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Federated Financial Corp. of America v. Ernest Markoglu and Archimedes U.S.A. Electric


March 2, 2012


On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. DC-10459-07.

Per curiam.


Submitted November 29, 2011 -

Before Judges Messano and Kennedy.

Defendant Ernest Markoglu (Markoglu or defendant) appeals from a $6,186.81 judgment entered in favor of the plaintiff Federated Financial Corp. of America (Federated Financial) after a non-jury trial in the Special Civil Part. Markoglu*fn1 contends that the trial judge erred in excluding relevant evidence he presented and in improperly admitting business records of Federated Financial. Markoglu also contends that Federated Financial failed to prove its case by a preponderance of the evidence. Because Markoglu has failed to provide us with the transcripts and materials to support his appellate contentions, we affirm.

We are able to determine the following facts from the record provided to us.

In 2007, Federated Financial filed a complaint against Markoglu and Archimedes U.S.A. Electric alleging that defendant owed a credit card balance of $5,568.81. Markoglu filed an answer to the complaint denying its allegations and alleging that his "identity was stolen."

Following a non-jury trial, a judgment was entered in favor of Federated Financial in the amount of $6,118.81. An appeal was filed and we reversed. Federated Financial Corp. of America v. Markoglu, A-4624-07 (App. Div. February 18, 2010). Noting that Federated Financial's representative testified telephonically at the trial, we found that the record did not reveal any "special circumstances" which would justify taking of testimony by telephone, as required by Aqua Marine Prods., Inc. v. Pathe Computer Control Sys. Corp., 229 N.J. Super. 264, 274 (App. Div. 1988). We therefore reversed and remanded the matter for a new trial. (Slip Op., p.6).

The matter was subsequently tried on April 7, 2010, and, on that date, as noted, a judgment was entered in favor of Federated Financial in the amount of $6,186.81. The judgment reflects that it was entered for "reasons stated on the record." This appeal followed.

Markoglu moved before the trial court for leave to provide an abbreviated transcript, as permitted by Rule 2:5-3(c)(2). The record on appeal does not include the motion for this relief although Markoglu has provided a copy of an order denying the motion on October 27, 2010. It appears that Markoglu filed a subsequent motion seeking leave to file an abbreviated transcript - again, the motion is not provided - and this time the court entered an order on January 6, 2011 stating that:

Pursuant to R. 2:5-3, Defendant shall within 3 days from the date of this order serve a request upon the reporter supervisor for the Superior Court of New Jersey - Morris Vicinage, for an abbreviated transcript. The request should state with great specificity the portions of the transcript Defendant requests.

While Markoglu has provided parts of the transcript of the trial, the abbreviated transcript does not contain the trial court's findings and conclusions, the testimony of Federated Financial's witness or witnesses and, in most instances, the testimony that Markoglu now challenges on appeal.*fn2

Without a full stenographic record of the trial, we cannot place in context any of the documentary exhibits we have been provided nor can we fulfill our obligation to ascertain whether the evidential determinations made by the trial judge were erroneous and whether the judgment was supported by substantial credible evidence in the record.

A party on appeal has an obligation to provide the court with "such parts of the record . . . as are essential to the proper consideration of the issues." Society Hill Condo. Ass'n., Inc. v. Society Hill Assocs., 347 N.J. Super. 163, 177 (App. Div. 2002)(quoting Rule 2:6-1(a)(1)(H)).*fn3 The failure to provide essential parts of the record renders review impossible and, without such materials, "we have no alternative but to affirm." Id. at 177-78.

Our review of evidential determinations is limited. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383, (2010). The standard we apply is to determine whether the trial court's determination of the admissibility of evidence reflects a misapplication of discretion "because, from its genesis, the decision to admit or exclude evidence is one firmly entrusted to the trial court's discretion." Id. at 383-84 (citing Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)). Generally, a "trial court is granted broad discretion in determining both the relevance of the evidence to be presented and whether its probative value is substantially outweighed by its prejudicial nature." Green, supra, 160 N.J. at 492.

Likewise, the scope of our review of a non-jury case is limited. Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011). The findings on which a trial court bases its decision will "not be disturbed unless they are so wholly and supportable as to result in a denial of justice[.]" Rova Farms Resort v. Investor's Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)(internal citations and quotations omitted). Our review, in such circumstances, is limited to determining whether the findings of the trial judge could reasonably have been reached on sufficient credible evidence on the record considering the proofs as a whole. We must give due regard to the ability of the factfinder to assess credibility. See Balsamides v. Protameen Chemicals, 160 N.J. 352, 368 (1999).

As noted, defendant's failure to provide us with a record of the trial court's findings and conclusions, as well as a record of the context in which evidential rulings were made, precludes us from undertaking our appellate function and, consequently, we affirm. Society Hill Condo. Ass'n., Inc., supra, 347 N.J. Super. at 178.


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