A Reminder About the Importance of the Appellate Appendix

White Glove Hospitality, LLC v. Stockton University, 2018 WL 1352589 (App. Div. March 16, 2018).  Many seminars and articles about appellate practice focus on tips for writing better briefs or making more compelling oral arguments.  Preparing a proper appendix, a facially less interesting subject, rarely gets addressed in any detail.  Perhaps as a result of that, the Appellate Division periodically has to issue an opinion in which a party’s failure to submit an appendix that complies with Rule 2:6-1 adversely affects its appeal.  This per curiam, not precedential opinion, issued today by Judges Messano and Accurso, is such a ruling.

Plaintiff brought suit against Stockton University, which had solicited bids for hotel accommodations for its students,  and D&M Galloway Holdings, LLC (“D&M”), which won the bidding and obtained a contract that ended in May 2016.  Defendants then allegedly extended that contract without competitive bidding.  Plaintiff, which wanted the new contract for itself, contended that defendants unlawfully colluded to undermine the bidding process.  D&M threatened frivolous litigation sanctions if plaintiff did not withdraw its complaint.  Plaintiff persisted, and both defendants successfully moved to dismiss the complaint.

D&M then moved for sanctions, which the Chancery Division denied.  D&M appealed, but the Appellate Division dismissed the appeal.

The basis for the panel’s decision was D&M’s failure to provide an adequate appendix.  Missing from the record offered to the Appellate Division were D&M’s contract with the University that ended in May 2016, and the subsequent agreement that was not competitively bid.  The panel was puzzled by the omission of those documents, which “form the basis of the underlying dispute and are at the heart of whether plaintiff’s complaint was frivolous.”  But that was not all.  D&M also failed to provide the Chancery Division’s reason for granting defendants’ motions to dismiss the complaint.  All that was offered was that court’s reasons for denying D&M’s sanctions motion.

The panel observed that decisions on motions for sanctions based on the alleged frivolity of litigation are reviewed for abuse of  discretion.  Though the Appellate Division made some remarks that were critical of plaintiff, ultimately the panel stated that “D&M’s decision to exclude from the record on appeal the points the parties argued on the motion to dismiss and the judge’s reasons for ultimately granting it have deprived us of any ability to determine whether the judge abused his discretion in denying its motion for sanctions.”  Since meaningful review was thereby precluded, the panel was compelled to dismiss the appeal.  The judges cited Noren v. Heartland Payment Systems, Inc., 448 N.J. Super. 486 (App. Div. 2017), discussed here, where the Appellate Division had dismissed a cross-appeal based on a comparable failure of the cross-appellant to provide an adequate record.

Appendices matter.  Counsel should pay close attention to them.