Omer A v. Nsirat A

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.

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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

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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,

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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.

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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

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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

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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

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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

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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.

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¶ 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.

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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

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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

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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).

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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

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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.

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JUDGE LIPINSKY and JUDGE MOULTRIE concur.

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