Kutcher v. Zimmerman (Motion for Reconsideration]

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI`I

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HARVEY KUTCHER, Plaintiff-Appellant, v.

REBECCA ZIMMERMAN, an individual, and

MILLIE PELUSO, an individual, Defendants-Appellees

NO. 19780

MOTION FOR RECONSIDERATION

(CIV. NO. 95-0766(3))

MAY 15, 1998

BURNS, C.J., ACOBA, AND KIRIMITSU, JJ.

On May 12, 1998, Defendants-Appellees Rebecca Zimmerman and Millie Peluso (Defendants) filed a motion for reconsideration on the ground that we incorrectly stated in our May 4, 1998 opinion that the exhibits relied upon by the parties in their summary judgment memoranda were not supported by an appropriate affidavit to be properly certified under Hawai`i Rules of Civil Procedure (HRCP) Rule 56(e). Defendants contend that their counsel's affidavit, stating only that the documents attached to the summary judgment memorandum were "true and correct copies of the original documents[,]" was an appropriate affidavit to certify their summary judgment exhibits.

In Kohala Agriculture v. Deloitte & Touche, 86 Hawai`i 301, 949 P.2d 141 (App. 1997), we pointed out that the summary judgment exhibits in that case were not appropriately certified because "[t]here [was] no indication that [the] [p]laintiffs' counsel, the affiant, was a person through whom any of the attached exhibits could have been admitted into evidence." Id. at 325, 949 P.2d at 165. Likewise, in this case there is no indication from Defendants' counsel, the affiant, that he was a person through whom the deposition excerpts attached to the summary judgment memorandum could be admitted into evidence. Accordingly, the exhibits were not properly certified under HRCP Rule 56(e).

For the foregoing reason, IT IS HEREBY ORDERED that the motion is denied.

Gary N. Hagerman, for

defendants-appellees,

on the motion.