793 F.Supp. 989 (D.Colo. 1992), Civ. A. 91-B-2245, Lyons v. Jefferson Bank & Trust

Docket Nº:Civ. A. 91-B-2245
Citation:793 F.Supp. 989
Party Name:Lyons v. Jefferson Bank & Trust
Case Date:June 10, 1992
Court:United States District Courts, 10th Circuit, District of Colorado

Page 989

793 F.Supp. 989 (D.Colo. 1992)

David J. LYONS, commissioner of insurance for the State of Iowa and receiver for the Iowa Trust, Plaintiff,



Civ. A. No. 91-B-2245.

United States District Court, D. Colorado.

June 10, 1992

Page 990

Edwin S. Kahn, Walter W. Garnsey, Jr., Kelly, Haglund, Garnsey & Kahn, Denver, Colo., Anuradha Vaitheswaran, Asst. Atty. Gen., Iowa Securities Bureau, Des Moines, Iowa, for plaintiff.

Philip E. Lowery, Marcella T. Clark, Lowery, Lamb & Lowery, P.C., William C. Waller, Jr., Denis H. Mark, Kevin D. Allen, Vinton, Waller, Slivka & Panasci, Denver, Colo., for defendant.


BABCOCK, District Judge.

Defendant moves for additional findings of fact and a corresponding amendment of the judgment under Fed.R.Civ.P. 52(b). Additionally, defendant moves under Rule 59(a) for a new trial or rehearing of my findings of fact and conclusions of law, 793 F.Supp. 981. The issues are adequately briefed and oral argument will not materially aid their resolution. Because defendant's proposed additional findings of fact are either irrelevant to the ultimate decision or unsupported by the record, its Rule 52(b) motion is denied. Further, I find no factual or legal error in my findings of fact and conclusions of law and, therefore, defendant's Rule 59(a) motion is denied. See, Lyons v. Jefferson Bank & Trust, 793 F.Supp. 981 (D.Colo.1992).

As an initial matter, I note that the legal arguments and theories contained in defendant's post-trial motions were not raised before judgment entered. Similarly, defendant's proposed additional findings of fact go to these new theories and were not raised before judgment. Aside from conclusory statements that the expedited treatment of this case caused incomplete analysis of the factual and legal issues, defendant makes no showing at all why these issues are raised for the first time by way of post-trial motion. Indeed, both parties conceded the need to expedite resolution of this case and defendant never requested a continuance or in any other way objected to the accelerated pace in which this case was resolved. Defendant's motions are obviously filed by new counsel in a blatant attempt to belatedly inject new issues into the case at the district court level, hoping that these issues may be preserved for appeal. Despite this dispositive deficiency in defendant's motions, I will address the merits of the matters presented in the interest of a complete record.


Fed.R.Civ.P. 52(b) provides that, upon motion within ten days of judgment, a

Page 991

trial court may amend its findings of fact or make additional findings and may amend the judgment accordingly. The purpose of this motion is to correct manifest errors of law or fact, or, in some limited situations, to present newly discovered evidence. Fontenot v. Mesa Petroleum Co., 791 F.2d 1207, 1219 (5th Cir.1986). A party may move under this rule even if the amended or additional findings would effectively reverse the judgment. Id. That is not to say, however, that a motion to amend should be employed to introduce new evidence that was available at the time of trial but was not proffered, to advance new theories, or to secure a rehearing on the merits. Id. "Blessed with the acuity of hindsight, [defendant] may now realize that it did not make its initial case as compelling as it might...

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