Greg Noren v. Heartland Payment Systems, Inc. , 449 N.J. Super. 193 ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2651-13T3
GREG NOREN,
APPROVED FOR PUBLICATION
Plaintiff-Appellant/
Cross-Respondent, March 8, 2017
v. APPELLATE DIVISION
HEARTLAND PAYMENT SYSTEMS, INC.,
Defendant-Respondent/
Cross-Appellant.
____________________________________________________
Submitted May 3, 2016 – Decided February 6, 2017.
Motion for reconsideration denied.
Decided March 8, 2017.
Before Judges Fisher, Espinosa and
Rothstadt.
On appeal from the Superior Court of New
Jersey, Law Division, Bergen County, Docket
No. L-4528-06.
Franzblau, Dratch, P.C., attorneys for
appellant/cross-respondent (Patrick T.
Collins, of counsel; Adam Shefki, on the
briefs).
Blank Rome, LLP, attorneys for respondent/
cross-appellant (Seth J. Lapidow, of counsel
and on the brief; Jaret N. Gronczewski, on
the brief).
The opinion of the court was delivered by
FISHER, P.J.A.D.
We previously dismissed defendant Heartland Payment
Systems, Inc.'s cross-appeal, which sought reversal of the
denial of summary judgment, because of Heartland's failure to
comply with Rule 2:6-1(a)(1). Noren v. Heartland Payment Sys.,
Inc., __ N.J. Super. __, __ (App. Div. 2017) (slip op. at 14-
15). Specifically, we dismissed the cross-appeal because
Heartland failed to "submit the items that had been submitted to
the trial court on the summary judgment motion or even a
statement of the items submitted." Id. at __ (slip op. at 14).
Heartland now moves for reconsideration, arguing we
mistakenly employed Rule 2:6-1(a)(1). In Heartland's view, the
obligation to include in the appendix "all items submitted to
the court on the summary judgment motion" and "a statement of
all items" applies only – in the words of the Rule – to an
appeal "from a summary judgment," and there can only be "a
summary judgment" upon the grant of a summary judgment motion.
Heartland argues that it only cross-appealed from a denial of
summary judgment, not "from a summary judgment." Hence,
Heartland contends we should reconsider our rule-based
disposition and review the cross-appeal on its merits.
To be sure, Heartland's argument has color because of the
Rule's particular wording. We nevertheless find the argument
lacking in merit. As Judge Learned Hand famously said, "[t]here
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is no surer way to misread any document than to read it
literally." Guiseppi v. Walling, 144 F.2d 608, 624 (2d Cir.
1944) (concurring opinion), aff’d sub nom., Gemsco, Inc. v.
Walling, 324 U.S. 244, 65 S. Ct. 605, 89 L. Ed. 921 (1945); see
also McNeil v. Legislative Apportionment Comm'n, 177 N.J. 364,
374 (2003). Despite the superficial appeal of Heartland's
literal construction of the phrase "from a summary judgment,"
the Rule was obviously intended to precisely identify for the
reviewing court that which was presented to the trial court "on
the motion for summary judgment," regardless of how the motion
was decided. Whether a summary judgment motion is granted,
denied, or granted in part and denied in part, an appellate
court is limited to an examination of "the original summary
judgment record." Lombardi v. Masso, 207 N.J. 517, 542 (2011);
see also Bilotti v. Accurate Forming Corp., 39 N.J. 184, 188
(1963) (in reviewing the disposition of a summary judgment
motion, a court is limited to a consideration of "the case only
as it unfolded to that point"). A party's compliance with the
Rule clarifies for the reviewing court the parameters of the
"original summary judgment record"; if it didn't apply in all
the ways in which a trial judge might dispose of a summary
judgment motion, an appellate court could easily stray from its
proper function by affirming or reversing in light of material
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never presented when the trial judge considered the motion. We
reject Heartland's invitation to read the Rule literally, and we
conclude that the phrase "from a summary judgment" should be
understood as including appeals taken "from the disposition of a
summary judgment motion."1
The motion for reconsideration is denied.
1
Heartland cites Rios v. Szivos, 354 N.J. Super. 578, 581 n.1
(App. Div. 2002) (in an appeal of a denial of summary judgment,
the panel observed the lack of certainty about what was put
before the motion judge and then provided a "but see" citation
to Rule 2:6-1(a)(1), with a comment that the Rule "regard[s]
appendices on appeal from the grant of summary judgment"), as
support for its position. We do not read the Rios's footnote as
does Heartland; in any case, we disagree to the extent that
footnote may be interpreted as holding the Rule does not apply
to the denial of summary judgment.
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