JAMCO HEATING & AIR CONDITIONING, INC. VS. MASSIMO PROCACCINI, ETC.(DC-7500-15, CAMDEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-2836-15T4
JAMCO HEATING & AIR
CONDITIONING, INC.,
Plaintiff-Appellant,
v.
MASSIMO PROCACCINI, d/b/a
MASSIMO PROCACCINI –
RENOVATOR AND CUSTOM
BUILDER,1
Defendant-Respondent.
______________________________
Argued March 23, 2017 – Decided May 15, 2017
Before Judges O'Connor and Whipple.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Docket No. DC-
7500-15.
Jo-Leo W. Carney-Waterton argued the cause for
appellant.
Respondent has not filed a brief.
PER CURIAM
1 Defendant is improperly pled. Defendant is properly known as
Massimo Procaccini General Contractor, L.L.C.
Plaintiff JAMCO Heating & Air Conditioning, Inc. appeals from
a February 19, 2016 Law Division order denying its motion to vacate
the court's previous order that dismissed the complaint with
prejudice. We affirm.
We discern the following facts from the record on appeal. On
June 8, 2015, plaintiff, a heating, ventilation, air conditioning
and refrigeration (HVACR) contractor filed a complaint for breach
of contract against defendant Massimo Procaccini General
Contractor, L.L.C. According to the allegations in the complaint,
plaintiff entered into an agreement with defendant to perform
HVACR work. Under the contract, plaintiff was to receive three
payments over the course of the project, totaling $17,575.
On April 11, 2014, defendant paid plaintiff $8878 for
completion of the first phase. After completion of the second
phase, defendant paid plaintiff $5273. On August 12, 2014,
plaintiff billed defendant for the final payment of $3514; however,
defendant only remitted a partial payment of $2000, leaving a
balance of $1514.
Plaintiff filed suit seeking the amount owed plus an
additional late payment as set forth in the contract of 1.5% per
each month the bill was unpaid, for a total demand of $1718.39.
Following the October 26, 2015 bench trial, the court entered
2 A-2836-15T4
judgment in defendant's favor and dismissed plaintiff's complaint
with prejudice.
On January 11, 2016, plaintiff moved to vacate the entry of
judgment under Rule 4:50-1, presenting the court with a letter
from a Deputy Attorney General, serving as counsel to the New
Jersey State Board of Examiners of Heating, Ventilating, Air
Conditioning and Refrigeration Contractors (the Board), that
explained the licensing requirements for HVACR contractors. The
trial judge denied the motion, stating the following:
A bench trial was heard by this court on
October 16, 2015, and the Court dismissed
plaintiff's claim with prejudice. Plaintiff
files present motion to vacate the final order
of judgement by the court after the October
16, 2015 trial.
The plaintiff contends that the contract
between it and the defendant was legally
binding at the time of its signing. The issue
is whether an HVACR repairman held a valid
license to conduct business after March 1,
2014, if that repairman had not received a
license pursuant to N.J.S.A. 45:16A-1.
Plaintiff further stated that the court
affirmed defendant's interpretation of the
statute, and, in effect, has endorsed the
purported legislative intent to deprive
thousands of men and women of their livelihood
for the sake of bureaucratic compliance.
Plaintiff further asserts that the HVACR
Board of Examiners has determined that HVACR
repairmen that possessed a home improvement
contractor's license, were eligible for waiver
from the education and examination
requirements of the statute and submitted an
3 A-2836-15T4
application during the six-month grandfather
period were legally permitted to work as an
HVACR repairman until such time as they
received their license from the Board.
Plaintiff's representative, Mike Green,
Sr., possessed one of these licenses and was
eligible for waiver of the new license,
because he had served as a contractor for at
least two years prior to March 1, 2014. Thus,
he was legally permitted according to the
plaintiff to ply his trade on behalf of the
plaintiff, to the benefit of the defendant,
until he received his new licensing from the
Board.
Now I think we've cleared it up that this
case is brought -- or this motion is brought
pursuant to Rule 4:50-1. Pursuant to that
rule, on motion, with briefs and upon such
terms as are just, the [c]ourt may relieve a
party or the party's legal representative from
a final judgment or order for the following
reasons: mistake, inadvertent surprise; or
excusable neglect; newly discovered evidence,
which would probably alter the judgment or
order and which, by due diligence could not
have been discovered in time for a new trial
under Rule 4:49; fraud; misrepresentation or
other misconduct; the judgment or order is
void; the judgment or order has been
satisfied; or any other reason justifying
relief from the operation of the judgment or
order.
The court finds there is no newly
discovered evidence in this case that would
not have been discovered in time for a new
trial, which may have provided relief pursuant
to Rule 4:50-1. Plaintiff simply argues that
the true legislative intent was not followed
by the court and provides as evidence the
opinion of a Deputy Attorney General. While
the Court appreciates the opinion of the DAG,
it merely states the opinion of a lawyer and
4 A-2836-15T4
is, in no way, indisputable evidence of
legislative intent.
The Court, therefore, will deny the
motion and hold that Rule 4:50-1(f) does not
justify relief from the operation or order of
judgment.
. . . .
This is simply a dispute over the
interpretation of a statute, not an injustice,
so if you think I've gotten it wrong, you
should have taken it up much earlier than you
did.
On appeal, plaintiff argues the evidence presented in support
of the motion to vacate was not an opinion letter but represents
an articulation of the Board's interpretation of N.J.S.A. 45:16A-
1 to -28, and deserves deference. Plaintiff contends the court's
interpretation of the applicable statutes denies his client due
process. We disagree.
The trial judge decided this motion on the basis of Rule
4:50-1(b) and (f). Plaintiff argues the trial judge's legal
conclusions dismissing the complaint were flawed, and the judge
erred denying his motion to vacate the judgment and to present new
evidence. We note at the outset, plaintiff has not provided the
record of the trial proceedings; therefore, we do not know the
legal basis for the trial court's determination beyond what we
discern from the judge's ruling on the motion. Moreover, we have
5 A-2836-15T4
been provided with an incomplete record of plaintiff's motion to
vacate the judgment. See Rule 2:5-4(a).
A party seeking to vacate a final judgment must meet the
standards of Rule 4:50-1. U.S. Bank Nat'l Ass'n v. Guillaume, 209
N.J. 449, 467 (2012). Rule 4:50-1 provides six grounds for relief:
(a) mistake, inadvertence, surprise, or
excusable neglect; (b) newly discovered
evidence which would probably alter the
judgment or order and which by due diligence
could not have been discovered in time to move
for a new trial under R. 4:49; (c) fraud
(whether heretofore denominated intrinsic or
extrinsic), misrepresentation, or other
misconduct of an adverse party; (d) the
judgment or order is void; (e) the judgment
or order has been satisfied, released or
discharged, or a prior judgment or order upon
which it is based has been reversed or
otherwise vacated, or it is no longer
equitable that the judgment or order should
have prospective application; or (f) any other
reason justifying relief from the operation
of the judgment or order.
"The rule is 'designed to reconcile the strong interests in
finality of judgments and judicial efficiency with the equitable
notion that courts should have authority to avoid an unjust result
in any given case.'" Guillaume, supra, 209 N.J. at 467 (quoting
Mancini v. EDS, 132 N.J. 330, 334 (1993)).
We afford "substantial deference" to a judge's determination
to grant relief under Rule 4:50-1 and reverse only if the court's
determination amounts to a clear abuse of discretion. Ibid.
6 A-2836-15T4
(citing DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 261 (2009);
Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994)).
An abuse of discretion occurs when a decision is "made without a
rational explanation, inexplicably departed from established
policies, or rested on an impermissible basis." Id. at 467-68
(quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123
(2007)).
Here, plaintiff does not explicitly identify what subsection
of Rule 4:50-1 it relied on, but the trial court discussed
subsections (b) and (f). To prevail under Rule 4:50-1(b),
plaintiff must demonstrate "that the evidence would probably have
changed the result, that it was unobtainable by the exercise of
due diligence for use at the trial, and that the evidence was not
merely cumulative." DEG, LLC, supra, 198 N.J. at 264 (quoting
Quick Chek Food Stores v. Twp. of Springfield, 83 N.J. 438, 445
(1980)). Further, "[a]ll three [of these] requirements must be
met"; it is insufficient to prove only one or two prongs of the
test. Ibid. Finally, "'newly discovered evidence' does not
include an attempt to remedy a belated realization of the
inaccuracy of an adversary's proofs." Ibid. (quoting Posta v.
Chung-Loy, 306 N.J. Super. 182, 206 (App. Div. 1997)). "The motion
shall be made within a reasonable time, and for reasons (a), (b)
7 A-2836-15T4
and (c) of R. 4:50-1 not more than one year after the judgment,
order or proceeding was entered or taken." R. 4:50-2.
Rule 4:50-1(f) permits relief for "any other reason
justifying relief from the operation of the judgment or order" and
"is available only when 'truly exceptional circumstances are
present.'" Guillaume, supra, 209 N.J. at 484 (quoting Hous. Auth.
of Morristown, supra, 135 N.J. at 286). We are not persuaded
plaintiff has demonstrated entitlement to relief under either
standard based upon the record presented, nor do we discern an
abuse of the trial judge's discretion. Plaintiff's additional
arguments are without sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
8 A-2836-15T4