Probate case complicated by companies’ books in disarray
By Patrick Danner
San Ant
SAN ANTONIO (AP) — Real estate tycoon and cowboy extraordinaire James F. Cotter died as he lived, sowing confusion among the people he loved.
Since his death from cardiac arrest Jan. 25, 2017, his estate has been the subject of much dispute and legal maneuvering among his surviving widow, five children, his lenders, creditors and the IRS.
The San Antonio Express-News reports Cotter died at 83 without a valid will. The bulk of his estate, valued at about $288 million 13 months before his death, comprises a vast real estate empire of 66 properties in six states. In San Antonio, it includes the twin Alamo Towers along Northeast Loop 410 and the two Petroleum Towers just around the corner on Tesoro Drive.
After Cotter’s death, Bexar County Probate Judge Tom Rickhoff appointed San Antonio attorney Marcus Rogers as the independent administrator to oversee the estate.
Rogers called it “the case of a lifetime” but would not discuss it further, saying he considered it a family matter.
The probate case is further complicated by the fact that the Cotter companies’ books were left in disarray, Rogers noted in a March court filing.
The balance sheets reflect “substantial intercompany-related accounts that did not balance and had not been reconciled for what appears to be many years,” he said.
As a result, Rogers added, “balance sheets cannot be relied upon to represent the true book value of the assets, liabilities and equity accounts.”
The loans on the real estate were personally guaranteed by Cotter, so his death “resulted in an event of default on virtually every mortgage,” one court document reads.
The companies that own Petroleum Towers, Alamo Towers and a 36-story Cotter Ranch Tower office building in Oklahoma City, considered the Cotter portfolio’s crown jewel, were put into bankruptcy after his death. The latter two bankruptcies were filed to stop lenders from foreclosing on the properties.
Other Cotter entities narrowly skirted bankruptcy themselves, a lawyer for the companies recently said in U.S. Bankruptcy Court in San Antonio. Many of Cotter’s properties have been put up for sale.
“This is a good example of how you don’t want to exit,” attorney Randall Pulman quipped. Pulman, managing partner of Pulman, Cappuccio, Pullen, Benson & Jones in San Antonio, represented Cotter in a dispute with a janitorial company that sued Cotter and some of his companies for unpaid cleaning services.
Cotter was born “from humble beginnings” in Boise, Idaho, one of his obituaries reads.
Cotter served in the 82nd Airborne Division during the Korean War and attended Walla Walla College in Washington state after leaving the Army. Before graduating, he made his foray into the real estate business by developing a 36-lot subdivision, he told the San Antonio Express-News in 2007.
He later moved to Northern California and bought his first nursing facility under the name Cotter Health Centers.
Cotter was “a self-made man and had very strong religious and Christian principles,” San Antonio attorney Richard Jenkins, who had represented the real estate magnate, said in an affidavit in the probate case last year.
BJ Corp., a cleaning company that sued Cotter and his companies to collect on allegedly unpaid bills, had a different take.
“The Cotter defendants have a reputation for failing to pay their debts when due in an effort to cheat small businesses and to gain an advantage,” BJ Corp. said in its lawsuit.
Cotter was a colorful character, often clad in a cowboy hat and boots, and even required his building security staff to wear similar western attire, The Oklahoman newspaper reported. He bought what’s now known as the 36-story Cotter Ranch Tower, his prized office tower in downtown Oklahoma City, in the 2000s. A bronze statue in front of the building depicts Cotter astride a horse.
“He always had a story, sort of like a mix between visiting with Forrest Gump and the Marlboro man,” Pulman said. “He had a story about all sorts of significant events in history and how he was a bystander.”
Cotter is survived by his third wife, Bettye “Ruth” Cotter, two daughters and three sons.
Cotter’s marriage to his first wife, Loretta, produced three children: Vivian Mueller, 61; James Val Lee Cotter, 59; and Valeri Zaharie Glauser, 53. The couple divorced in 1981 after 26 years of marriage.
Four years later, the then-53-year-old Cotter remarried to a woman more than half his age. The union lasted less than three years but produced his two youngest sons, James Adam Cotter, 31, and James Andrew Cotter, 29.
Why he gave each of his three sons the same first name is somewhat of a mystery.
“He wondered about that himself,” said Ruth Cotter, 81, his longtime companion whom he married in 2012.
For all of his accomplishments in life, Cotter apparently wasn’t much of a planner or very organized. In dying without a will, or at least one that was declared valid, his final wishes for his vast real estate portfolio are unknown.
Even the value of his estate is in dispute.
Cotter’s assets were valued at $287.9 million 13 months before his death, with his real estate holdings representing all but about $41 million as of Dec. 31, 2015, according to a Statement of Financial Condition submitted in the probate case. His liabilities were listed at $181.7 million.
Yet in April 2017, while the probate estate was being contested, Rickhoff wrote a letter to estate administrator Rogers and other attorneys in the case letting them know that he had been informed by another judge who had briefly filled in for him that the “value of this estate is somewhat speculative in nature.”
“In such cases, I often prefer to determine whether or not the estate is solvent and then after the dollar signs in the parties’ eyes disappear and they get realistic about the decisions that need to be made to resolve the real issues in the case, set relevant matters for hearings,” Rickhoff wrote.
The judge then added, “Set everything you want, but I sense a bankruptcy which will stay anything I do anyway.”
Rogers valued Cotter’s assets at $54 million in a May 1 court filing. But that doesn’t take into account what’s owed to lenders and other creditors. It also doesn’t include properties outside Texas that are being worked out in other states. A court filing from last year valued those assets at about $69 million.
Sorting things out has been time-consuming. Ryan Reed, Pulman’s law partner and attorney for Cotter’s two youngest sons, speculated that all the heirs are “slightly unhappy” about how the probate case has been proceeding.
“The family business assets are no longer Mr. Cotter’s to run as he pleases, but now have to be administered to pay taxes, debts and ultimately be distributed to the respective heirs,” Reed said. “It’s simply a different dynamic, and they are all trying to figure out how to transition.”
Cotter’s largest creditor was Loma Linda University, a Seventh-day Adventist health sciences university in California. It’s owed more than $42 million in secured debt on various properties, according to a court filing.
The IRS is owed up to $30 million in estate taxes, Reed said, adding that the agency authorized the sale of some property to pay the estate taxes and keep the real estate business running.
Rogers is “selling properties, but there’s no money coming to me,” Ruth Cotter complained in a recent phone interview. She was receiving a monthly $25,000 “family allowance” from the estate until April. In court papers seeking to continue the payments, she accused Rogers of “engaging in financial dealings” with the estate’s other beneficiaries. Rogers denied the allegations in a brief response filed with the court.
“He was strong-willed and he worked hard,” Ruth Cotter said of her late husband. “And I’d hate to see all of that hard work just go away.”
San Antonio lawyer Jason Davis, who in the probate case represents the three children from Cotter’s first marriage, didn’t respond to requests for comment.
Cotter’s death was unexpected, according to a bankruptcy court document, though he complained of various ailments in a 2014 deposition. He cited heart trouble, diabetes and neuropathy, or damage to nerves that often causes weakness, numbness and pain.
Three weeks after Cotter’s death, Ruth Cotter filed an application asking the probate court to appoint her the temporary administrator of his estate. The five children immediately contested her appointment, contending that they were the sole beneficiaries.
Daughter Valeri Glauser and second son James Adam Cotter wanted to be named the estate’s co-administrators. They also filed a handwritten will that Cotter crafted in 1981 — before his two youngest sons were even born. The will named his three oldest children and his mother, among others, as beneficiaries.
“Being of sound mind, gangled (sic) nerves, and nothing but pitie (sic) on those that read this and especially those that must carry on in my stead. Weep not for me; weep for your selves,” Cotter wrote in the disjointed document.
Ruth Cotter opposed the will. She said her husband left behind a more recent will and provided affidavits from three women who worked at Cotter companies and vouched for the document. If it exists, it has never turned up.
Last June, the parties reached a mediated “Family Settlement Agreement.” Under the plan, one-sixth of the estate — after debt, taxes and other expenses are paid — will be used to fund a trust to support Ruth Cotter for the rest of her life. An independent trustee agreed upon by the parties will administer the trust.
Ruth Cotter said documents Rogers provided during the mediation “were misleading and in retrospect were not a sound basis for a negotiation of such magnitude,” a court filing states. She also contends that other heirs have attempted, through Rogers, “to underfund (her) share with assets that have been significantly overvalued.”
Rogers disputed the allegations. The judge has yet to take up the issue.
Assets awarded to Ruth Cotter include the couple’s Dominion home, some vehicles (he had more than 120, including a 1905 Franklin Runabout), home furnishings and cash, court documents show.
The Dominion estate was sold last month. It had been listed for more than $1.2 million, but Ruth Cotter said the return was “quite small.” James Cotter had purchased the property on Cotswold Lane from country music star George Strait in 1994, county records show.
“There was quite a bit of debt on it,” Ruth Cotter said, adding that she had to make a lot of repairs. She declined to say where she’s living now.
In August, Rickhoff awarded each of Cotter’s children a 20 percent interest in the property that James Cotter didn’t jointly own with his wife. The children also stand to receive 20 percent of their father’s share of the community property, subject to Ruth Cotter’s share while she’s still alive.
The actual amount each will receive isn’t known yet because the disposition of many of Cotter’s properties is still underway.
Commercial real estate brokerage firm Cushman & Wakefield is selling nine office properties totaling more than 1 million square feet in San Antonio and Houston.
At a May 16 bankruptcy court hearing involving Alamo Towers, attorney H. Anthony Hervol said there were three prospective bidders for the buildings. A sale would require court approval.
Cotter Ranch Tower, the Oklahoma City office building, is under contract to BancFirst of Oklahoma City for $23 million, Hervol said during a recent bankruptcy court hearing. A higher offer could still be submitted. Any deal also requires the court’s approval.
It’s an outcome that Cotter may not have wanted, if his 1981 handwritten will is any guide.
Cotter urged his heirs to “be careful about selling anything.”
“It did not come easy,” he wrote. “I earned it the hard way.”
