24CA1372 Timnath Trail v Town of Timnath 06-26-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1372 Larimer County District Court No. 22CV30689 Honorable C. Michelle Brinegar, Judge
Timnath Trail LLC, a Wisconsin limited liability company,
Plaintiff-Appellant,
v.
Town of Timnath, a Municipal corporation of the state of Colorado,
Defendant-Appellee.
JUDGMENT AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division V Opinion by JUDGE JOHNSON Fox and Grove, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced June 26, 2025
Johnson Muffly & Dauster, PC, Ezekiel L. Rauscher, Fort Collins, Colorado, for Plaintiff-Appellant
Robinson Waters & O’Dorisio, P.C., Mike Lazar, Gianna C. Rossi, Denver, Colorado, for Defendant-Appellee ¶1 Plaintiff, Timnath Trail, LLC (Timnath Trail), a Wisconsin
limited liability company, appeals the district court’s grant of
summary judgment in favor of defendant, Town of Timnath (the
Town), a home rule municipal corporation within Larimer County.
Timnath Trail contends that the district court erred by applying the
three-year statute of limitations in section 13–80–101(1)(a), C.R.S.
2024, to its breach of contract claim, instead of applying the six-
year statute of limitations in section 13–80–103.5, C.R.S. 2024. In
the alternative, Timnath Trail contends that, if the three-year
statute of limitations governs, there are genuine issues of material
fact in dispute as to when its claim began to accrue and, thus, its
claim is not time barred.
¶2 We partially agree with Timnath Trail. We conclude that the
district court erred by applying the three-year statute of limitations
to the portion of Timnath Trail’s breach of contract claim
concerning the development impact fees that it paid to the Town
beginning in 2018, as the district court’s interpretation of the
contract does not give effect to the parties’ intent. Because the
development impact fees are determinable, we conclude that the
district court should have applied the six-year limitations period.
1 As to the school fees, however, we agree with the district court that
those fees were not determinable and, thus, the court properly
applied the three-year statute of limitations. We also conclude that
the court properly determined the date when the three-year
limitations period began to accrue. Therefore, we affirm in part,
reverse in part, and remand the case to the district court for further
proceedings consistent with this opinion.
I. Background
¶3 In 2008, Arbor Holdings, LLC (Arbor), a Colorado limited
liability company, Timnath Lands, LLC (Timnath Lands), a Colorado
limited liability company, and the Town entered into an annexation
agreement (the Agreement). Subject to the Agreement, Arbor and
Timnath Lands owned real property (the Property) that they
petitioned to be annexed into the Town. Arbor and Timnath Lands
were referred to as the “Owners” in the Agreement. In May 2017,
Timnath Trail became the successor in title and, thus, an Owner
under the Agreement when it purchased the Property from Timnath
Lands.1
1 From our review of the record, it is not certain whether Arbor still
holds title to the Property with Timnath Trail.
2 ¶4 Under the Agreement, the parties intended for the Owners to
develop the Property and for the Town to be able to control its
growth to ensure a quality of life for its residents. Under section
12.1(a) and (b), the parties acknowledged that the Owners were
willing to make “substantial financial commitments and complete
major public infrastructure improvements” in the early phases of
the Property’s development in exchange for the “Town’s agreement
to permit development of the Property in accordance with the terms
and conditions of [the] Agreement.” As part of these financial
commitments, Timnath Trail agreed that it would pay certain fees to
the Town when it began development of the Property.
¶5 The parties’ dispute centers on what the Agreement refers to
as school fees and development impact fees. Regarding school fees,
section 6.9 of the Agreement states that the Owners “shall pay fees
in lieu of dedicating land for a school site as required by any
Intergovernmental Agreement between the Town and the Poudre R-
1 School District as presently in effect and as may be amended from
time to time.” (Emphasis added.) Section 6.10 establishes
limitations on dedications and fees, stating that, “[o]ther than as set
forth in this Agreement, Owners shall not be required to dedicate
3 additional land for public school sites, nor pay any development
impact fees or pay fees in lieu of dedication, nor reimburse the
Town for any other cost unless previously approved by Owners in
writing.”
¶6 With respect to the development impact fees, section 7 of the
Agreement states that “[t]he Town has established certain uniform
development impact fees that directly address the effect of
development intended to occur within the Property upon the Town’s
infrastructure, administration, and delivery of governmental
services.” That provision continues,
The Owners agree to the payment of these uniform development impact fees as currently established by the Town, increased as hereinafter provided, until the year 2024, and after that time as the same are increased with Town-wide effect. The development impact fees are to be paid at the current rate upon issuance of building permits. The Town and the Owners agree that the necessity of such development impact fees is directly related to and generated by development intended to occur within the Property and that no taking thereby will occur requiring any compensation. For Phase I and any commercial uses in Phase II of the Development, the Owners agree to pay, at time of building permit, commercial impact fees in an amount equal to $.09 times the number of square feet contained within each commercial building constructed within Phase I or Phase II
4 of the Property, which may be increased periodically by the Town at a rate of three percent (3%) per annum, compounded annually. For Phase II of the Development, if residential, the fee shall be $4,913 per single family residence, plus $2,000 additional per single family residence for Old Town Improvements, with a corresponding reduction for multi-family residences. The Town acknowledges $33,000 contribution by the Owners for pre-annexation fees, which shall be credited against the development impact fees due for the first and each subsequent building permit requested by the Owners until the credit is exhausted.
(Emphasis added.) The parties’ dispute revolves around the
italicized language.
¶7 From June 2018 to September 2018, Timnath Trail requested
eleven permits from the Town to build 176 multi-family residential
units. The Town charged Timnath Trail a total of $1,463,792 in
development impact fees and school fees — Timnath Trail paid
$110,176 for school fees pursuant to section 6.9 and $1,353,616 in
development impact fees as set forth in section 7. Timnath Trail
made its final payment on October 2, 2018.
¶8 To arrive at the total amount the Town charged Timnath Trail
in school fees and development impact fees, the Town relied on an
“Impact and Special Fees” final report dated November 15, 2015
5 (2015 Report). The 2015 Report listed five categories that
comprised the development impact fees identified in section 7,
charged per residential unit: (1) Police ($659); (2) Parks, Open Space
and Trails ($3,669); (3) Public Buildings ($800); (4) Stormwater
($560); and (5) Transportation ($2,000). These five categories
totaled $7,691 in development impact fees per residential unit.
Thus, the $1,353,616 that the Town charged Timnath Trail in
development impact fees is calculated by taking $7,691 multiplied
by the 176 residential units built.
¶9 As illustrative of how the Town identified these fees per permit,
we refer to the permit dated July 13, 2018, in which Timnath Trail
sought to build 24 residential units. The development impact fee
breakdown was:
Police (24 units): $15,816
Parks/Open Space/Trails (24 units): $88,056
Public/Municipal Building (24 units): $19,200
Stormwater (24 units): $13,440
Transportation (24 units): $48,072
__________
Total Development Impact Fee: $184,584
6 If one multiplies $7,691 by 24 units, it equals $184,584.
¶ 10 Relating to the school fees, the same July 13, 2018 permit had
a line item for “School payment-in-lieu multi-family” for 24 units
totaling $15,024, which amounts to $626 per residential unit.
Therefore, if one multiplies $626 by 176 residential units, the total
amounts to $110,176 in school fees.
¶ 11 But Timnath Trail alleged that the Town breached the
Agreement by overcharging the fees. Timnath Trail filed its lawsuit
on October 18, 2022, asserting a single breach of contract claim.
Specifically, it alleged that the application of the formula for
calculating the development impact fee set forth in section 7 should
not have yielded an amount of $7,691 per unit. Instead, Timnath
trail argued, it should have been charged “$4,913 per single family
residence, plus $2,000 additional per single family residence for Old
Town Improvements, with a corresponding reduction for multi
family residences.” Timnath Trail acknowledged that the Agreement
did not identify the “corresponding reduction for multi-family
residences,” but it argued that the Town did not take any reduction
into account when it charged the development impact fees for the
eleven permits.
7 ¶ 12 Timnath Trail alleged that, even without the “corresponding
reduction,” at most, the Town could charge $6,913 per unit ($4,913
+ $2,000) for a total of $1,216,688. And it alleged that under
section 6.9, the Town could not charge Timnath Trail any other fee
unless otherwise approved in writing. When it filed its lawsuit,
Timnath Trail did not make any distinction between the
development impact fees of $7,691 and the school fees.
¶ 13 Timnath Trail filed a motion for partial summary judgment
concerning solely the school fees. It argued that under section 6.9,
the Agreement required the Owners to pay a school fee subject to
any intergovernmental agreement in effect between the school
district and the Town. But since the Town conceded that it had no
intergovernmental agreement in place with the school district in
2018 when Timnath Trail paid the school fees, Timnath Trail
argued that the $110,176 that the Town charged it for those fees
was improper.
¶ 14 The Town subsequently filed a cross-motion for summary
judgment arguing that (1) the statute of limitations barred Timnath
Trail’s breach of contract claim; and (2) Timnath Trail’s claim for
relief was barred by the Agreement’s limitation of liability provision
8 because the relief Timnath Trail sought was damages outside of the
agreed upon fees and, therefore, not authorized.
¶ 15 The district court denied Timnath Trail’s motion, finding that
genuine issues of material fact existed as to the school fees. But
the district court granted summary judgment in favor of the Town,
concluding that the three-year statute of limitations for contract
disputes in section 13–80–101(1)(a) governed, and that Timnath
Trail’s claim involving the development impact fees was barred
because it was untimely filed. Timnath Trail then filed a motion for
post-trial relief, seeking reconsideration of the court’s ruling on the
school fees. The court denied the motion, finding that, like the
development impact fees, the school fees could be amended from
time to time, so they were not determinable. As a result, the district
court held that Timnath Trail’s breach of contract claim regarding
the school fees was also barred by the three-year statute of
limitations.
II. Standard of Review and Applicable Law
¶ 16 We review de novo a district court’s order granting summary
judgment. Rocky Mountain Planned Parenthood, Inc. v. Wagner,
2020 CO 51, ¶ 19.
9 ¶ 17 Summary judgment is only appropriate where there are no
disputed issues of material fact, and the moving party is entitled to
judgment as a matter of law. C.R.C.P. 56(c); Sanchez v.
Moosburger, 187 P.3d 1185, 1187 (Colo. App. 2008). The party
moving for summary judgment bears the initial burden of showing
the nonexistence of any genuine issue of material fact, “and all
doubts as to the existence of such an issue must be resolved
against the moving party.” Stanczyk v. Poudre Sch. Dist. R-1, 2020
COA 27M, ¶ 51 (quoting Churchey v. Adolph Coors Co., 759 P.2d
1336, 1340 (Colo. 1988)), aff’d on other grounds, 2021 CO 57.
¶ 18 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
certain circumstances exist is generally a question of fact. Sulca v.
Allstate Ins. Co., 77 P.3d 897, 899 (Colo. App. 2003). A court may
grant summary judgment if the plaintiff’s claim is barred by the
governing statute of limitations, but it “cannot grant summary
judgment on this basis if there are disputed issues of fact about
when the statute of limitations began running.” Curry v. Zag Built
10 LLC, 2018 COA 66, ¶ 23 (quoting Colo. Pool Sys., Inc. v. Scottsdale
Ins. Co., 2012 COA 178, ¶ 67).
¶ 19 To the extent our analysis requires statutory and contract
interpretation, both are also questions of law that we review de
novo. Smith v. Exec. Custom Homes, Inc., 230 P.3d 1186, 1189
(Colo. 2010) (statute); Sch. Dist. No. 1 v. Denver Classroom Tchrs.
Ass’n, 2019 CO 5, ¶ 11 (contract).
¶ 20 We must adopt a construction of the statute 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). To ascertain the General Assembly’s intent, we look at the
plain words of the statute or instrument and give words and
phrases their ordinary meanings. See Fischbach v. Holzberlein, 215
P.3d 407, 409 (Colo. App. 2009). We construe the statute as a
whole to give effect to all provisions. See Mook v. Bd. of Cnty.
Comm’rs, 2020 CO 12, ¶ 24. If the statute is unambiguous, then
we need not resort to other interpretative rules. See Seaman v.
Colo. Manufactured Hous. Licensing Bd., 832 P.2d 1041, 1042 (Colo.
App. 1991).
11 ¶ 21 Similarly, we interpret a contract “to ascertain and give effect
to the intentions of the party or parties who created the
instrument.” Quarky, LLC v. Gabrick, 2024 COA 76, ¶ 11. To
ascertain the parties’ intent, we look at the plain words of the
instrument and give words and phrases their ordinary meanings.
Id. We construe the contract as a whole to give effect to all
provisions. See Pulte Home Corp. v. Countryside Cmty. Ass’n, 2016
CO 64, ¶ 23. If the contract is unambiguous on its face, we
interpret the contract as written. See Antero Res. Corp. v. Airport
Land Partners, Ltd., 2023 CO 13, ¶ 13.
III. Analysis
¶ 22 We first address the development impact fees, then the school
fees, and finally the accrual date.
A. Development Impact Fees
¶ 23 Neither party disputes that the three-year statute of
limitations in section 13–80–101(1)(a) is the default period to bring
a breach of contract claim. See § 13–80–101(1)(a) (A three-year
limitation period applies for “[a]ll contract actions, including
personal contracts and actions under the ‘Uniform Commercial
Code.’”). But Colorado law has a limited exception: a six-year
12 statute of limitations period exists in section 13–80–103.5, which
applies to “[a]ll actions to recover a liquidated debt or an
unliquidated, determinable amount of money due to the person
bringing the action.” § 13–80–103.5(1)(a). In other words, section
13–80–103.5 applies to disputes in which the amount is either (a) a
liquidated debt or (b) an amount that is determinable.
¶ 24 That statute, however, does not define the terms “liquidated”
or “determinable.” But case law has done so. Generally, a debt is
deemed liquidated or determinable if the amount due is capable of
ascertainment by reference to an agreement or by simple
computation. Rotenberg v. Richards, 899 P.2d 365, 367 (Colo. App.
1995). Such a debt is liquidated or determinable even if the
formula or computation is based on “facts external to the
agreement.” Neuromonitoring Assocs. v. Centura Health Corp., 2012
COA 136, ¶ 16; see also Portercare Adventist Health Sys. v. Lego,
2012 CO 58, ¶ 18 (holding that in the hospital services context,
generally, “an amount owed under an agreement is a ‘liquidated
debt’ for the purposes of section 13–80–103.5(1)(a) if it is
ascertainable either by reference to the agreement, or by simple
computation using extrinsic evidence”); Voodoo Leatherworks LLC v.
13 Waste Connections US, Inc., 618 F. Supp. 3d 1126, 1134 (D. Colo.
2022) (same, regarding contract for waste collection and disposal).
In other words, the amount of the debt must be “easily calculable”
based on the parties’ agreement. See Interbank Invs., L.L.C. v. Vail
Valley Consol. Water Dist., 12 P.3d 1224, 1230 (Colo. App. 2000).
¶ 25 The district court found that the six-year statute of limitations
did not apply because the amount of development impact fees was
neither liquidated nor determinable. Instead, the court determined
that the rates under the Agreement were subject to change
throughout the years and, thus, the “current rate” was “variable
depending on when [Timnath Trail requested and the Town issued]
the permits.” Because the three-year statute of limitations applied,
it concluded that Timnath Trail’s contract claim began to accrue at
the latest in August 2018, when it began to pay the fees for the
permits. Therefore, because Timnath Trail filed the lawsuit four
years later, its claim was time barred.
¶ 26 We conclude that the district court improperly interpreted
section 7 of the Agreement. Neither party disputes that Timnath
Trail must pay certain development impact fees, as discussed in the
first sentence of section 7. But it is in analyzing the second and
14 third sentences of that section where the district court’s analysis
goes awry. The district court interpreted the Agreement to mean
that the Town could increase the fees over time. This is partially
true, but one must parse the language in the sentences and look at
section 7 as a whole.
¶ 27 The second sentence of section 7 is key: “The Owners agree to
the payment of these uniform development impact fees as currently
established by the Town, increased as hereinafter provided, until
the year 2024, and after that time as the same are increased with
Town-wide effect.” The court interpreted this to mean that Timnath
Trail must pay the development impact fees as “currently
established,” meaning when it applied for the permit. It supported
its interpretation with the third sentence of section 7, which states:
“The development impact fees are to be paid at the current rate
upon issuance of building permits.” In other words, the “current
rate” for the development impact fee would be set at the time the
permit was issued (i.e., 2018).
¶ 28 We agree with Timnath Trail that the district court’s
interpretation fails to give effect to (1) the formulas in section 7;
(2) the Town’s possible increase of the “current rate” for commercial
15 development with the “increased as hereinafter provided” language;
and (3) the Town’s increase of the “current rate” in 2024 to the
Town’s rates it charges to all developers.
¶ 29 First, the district court’s interpretation does not give effect to
the formulas in section 7. The court interpreted the phrase “as
currently established by the Town” as a reference to extrinsic
information like the 2015 Report. We conclude that this language
refers instead to the formulas set forth in section 7. Indeed, if the
fees could be increased simply when the permits were requested,
then the formulas in that section would be meaningless.
¶ 30 When looking at the entirety of section 7, the “current rate” for
Timnath Trail’s development impact fees was subject to one of two
formulas based on whether it developed the Property for residential
or commercial use. Timnath Trail developed the property with
residential units, so that formula states, “For Phase II of the
Development, if residential, the fee shall be $4,913 per single family
residence, plus $2,000 additional per single family residence for Old
Town Improvements, with a corresponding reduction for multi-
family residences.” Timnath Trail contends that $6,913 (with any
16 corresponding reduction for multi-family units) is the “current rate”
referenced in section 7. We agree.
¶ 31 Our interpretation is further bolstered by parsing the second
sentence, which leads us to our second point: The court failed to
give effect to any increase to the “current rate.” The second
sentence’s phrase “increased as hereinafter provided” does not
mean increases to the “current rate” when the permits were
requested and issued.
¶ 32 Instead, when interpreting contracts, we first look at the plain
and ordinary meaning of the words used. Quarky, LLC, ¶ 11. The
plain and ordinary meaning of “hereinafter” is “in the following part
of this writing or document.” Merriam-Webster Dictionary,
https://perma.cc/7BBF-942D. Because we have already concluded
that the “current rate” means one of the two formulas identified in
section 7, “increased as hereinafter provided” refers to the
commercial formula discussed in section 7, which contemplated the
Town’s ability to possibly increase those rates.
¶ 33 The commercial formula states: “For Phase I and any
commercial uses in Phase II of the Development, the Owners agree
to pay, at time of building permit, commercial impact fees in an
17 amount equal to $.09 times the number of square feet contained
within each commercial building constructed within Phase I or
Phase II of the Property.” But that provision also indicates that the
“current rate” “may be increased periodically by the Town at a rate
of three percent (3%) per annum, compounded annually.” (Emphasis
added.) Our interpretation takes into consideration the
Agreement’s language that there could be increases to the “current
rate” by reference to the commercial formula, as the Agreement
“hereinafter” referenced.
¶ 34 This leads us to our third reason that the district court’s
interpretation is in error: It failed to give effect to section 7’s
reference to the year 2024. The final phrases of the second
sentence state: “until the year 2024, and after that time as the
same are increased with Town-wide effect.” The Town argues that
the formulas were examples, but that the rates in the 2015 Report
control because the permits were issued in 2018.
¶ 35 But this begs the question: Why does the Agreement reference
the year 2024? The only way to give effect to that reference is to
interpret the second sentence as the parties “locking” in a rate for
the development impact fees until 2024. With this interpretation of
18 the second sentence, the third sentence in section 7 — “The
development impact fees are to be paid at the current rate upon
issuance of building permits” — means that the Town could charge
the rates from one of the two formulas as the “current rate” until
2024, or if Timnath Trail requested permits after 2024, the “current
rate” would then be based on the rates charged with “Town-wide
effect.” Thus, it was not until 2024 when the Town could charge
Timnath Trail the development impact fee that it would charge to
any other developer (i.e. the $7,691 amount from the 2015 Report
or some other amount if another report was in effect).
¶ 36 Our interpretation of section 7 is further bolstered by section
13 of the Agreement, which requires Timnath Trail to comply with
the Town’s ordinances and other laws. That provision states, “The
parties do not intend that this Agreement, the vested property
rights or the Site Plan to supercede Town ordinances, regulations,
codes, policies and procedures except as provided herein or
necessary for implementation of the terms of this Agreement.”
Because the Town’s “ordinances, regulations, codes” and other laws
are not intended to be “supecede[d]” by the Agreement, Timnath
Trail would be required to pay the development impact fees
19 regardless of section 7. But with section 13, Timnath Trail’s
compliance with the Town’s laws is required “except as provided”
within the Agreement, thus referring to section 7’s formulas that
modified the amount of the development impact fees until 2024.
¶ 37 And our interpretation makes sense because, if Timnath Trail
was required to pay a development impact fee regardless, section 7
does not have any effect unless it is interpreted to “lock in” an
agreed upon formula until a time certain. This is especially true
considering that, with the Town’s growth, the development impact
fees increased over time.
¶ 38 But our interpretation does not resolve the question of
whether section 7’s formula for residential development is
determinable. If our interpretation does not alter the court’s
ultimate conclusion that the formula is not determinable, then we
could affirm its application of the three-year statute of limitations
on other grounds. But based on our interpretation and Colorado
case law, we conclude that section 7’s residential formula is
determinable.
¶ 39 The Agreement’s residential development impact fees have two
possible calculations: the $6,913 amount for single family dwellings
20 or a “corresponding reduction” for multi-family dwellings. If all
units built by Timnath Trail were single-family units, then the
amount the Town should have charged is easily calculable by
multiplying the 176 units by $6,913. But that section also
contemplates a possible calculation based on “a corresponding
reduction for multi-family residences.” The Town claims that this
makes the formula not determinable.
¶ 40 Not so. The record also includes the “Impact Fee Study”
finalized on September 30, 2002 (2002 Report).2 The 2002 Report
identifies development impact fees in the same five categories as the
2015 Report, noting that the $4,913 amount identified in section 7
was the total impact fee for a single-family residential unit and the
“corresponding reduction for multi-family residences” lowered the
impact fee for such residences to $4,115. The Town concedes that
the 2002 Report was in effect until the Town replaced it with the
2015 Report. Indeed, the Town argues that, because of the
2 The company that conducted and wrote the 2002 Report and 2015
Report wrote a letter as part of the parties’ summary judgment briefing explaining that the development of lands was of statewide concern to the General Assembly, as outlined in section 29–1–801, C.R.S. 2024, and that local governments were required to charge development impact fees under section 29–20–104.5, C.R.S. 2024.
21 increased development, the Town repealed the “corresponding
reduction for multi-family residents” in the 2015 Report. But the
Town’s point further supports our interpretation that section 7’s
formulas acted as a “locked in” fee until 2024.
¶ 41 Thus, the Agreement is not like the contract at issue in Voodoo
Leatherworks, 618 F. Supp. 3d at 1130, where a federal district
court held that any increased amount owed under the agreement
based on the Consumer Price Index was not determinable because
the contract language “did not disclose the . . . metrics [the
company was] purportedly relying on to make increases.” Instead,
this case is more akin to Fishburn v. City of Colorado Springs, 919
P.2d 847 (Colo. App. 1995), where a division of this court held that
the amount due to the city employees was easily calculable by
taking the number of hours they worked in stand-by hours and
multiplying it by twenty-five percent of their hourly base pay. Id. at
848, 850; see also Rotenberg, 899 P.2d 368 (holding that the
amount owed to an attorney for unpaid fees was easily calculated
based on the agreed upon hourly rate specified in the retainer
agreement and the number of hours worked); see also Torres-Vallejo
v. Creativexteriors, Inc., 220 F. Supp. 3d 1074, 1086 (D. Colo. 2016)
22 (holding that wage claims were based on a set hourly rate, leading
to easily calculable amounts due); Comfort Homes, Inc. v. Peterson,
549 P.2d 1087, 1090 (Colo. App. 1976) (holding that a construction
contract that specified payment as a percentage of estimated costs
allowed for simple computation of the amounts owed).
¶ 42 Consequently, the development impact fees in the Agreement
are determinable for residential units until 2024 as follows: (1) for
single-family units, the development impact fee is $4,913 plus
$2,000 for any additional residential unit for “Old Town
Improvements” for a total of $6,913; or (2) for multi-family units,
the development impact fee is $4,115 plus $2,000 for any additional
multi-family residential unit for “Old Town Improvements” for a
total of $6,115.3
¶ 43 The Town contends that it would be error to rely on the 2002
Report. But the parties may rely on the 2002 Report as a reference
to ascertain the easily calculated sum under the Agreement, just as
3 It is not clear from the record if all 176 residential dwellings were
single-family residences. Regardless, this appeal only requires us to determine which statute of limitations applies. Consequently, we have no opinion on the merits of Timnath Trail’s lawsuit or what other remedies, if any, are available to it under the Agreement.
23 the Town wants to rely on the 2015 Report, which is also extrinsic
to the Agreement. And while the 2002 Report was not generally in
effect for developers once it was replaced with the 2015 Report, the
Agreement locked in the 2002 Report’s development impact fee
amounts based on section 7. Because the development impact fees
are easily calculable by reference to the number of single- or multi-
family residential units by using $6,913 or $6,115, respectively, we
conclude the district court erred by applying the three-year
limitations period in section 13–80–101(1)(a) to Timnath Trail’s
breach of contract claim as it pertains to those fees. Portercare
Adventist Health Sys., ¶ 18 (an amount is determinable if it is easily
calculable by reference to extrinsic evidence). Accordingly, we
reverse in part the court’s grant of summary judgment in favor of
the Town, and we remand this portion of the case for further
proceedings, as Timnath Trail filed its lawsuit within the six-year
statute of limitations under section 13–80–103.5.
B. School Fees
¶ 44 We reach a different conclusion concerning Timnath Trail’s
challenge of the school fees the Town imposed. We agree with the
district court’s conclusion that the school fees were not
24 determinable and, therefore, subject to the three-year limitations
period in section 13–80–101(1)(a).
¶ 45 Timnath Trail contended that section 6.9 only required it to
pay fees if there was an intergovernmental agreement with the local
school district and that, because no such agreement existed in
2018, it was improperly charged those fees. The Town argued that
Timnath Trail assented to the fees, as the predecessor in title knew
about them, and that section 13’s provision requiring such fees be
charged subject to the Town’s ordinance governed.
¶ 46 Section 6.9’s language is markedly different than section 7’s.
There, the Agreement expressly indicates that the amount for the
school fees are to be those reflected in any intergovernmental
agreement “as presently in effect and as may be amended from time
to time.” (Emphasis added.) Regardless of whether the Town had a
contract with the school district in 2018, the amount of the school
fees was not determinable, as they could have changed (or not been
in effect at all). Given that, we conclude that the three-year statute
of limitations applies to this portion of Timnath Trail’s breach of
contract claim. Thus, we now turn to whether the district court
25 properly determined when the three-year statute of limitations
began to run.
C. Date of Accrual for the Three-Year Statute of Limitations
¶ 47 Timnath Trail contends that the court improperly granted
summary judgment because there are disputed issues of fact as to
when the three-year statute of limitations began to accrue.
¶ 48 For contract claims, a cause of action accrues on the date the
breach “is discovered” or on the date the breach “should have been
discovered by the exercise of reasonable diligence.” § 13–80–108(6),
C.R.S. 2024; see City & Cnty. of Denver v. Bd. of Cnty. Comm’rs,
2024 CO 5, ¶ 6. The cause of action is discovered when the party
obtains knowledge of the facts essential to the claim, not knowledge
of the legal theory supporting it. Int’l Network, Inc. v. Woodard,
2017 COA 44, ¶ 10. Such knowledge includes information that
would lead a reasonable person to inquire further. Id.
¶ 49 The district court determined that the three-year statute of
limitations accrued, at the latest, in August 2018 when Timnath
Trail began to pay the fees under the permits, as that is when it
could have begun to discover, through reasonable diligence, that it
might not owe school fees to the Town.
26 ¶ 50 But Timnath Trail contends that the statute of limitations did
not begin to run until it had notice of the potential breach in July
2020 when the parties began to discuss in depth the possible fee
overcharges.
¶ 51 While the parties did not begin to discuss the potential
overcharges until July 2020, this does not mean that Timnath Trail
lacked the ability before then to discover the possible overcharges
on the school fees. As noted above, the eleven permits included a
line item for the school fee. Section 6.9 expressly states that such a
fee is subject to an intergovernmental agreement. Nothing
prevented Timnath Trail from asking the Town for a copy of the
intergovernmental agreement, and if none existed between the
school and the Town, Timnath Trail could have explored its option
to bring a lawsuit to challenge those charges.
¶ 52 And the record supports that Timnath Trail was indeed on
notice about possible issues with the fees well before August 2018.
For instance, a March 9, 2017 email between the Town and
Timnath Trail’s predecessor in title explained the school fees,
stating that such fee “is assessed at the following rate per unit . . .
27 $626.00/du.[4] This rate is an estimate determined by taking the
school district’s acre cost for ground of $97,826 multiplied by the
0.64 acres (dedication)/100 units from the land use code.” The
Town representative apologized for the oversight of not detailing this
fee previously, but “wanted to get th[e] [fee estimate] to [Timnath
Trail] before [Timnath Trail] actually submit[ed] for a permit and are
surprised to see this assessment. It isn’t in our typical fee schedule
as it is mainly with payment in lieu of dedications and not actually
an impact fee.” (Emphasis added.)
¶ 53 Likewise, Timnath Trail’s predecessor in title sent an April 28,
2017 email to the Town stating, “[W]e need some help from the town
with reduced fees before we can get our project out of the ground.”
The record also includes a July 2, 2020 email demonstrating
Timnath Trail — now in possession of title as of May 2017 —
continued to dispute with the Town the amount of the fees charged.
Granted, some of these emails deal with the development impact
fees and do not reference the school fees. But Timnath Trail was
obviously looking at the fees it would be charged on the permits or
4 We could not find in the record what “du” stands for, but it does
not appear material to resolution of this issue.
28 actually charged, presumably could have obtained documentation
about the fees before or after it acquired title, could have obtained
such information from the Town, and continued to dispute those
fees throughout the development process, but it did not file its
lawsuit until October 2022.
¶ 54 Accordingly, we conclude that the district court properly
entered summary judgment in favor of the Town and denied
Timnath’s Trail partial motion for summary judgment on the school
fees because the breach of contract claim as to those fees is time
barred.
IV. Conclusion
¶ 55 The judgment is affirmed in part and reversed in part, and the
case is remanded to the district court for further proceedings
consistent with this opinion.
JUDGE FOX and JUDGE GROVE concur.