Nagy v. Landau, 89CA1430

• Decision Date: 20 December 1990
• Docket Number: No. 89CA1430,89CA1430
• Citation: 807 P.2d 1227
• Parties: 13 UCC Rep.Serv.2d 790 Andrei NAGY and Maria Nagy, Plaintiffs-Appellants and Cross-Appellees, v. Klaus P. LANDAU a/k/a Pete Landau, Defendant-Appellee and Cross-Appellant. . II
• Court: Colorado Court of Appeals

Page 1227

807 P.2d 1227

13 UCC Rep.Serv.2d 790

Andrei NAGY and Maria Nagy, Plaintiffs-Appellants and Cross-Appellees, v. Klaus P. LANDAU a/k/a Pete Landau, Defendant-Appellee and Cross-Appellant.

No. 89CA1430.

Colorado Court of Appeals Div. II.

Dec. 20, 1990.

Rehearing Denied Feb. 21, 1991.

Donald S. Molen, Denver, for plaintiffs-appellants and cross-appellees.

Bendelow & Darling, Edward M. Bendelow, Lee Darling, Denver, for defendant-appellee and cross-appellant.

Opinion by Judge ROTHENBERG.

Plaintiffs, Andrei and Maria Nagy, appeal from the summary judgment entered in favor of defendant, Klaus P. Landau, and from an order awarding defendant attorney fees. Defendant cross-appeals from an order denying attorney fees against plaintiffs' counsel. We affirm in part and reverse in part.

In their first claim, plaintiffs alleged that on October 25, 1979, defendant executed and delivered to plaintiffs a promissory note for $10,420 plus interest, payable ninety days later, and that defendant refused to pay the amount when due.

The second claim alleged that the parties entered into a written agreement in which defendant was to employ plaintiffs in defendant's restaurant beginning October 25, 1979, and to pay them each a fixed salary plus 50% of the restaurant's net profits exceeding $12,000 per year. Plaintiffs alleged that defendant breached the agreement "a few months after it commenced" by removing all furniture, appliances, and inventory from the restaurant building.

Defendant filed a motion for summary judgment asserting that both claims were barred by the statute of limitations. The trial court agreed. It found that the note matured January 22, 1980, and that the action was filed January 23, 1986; thus, the court concluded the action was barred by the six-year statute of limitations. The court also found that the breach of contract occurred on December 5, 1979, and that claim was barred by the statute of limitations. Accordingly, the court granted summary judgment and dismissed the complaint.

I.

Plaintiffs argue on appeal that the court miscalculated the time limit within which they could bring their action on the promissory note. We agree.

At the time the default on the note occurred, the applicable statute of limitations was former § 13-80-110(1)(a), C.R.S. (1973) (now codified at § 13-80-103.5(1)(a), C.R.S. (1978 Repl.Vol. 6A)) which required all actions of debt founded upon any contract or liability in action to be commenced within six years after the cause of action accrued.

A cause of action against the maker of a promissory note accrues, in the case of a time instrument, on the day after maturity. Section 4-3-122(1)(a), C.R.S. (1973). In Cade v. Regensberger, 804 P.2d 238 (Colo.App.1990) cert. pending October 2, 1990 (which had not been announced at the time of the trial court's decision), we held that C.R.C.P. 6(a) applies when computing any statutory time period; thus, the day of the act, event, or default from which the designated time period begins to run is excluded.

Here, the promissory note was dated October 25, 1979, and was due and payable "ninety days after" that date. The first day after the issue date was October 26, 1979, and the ninetieth day was January 23, 1980. Accordingly, the note matured on January 23, 1980, and plaintiffs' cause of action accrued on January 24, 1980. Section 4-3-122(1)(a), C.R.S. The complaint was timely filed on January 23, 1986, within six years thereafter, and the court erred in dismissing plaintiffs' first claim.

II.

Plaintiffs also contend that the court erred in entering summary judgment on their second claim because disputed issues of fact exist concerning the date when defendant breached the employment agreement. We disagree.

The trial court did not refer to a particular statute of limitations in granting summary judgment. However, whether the three-year or six-year statute of limitations applies is irrelevant since plaintiffs' breach of contract claim is barred by both statutes.

A claim for relief arising from one party's nonperformance of a contract obligation arises at the time the other party fails to perform the act required by the contract. Goeddel v. Aircraft Finance, Inc., 152 Colo. 419, 382 P.2d 812 (1963). Here, the complaint initially alleged that defendant breached the October 1979, agreement "a few months after it commenced," but in their request for admissions, plaintiffs asked defendant to admit that he breached the agreement "on or about December 5, 1979."

Again, in their trial data certificate, plaintiffs stated that they performed their duties until "on or about December 5, 1979 when the defendant took possession of the premises" and when plaintiffs "were forcibly removed from...