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Berger v. Dixon & Snow9/9/1993
re timely filed.
Because we have concluded that no cause of action existed prior to November 1990, we need not address the trustee's contention that the date of discovery of defendants' malicious and fraudulent conduct is a factual issue inappropriate for determination on summary judgment motion. See §§ 13-80-108(1) and 13-80-108(3), C.R.S. (1987 Repl. Vol. 6A).
B.
Because it may arise on remand, we note in relation to the trustee's restitution claims that such a claim does not accrue until "a suit may be maintained thereon." Jones v. Cox, supra, 828 P.2d at 224. Because trustee could not have maintained a claim for restitution until it was determined in November 1990 that the settlement agreement was binding and Parga's receipt of $235,000 was unjust, these claims could not have accrued prior to that date; therefore suit was instituted within the applicable limitation period.
We do not reach the trustee's remaining contentions.
The dismissal of the trustee's complaint is reversed, and the award of costs to defendants under § 13-17-202 is vacated. The cause is remanded to the trial court for further proceedings consistent with this opinion.
CHIEF JUDGE STERNBERG and JUDGE COYTE concur.
Disposition
JUDGMENT REVERSED AND CAUSE REMANDED WITH DIRECTIONS
Judges Footnotes
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