Tech Hills Ii Associates, a Michigan Co-partnership,plaintiff/counter Defendant-appellant Cross-appellee, v. Phoenix Mutual Life Insurance Company, Defendant/counterplaintiff-appellee Cross-appellant, 4 F.3d 417 (6th Cir. 1992)

ORDER

The parties in this diversity action appeal and cross appeal from the judgment dismissing claims and counterclaims for breach of contract and misrepresentation, and awarding plaintiff $252,000, plus interest, on its claims seeking the return of a loan commitment fee. Prior to filing the notice of appeal, plaintiff accepted payment from defendant in the full amount of the judgment and executed and filed an unconditional satisfaction and discharge of the judgment. On June 18, 1992, 966 F.2d 1454, the court granted defendant's motion to dismiss the appeal on the grounds that by accepting the benefits of the judgment, plaintiff has waived its right to appeal. Plaintiff's motion for summary reversal was denied as moot. Plaintiff now seeks reconsideration of the June 18, 1992, order.

Upon reconsideration, we conclude that the June 18, 1992, order should be vacated. The issues raised by the motion to dismiss and the motion for summary reversal will be referred to the panel assigned to hear these appeals on the merits. The parties are directed to address these issues in their briefs on the merits.

It therefore is ORDERED that the motion for reconsideration is granted and the June 18, 1992, order is vacated. Defendant's motion to dismiss and plaintiff's motion for summary reversal are referred to the panel assigned to hear these appeals on the merits.