ALPHA AERONAUTICS, ETC. v. ANDREW L. ROCHESTER, ESQ. (L-0705-18, BURLINGTON COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE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-3276-20
ALPHA AERONAUTICS OF
NEW JERSEY, INC.
Plaintiff-Respondent,
v.
ANDREW L. ROCHESTER, ESQ.,
ANDREW L. ROCHESTER, LLC,
and MORGENSTERN &
ROCHESTER, LLC,
Defendants-Appellants.
______________________________
Argued February 7, 2022 – Decided April 1, 2022
Before Judges Accurso, Rose, and Enright.
On appeal from an interlocutory order of the Superior
Court of New Jersey, Law Division, Burlington
County, Docket No. L-0705-18.
Melissa J. Brown argued the cause for appellants
(Marks, O'Neill, O'Brien, Doherty & Kelly, PC,
attorneys; Melissa J. Brown, Sean X. Kelly, and
Amanda A. King, on the briefs).
Mark J. Molz argued the cause for respondent.
PER CURIAM
Defendants Andrew L. Rochester, Esq. (Rochester), Andrew L. Rochester,
LLC, and Morgenstern & Rochester, LLC (Law Firm defendants) appeal from a
May 12, 2021 order denying their summary judgment motion. We reverse.
This civil matter arises out of an underlying divorce action in Mercer
County between Mark Molz, Esq., counsel for plaintiff Alpha Aeronautics of
New Jersey, Inc. (Alpha), and his ex-wife, Theresa Mitchell (f/k/a Molz).
Defendants represented Mitchell in the divorce action before Judge Catherine
Fitzpatrick; Molz also had legal counsel during the divorce proceedings, but at
times, represented himself. Judge Fitzpatrick entered a final judgment of
divorce (JOD) in January 2018.
Molz appealed from the JOD, challenging certain awards of equitable
distribution, alimony, and counsel fees to Mitchell. He also challenged a post-
judgment order holding him in contempt and an enforcement order involving
certain corporate entities held by one or both parties during the marriage. In an
unpublished opinion, we affirmed the JOD, as well as the contested post-
judgment orders, Molz v. Molz, No. A-2888-17 (App. Div. May 1, 2020);
several months later, the Supreme Court denied Molz's petition for certification.
244 N.J. 163 (2020).
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We need not detail the evidence adduced in the Molz divorce trial. But
having addressed equitable distribution issues in our unpublished opinion, we
do not ignore that Molz and Mitchell provided testimony to Judge Fitzpatrick
regarding Alpha and the 1973 Piper Seneca plane (Seneca) it owns.
For example, during cross-examination, Molz initially testified he owned
the Seneca, but then clarified "it's owned by Alpha Aeronautics." He also stated
that during the marriage the original engines from Alpha's "two engine airplane"
were "overhauled," he "put both [engines] in," and the "overhaul for each
engine" cost "[p]robably around ten" thousand dollars. Asked by Mitchell's
counsel to confirm if "at least $20,000 was spent" to overhaul the engines, Molz
responded, "Yes, sir. Twenty years ago." Molz further testified the Seneca had
at least one paint job and the "avionics in this aircraft were replaced."
Additionally, he stated it was "possible that [he] loaned the money to [Alpha]"
to replace the avionics and he "doubt[ed]" Alpha repaid the loan. Moreover, he
testified "[a] GPS with autopilot was installed [in the Seneca] during the course
of the marriage" which was "upgraded . . . for the safety of the family and to
make sure that the aircraft was safe to operate." Molz also filed a Case
Information Statement in the divorce action, listing Alpha as his premarital
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asset. Additionally, he named Alpha as one of his businesses when he appealed
from the JOD.
Mitchell testified during the divorce trial that she was not involved in the
purchase of the Seneca, admitting it was purchased by Molz with another partner
before the marriage. Still, she stated she was entitled to share in the value of
the Seneca because she and Molz "maintained it, put new equipment in it," and
"kept the airplane up" from "very early in the marriage." Mitchell also estimated
the parties spent "between [$]10 and 15,000" for a GPS for the Seneca, and they
paid roughly $25,000 when Molz "wanted to buy a new GPS system" years later.
In her January 2018 opinion, Judge Fitzpatrick specifically referenced the
Seneca, finding:
this twin engine aircraft was owned prior to the
marriage, [but Mitchell] argue[d] that a significant
amount of maintenance and upgrading was done with
regard to this aircraft to include that the avionics were
replaced, on two occasions, a GPS with autopilot was
installed during the marriage, the entire interior was
also replaced, the plane had two paint jobs that cost at
least $7,500 each and the twin engines were rebuilt at
least twice during the marriage with each engine
rebuilding costing at least $5,000 or a total of $20,000
for four engines.
Marital funds were used for all of the above as well as
the hangar rental and tie down fees.
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The plane shall be sold and the net proceeds shall be
divided as follows: 60% to [Molz] and 40% to
[Mitchell], recognizing a premarital component to the
airplane[] but significant improvements made with
marital funds throughout the marriage.
When Molz appealed from the JOD, he contended, in part, that Judge
Fitzpatrick "had no authority to equitably distribute his [premarital] planes [.]"
Molz, slip op. at 19. We disagreed, deferring to the judge's findings regarding
the subject aircraft, and observed
the trial judge . . . granted [Mitchell] a 40% interest and
[Molz] a 60% interest in the net value of [Molz]'s two
premarital planes (owned by Alpha . . . and Snow
Enterprises) . . . . In doing so, the judge recognized a
"premarital component" to these assets. Still, [Molz]
maintains the judge had no authority to equitably
distribute his premarital planes . . . . His claim of error,
in part, arises from his contention that [Mitchell] "lied"
about using marital funds to maintain his premarital
assets. We defer to [the judge's] factual and credibility
findings in this regard. . . .
As there is overwhelming evidence to support Judge
Fitzpatrick's finding that [Mitchell's] testimony
regarding the expenditure of marital funds to improve,
maintain and restore [Molz's] premarital assets was
credible, we will not disturb the judge's equitable
distribution rulings. [Molz] simply failed to meet his
burden of proof to establish that any premarital or
corporate assets were immune from distribution.
[Id. at 19-20 (emphasis added).]
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Three months after the JOD was entered, Molz, as Alpha's attorney, filed
a Law Division complaint against defendants.1 The complaint alleged Alpha
owned the subject Seneca as of 1993 and that Rochester, both individually and
on behalf of the Law Firm defendants, made the following misrepresentations
to Judge Fitzpatrick, "[d]espite his actual knowledge or imputed knowledge of
the true facts":
A. That the aircraft had received [four] new engines
during the course of the marriage; and/or
B. That the aircraft had received two paint jobs during
the course of the marriage; and/or
C. That the aircraft was a marital asset; and/or
D. Other representations that will become apparent
during discovery.
Alpha further alleged defendants failed to name it as a party in the divorce
action yet sought "the sale of [its] [c]orporate assets without notice, the
opportunity to be heard, jurisdiction or any other legal basis." 2 Moreover, Alpha
claimed Rochester: "was negligent"; "deviated from the accepted standard of
care for attorneys"; and "proximately caused [it] as a third[-]party beneficiary
1
Alpha's complaint was filed in Burlington County.
2
It is undisputed that Molz, likewise, chose not to name Alpha, or his other
corporate entities, as parties in the divorce action.
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to sustain financial injury[.]" Additionally, Alpha asserted that Rochester "had
copies of the aircraft's logbooks" and was aware that the claims he advanced on
Mitchell's behalf for equitable distribution "lacked merit." Alpha demanded
punitive and compensatory damages, as well as counsel fees and costs against
defendants "for professional negligence, legal malpractice, breach of fiduciary
duty, fraud and/or for any other causes of action allowed by law."
Defendants moved to dismiss Alpha's complaint for failure to state a cause
of action. The Law Division judge denied the motion without prejudice in
August 2018. Shortly thereafter, the judge denied defendants' motion for
reconsideration of the August 2018 order.
After we affirmed the JOD and the Supreme Court denied Molz's petition
for certification, defendants moved for summary judgment, arguing Alpha's
claims were barred by the litigation privilege, res judicata and collateral
estoppel. Further, defendants contended Alpha's legal malpractice claims could
not proceed because defendants never had a relationship with Alpha,
"professional or otherwise." Also, defendants highlighted that in our May 2020
opinion, we concluded some of Molz's "premarital assets were purchased
through corporate entities owned or controlled by him, including . . . a 1973
Piper Seneca" and that Molz "simply failed to meet his burden of proof to
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establish that any premarital or corporate assets were immune from
distribution." Id. at 4, 20.
Alpha opposed the summary judgment motion. In responding to
defendants' statement of material facts, it argued its "claim [against defendants]
center[ed] on material misrepresentations by . . . Rochester and his LLCs."
Further, Alpha stated, "Judge Fitzpatrick adopted . . . Rochester's closing
argument" and "relied upon . . . Rochester's representations of improvements to
the airplane that enhanced its value which are the subject of this lawsuit."
Moreover, Alpha stated "the Appellate Division did not consider facts but
instead, deferred to Judge Fitzpatrick's factual findings which [were] adopted,
wholly or in part, from . . . Rochester's written summation."
Argument on the summary judgment motion before the Law Division
judge commenced in January 2021 and concluded argument two months later.
During the January 2021 proceeding, defendants asserted that any
communications made in the divorce proceeding were protected by the litigation
privilege and that Molz was fully aware of those communications. The judge
agreed with defense counsel that Molz "was in the courtroom [during divorce
proceedings] when these [challenged] statements were being made." He also
agreed that as a party to the divorce litigation and a stockholder in Alpha, Molz
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"kn[ew] of these statements being made" about the Seneca. Further, the judge
stated, "[t]here's no question that Mr. Molz as a shareholder was put on notice."3
Without citing any authority, Molz, as Alpha's counsel, argued "there is
no litigation privilege that extends to a nonparty." Because Alpha was not a
party to the divorce litigation, Molz urged the Law Division judge to find
defendants were not shielded from liability for any communications made in the
underlying action about Alpha or its assets. Molz acknowledged holding stock
in Alpha, that he "was the attorney for the corporation" during the divorce trial,
and that during the trial, he moved into evidence the Seneca's registration.
Nonetheless, he maintained he "was not noticed that this was going to be an
issue."
The judge agreed to carry the hearing to March 2021 to allow counsel to
provide supplemental briefing on whether the litigation privilege shielded
defendants from liability. When the parties returned to court, the judge heard
3
The judge also remarked that once Molz claimed in the divorce action that the
Seneca was premarital, "it shift[ed] the burden . . . to the other side to, therefore,
produce the evidence that that's not true." But, as we noted in Molz's appeal
from the JOD, "[t]he burden of establishing that an asset or any portion thereof
is immune from distribution rests on the party claiming its immunity." Molz,
slip op. at 16 (emphasis added) (citing Pacifico v. Pacifico, 190 N.J. 258, 269
(2007)).
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additional argument before denying the summary judgment motion. He
explained it was inappropriate to grant defendants' application without
discovery being completed or until he had "a firm grasp of what was said where,
what, when, why, [and] whether [a challenged statement] was intentional or
not."
On appeal, defendants renew the argument they were entitled to summary
judgment because any statements made during the divorce litigation by
Rochester, whether individually or on behalf of the Law Firm defendants, were
protected by the litigation privilege. We agree.
Our review of a ruling on summary judgment is de novo, applying the
same legal standard as the trial court. Conley v. Guerrero, 228 N.J. 339, 346
(2017) (citing Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of
Pittsburgh, 224 N.J. 189, 199 (2016)). Thus, we consider, as the Law Division
judge did, "whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as
a matter of law." Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J.
436, 445-46 (2007) (quoting Brill v. Guardian Life Ins. Co., 142 N.J. 520, 536
(1995)). Summary judgment must be granted "if the pleadings, depositions,
answers to interrogatories and admissions on file, together with the affidavits, if
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any, show that there is no genuine issue as to any material fact challenged and
that the moving party is entitled to a judgment or order as a matter of law."
Templo Fuente, 224 N.J. at 199 (quoting R. 4:46-2(c)).
"To defeat a motion for summary judgment, the opponent must 'come
forward with evidence' that creates a genuine issue of material fact." Cortez v.
Gindhart, 435 N.J. Super. 589, 605 (App. Div. 2014) (quoting Horizon Blue
Cross Blue Shield of N.J. v. State, 425 N.J. Super. 1, 32 (App. Div. 2012)).
"[C]onclusory and self-serving assertions by one of the parties are insufficient
to overcome the motion." Sullivan v. Port Auth. of N.Y. and N.J., 449 N.J.
Super. 276, 283 (App. Div. 2017) (alteration in original) (quoting Puder v.
Buechel, 183 N.J. 428, 440-41 (2005)).
"Competent opposition requires 'competent evidential material' beyond
mere 'speculation' and 'fanciful arguments.'" Hoffman v. Asseenontv.Com, Inc.,
404 N.J. Super. 415, 426 (App. Div. 2009) (quoting Merchs. Express Money
Order Co. v. Sun Nat'l Bank, 374 N.J. Super. 556, 563 (App. Div. 2005)).
"When no issue of fact exists, and only a question of law remains, [we] afford[]
no special deference to the legal determinations of the trial court." Templo
Fuente, 224 N.J. at 199 (citing Manalapan Realty, L.P. v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378 (1995)).
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Whether a party is entitled to assert a litigation privilege is a question of
law. Hawkins v. Harris, 141 N.J. 207, 216 (1995). The privilege's public policy
rationale stems from the need for lawyers and litigants to "be permitted to speak
and write freely without the restraint of fear of an ensuing defamation action."
Loigman v. Twp. Comm. of Twp. of Middletown, 185 N.J. 566, 580 (2006)
(quoting Fenning v. S.G. Holding Corp., 47 N.J. Super. 110, 117 (App. Div.
1957)). Further, the privilege "may be extended to statements made in the
course of judicial proceedings even if the words are written or spoke n
maliciously, without any justification or excuse, and from personal ill will or
anger against the party defamed." De Vivo v. Ascher, 228 N.J. Super. 453, 457
(App. Div. 1988).
The absolute litigation privilege applies to "any communication (1) made
in judicial or quasi-judicial proceedings; (2) by litigants or other participants
authorized by law; (3) to achieve the objects of the litigation; and (4) that have
some connection or logical relation to the action." Hawkins, 141 N.J. at 216.
We consider "neither the justness of the lawyers' motives nor the sincerity of
their communications" in applying the privilege because lawyers "must be free
to pursue the best course charted for their clients without the distraction of a
vindictive lawsuit looming on the horizon." Loigman, 185 N.J. at 586, 587-88.
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We have broadly interpreted the phrase, "made in judicial or quasi-judicial
proceedings[,]" Hawkins, 141 N.J. at 216, as extending the privilege "to all
statements or communications in connection with the judicial proceeding[,]" not
just statements made in court, Ruberton v. Gabage, 280 N.J. Super. 125, 133
(App. Div. 1995); see De Vivo, 228 N.J. Super. at 459 (applying the privilege
to an attorney's letter, alleged to contain libelous statements, written to counsel
for a company not a party to the litigation). The extension of the privilege to
communications by attorneys is grounded in the ability to discipline counsel
who flout the boundaries of permissible conduct. Hawkins, 141 N.J. at 220-21.
Here, we are convinced the absolute litigation privilege applies to the
subject communications made by Rochester, both individually and on behalf of
the Law Firm defendants. We reach this conclusion because: Rochester made
the statements while representing Mitchell during divorce proceedings; Mitchell
authorized defendants to make such communications; the communications
stemmed from defendants' efforts to ensure Mitchell received what she was due
by way of equitable distribution; and the communications were logically related
to that objective. Thus, consistent with the criteria outlined in Hawkins,
defendants' communications were protected by the litigation privilege and the
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Law Division judge should have granted defendants' summary judgment motion
dismissing Alpha's complaint.
Given our determination, we need not address defendants' alternative
arguments that Alpha's action should have been dismissed based on the doctrines
of collateral estoppel and res judicata, or because Alpha failed to establish any
element of a claim for legal malpractice.
Reversed and remanded for entry of summary judgment in favor of
defendants, as well as an order dismissing plaintiff's complaint.
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