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
COURT OF APPEALS OF INDIANA
MARILYN S. WELDON, )
vs. ) No. 49A04-9808-CV-400
UNIVERSAL REAGENTS, INC., )
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
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
Appellee's motion is denied in its entirety.
NAJAM, J., and BAILEY, J., concur.
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