dissenting.
In my view the defendants, as movants on a motion for summary judgment, have failed to satisfy their burden of “pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). This occurs because the portions of plaintiff’s deposition upon which defendants rely and which are referenced as contributing to the holding of the majority have not been properly filed in the superior court so as to become evidence for the superior court’s consideration in ruling upon defendants’ motion for summary judgment. “Since the deposition was not filed, it was not a matter of record for the trial judge’s consideration in ruling on the motion for summary judgment. [Cit.]” Carter v. Myers, 204 Ga. App. 498, 499 (1) (419 SE2d 747).
In the case sub judice, uncertified excerpts from depositions were attached as exhibits to defendants’ motion for summary judgment and to plaintiff’s response. The majority has viewed these excerpts as evidence which was properly considered by the superior court. Indeed, this is consistent with the holding in Jacobsen v. Muller, 181 Ga. App. 382, 383 (3) (352 SE2d 604), although the majority has not cited Jacobsen. However, in my view the construction of OCGA § 9-11-29.1 (a) (5) in Jacobsen was incorrect and that case should be overruled.
The fatal flaw in the analysis stated in Jacobsen lies in its failure to consider two additional statutory provisions. First, OCGA § 9-11-29.1 (a) (5) must be viewed within its context as a subpart of OCGA § 9-11-29.1 (a), which begins with the statement that: “(a) Depositions and other discovery material otherwise required to be filed with the court under this chapter shall not be required to be so filed unless: . . .” Five subparts, including OCGA § 9-11-29.1 (a) (5), then follow which describe circumstances which will remove this tolling of *410the filing requirements, for depositions or other discovery materials, “otherwise required” under OCGA Chapter 9-11. Thus, when the circumstances described in OCGA § 9-11-29.1 (a) (5) are determined to have occurred, the remainder of OCGA Chapter 9-11 must be examined to locate any applicable filing requirements. One provision applicable to depositions is OCGA § 9-11-30 (f) (1) (A), which requires that the court reporter certify and seal the deposition before filing it, albeit under the circumstances addressed in OCGA § 9-11-29.1 (b), the court reporter may entrust the sealed original deposition to the safekeeping of the party taking the deposition pending any filing. While it is true that as stated in Jacobsen, “OCGA § 9-11-29.1 (a) (5) does not make certification a prerequisite to the use of discovery material in support of a motion,” (id. at 383 (3)), this analysis fails to recognize that such a requirement is imposed by OCGA § 9-11-30 (f) (1) (A). I would hold that the superior court erred in relying upon the uncertified excerpts from depositions filed with defendants’ motion for summary judgment.
Decided February 24, 1995. John T. McKnight, for appellant. Fisher & Phillips, David E. Duelos, Walter J. Kruger III, Tillman Y. Coffey, for appellees.Also, the practice of filing excerpts from depositions must be questioned since OCGA § 9-11-30 (f) (1) (A), by requiring the sealing of the original deposition before filing, would seem to anticipate the filing of the entire deposition if at all. The references in OCGA § 9-11-29.1 (a) (5) to filing “portions” of discovery materials may not authorize division of discrete entities such as depositions.
Finally, while plaintiff made no objection in the trial court regarding consideration of the excerpts from her deposition which were attached to the defendants’ motion for summary judgment and supporting memorandum, she was entitled to expect the superior court to correctly apply the law and recognize that the deposition excerpt was not certified or properly filed so as to be considered as evidence. Furthermore, a review of a grant of summary judgment is de novo and thus without regard to the view of the case taken by the superior court. Dixie Diners Atlanta v. Gwinnett Fed. Bank, FSB, 211 Ga. App. 364, 366 (1) (439 SE2d 53); Moore v. Food Assoc., 210 Ga. App. 780, 781 (437 SE2d 832). This court should recognize that the uncertified deposition excerpts were not proper evidence. Therefore, I respectfully dissent.