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The Rejection of an Overly Textualistic Approach

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The saga of Noren v. Heartland Payment Systems began in February of 2017, when the Appellate Division considered an appeal from the trial court’s determinations in a breach of contract and Conscientious Employee Protection Act (“CEPA”) case. The lower court, after denying a jury demand pursuant to a jury-waiver provision in the employment contract at issue, had dismissed the Noren’s claims and awarded the employer, Heartland Payment Systems (“HPS”) attorney’s fees and costs. Noren appealed the dismissal, and HPS cross-appealed, alleging that the trial court erred in denying summary judgment. In this article, we consider HPS’ cross appeal.

The New Jersey Rules of Court govern the form and substance of appeals, and Rule 2:6-1(a)(1) provides that “if the appeal is from a summary judgment, the appendix shall also include a statement of all items submitted to the court on the summary judgment motion and all such items shall be included in the appendix.” However, HPS did not follow this rule in its cross-appeal, and failed to submit the items that had been presented to the trial court on the summary judgment motion, nor did they submit a statement of the items submitted. Its appendix included the briefs submitted, and certifications of counsel for both parties to the summary judgment motion. The certification of HPS had only the “relevant exhibits” attached, and the certification of Noren excluded exhibits. Based on these documents, the Appellate Division denied the cross-appeal, finding that in reviewing a summary judgment motion an appellate court is required to view the evidence submitted to the trial court, and that HPS’ “selective inclusion of exhibits it considers relevant and exclusion of exhibits relied upon by Noren . . . makes that task impossible.”

In the present case, HPS moved for reconsideration, arguing that the panel had misapplied Rule 2:6-1(a)(1). In HPS’ view, the obligation imposed by the Rule applied only to an appeal from a summary judgment, which should be literally read to mean from a grant of summary judgment and, since HPS appealed from a denial of summary judgment, it was exempt from the obligation.

While the Appellate Division acknowledged that the literal reading of the Rule would produce the result desired by HPS, the panel declined to adopt such a literal interpretation. It held that the Rule obviously was intended to identify to the reviewing court precisely what was presented to the trial court on the motion for summary judgment, regardless of how the motion was decided. Regardless of whether a summary judgment motion was granted, denied, or a combination of the two, a reviewing court must examine the original summary judgment record. Rejecting HPS’ invitation to read the Rule literally, the Appellate Division denied the motion for reconsideration.


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