HERITAGE RESOURCES INC V CATERPILLAR FINANCIAL SERVICES CORP

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STATE OF MICHIGAN COURT OF APPEALS HERITAGE RESOURCES, INC., FOR PUBLICATION June 30, 2009 Plaintiff-Appellant/Cross-Appellee, v CATERPILLAR FINANCIAL SERVICES CORPORATION, a/k/a CAT FINANCIAL and MICHIGAN TRACTOR & MACHINERY COMPANY, a/k/a MICHIGAN CAT, Defendants, No. 284036 Kent Circuit Court LC No. 03-001720-CK Advance Sheets Version and GENCOR INDUSTRINES, INC., Defendant-Appellee/CrossAppellant. Before: Jansen, P.J., and Hoekstra and Markey, JJ. HOEKSTRA, J. (concurring). Because MCR 7.215(J) requires me to follow Romska v Opper, 234 Mich App 512; 594 NW2d 853 (1999), in which this Court adopted the flat-bar rule, I concur with the result reached by the majority. For the reasons stated in my dissent in Romska, I am convinced that the intent rule is the better-reasoned rule and the rule most consistent with Michigan caselaw and statutes. Here, it is apparent from the circumstances that Heritage did not intend for its settlement agreement with Michigan Tractor & Machinery Company to release and discharge its implied warranty claims against Gencor Industries, Inc. In all other aspects, I agree and join with the majority. /s/ Joel P. Hoekstra -1-

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