                NOT FOR PUBLICATION WITHOUT THE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




                                              2                                       A-2651-13T3
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




                                          3                                 A-2651-13T3
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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