WHITE GLOVE HOSPITALITY, LLC v. STOCKTON UNIVERSITY

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-3309-16T1


WHITE GLOVE HOSPITALITY, LLC,

        Plaintiff-Respondent,

v.

STOCKTON UNIVERSITY,

        Defendant,

and

D&M GALLOWAY HOLDINGS, LLC,

     Defendant-Appellant.
_______________________________

              Submitted January 29, 2018 - Decided March 16, 2018

              Before Judges Messano and Accurso.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Atlantic County, Docket
              No. C-000052-16.

              Jacobs & Barbone, P.A., attorneys for
              appellant (Edwin J. Jacobs, Jr. and Daniel
              J. Solt, on the brief).

              Mutchko Law Offices, attorneys for
              respondent (Gregory J. Mutchko, on the
              brief).

PER CURIAM
    Defendant D&M Galloway Holdings, LLC appeals from the

denial of its motion for sanctions against plaintiff White Glove

Hospitality, LLC and its counsel pursuant to 
N.J.S.A. 2A:15-59.1

and R. 1:4-8.    D&M apparently had a contract, awarded by

competitive bid, with Stockton University for hotel

accommodations for students, which ended in May 2016.      The

University apparently thereafter entered into a new lease with

D&M, which was not awarded by competitive bid.    We say

"apparently," because D&M did not include either contract in its

appendix, notwithstanding they form the basis of the underlying

dispute and are at the heart of whether plaintiff's complaint

was frivolous.

    Following those events, plaintiff filed a verified

complaint in Chancery against Stockton and D&M alleging the two

colluded to undermine the competitive bidding process in

violation of "the State College Contracts statute.    
N.J.S.A.

18A:64-52, et seq."    White Glove sought a declaration that "the

public bidding for defendant Stockton student housing

accommodations was fundamentally flawed and void," as well as

the setting aside of D&M's contract, the renewal of plaintiff's

contract and damages, including costs and attorneys' fees.       D&M

responded with two safe harbor letters, advising plaintiff its

complaint was frivolous because, among other reasons, "N.J.S.A.

                                 2                           A-3309-16T1
18A:64-53(i) excepts transactions involving real estate or any

interest therein, from the State College Contracts Law

requirement of a competitive bid prior to award."

    Plaintiff did not withdraw its complaint, and both Stockton

and D&M filed motions to dismiss.   We are aware those motions

were eventually successful, after the judge required additional

briefing and a second argument, but we cannot say why because

D&M has not provided us the judge's reasons for the decision.

All we have is the judge's decision denying the motion for

sanctions, where he says:

         in the end I ruled for the defendant . . . .
         I don't think the . . . litigation . . . was
         baseless. The reality was that there had
         been a public bid which had been won by the
         plaintiff. When it was rebid, it was not
         done by public bid. And in fact, there were
         some issues regarding the termination of the
         contract early of the plaintiff.

              Clearly it was a question to which, in
         fact, legally there was no specific answer,
         even when Stockton . . . responded to me,
         because I had asked them to find any other
         authority. They didn't have any authority.

              And the state's position was,
         essentially, the state in the situation of
         university housing, could go one way or the
         other. There was nothing wrong with the
         public bid process, and there was nothing
         wrong with the non-public bid process. I
         was surprised about that, but I accepted it
         in the end.



                               3                          A-3309-16T1
    We review an order granting or denying sanctions for

frivolous litigation under an abuse of discretion standard.

Masone v. Levine, 
382 N.J. Super. 181, 193 (App. Div. 2005).

Although we certainly do not condone counsel's failure to have

thoroughly researched the law under which he sued before

accusing the University and D&M of participating in a bidding

process "staged and contrived to appear to be in compliance with

law," and reject as disingenuous White Glove's argument that D&M

was only joined as a necessary party pursuant to R. 4:28-1(a)

and thus "had no right to insist on a dismissal," we simply do

not have what we need to begin to understand the proceedings in

the trial court.   Said another way, we cannot determine whether

we would agree with D&M that the underlying complaint was

baseless without a clear understanding of what the parties

argued and why the judge determined to grant the motion to

dismiss.

    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.   Its decision to so

truncate the record as to prohibit meaningful review leaves us

no choice other than to dismiss the appeal.   See Noren v.

                                4                            A-3309-16T1
Heartland Payment Sys., 
448 N.J. Super. 486, 500 (App. Div.

2017) (dismissing a cross appeal because the cross-appellant's

"selective inclusion of exhibits it considers relevant and

exclusion of exhibits" relied upon by its adversary made review

of the summary judgment motion "impossible").

    Appeal dismissed.




                               5                         A-3309-16T1