No. A-2651-13T3

March 8, 2017 (Date Decided)

Judge Fisher

For Appellant/Cross-Respondent: Franzblau, Dratch, P.C. (Patrick T. Collins, of counsel; Adam Shefki, on the briefs).

For Respondent/Cross-Appellant: Blank Rome, LLP (Seth J. Lapidow, of counsel and on the brief; Jaret N. Gronczewski, on the brief).

The Appellate Division 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). The cross-appeal was dismissed 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.

Heartland moved for reconsideration, arguing the Appellate Division 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 argued that it only cross-appealed from a denial of summary judgment, not “from a summary judgment.” Hence, Heartland contended the court should reconsider its rule-based disposition and review the cross-appeal on its merits.

Heartland’s argument has merit as it was based on the Rule’s particular wording. Nevertheless, the appellate panel found the argument lacking in merit. 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.” A party’s compliance with the Rule clarifies for the reviewing court the parameters of the “original summary judgment record.” The Rule must apply in all the ways in which a trial judge might dispose of a summary judgment motion, otherwise an appellate court could stray from its proper function by affirming or reversing in light of material never presented when the trial judge considered the motion.

The appellate panel rejected Heartland’s invitation to read the Rule literally, and concluded that the phrase “from a summary judgment” should be understood as including appeals taken “from the disposition of a summary judgment motion.” The motion for reconsideration was denied.

No. A-2651-13T3

March 8, 2017 (Date Decided)

Judge Fisher

For Appellant/Cross-Respondent: Franzblau, Dratch, P.C. (Patrick T. Collins, of counsel; Adam Shefki, on the briefs).

For Respondent/Cross-Appellant: Blank Rome, LLP (Seth J. Lapidow, of counsel and on the brief; Jaret N. Gronczewski, on the brief).

The Appellate Division 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). The cross-appeal was dismissed 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.

Heartland moved for reconsideration, arguing the Appellate Division 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 argued that it only cross-appealed from a denial of summary judgment, not “from a summary judgment.” Hence, Heartland contended the court should reconsider its rule-based disposition and review the cross-appeal on its merits.

Heartland’s argument has merit as it was based on the Rule’s particular wording. Nevertheless, the appellate panel found the argument lacking in merit. 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.” A party’s compliance with the Rule clarifies for the reviewing court the parameters of the “original summary judgment record.” The Rule must apply in all the ways in which a trial judge might dispose of a summary judgment motion, otherwise an appellate court could stray from its proper function by affirming or reversing in light of material never presented when the trial judge considered the motion.

The appellate panel rejected Heartland’s invitation to read the Rule literally, and concluded that the phrase “from a summary judgment” should be understood as including appeals taken “from the disposition of a summary judgment motion.” The motion for reconsideration was denied.