Marc Development, Inc., an Illinois Corporation; Keith-marcproperties, Ltd., an Illinois Limited Partnership,plaintiffs-appellees, v. Federal Deposit Insurance Corporation, As Receiver for Thecosmopolitan National Bank of Chicago, Defendant-appellant, 12 F.3d 948 (10th Cir. 1993)

After this court entered an order granting rehearing in banc of the panel opinion reported as Marc Development, Inc. v. FDIC, 992 F.2d 1503 (10th Cir. 1993), we were informed that the parties had entered into a settlement agreement. The agreement disposed of all financial issues between the parties; and we have been advised that the settlement funds have been disbursed. The agreement, however, purported to except from settlement the issue involved in the instant case, in the following language:

The Parties to this Settlement Agreement specifically desire to preserve the FDIC as Receiver's rights to prosecute an appeal presently before the Tenth Circuit Court of Appeals captioned Marc Development, Inc. et al. v. Federal Deposit Insurance Corporation as Receiver for The Cosmopolitan National Bank of Chicago, No. 91-4172 (the "Appeal"). As a result, the Parties expressly reserve and exclude from this Settlement Agreement the issues raised on the Appeal, which Appeal may include subsequent proceedings in the United States Supreme Court. Accordingly, MDI and KMPL will dismiss with prejudice their Complaint thirty (30) days following written notification by the FDIC as Receiver that the appeal has been concluded.

Settlement Agreement and Limited Mutual Release Sec. 1(c).

The FDIC seeks to convince the in banc court to reject the ruling of the majority in the panel opinion, but states alternatively that if we believe the case is mooted by the settlement it would be appropriate to vacate this court's panel opinion and the district court's opinion reported as Marc Development, Inc. v. FDIC, 771 F. Supp. 1163 (D. Utah 1991). Plaintiffs-appellees Marc Development, Inc. and Keith-Marc Properties, Ltd., have asked to be excused from arguing the case before the in banc court; because of the settlement they state they no longer have a financial interest in the outcome. Plaintiffs also state they have no objection to our vacating the circuit and district courts' opinions.

After review of the briefs and the settlement document, we conclude that the settlement renders the appeal moot despite the attempted reservation of the legal issues. We hold that under the circumstances it is appropriate to vacate the previously reported opinion and judgment of this court as well as that of the district court and to remand to the district court with directions to dismiss. "That procedure clears the path for future relitigation of the issues between the parties and eliminates a judgment, review of which was prevented through happenstance" and prevents the moot judgment "from spawning any legal consequences." United States v. Munsingwear, 340 U.S. 36, 40-41, 71 S. Ct. 104, 107, 95 L. Ed. 36 (1950); see also Oklahoma Radio Associates v. FDIC, 3 F.3d 1436 (10th Cir. 1993).

It is so ordered.

Each party shall bear its own costs and the mandate shall issue forthwith.