Laserfiche WebLink
Trinity Broadcasting v. City of Westminister, 848 P.2d 916, 925 (Colo. 1993); Capra v. Tucker, <br /> 857 P.2d 1346, 1348 (Colo.App.1993). In determining a motion to dismiss for lack of subject <br /> matter jurisdiction, a court may receive any competent evidence; unlike a motion to dismiss for <br /> failure to state a claim upon which relief may be granted, the court is not limited to the <br /> complaint. Trinity Broadcasting, 848 P.2d at 926. <br /> III. ARGUMENT <br /> A. MCR fails to state a claim upon which relief can be granted because the Liquidation Plan <br /> is not a contract. Rather, it is a judgment. In addition, MCR's Claims are Barred by the <br /> Colorado Governmental Immunity Act. <br /> 1. The Liquidation Plan is a Judgment, not a Contract. <br /> Therefore, Claims 2, 3 and 4 Fail to State Claims upon Which <br /> Relief can be Granted. <br /> Claims 2, 3 and 4 of the Amended Third-Party Complaint are based on MCR's allegation <br /> that the Liquidation Plan is a contract and that certain(and some undefined) reclamation tasks <br /> violate that contract. Specifically, in its second claim for relief, MCR asserts that"[i]n carrying <br /> out the reclamation activities under the Reclamation Plan, [the Division] is acting pursuant to a <br /> contract entered into by, among others, [the Division], MCR and MCR's creditor's . . ." <br /> Amended Third-Party Complaint,¶29. In its third claim, MCR asserts that"DMG has breached <br /> the Liquidation Plan contract by taking actions to spend reclamation funds for activities not <br /> authorized in the Reclamation Plan." Amended Third-Party Complaint,¶39. In its fourth claim <br /> for relief, MCR alleges that"[a]ll contracts entered into within the state of Colorado contain an <br /> implied covenant of good faith and fair dealing." Amended Third-Party Complaint,¶42. <br /> 5 <br />