true but thanks to a recent opinion by the Colorado Supreme Court, even if the statute of limitations has not expired, a plaintiff may still be “S.O.L.” because of the doctrine of laches.  In Hickerson v. Vessels, the Colorado Supreme Court held the doctrine of laches may defeat a lawsuit that was filed within the statute of limitations.  316 P.3d 620, 623 (Colo. 2014).  This ruling has caused me, and my fellow Colorado trial attorneys, many a sleepless night.  Practitioners and litigants alike thus need to be aware that waiting too long to file your lawsuit could mean you lose your claim completely.

The doctrine of laches is a common law doctrine that limits the time a plaintiff has to bring a claim.  Keller Cattle Co. v. Allison, 55 P.3d 257, 260 (Colo. App. 2002).  A statue of limitations is similar, but is a specific statutory provision that bars a claim from being filed after a set time period.  See  C.R.S. § 13-80-101(1) (2013).  For example, a party to a contract that believes a breach has been committed typically has to bring a lawsuit to recover damages for that breach within 3 years of the time the breach occurred.  The doctrine of laches sounds eerily similar to a statute of limitations.   However, for many practitioners and litigants, when and whether laches would apply was something of a guessing game, whereas when the statute of limitations ran out was relatively easy to determine.

Based on the Colorado Supreme Court’s recent ruling in Hickerson, the statute of limitations is now not the only limit to when a litigant may bring suit.

“What the statute of limitations gives in time, the doctrine of laches may take back.”

316 P.3d at 624.  For example, when someone has been defrauded, the victim must bring their claim within three years of discovering the fraud, pursuant to the statute of limitations.  C.R.S. § 13-80-101(1)(c) (2013).  However, what the statute gives the doctrine of laches takes.  Under the doctrine of laches, the victim of the fraud may have to bring her suit earlier than three years if (a) she had full knowledge of the facts, (b) she unreasonably delayed her assertion of the fraud, and (c) the tortfeasor or someone else had come to rely on the lack of prosecution or is prejudice by the delay.  Hickerson, 316 P.3d at 623 (quoting City of Thornton v. Bijou Irr. Co., 926 P.2d 1, 73 (Colo. 1996).  So for a fraud victim, the statute of limitations states she has to bring her claim within three years, but the doctrine of laches may make that time period much shorter if these three elements are present.

What does this mean for parties bringing a lawsuit in Colorado? It means in addition to looking at when the statute of limitations may expire on your claim, other factors must also be considered lest a zealous defense attorney seek to dismiss your claim because you delayed in filing your lawsuit.  Gone are the days of relying solely on the statute of limitations to determine when a claim must be filed.

The result in Hickerson may at first blush seem harsh and uncertain, but the doctrine of laches is not the only legal doctrine that can shrink or expand the time in which a party has to file a lawsuit.  Throughout both common and statutory law there are other mechanisms to shrink or extend a deadline to file suit.  When a litigant files suit, pursuant to Colorado Rule of Civil Procedure 13, the defendant must bring all of its counterclaims arising from the same transaction or occurrence as the plaintiff’s claim regardless of the deadline set by the applicable statute of limitations.  C.R.C.P. 13(a); see also C.R.S. § 13-80-109 (2013).  Also, within the statute of limitations itself are tolling provisions extending the deadline a litigant may file suit in specific situations.  See C.R.S. 13-80-113 (2013) (stating payment on a debt starts the statute of limitations period over).  Lastly, the doctrine of res judicata may bar a litigant from pursuing a claim they should have included in the initial suit.  See Argus Real Estate, Inc. v. E-470 Public Highway Authority, 97 P.3d 215 (Colo. App. 2003).  Thus, the statute of limitations is not the only statute or common law that may affect the deadline to file suit.

It is unclear how provisions of Colorado law that toll a statute of limitations will now be interpreted in light of the Colorado Supreme Court’s recent ruling that the doctrine of laches may nevertheless bar a claim that was filed before the statute of limitations expired.  What is clear is that litigants and practitioners must now add laches as another deadline setting paradigm in determining when the deadline is by which a lawsuit must be filed.  The problem with the doctrine of laches being added to this analysis is that laches has its roots in equity and, as such, its use and applicability are determined on a case-by-case basis.  City of Thornton, 926 P.2d at 73.  One court may deem a certain set of facts to trigger laches and bar suit where another court with similar facts may determine laches does not bar suit.  Because the doctrine of laches is determined on a case-by-case basis, there is no clear guideline about when the doctrine will apply and when it will not.

For now, to avoid uncertainty, those individuals and businesses who believe they may have a case should consult an experienced litigation attorney sooner rather than later.  The clear message from the Colorado Supreme Court is to file before it is too late.  Since the statute of limitations is no longer the only deadline for determining when a lawsuit is filed too late, acting quickly is the only sure way to make sure you are not S.O.L.