IN THE SUPREME COURT OF THE STATE OF HAWAI‘I


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MERVYN RAPOZO,
Petitioner/Plaintiff-Appellee

vs.

BETTER HEARING OF HAWAII, LLC,
Respondent/Defendant-Appellant



NO. 27602





MOTION FOR RECONSIDERATION AND ORDER OF AMENDMENT
(CIV. NO. RC-05-1-0221)





JANUARY 14, 2009





MOON, C.J, NAKAYAMA, ACOBA, AND DUFFY, JJ. (1)

Upon consideration of the motion for reconsideration filed on December 15, 2008 by Respondent/Defendant-Appellant Better Hearing of Hawaii, LLC, requesting that this court review its opinion filed on December 5, 2008,

IT IS HEREBY ORDERED that the motion for reconsideration is granted in part, and the aforesaid opinion shall be amended as follows (deletions are bracketed and additions are double underscored):

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the "repair" is to "correct" a nonconformity. The court thus could find, under the [Act] circumstances of this case, that [the so-called] Petitioner's efforts to return for "adjustments" were [efforts to correct or, in other words,] a factor, among others, in determining whether Petitioner provided Respondent with a reasonable opportunity to "repair" [a] the nonconformity. [It appears, then, that the distinction between an adjustment and a repair, attempted to be drawn by Respondent and the ICA, is non-existent under the Act.]

IT IS FURTHER ORDERED that the motion for reconsideration is denied in all other respects.

The Clerk of the Court is directed to incorporate the foregoing changes in the original opinion and take all necessary steps to notify the publishing agencies of these changes.



Michele-Lynn E. Luke
(Kessner Umebayashi Bain &
Matsunaga), on the motion
for respondent/defendant-
appellant.




1.     Associate Justice Levinson, who heard oral argument in this case, retired from the bench on December 31, 2008. See Hawai‘i Revised Statutes § 602-10 (Supp. 2007).