24CA0504 Omer v Nsirat 05-08-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0504 Arapahoe County District Court No. 22CV30398 Honorable Ben L. Leutwyler III, Judge
Alia Omer and Anwar Elhoweris a/k/a Anwar Omer,
Plaintiffs-Appellants,
v.
A. Mohammed Nsirat,
Defendant-Appellee.
JUDGMENT AFFIRMED
Division VII Opinion by JUDGE JOHNSON Lipinsky and Moultrie, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 8, 2025
Muhaisen & Muhaisen, LLC, Wadi Muhaisen, Scott C. Hammersley, Denver, Colorado, for Plaintiffs-Appellants
Jan L. Hammerman, Englewood, Colorado, for Defendant-Appellee ¶1 In this dispute over the purchase and sale of a day-care
center, plaintiffs, Alia Omer and Anwar Elhoweris, a/k/a Anwar
Omer (collectively the Omers),1 appeal the district court’s judgment
on the pleadings entered in favor of defendant, A. Mohammed
Nsirat, a/k/a Mohammed A. Nsirat (Nsirat).
¶2 The Omers contend that the district court erred by (1)
dismissing their claim for declaratory relief because an ongoing
controversy existed so that their contract-based claims (claims two
through six of the second amended complaint) are not barred by the
applicable statute of limitations; (2) dismissing their tort and fraud
claims (claims nine through eleven of the second amended
complaint) because those claims arise from conduct occurring after
March 2020, and thus fall within the applicable statute of
limitations; and (3) failing to apply the doctrines of equitable tolling
or continuous breach, even if the statutes of limitation have run.
We disagree with all their contentions and, thus, affirm the
judgment.
1 We later refer to Alia Omer by her first name for clarity because
the Omers share the same last name. We intend no disrespect by doing so.
1 I. Background
¶3 The Omers ostensibly entered into an agreement with Nsirat to
purchase all the assets of a business known as Children Chalet,
a/k/a Children’s Chalet, a licensed day-care facility. Because they
allege that Nsirat kept the assets despite their purchase of the
business, the Omers filed this lawsuit on March 4, 2022.
¶4 As alleged in their second amended complaint, the Omers
purchased the assets of Children’s Chalet according to a bill of sale
dated January 1, 2009. The bill of sale is the only document that
exists related to this business transaction. It says that the Omers
paid $290,000 of the $300,000 purchase price for the assets. The
bill of sale references an “Asset Purchase Agreement” and exhibits A
and B, which purportedly list office fixtures, equipment, and
leasehold improvements, but the Omers did not provide the court
with copies of these documents.
¶5 The Omers alleged that they had access to the checking and
savings accounts for Children’s Chalet since the date the bill of sale
was signed, and that they used the revenue of the business to pay
its expenses, salaries, and taxes. But they alleged that Nsirat
retained and controlled the business’s revenue and assets after
2 January 2009, he pledged the business’s assets as collateral for
various business loans that he obtained for his personal benefit,
and he wrongfully suspended the Omers’ access to the business’s
accounts in March 2020.
¶6 In all, the Omers asserted eleven claims for relief against
Nsirat: declaratory relief, breach of contract, specific performance,
breach of the covenant of good faith and fair dealing, promissory
estoppel, breach of fiduciary duty, fraud, unjust enrichment,
intentional interference with contractual obligations, fraudulent
concealment, and civil theft.
¶7 In Nsirat’s answer to the second amended complaint, he
denied that the Omers were entitled to any relief because he
remained the owner of Children’s Chalet. He asserted that the
Omers failed to make the required remaining payment, so the sale
was never completed. He admitted that the Omers, as senior
employees of the day-care center, had access to the corporate bank
account to pay certain business expenses, but he denied that they
had any authority to use the profits of Children’s Chalet.
¶8 Nsirat also asserted that, because the purchase was never
completed, he continued to be the sole owner of Children’s Chalet,
3 made all required tax payments, was the licensee with respect to
the state regulated day-care center, and generally directed the
operations of the business. He asserted that, while the Omers
served as senior employees of the business, and Alia served as
manager of the business and received a salary and bonuses, the
Omers never were the business’s owners.
¶9 Nsirat sought judgment on the pleadings, arguing that the
applicable statute of limitations had expired on all the Omers’
claims. After full briefing, the court held a hearing in February
2024. At that hearing, the court orally ruled in favor of Nsirat and
later entered an order saying that the transcript of the hearing
constituted the court’s written findings, order, and judgment.
II. Analysis
¶ 10 We conclude, as did the district court, that the Omers’ eleven
claims for relief arise from the same central controversy — whether
the Omers are the rightful owners of Children’s Chalet. And we
conclude that the district court did not err by granting judgment on
the pleadings in favor of Nsirat on all claims. We address, and
reject, each of the Omers’ appellate contentions in turn.
4 A. Standard of Review
¶ 11 We review de novo a district court’s decision to grant a motion
for judgment on the pleadings. Fischer v. City of Colorado Springs,
260 P.3d 331, 334 (Colo. App. 2010).
¶ 12 In evaluating a C.R.C.P. 12(c) motion for judgment on the
pleadings, the district court must construe the allegations of the
pleadings strictly against the movant, consider the factual
allegations in the complaint as true, and grant the motion only if
the matter can be determined on the pleadings and any facts of
which the court may take judicial notice. Hannon L. Firm, LLC v.
Melat, Pressman & Higbie, LLP, 293 P.3d 55, 58 (Colo. App. 2011);
see also Fischer, 260 P.3d at 334. Entry of judgment on the
pleadings is proper only if the material facts are undisputed and the
movant is entitled to judgment as a matter of law. Hannon L. Firm,
293 P.3d at 58.
¶ 13 The motion should not be granted unless the pleadings
themselves show that the matter can be determined on the
pleadings. Id.; see also Platt v. Aspenwood Condo. Ass’n, 214 P.3d
1060, 1066 (Colo. App. 2009). If a judgment on the pleadings is
entered, implicit in the district court’s disposition is that “the
5 controlling law and undisputed facts permitted resolution of the
entire matter without further discovery or introduction of evidence.”
Fischer, 260 P.3d at 334.
¶ 14 To the extent our analysis requires statutory interpretation, we
do so de novo. Smith v. Exec. Custom Homes, Inc., 230 P.3d 1186,
1189 (Colo. 2010). We must adopt a construction that “best
effectuates the intent of the General Assembly and the purposes of
the legislative scheme.” State v. Nieto, 993 P.2d 493, 501 (Colo.
2000). When construing a statute, we look at the plain language of
the statute and give words and phrases their ordinary meanings.
Fischbach v. Holzberlein, 215 P.3d 407, 409 (Colo. App. 2009). If
the language is unambiguous, we do not resort to interpretive rules
of statutory construction. Seaman v. Colo. Manufactured Hous.
Licensing Bd., 832 P.2d 1041, 1042 (Colo. App. 1991).
B. Declaratory Judgment and Substantive Claims
¶ 15 The district court found that the Omers’ claim for declaratory
relief involved a dispute to “determine the parties’ rights under a
contract, and therefore, it’s a claim relating to contract.” It applied
the three-year statute of limitations period for breach of contract
actions in section 13-80-101(1)(a), C.R.S. 2024, and concluded that
6 the Omers’ contract-related claims were time barred. But the
Omers contend that the court’s ruling on the pleadings was
inappropriate to resolve its declaratory judgment claim because
there was an ongoing controversy regarding Nsirat’s failure to
transfer the Children’s Chalet assets to them, as required by the bill
of sale. For five reasons, we disagree.
¶ 16 First, the Omers seek a declaration of their rights involving a
contractual dispute, so the limitations period for contract claims
applies to the Omers’ request for declaratory relief and to claims
two through six of the second amended complaint. Under C.R.C.P.
57 and Colorado’s Uniform Declaratory Judgments Law, sections
13-51-105 to -110, C.R.S. 2024, a district “court may exercise its
discretion to ‘declare rights, status, and other legal relations,’ so
long as the declaratory judgment would ‘terminate the uncertainty
or controversy.’” Zab, Inc. v. Berenergy Corp., 136 P.3d 252, 255
(Colo. 2006) (first quoting § 13-51-105; and then quoting § 13-51-
110).
¶ 17 We acknowledge that a party may seek a declaratory judgment
to resolve a dispute regarding the interpretation of a contract or the
legality of certain actions. See id. at 253 (holding that a party may
7 seek a declaratory judgment to declare the existence of an oral
contract when relief terminates the controversy or removes
uncertainty); Saxe v. Bd. of Trs. of Metro. State Coll. of Denver, 179
P.3d 67, 79 (Colo. App. 2007) (“A court may consider a declaratory
judgment action either before or after the contract has been
breached” to eliminate uncertainty.).
¶ 18 A declaratory judgment, however, is not intended to replace
substantive causes of action. In Harrison v. Pinnacol Assurance,
107 P.3d 969, 972 (Colo. App. 2004), a division of this court
determined that, when no substantive cause of action is asserted
with the request for declaratory relief, the catch-all statute of
limitations period of two years applies to the declaratory judgment
claim. See also § 13-80-102(1)(i), C.R.S. 2024 (all civil actions,
regardless of the theory upon which suit is brought, or against
whom suit is brought, must be commenced within two years after
the cause of action accrues, and not thereafter for “[a]ll other
actions of every kind for which no other period of limitation is
provided”). And in actions where substantive claims are asserted
alongside a claim for declaratory relief, the corresponding
substantive claims’ limitation periods control. Molleck v. City of
8 Golden, 884 P.2d 725, 727 (Colo. 1994) (applying the limitations
period for election contests in effect at the time); Com. Union Ins. Co.
v. Porter Hayden Co., 698 A.2d 1167, 1192-93 (Md. Ct. Spec. App.
1997) (the statute of limitations for declaratory judgment actions
should coincide with that of the underlying coercive action). Thus,
the Omers cannot assert a declaratory judgment action to get
around or avoid the applicable statutory limitation periods related
to their substantive causes of action.
¶ 19 Second, because the Omers seek a declaration of their rights
under a contract, the limitations period of three years in section 13-
80-101(1)(a) controls. Section 13-80-101(1)(a)’s plain language is
unambiguous, stating that the three-year limitations period applies
to all contract disputes, “regardless of the theory upon which suit is
brought.” (Emphasis added.) See also Rotenberg v. Richards, 899
P.2d 365, 368 (Colo. App. 1995). By attempting to circumvent that
limitations period through the guise of a declaratory action, the
Omers ignore that resolving the ongoing dispute for declaratory
relief purposes requires the court to determine the rightful owner of
the business pursuant to the bill of sale.
9 ¶ 20 Third, we reject the Omers’ contention that, because claims
nine through eleven of the second amended complaint involve
Nsirat’s actions after March 2020, they are not time barred. Claim
nine (intentional interference with contractual relations) is subject
to the two-year limitations period for tort claims in section 13-80-
102(1)(a), or the three-year period for contracts in section 13-80-
101(1)(a). The court applied the three-year period.2 Claims ten and
eleven (fraudulent concealment and civil theft, respectively) are
subject to the three-year period for fraud in section 13-80-101(1)(c).
¶ 21 Again, the main dispute between the Omers and Nsirat
involves ownership of Children’s Chalet. If Nsirat restricted the
Omers’ access to the corporate bank accounts in March 2020, his
action would only be impermissible if the Omers fully complied with
the terms reflected in the bill of sale; otherwise, Nsirat — as the
owner of the business — could add or remove signatories to the
accounts as he deemed appropriate. Because Nsirat’s actions in
2 We need not decide whether the claim of interference with
contractual relations is subject to section 13-80-101(1)(a), C.R.S. 2024, or section 13-80-102(1)(a), C.R.S. 2024 because, in either scenario, our conclusion remains the same: the claim is time barred.
10 March 2020 hinge on the rights of the parties under a contract, we
agree with the district court that claims nine through eleven are
also time barred.
¶ 22 Fourth, the district court properly determined the time period
within which the Omers should have discovered the alleged breach.
Although the district court’s order did not specifically address when
the Omers should have discovered their fraud or tort claims, the
contract analysis in this case does not differ from the analysis for
their fraud and tort claims.
¶ 23 The interpretation of when a claim accrues under a statute of
limitations is an issue of law that we review de novo. Rider v. State
Farm Mut. Auto. Ins. Co., 205 P.3d 519, 521 (Colo. App. 2009). But
whether the statute of limitations bars a particular claim because a
court finds certain circumstances exist is generally a question of
fact. Sulca v. Allstate Ins. Co., 77 P.3d 897, 899 (Colo. App. 2003).
¶ 24 For contract and fraud claims, a cause of action accrues on
the date the breach or fraud “is discovered” or “should have been
discovered by the exercise of reasonable diligence.” § 13-80-108(3),
C.R.S. 2024 (fraud); § 13-80-108(6) (contract). The cause of action
is discovered when the party obtains knowledge of the facts
11 essential to the claim, not knowledge of the legal theory supporting
it. Int’l Network, Inc. v. Woodard, 2017 COA 44, ¶ 10 (citing Murry
v. GuideOne Specialty Mut. Ins. Co., 194 P.3d 489, 492 (Colo. App.
2008)). Such knowledge includes information that would lead a
reasonable person to inquire further. Id.
¶ 25 Tort claims generally do not begin to accrue until there is “at
least some damage” resulting from the wrongdoer’s action. Duell v.
United Bank of Pueblo, N.A., 892 P.2d 336, 340 (Colo. App. 1994).
But the statute of limitations period begins to run once some injury
has occurred, “notwithstanding that further injury continues to
occur.” Id. (emphasis added).
¶ 26 The district court determined that the Omers’ claims began to
accrue on January 1, 2009, or some reasonable period of time
thereafter. The court determined that Nsirat’s alleged breaches
were easily discoverable within “weeks or mere months after the
closing,” and it could not find any allegation in the pleadings to
support the Omers’ argument that discovery would have been
“years subsequent to the sale of the business.”
¶ 27 But the Omers contend there are disputed facts as to when
they should have discovered Nsirat’s breaches of the bill of sale. We
12 disagree. The Omers continued to work at Children’s Chalet with
Nsirat and could have easily discovered whether Nsirat failed to
transfer business assets to them or refused to cease his oversight of
day-care operations once the Omers became the owners. As part of
their opposition to Nsirat’s motion for judgment on the pleadings,
they could have asserted additional facts or produced documentary
evidence to support why there were disputed facts with respect to
when they should have discovered the alleged breaches, such as
producing documents that established the sale of the business had
been completed; showing that Nsirat concealed information from
them preventing them from verifying the asset transfer had not
taken place; demonstrating their belief that they owned the
business because Nsirat stopped working there and no longer had
access to the business’s bank accounts; or evidencing that state
licensure of the business had been transferred to their own names,
contrary to Nsirat’s assertions that state licensure remained in his
name. But the Omers proffered no such evidence.
¶ 28 Likewise, the Omers could have discovered any fraud or tort
within a reasonable period of time after the breach of contract when
Nsirat denied that the sale had been completed, continued to
13 operate the business, or declined to transfer the assets to the
Omers. In short, we agree with the district court that the Omers
did not allege facts to support that, following January 1, 2009,
Nsirat obscured his role in the business so that it would not have
been evident to the Omers that he continued to own and control the
business.
¶ 29 Fifth and finally, the Omers’ reliance on Woodard is misplaced.
There, a jury rejected the seller’s statute of limitations defense in
which the defendant seller argued that the plaintiff broker, who did
not file the lawsuit until 2011, could have discovered the breach of
contract in 2006. Woodard, ¶¶ 12-15. The broker testified at trial
that the seller had intentionally concealed his actions from the
broker. Id. at ¶ 14. Because of the seller’s acts of concealment, the
division affirmed that the broker could not have discovered the
seller’s breaches earlier through the exercise of reasonable
diligence. Id. at ¶¶ 16-17.
¶ 30 Unlike Woodard, and as discussed above, the Omers put forth
no facts that alleged they were prevented from discovering or could
not have discovered Nsirat’s alleged breach of the bill of sale, fraud,
or tortious conduct well before March 2022 when they filed their
14 lawsuit. Therefore, we conclude the district court did not err by
finding that the Omers’ claims were all time barred.3
C. Equitable Tolling
¶ 31 The Omers argue that, even if the two- or three-year statutes
of limitation apply to their claims, they should be tolled due to
Nsirat’s alleged concealment and deceit. Specifically, they contend
that Nsirat (1) restricted their access to the business’s financial
accounts; (2) used the business’s assets to secure several business
loans for his personal use; and (3) retained control over the
business’s revenue and assets for his personal use and unrelated
business ventures, despite their purchase of the business.
¶ 32 Colorado recognizes the doctrine of equitable tolling, which
courts have applied in limited circumstances, such as when a
defendant actively prevents a plaintiff from discovering the cause of
action. See Brodeur v. Am. Home Assurance Co., 169 P.3d 139,
149-50 (Colo. 2007); Olson v. State Farm Mut. Auto. Ins. Co., 174
3 We deem abandoned on appeal any claims of error involving the
court’s judgment on the pleadings concerning claim seven (fraud) and claim eight (unjust enrichment), as the Omers do not raise any arguments relating to these claims in their briefs. See Buckhannon v. U.S. W. Commc’ns, Inc., 928 P.2d 1331, 1334 (Colo. App. 1996).
15 P.3d 849, 858 (Colo. App. 2007). Such conduct may include acts of
concealment. See First Interstate Bank of Fort Collins v. Piper
Aircraft Corp., 744 P.2d 1197, 1202 (Colo. 1987) (holding that the
defendant’s fraudulent concealment equitably tolled the statute of
limitations). Equitable tolling may also be applied where
“extraordinary circumstances make it impossible for the plaintiff to
file his or her claims within the statutory period.” Dean Witter
Reynolds, Inc. v. Hartman, 911 P.2d 1094, 1097 (Colo. 1996).
¶ 33 As discussed above, the Omers fail to allege any facts that
would support a finding that Nsirat actively concealed any
breaches, fraud, or tortious conduct, or misled them in a way that
prevented them from discovering that the assets of Children’s
Chalet had not been transferred to them. The Omers also do not
allege any facts as to how Nsirat prevented them from filing their
lawsuit before March 2022. For example, the Omers allege that
Nsirat removed them as signatories from the bank accounts in
March 2020, but this fact does not support a finding that Nsirat
engaged in an act of concealment. And the fact that Nsirat
remained on the corporate accounts instead suggests that he
openly held himself out as the owner of Children’s Chalet. In other
16 words, if the parties had finalized the sale, the Omers would have
had notice well before March 2022 that Nsirat failed to uphold his
end of the bargain and therefore could have filed suit before the
applicable limitations periods ran.
¶ 34 Therefore, we discern no error in the district court declining to
apply the doctrine of equitable tolling.
D. Continuing Breaches
¶ 35 Finally, the Omers assert that the statutes of limitation should
not bar their claims because Nsirat’s actions constituted continuing
breaches of the agreement. Specifically, the Omers maintain that
the continuing breaches stem from Nsirat’s ongoing obligation to
the Omers to undertake actions to complete the transfer of the
assets of Children’s Chalet.
¶ 36 The district court pointed out a trespass claim of someone’s
property as an example of a continuing offense. It said that “[a]
claim for trespass arises when the trespass occurs, or when the
plaintiff reasonably discovers the trespass.” The court continued,
“The trespass can be [an] ongoing offense if a defendant maintains
the violating presence on the property of another — erects a
building or something on the property of another. Then that
17 trespass continues every day that that violation remains.” See
Hoery v. United States, 64 P.3d 214, 216-17 (Colo. 2003) (applying
the concept of continuing torts to a property owner’s claim of
trespass involving toxic chemicals).
¶ 37 But the court said that Nsirat’s duty to perform under the bill
of sale did “not present any continuing duty to perform” because
the Omers’ payment of monies and Nsirat’s transfer of the
business’s assets were “discrete” actions. So too, the court
reasoned, Nsirat’s alleged failure to deliver the business assets to
the Omers was a “discrete action that should have been discovered
within a very reasonable time after the sale,” and waiting ten to
thirteen years following the purported sale before filing suit “is not a
reasonable period of time.” We agree with the district court’s
reasoning.
¶ 38 Nonetheless, the Omers rely on Neuromonitoring Associates v.
Centura Health Corp., 2012 COA 136, to support that the parties’
agreement is subject to continuing breaches. This case, however, is
inapposite. In Neuromonitoring, a division of this court determined
that, where there are successive breaches for continuing
contractual obligations, a new breach occurs “for each separate
18 breach,” thus entitling a plaintiff to bring a separate claim. Id. at
¶ 36 (quoting Noonan v. Nw. Mut. Life Ins. Co., 687 N.W.2d 254, 262
(Wis. Ct. App. 2004)). At issue in that case was an agreement
subject to automatic one-year renewals. Id. at ¶ 3. Although the
defendant sought to apply the three-year statute of limitations for
contract disputes, the plaintiff argued, and the division agreed, that
each automatic renewal of the contract created a continuing or new
breach. Id. at ¶¶ 5, 6.
¶ 39 The case is distinguishable from the Omers’ situation because
(1) there is a lack of documentation supporting that the parties had
a completed agreement upon which to base continuing duties and,
therefore, Nsirat’s alleged continuing breaches; and (2) there were
no renewal periods set forth in the bill of sale creating new
contractual obligations. Therefore, we do not agree that any
continuing breaches render the Omers’ claims timely filed.
¶ 40 Accordingly, we conclude the district court properly entered
judgment on the pleadings in favor of Nsirat because the Omers’
claims are all time barred.
III. Conclusion
¶ 41 The judgment is affirmed.
19 JUDGE LIPINSKY and JUDGE MOULTRIE concur.