Weldon v. Universal

FOR PUBLICATION

ATTORNEY FOR APPELLANT:    ATTORNEY FOR APPELLEE:

CYNTHIA S. ROSE     MATTHEW A. GRIFFITH
York, Schrager, Baxter, James & Rose    Thrasher Griffith & Voelkel, P.C.
Indianapolis, Indiana    Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

MARILYN S. WELDON, ) ) Appellant-Defendant, ) ) vs. ) No. 49A04-9808-CV-400 ) UNIVERSAL REAGENTS, INC., ) ) Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Steven R. Eichholtz, Judge
Cause No. 49D05-9707-CT-997

July 19, 1999

OPINION DENYING APPELLEE'S MOTION TO VACATE     
OPINION OR TO RETRACT OPINION    
FROM PUBLICATION

RATLIFF, Senior Judge

    On May 9, 1999, this Court issued its opinion in this cause which opinion was designated "For Publication." Thereafter, on May 26, 1999, Appellee Universal Reagents, Inc., filed its Motion to Vacate Opinion or in the alternative Motion to Retract Opinion for Publication, asserting that the parties had settled the case on March 10, 1999, and a release had been executed, but that the Appellant had failed to file a Motion to Dismiss the appeal or to inform this court of such settlement. This Court now denies Appellee's said motion for each of the following reasons:
    1. Although the parties may have settled the case as between themselves on March 10, 1999, they failed to notify this Court of that fact and did not move to dismiss the appeal.
    2. On May 9, 1999, the date our opinion was handed down, according to the record in this case, the appeal was still pending and was a live and viable appeal.
    3. The cases of Mortell v. Mutual Security Life Insurance Company, 678 N.E.2d 797 (Ind. 1997) and Meyer v. Biedron, 667 N.E.2d 752 (Ind. 1996), relied upon by Appellee in its said Motion to Vacate are clearly distinguishable. In each of those cases, our supreme court had granted transfer thus vacating the opinion of this court, but before the supreme court handed down its opinion on transfer, the parties settled the case. In Mortell, a notice of settlement and stipulation for dismissal of appeal was filed. In Meyer, Biedron filed a notice of settlement but requested the court to decide the appeal, but Meyer moved for dismissal of the appeal. In both cases, the supreme court dismissed the appeal. It is significant, however, that in both cases, the notices of settlement and motions to dismiss were filed prior to the court's issuance of an opinion. In addition, although it declined to do so,

the supreme court in Meyer noted that it could continue its jurisdiction and decide the case on its merits.
    4. Here, this court issued its opinion before being informed of the settlement. Under the circumstances, neither Mortell nor Meyer support Appellee's motion.
    5. Further, this court's opinion, while not affecting the parties, decides an important issue of first impression in this jurisdiction.
    6. For each of the foregoing reasons, our opinion stands as issued and shall be published.
    Appellee's motion is denied in its entirety.
NAJAM, J., and BAILEY, J., concur.