Not surprisingly, Judge Naves denied Churchill’s Motion to Amend Judgment Pursuant to C.R.C.P 59. The two-sentence Order issued September 18th came after the motion and response summarized by this Blog and posted on the DU Corporate Governance site.
In Churchill’s final Reply in Support of the motion, attorney David Lane raised for the first time the assertion that the stipulation referred to by CU in its original Motion to Dismiss was only a draft stipulation, and not the document filed with the Court. That assertion allowed CU to reveal in its reply that in fact there were two stipulations signed by the parties. The “Joint Stipulation for Dismissal of Claims and Withdrawal of Motions to Dismiss” was filed with the court December 20, 2007 and says nothing about waivers of liability.
The second, a Joint Stipulation that includes a “Limited Waiver of Eleventh Amendment Immunity,” is the document referred to in CU’s motion to dismiss. It was not initially filed with the court but was, by agreement of the parties, held confidential unless “necessary to resolve a dispute between them as to its validity or construction.” In other words, the stipulation that provides the basis of the court’s decision to dismiss the claim and nullify the jury’s ruling was a private contractual agreement between the parties. It is this agreement that allowed Judge Naves to dimsiss the claim on the basis of quasi-judicial immunity which, without the stipulation, would not have been available to CU as an entity.
With the Rule 59 Motion now denied, the case can be presented for appeal.