SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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JAMCO HEATING & AIR CONDITIONI NG, 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 Defendant is properly known as Massimo Procaccini General Contractor, L.L.C. NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court

. " A lthough 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

- 3.2 A

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Plaintiff JAMCO Heating & Air Conditioning, Inc. ap peals 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 he ating , ventilation, air conditioning
and refrigeration (HVACR) contractor file d 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 agr eement with defendant to perform

HVAC R 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 file d suit se eking 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.

F ollowing the October 26, 2015 bench trial , the court entered3 A

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judg ment in defendant's f avor and dismissed plaintiff's complaint
with prejudice.

On January 11, 2016 , plaintiff moved to vacate th e entry of
judgment under Rule 4:5 0

- 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 HVAC R 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 submitte d a n4 A

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- 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 wa s eligibl e for waiver of the new license , be cause he had served as a contractor for at least two yea rs 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 def endant, 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. P ursuant to that rule, on motion , with brief s 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 prob ably alter the judg ment 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

o ther misconduct; the judg ment or order is void; the judg ment or order has been satisfied; or any other reason jus tifying relief from the operation of the judgment or order.

The court find s 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. Plainti ff 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 o f the DAG, it merely states the opinion of a lawyer and5 A

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The Co urt , therefore, will deny the motion and hold that Rule 4:5 0

- 1 ( f ) does not justify relief from the operation or order of judg ment
.

. . . . This is simply a dispute over the interpretation of a st atute, not an injustice, so if you think I've gotten it wrong, you should have taken i t 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 th is mot ion on the basis of Rule

4:50

- 1 ( b ) and (f). P laintiff 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, p laintiff 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 have6 A

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been provided with an incomplete record of plaintiff's motion to
vacate the judg ment. 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 judgm ent 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

.7 A

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(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 do es not explicitly identify what subsection

of Rule 4:50

- 1 it relie d on , but the trial court discuss e d

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 evid ence 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

t est. 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)8 A

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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 ope ration 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

w ritten opinion. R. 2:11

- 3(e)(1 ) (E)
.
Affirmed.