Munoz v. Yuen

• Decision Date: 20 October 1983
• Docket Number: No. 8460,8460
• Citation: 670 P.2d 825,66 Haw. 603
• Court: Hawaii Supreme Court
• Parties: Peter B. MUNOZ, Plaintiff-Appellant, v. George YUEN, Director of the Department of Health of the State of Hawaii, Henry Thompson, Deputy Director of the Department of Health of the State of Hawaii, William Hexamer, Enforcement Officer of the Department of Health of the State of Hawaii, and Andrew Gray, Emergency Services Officer of the Department of Health of the State of Hawaii, William J. Hexamer, individually, Andrew P. Gray, individually, and the Department of Health of the State of Hawaii, Defendants-Appellees.

Page 825

670 P.2d 825

66 Haw. 603

Peter B. MUNOZ, Plaintiff-Appellant, v. George YUEN, Director of the Department of Health of the State of Hawaii, Henry Thompson, Deputy Director of the Department of Health of the State of Hawaii, William Hexamer, Enforcement Officer of the Department of Health of the State of Hawaii, and Andrew Gray, Emergency Services Officer of the Department of Health of the State of Hawaii William J. Hexamer, individually, Andrew P. Gray individually, and the Department of Health of the State of Hawaii, Defendants-Appellees.

No. 8460.

Supreme Court of Hawai'i.

Oct. 20, 1983.

Syllabus by the Court

1. It is axiomatic that a motion for summary judgment should be decided on the basis of admissible evidence.

2. In a summary judgment hearing, it is the duty of counsel to specifically call the court's attention to those portions of the record that raise or dispose of genuine issues of material fact.

3. The standard to be followed by an appellate court in reviewing a summary judgment is identical to that applicable to the trial court's consideration of the motion for summary judgment.

4. In reviewing a summary judgment, an appellate court will not examine evidentiary documents not specifically called to the attention of the trial court, even though they may be on file in the case.

5. A document not conforming to the requirements of Rule 56(e), HRCP, cannot be considered by the court on a motion for summary judgment.

Glenn I. Kimura and Gerald C. Yoshida, Deputy Attys. Gen., Honolulu, for defendants-appellees, for the motion.

James Krueger and Gregory D. Ball, Wailuku (James Krueger, Wailuku, of counsel), for plaintiff-appellant, contra.

Before LUM, C.J., and NAKAMURA, PADGETT, HAYASHI and WAKATSUKI, JJ.

PER CURIAM.

Defendant-appellee State of Hawaii ¹ has moved to strike portions of the opening brief of Plaintiff-appellant Peter Munoz (Appellant). The precise issue before us is whether depositions on file in the case but not brought to the trial court's attention in connection with a motion for summary judgment can be considered by the appellate court in determining whether the award of summary judgment was proper.

The State argues the depositions of Larry Walter and Brian Dellaport and a decision of the Referee for Unemployment Insurance Appeals were not called to the attention of the trial court, and likewise, should not be brought to this court's attention on the appeal. Appellant's response is that Rule 56(c), Hawaii Rules of Civil Procedure (HRCP), does not require a litigant to call the trial court's attention, by way of memorandum or otherwise, to a deposition, affidavit, interrogatory or admission on file in a summary judgment proceeding. Appellant further maintains it is sufficient that such documents be on file prior to the determination of the summary judgment motion to allow their use in the appellate process.

Appellant cites Higgenbotham v. Ochsner Foundation Hospital, 607 F.2d 653 (5th Cir.1979), Smith v. Hudson, 600 F.2d 60 (6th Cir.), cert. dismissed, 444 U.S. 986, 100 S.Ct. 495, 62 L.Ed.2d 415 (1979), and Ottensmeyer v. Baskin, 2 Haw.App. 86, 625 P.2d 1069 (1981), ^{2 2} in support of his proposition. Higgenbotham states:

It is bootless to contend, as defendants did on oral argument, that, although the deposition was filed in the record, it could properly be ignored by the judge in ruling on the motion for summary judgment because plaintiff's counsel did not in some manner bring it directly to the judge's attention. Fed.R.Civ.P. 56(c) provides in part:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

The rule does not distinguish between depositions merely filed and those singled out by counsel for special attention.

607 F.2d at 656.

However, we do not choose to follow the approach espoused in Higgenbotham and Smith. If the appellate court is to consider all depositions, interrogatories, and admissions, it may be considering inadmissible evidence contained therein. It is axiomatic that a motion for summary judgment should be decided on the basis of admissible evidence. Munoz v. International Alliance of Theatrical State Employees, 563 F.2d 205 (5th Cir.1977); 10 Wright & Miller, Federal Practice and Procedure, Civil, §§ 2721-2722. Moreover, we would be imposing an undue burden on the trial court by requiring it to examine every deposition, answer to interrogatory, or admission on file, especially where the record is voluminous. It is the duty of counsel to specifically cite those portions of the record that raise or dispose of genuine issues of material fact. See Ottensmeyer v. Baskin, supra; Misal Construction Co. v. Rusco Industries, Inc., 403 So.2d 607 (Fla.App.1981). By making this an obligation of counsel, relevant evidence will be brought to the court's attention in an efficient manner; it will save the court's time and expedite the decision.

We have consistently ruled that the standard to be followed by an appellate court in reviewing a summary judgment is identical to that applicable to the trial court's consideration of the motion. Silver v. George, 64 Haw. 503, 644 P.2d 955 (1982). And this court can only consider those materials in the record, Orso v. City & County, 55 Haw. 37, 514 P.2d 859 (1973), that were considered by the trial court in its determination of the motion. Silver v. George, supra; Miller v. First...