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Federated Financial Corp. of America v. Markoglu

Superior Court of New Jersey, Appellate Division

September 16, 2013



Argued September 9, 2013

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

Anesti (Ernest) Markoglu, appellant, argued the cause pro se.

Respondent has not filed a brief.

Before Judges Parrillo and Kennedy.


Defendant appeals from a July 11, 2012 order of the Special Civil Part denying his motion to vacate a judgment entered against him on April 7, 2010. Defendant's motion to vacate was filed on May 22, 2012, following our opinion of March 2, 2012, affirming the judgment and rejecting defendant's arguments that plaintiff failed to prove its claims against defendant by a preponderance of the evidence and that the trial judge erred in various evidential rulings. Federated Financial Corp. of America v. Markoglu, A-4082-09 (App. Div. March 2, 2012).

Defendant argued in the Special Civil Part that the trial judge was biased and that the motion judge should not have decided the motion to vacate because he had requested that the matter be decided by a judge "on [the] bench for at least fifteen years[.]" The judge denied defendant's motion to vacate, explaining that defendant's prior appeal had already been "denied, " and that defendant's motion was untimely under Rule 4:50-2. We agree and affirm.

We briefly review the background of this appeal. In 2007, plaintiff filed a complaint against defendant and Archimedes U.S.A. Electric alleging that defendant owed a credit card balance of $5, 568.81. Defendant 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 plaintiff'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 plaintiff in the amount of $6, 186.81. Defendant appealed. While defendant had provided parts of the transcript of the trial, we were not provided with transcripts of the trial court's findings and conclusions, the testimony of plaintiff's witness or witnesses and, in most instances, the testimony that defendant challenged on appeal.[1] We affirmed.

Aside from the procedural impropriety created by defendant's attempt to invoke appellate jurisdiction to review the 2010 judgment a second time by thereafter filing a motion to vacate that judgment under Rule 4:50-1 and asserting a claim of judicial bias not raised earlier, [2] defendant's argument on appeal is unpersuasive.

"The decision whether to grant [a Rule 4:50-1] motion is left to the sound discretion of the trial court, and will not be disturbed absent an abuse of discretion." Mancini v. E.D.S., 132 N.J. 330, 334 (1993). Further, "[c]ourts should use Rule 4:50-1 sparingly [and only] in exceptional situations . . . in which, were it not applied, a grave injustice would occur." Hous. Auth. of Morristown v. Little, 135 N.J. 274, 289 (1994).

With these standards as our guide, we shall review defendant's argument on appeal. First, defendant has produced no evidence that suggests the trial judge was biased or partial in any respect during the trial or in rendering judgment. The mere allegation of bias provides no basis to warrant relief. Claims for relief under Rule 4:50-1(c) based on fraud, misrepresentation or misconduct must be grounded in clear, convincing and satisfactory proofs. See Linden v. Benedict Motel Corp., 370 N.J.Super. 372, 396 (App. Div.), certif. denied, 180 N.J. 356 (2004). Defendant here has adduced no proofs supporting his allegations of bias or partiality.

Further, under Rule 4:50-1, motions to vacate a judgment under subsections (a) (mistake, inadvertence, surprise or excusable neglect), (b) (newly discovered evidence), and (c) (fraud, misrepresentation or other misconduct) must be made within one year of entry of the judgment. R. 4:50-2. Under the other subsections of the rule, a motion to vacate the judgment must be made within a "reasonable time." R. 4:50-2; Bascom Corp. v. Chase Manhattan Bank, 363 N.J.Super. 334, 340 (App. Div. 2003), certif. denied, 178 N.J. 453, cert. denied, 542 U.S. 938, 124 S.Ct. 2911, 159 L.Ed.2d 813 (2004); Garza v. Paone, 44 N.J.Super. 553, 557 (App. Div. 1957). The question of what is a reasonable time necessarily depends on the specific circumstances of each case. Pressler & Verniero, Current N.J. Court Rules, comment 3 on R. 4:50-2 (2013).

Here, defendant's motion to vacate was filed over two years after the judgment was entered, and after we had affirmed the judgment on appeal. Defendant had numerous opportunities prior to May 2012 to challenge the judgment on the grounds of alleged judicial bias or partiality, yet failed to do so. Under these circumstances, we find the motion judge properly denied defendant's motion as untimely under Rule 4:50-2.


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