Joseph Kornbleuth, DMD v. Thomas Westover (081898)(Camden County & Statewide)

SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.
Joseph Kornbleuth, DMD v. Thomas Westover (A-71-18) (081898)
Argued November 6, 2019 -- Decided March 11, 2020
SOLOMON, J., writing for the Court.
The Court reviews for abuse of discretion two rulings by the trial court in this
action brought by plaintiffs Joseph and Donna Kornbleuth against their neighbors,
defendants Thomas and Betsy Westover, after bamboo was removed from the
Kornbleuths’ property by contractors hired by the Westovers. Specifically, the Court
considers the imposition of sanctions under Rule 1:2-4 and the denial of the Kornbleuths’
motion for reconsideration of the grant of summary judgment in favor of the Westovers.
Bamboo from the barrier that divided the parties’ rear yards spread to the
Westovers’ property. When neither the Kornbleuths nor the Westovers were home,
contractors hired by the Westovers removed all the bamboo from both properties.
The Kornbleuths filed a complaint against the Westovers for trespass and
conversion, describing what was lost as a “bamboo fence” providing privacy and
infrequently characterizing it as something of aesthetic significance to them. The
Kornbleuths submitted expert reports projecting bamboo restoration costs of between
about $17,000 and $41,000. Neither those reports nor any other evidence provided
information about the market value of the Kornbleuths’ property or the diminution in that
property’s value as a result of the removal of the bamboo fence.
On the day trial was scheduled to begin, the Kornbleuths’ designated trial counsel
requested a continuance because neither his “indispensable ‘second chair’” nor his
“Courtroom IT Assistant” were able to be present at the trial. The trial court offered its
own IT staff, but counsel refused to begin trial the following day and instead moved for
an adjournment. The judge denied the motion and dismissed the matter without
prejudice. The trial court later reinstated the complaint and sanctioned the Kornbleuths in
the amount of $8500 to compensate the Westovers for costs incurred by the delay.
The Westovers moved for summary judgment. The Kornbleuths conceded that
they had not produced evidence of diminution in value but argued their expert’s reports
supported their elected remedy of restoration costs. The trial judge granted the
Westovers’ motion and denied the Kornbleuths’ subsequent motion for reconsideration.
1
The Kornbleuths appealed. The Appellate Division first found no abuse of the
trial court’s considerable discretion in imposing sanctions, given that plaintiffs’
designated trial attorney refused to begin trial even though he was present and the court
offered to lend him IT support. Next, regarding the denial of reconsideration of the
summary judgment order, the Appellate Division held the trial court did not abuse its
discretion in denying the motion because plaintiffs failed to demonstrate that the decision
was palpably incorrect.
The Court granted the Kornbleuths’ petition for certification. 237 N.J. 561 (2019).
HELD: There was no abuse of discretion with respect to either the imposition of
sanctions or the denial of reconsideration.
1. New Jersey’s Court Rules provide the framework for imposing sanctions for failure to
appear for trial, and Rule 1:2-4(a) considers refusal to proceed on the day of trial a failure
to appear, notwithstanding an accompanying motion to adjourn. Here, the Kornbleuths’
designated trial counsel made an adjournment motion because he did not have the
assistance of his associate and his own IT support. Plaintiffs’ choice of designated trial
counsel is an important consideration. Absent exceptional circumstances, parties are
entitled to have their designated trial counsel represent them at trial. R. 4:25-4.
However, parties are not entitled to have other members of the trial team present to help
that designee at trial if doing so would delay proceedings. The judge appropriately
exercised discretion in denying adjournment and imposing sanctions. (pp. 9-12)
2. Section 929 of the Restatement (Second) of Torts (Restatement) provides the
framework for determining plaintiffs’ damages for trespass to land. The Restatement
contemplates two possible damages valuations under section 929(1)(a): (1) if the cost of
restoring the land to its original condition is not proportionate to the diminution in the
value of the land and there is no reason personal to the owner for restoring it to its
original condition, damages are limited to the diminution in value; and (2) if the cost of
restoring the land to its original condition is not proportionate to the diminution in the
value of the land but there is a reason personal to the owner for restoring the land,
damages are not limited to the diminution in the value of the land. Of relevance to this
appeal is that the Restatement limits the damages recoverable for trespass to land when
there is no reason personal to the owner for restoring the property to its original
condition. (pp. 12-15)
3. The Appellate Division considered diminution of value and restoration costs as
compensation for trespassory tree removal in Mosteller v. Naiman, 416 N.J. Super. 632
(App. Div. 2010), and Huber v. Serpico, 71 N.J. Super. 329 (App. Div. 1962). The
Appellate Division in Huber applied the second alternative for assessing damages under
Restatement section 929(1)(a) -- if the cost of restoring the land to its original condition
is not proportionate to the diminution in the value of the land but there is a reason
2
personal to the owner for restoring the land, reasonable damages are not limited to the
diminution in value. Huber, 71 N.J. Super. at 345. Nevertheless, the court found the
touchstone to be reasonableness. Id. at 346. Significantly, the almost sixty-year-old
decision in Huber is the only one in this State’s history to find that trees or shrubbery had
“peculiar value” justifying restoration costs in excess of diminution of value in the
context of a trespass or conversion claim. In contrast, New Jersey cases have historically
rejected claims that certain foliage had peculiar value warranting damages for trespass
beyond diminution in value. Mosteller is the most recent case rejecting a claim premised
on the peculiar value of certain trees. 416 N.J. Super. at 634-35. The court concluded the
enormity of the cost to replace the lost trees unreasonably outweighed the “perhaps even
negligible” diminution of the property’s market value. Id. at 641-42. (pp. 15-19)
4. Here, the Kornbleuths never alleged or offered evidence of any losses incident to
removal of the bamboo or sought to prove diminution of value damages. They instead
claim the nature of the damages sought here -- restoration costs -- is an election available
to the aggrieved party in a claim for trespass to land. However, whether restoration costs
may be recovered is not an election of the aggrieved party but is dependent upon a
showing that such damages are reasonable. A general interest in privacy and vague
assertions of the aesthetic worth of bamboo as opposed to any other natural barrier do not
establish value personal to the owner. Additionally, even if the Kornbleuths presented
legally sufficient evidence of peculiar value, proportionality and reasonableness of
restoration costs could not be determined without evidence of diminished value or some
similarly helpful yardstick for comparison. The trial court did not abuse its discretion in
refusing to reconsider its order granting summary judgment to defendants. (pp. 20-24)
The judgment of the Appellate Division is AFFIRMED.
JUSTICE LaVECCHIA, dissenting, expresses the view that the majority’s
decision overextends the holdings and reasoning of Mosteller and Huber, altering New
Jersey law and making it less protective of residential property owners. Although
plaintiffs no doubt bear the ultimate burden when seeking compensatory damages in a
harm-to-land case based on invasion, Justice LaVecchia explains, they should not be
compelled to produce evidence of diminution in value of the entirety of the property in
order to get before the factfinder; rather, they should be permitted to proceed with
evidence of restoration damages for the trees destroyed. Justice LaVecchia adds that the
factfinder would determine the reasonableness of the claimed compensatory damages. In
Justice LaVecchia’s view, based on their allegations, plaintiffs presented a claim for
which nominal damages are presumed under settled law of trespass and also presented a
prima facie claim for reasonable damages for the alleged destruction of the bamboo.
CHIEF JUSTICE RABNER and JUSTICES PATTERSON and FERNANDEZ-
VINA join in JUSTICE SOLOMON’S opinion. JUSTICE LaVECCHIA filed a
dissent, in which JUSTICES ALBIN and TIMPONE join.
3
SUPREME COURT OF NEW JERSEY
A-71 September Term 2018
081898
Joseph Kornbleuth, DMD,
and Donna Kornbleuth,
husband and wife,
Plaintiffs-Appellants,
v.
Thomas Westover and Betsy
Westover, husband and wife,
Defendants-Respondents,
and
New Jersey Bamboo Landscaping,
LLC, and Alexander Betz,
Defendants.
On certification to the Superior Court,
Appellate Division.
Argued Decided
November 6, 2019 March 11, 2020
I. Michael Heine argued the cause for appellants (Heine
Associates, attorneys; I. Michael Heine, on the briefs).
William J. Martin argued the cause for respondents
(Martin Gunn & Martin, attorneys; William J. Martin and
Michael A. Mascino, on the brief).
1
JUSTICE SOLOMON delivered the opinion of the Court.
Contractors hired by defendants Thomas and Betsy Westover removed
bamboo not only from the Westovers’ property but also from that of their
neighbors, plaintiffs Joseph and Donna Kornbleuth. The Kornbleuths filed a
complaint against the Westovers for trespass and conversion. The trial court
dismissed their complaint when, on the eve of trial, their designated trial
attorney refused to proceed because his second-chair and information
technology (IT) assistant unexpectedly became unavailable. The trial court
ultimately granted the Kornbleuths’ motion to reinstate their complaint but
imposed sanctions under Rule 1:2-4.
Later, the trial court granted the Westovers’ motion for summary
judgment, finding plaintiffs failed to offer evidence necessary to support their
claim for damages. The trial court denied the Kornbleuths’ motion to
reconsider the grant of summary judgment. The Appellate Division affirmed
both the trial court’s imposition of sanctions and denial of reconsideration.
We first review for abuse of discretion the trial court’s imposition of
sanctions under Rule 1:2-4. Next, we determine whether the trial court abused
its discretion by refusing to reconsider its grant of summary judgment in favor
of the Westovers. For the reasons that follow, we hold there was no abuse of
2
discretion with respect to either issue and affirm the judgment of the Appellate
Division.
I.
The trial court record reveals the following facts.
Plaintiffs Joseph and Donna Kornbleuth’s rear property line is
contiguous to that of defendants Thomas and Betsy Westover. Their shared
property line is approximately one hundred feet long and was marked by a
bamboo barrier twenty feet tall by thirty feet wide. That “bamboo fence”
provided the Kornbleuths “complete visual privacy” from the Westovers.
Over time, bamboo spread to the Westovers’ property. The Westovers
requested the Kornbleuths’ permission to have contractors remove all bamboo
from both properties and replace it with a less invasive natural barrier. The
Kornbleuths refused permission. Later, when neither the Kornbleuths nor the
Westovers were home, contractors hired by the Westovers removed all the
bamboo from both properties. 1
1
The record is unclear as to whether the Westovers instructed the contractors
(against whom the Kornbleuths settled their claims) to remove all bamboo
from both properties or only the bamboo growing on the Westovers’ property.
3
The Kornbleuths filed a complaint against the Westovers for trespass
and conversion, arguing that removal of the bamboo interfered with their
privacy and aesthetic interests. Afterwards, the parties conducted discovery.
In her deposition, Donna Kornbleuth explained that “we had privacy
from the Westovers . . . otherwise I would never buy a house looking at their
house.” Throughout discovery, the Kornbleuths regularly described what was
lost as a “bamboo fence” providing privacy, and infrequently characterized it
as something of aesthetic significance to them. 2
The Kornbleuths submitted expert reports by a landscape architect
projecting bamboo restoration costs of between about $17,000 and $41,000.3
Neither the landscape architect’s reports nor any other evidence provided
information about the market value of the Kornbleuths’ property or the
2
Notably, as the Westovers point out and the Kornbleuths have not denied, in
their conversations with the landscape architect the Kornbleuths discussed a
range of options to replace the lost bamboo fence, including alternatives to
bamboo.
3
The landscape architect’s May 2015 report projected restoration costs of
$16,967, his September 2015 report projected restoration costs of $21,363, and
his November 2015 report projected restoration costs of $41,032. The range of
these estimates is due in part to the fact that only the November 2015 report
includes a complete estimate for the cost of installing an underground root
barrier to prevent the bamboo from spreading to other properties in the future.
The Westovers argued below that the November 2015 report was untimely, but
the Kornbleuths pointed out that the Westovers failed to file the proper motion
when challenging that report. Neither party addresses the issue in briefs to this
Court.
4
diminution in that property’s value as a result of the removal of the bamboo
fence.
On the day trial was scheduled to begin, the Kornbleuths’ designated
trial counsel requested a continuance because his “indispensable ‘second chair’
[was] medically incapacitated with flu/fever” and his “Courtroom IT Assistant
(also indispensable to Plaintiff’s trial team) had admitted both senior parents to
the hospital” and would likewise be unavailable to assist at trial. The trial
court offered its own IT staff to “do whatever [they] could” to satisfy counsel’s
IT needs, but counsel nonetheless refused to begin trial the following day and
instead moved for an adjournment. The judge denied the motion to adjourn the
trial and dismissed the matter without prejudice, emphasizing the designation
of trial counsel, and noting that “I’ve never seen anyone adjourn a case
because of the unavailability of support staff.” After the trial court granted
counsel’s motion to reinstate the complaint, it sanctioned the Kornbleuths in
the amount of $85004 to compensate defendants for costs incurred by the
delay.
Upon the conclusion of discovery, the Westovers moved for summary
judgment, arguing the Kornbleuths failed to produce evidence of the
4
The Kornbleuths have never challenged the reasonableness of the sum
imposed as a sanction; instead they challenge the underlying decision to
impose sanctions.
5
diminution in their property’s value as a consequence of the bamboo’s
removal. The Kornbleuths conceded that they had not produced evidence of
diminution in value but argued their expert’s reports supported their elected
remedy of restoration costs. The trial judge granted the Westovers’ motion
and dismissed the Kornbleuths’ claims with prejudice. Specifically, the court
held “the appropriate value is under . . . diminution. And there’s been no
evidence . . . of that. [The Kornbleuths have] failed to raise any genuine issue
of material fact that there was some peculiar value as to the specific type of
bamboo that was lost.” The court denied the Kornbleuths’ subsequent motion
for reconsideration.
The Kornbleuths appealed only the denial of their motion for
reconsideration. Nevertheless, because the Kornbleuths also submitted copies
of the transcripts from the hearings on both their motion to adjourn and their
motion for reconsideration, the Appellate Division treated the appeal
“indulgently” and addressed not just the denial of reconsideration but also the
scheduling and sanctions issue.
The Appellate Division first found no abuse of the trial court’s
considerable discretion in imposing sanctions, given that plaintiffs’ designated
trial attorney refused to begin trial even though he was present and the court
offered to lend him IT support. Next, regarding the denial of reconsideration
6
of the summary judgment order, the Appellate Division held the trial court did
not abuse its discretion in denying the motion because plaintiffs failed to
demonstrate that the decision was palpably incorrect. In doing so, the
Appellate Division found there is authority to support the trial court’s
conclusion that the Kornbleuths’ evidence on damages was inadequate as a
matter of law.
We granted the Kornbleuths’ petition for certification. 237 N.J. 561
(2019).
II.
The Kornbleuths assert here that the trial court’s denial of their
adjournment motion, dismissal of the complaint, and imposition of sanctions
upon reinstatement was an abuse of discretion. They also claim the trial
court’s denial of their motion for reconsideration was an abuse of discretion.
The Kornbleuths argue, as they did before the Appellate Division, that
because they live at the affected property and have not just an economic but
also a privacy interest at stake, this case is more like Huber v. Serpico, 71 N.J.
Super. 329 (App. Div. 1962) (awarding reasonable restoration costs where
defendants removed approximately fifty mature trees with peculiar value to
plaintiffs), than Mosteller v. Naiman, 416 N.J. Super. 632 (App. Div. 2010)
(rejecting plaintiff’s restoration cost claim because plaintiff was non-resident
7
landlord and failed to establish peculiar value). As such, they contend that
their elected remedy of restoration costs provides the appropriate measure for
recovery because they provided expert reports on restoration costs and
deposition testimony on how the lost bamboo fence was of peculiar value to
them.
The Westovers argue that because the Kornbleuths’ expert’s reports
addressed only the cost of replacing the bamboo and failed to estimate
diminution of market value consequent to its removal, they are unable to
establish damages. The Westovers assert that the Kornbleuths gave no
“special aesthetic parameters to achieve [their] goal of restoring the privacy of
[their] backyard” and that Ms. Kornbleuths’ statement that she did not want to
see the Westovers’ “ugly house” is evidence that the Kornbleuths cared only
about the loss of privacy and there was no peculiar value of the bamboo to the
Kornbleuths. The Westovers conclude that without “prov[ing] that the lost
bamboo held a peculiar value,” replacement costs cannot be recovered as a
matter of law.
III.
We begin our review of the two issues presented in this appeal by noting
that we review “only the judgment or orders designated in the notice of
appeal.” 1266 Apartment Corp. v. New Horizon Deli, Inc., 368 N.J. Super.
8
456, 459 (App. Div. 2004). Indeed, the commentary to Rule 2:5-1 provides
that “if the notice designates only the order entered on a motion for
reconsideration, it is only that proceeding and not the order that generated the
reconsideration motion that may be reviewed.” Pressler & Verniero, Current
N.J. Court Rules, cmt. 6.1 on R. 2:5-1(e)(1) (2020) (collecting cases).
Although plaintiffs’ notice of appeal identified only the order denying
their motion for reconsideration, the Appellate Division generously
“address[ed] the two issues for which plaintiffs have provided the complete
transcripts” -- their application to adjourn the trial, which led to the dismissal
of their complaint, and the denial of their motion for reconsideration of the
grant of summary judgment. We do the same.
IV.
We first dispose of the Kornbleuths’ claim that the trial court abused its
discretion by imposing sanctions pursuant to Rule 1:2-4. We do so
recognizing that our Court Rules provide the framework for imposing
sanctions for failure to appear for trial, and that Rule 1:2-4(a) considers refusal
to proceed on the day of trial a failure to appear, notwithstanding an
accompanying motion to adjourn:
[I]f without just excuse . . . no appearance is made on
behalf of a party . . . on the day of trial, or if an
application is made for an adjournment, the court may
order any one or more of the following: (a) the payment
9
by the delinquent attorney . . . of costs, in such amount
as the court shall fix, . . . to the adverse party; (b) the
payment . . . of the reasonable expenses, including
attorney’s fees, to the aggrieved party; (c) the dismissal
of the complaint . . . ; or (d) such other action as it
deems appropriate.
Here, the Kornbleuths’ designated trial counsel made an adjournment motion
because he did not have the assistance of his associate and his own IT support.
Plaintiffs’ choice of designated trial counsel is an important
consideration here. The designation of trial counsel is significant to the
relationship among counsel, client, and court, and is administratively necessary
for the smooth operation of this state’s judiciary. As Rule 4:25-4 explains,
“[c]ounsel shall, either in the first pleading or in a writing filed no later than
ten days after the expiration of the discovery period, notify the court that
designated counsel is to try the case, and set forth the name specifically.”
Absent exceptional circumstances, parties are entitled to have their designated
trial counsel represent them at trial. R. 4:25-4. However, parties are not
entitled to have other members of the trial team present to help that designee at
trial if doing so would delay proceedings. See A Practitioner’s Guide to New
Jersey’s Civil Court Procedures § 10(c) (2011), https://www.njcourts.gov/
attorneys/assets/appellate/practitionersguide.pdf (stating that, under Rule 4:25-
4, “[n]o [d]esignation of [t]rial [c]o-[c]ounsel [is] [p]ermitted” because the
rules permit “only one designated attorney per interested party”).
10
Here, the Kornbleuths’ designated trial counsel refused to proceed on the
day of trial because he was not prepared to begin without the help of his
second-chair and IT assistant. The court offered to lend counsel IT support,
but counsel rejected the offer even though plaintiffs were not entitled to have
other members of designated counsel’s trial team present to help at trial. The
court therefore dismissed the matter and imposed sanctions upon reinstating
the complaint.
The decision to dismiss a case or sanction parties for failure to appear
for trial falls within the discretion of the trial judge. Gonzalez v. Safe &
Sound Sec., 185 N.J. 100, 115 (2005); see also State v. Hayes, 205 N.J. 522,
537 (2011) (“[A] motion for an adjournment is addressed to the discretion of
the court, and its denial will not lead to reversal unless it appears from the
record that the defendant suffered manifest wrong or injury.” (quoting State v.
Doro, 103 N.J.L. 88 (E. & A. 1926))). A court abuses that discretion when the
decision to impose sanctions “is made without a rational explanation,
inexplicably depart[s] from established policies, or rest[s] on an impermissible
basis.” U.S. Bank Nat’l Ass’n v. Guillaume, 209 N.J. 449, 467 (2012)
(quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123 (2007)).
The trial court’s decision to dismiss the case without prejudice and
impose monetary sanctions upon reinstatement was adequately and rationally
11
explained by the trial judge -- designated trial counsel failed to appear by
refusing to begin trial even though he was personally available and sensible
accommodations were offered. We repeat, parties are not entitled to have
other members of the trial team present to help designated trial counsel if
awaiting the availability of those individuals would delay proceedings.
Accordingly, the judge appropriately exercised discretion in denying
adjournment of the trial and imposing sanctions under Rule 1:2-4.
V.
Next, we consider the trial court’s refusal to reconsider its order granting
summary judgment in favor of defendants. We do so mindful that
a reconsideration motion is primarily an opportunity to
seek to convince the court that either 1) it has expressed
its decision based upon a palpably incorrect or
irrational basis, or 2) it is obvious that the court either
did not consider, or failed to appreciate the significance
of probative, competent evidence.
[Guido v. Duane Morris LLP, 202 N.J. 79, 87-88 (2010)
(internal quotation marks omitted).]
Our Court Rules permit reconsideration of a trial court’s decision if the
aggrieved party “state[s] with specificity the basis on which [the motion for
reconsideration] is made, including a statement of the matters or controlling
decisions which counsel believes the court has overlooked or as to which it has
erred.” R. 4:49-2.
12
We will not disturb the trial court’s reconsideration decision “unless it
represents a clear abuse of discretion.” Hous. Auth. of Morristown v. Little,
135 N.J. 274, 283 (1994); accord Pitney Bowes Bank, Inc. v. ABC Caging
Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 2014). “An abuse of
discretion ‘arises when a decision is made without a rational explanation,
inexplicably departed from established policies, or rested on an impermissible
basis.’” Pitney Bowes Bank, 440 N.J. Super. at 382 (quoting Flagg v. Essex
Cty. Prosecutor, 171 N.J. 561, 571 (2002)).
A.
We begin our analysis by considering section 929 of the Restatement
(Second) of Torts, which provides the framework for determining plaintiffs’
damages for trespass to land.
(1) If one is entitled to a judgment for harm to land
resulting from a past invasion and not amounting to a
total destruction of value, the damages include
compensation for
(a) the difference between the value of the land
before the harm and the value after the harm, or
at his election in an appropriate case, the cost of
restoration that has been or may be reasonably
incurred,
(b) the loss of use of the land, and
(c) discomfort and annoyance to him as an
occupant.
13
[Restatement (Second) of Torts § 929(1) (Am. Law
Inst. 1979) (emphasis added).]5
The commentary to that section explains that
[i]f . . . the cost of replacing the land in its original
condition is disproportionate to the diminution in the
value of the land caused by the trespass, unless there is
a reason personal to the owner for restoring the original
condition, damages are measured only by the difference
between the value of the land before and after the harm.
[Restatement (Second) of Torts § 929 cmt. b
(emphases added).]
Thus, key to the Restatement’s treatment of damages for trespass to land are
the answers to the following two questions: first, whether the restoration costs
are proportional to the diminution in property value caused by the trespass; and
second, whether there is a peculiar value -- a “reason personal to the owner” --
for restoring the property.
The Restatement therefore contemplates two possible damages
valuations under section 929(1)(a): (1) if the cost of restoring the land to its
original condition is not proportionate to the diminution in the value of the
5
The Kornbleuths have not sought compensation for, nor alleged, any
temporary loss of use consequent to removal of the bamboo. They have never
expressed interest in or claimed damages for mere discomfort and annoyance
beyond loss of privacy and have repeatedly and expressly denied that
compensation based on diminution of value is appropriate. Accordingly, we
limit our discussion and analysis to restoration costs as the measure of
damages for trespass to land under section 929(1)(a).
14
land and there is no reason personal to the owner for restoring it to its original
condition, damages are limited to the diminution in value; and (2) if the cost of
restoring the land to its original condition is not proportionate to the
diminution in the value of the land but there is a reason personal to the owner
for restoring the land, damages are not limited to the diminution in the value of
the land.
Of relevance to this appeal is that the Restatement limits the damages
recoverable for trespass to land when there is no reason personal to the owner
for restoring the property to its original condition. The Restatement
commentary offers two examples of properties for which a reason personal to
the owner might justify restoration costs that are disproportionate to the
diminution in value: “a building such as a homestead [that] is used for a
purpose personal to the owner” and a “garden [that] has been maintained in a
city in connection with a dwelling house.” Restatement (Second) of Torts
§ 929 cmt. b.
The Appellate Division considered diminution of value and restoration
costs as compensation for trespassory tree removal in Mosteller and Huber. In
both cases the parties offered evidence not just of restoration costs but also of
other pertinent financial interests such as overall property value. See Huber,
71 N.J. Super. at 340-42; Mosteller, 416 N.J. Super. at 634-37. The courts in
15
both applied principles set forth in Restatement section 929(1)(a) in order to
identify the proper method for calculating damages. See Huber, 71 N.J. Super.
at 344-47 (relying on the 1939 edition of the Restatement); Mosteller, 416 N.J.
Super. at 640-41. As Mosteller acknowledged, however, “‘[t]he appropriate
measure of damages for injury done to land is a complex subject’ and depends
‘upon the evidence in the particular case.’” 416 N.J. Super. at 638 (quoting
Velop, Inc. v. Kaplan, 301 N.J. Super. 32, 64 (App. Div. 1997)). “[T]he
court’s selection of one test or the other [(diminution of value or restoration
costs)] is basically an assessment of which is more likely to afford full and
reasonable compensation.” Ibid. (quoting Velop, 301 N.J. Super. at 64); see
also id. at 640 (“[T]he cardinal principles are flexibility of approach and full
compensation to the owner, within the overall limitation of reasonableness.”
(quoting Huber, 71 N.J. Super. at 346)).
The Appellate Division in Huber applied the second alternative for
assessing damages under Restatement section 929(1)(a) -- if the cost of
restoring the land to its original condition is not proportionate to the
diminution in the value of the land but there is a reason personal to the owner
for restoring the land, reasonable damages are not limited to the diminution in
value. Huber, 71 N.J. Super. at 345. Nevertheless, the court found the
touchstone to be reasonableness. Id. at 346.
16
The plaintiffs in Huber owned and occupied a fourteen-and-a-half-acre
tract of land containing their home and outbuildings. Id. at 333. The tract also
contained a pasture and a grove of seventy- to eighty-five-year-old trees,
including red, white, and black oaks, as well as black birch, ash, and yellow
poplar trees. Ibid. The plaintiffs used their land for enjoyment and recreation.
Ibid. While the plaintiffs were away on vacation, the defendants entered their
property and cut down some fifty trees from the grove. Id. at 332-33.
The plaintiffs presented evidence that restoration using mature trees
would cost about $100,000, and “rehabilitation” using “3 saplings” would cost
approximately $5000. Id. at 341. The plaintiffs also presented evidence of the
property’s approximately $20,000 value when purchased six years before the
trespass, the value of the lost trees as shade trees ($2678), damages resulting
from the loss of timber ($746.45), and other incidental damages ($1297). Id.
at 340-41. The jury awarded plaintiffs $6500 and the defendants appealed. Id.
at 346-47.
The Appellate Division affirmed the presentation to the jury of
restoration costs and upheld the jury’s award. Ibid. In doing so, the Appellate
Division stated that restoration costs were a fair method of quantifying the loss
because of the “peculiar value” of the trees to the owner. Id. at 345. The
Appellate Division emphasized that “the arrangement of buildings, shade trees,
17
fruit trees, and the like may be very important to [the owner] . . . and the
modification thereof may be an injury to his convenience and comfort in the
use of his premises which fairly ought to be substantially compensated.’” Id.
at 346 (ellipsis in original) (quoting Samson Constr. Co. v. Brusowankin, 147
A.2d 430, 435 (Md. 1958)). Citing the Restatement, the court reasoned that
[s]ound principle and persuasive authority support the
allowance to an aggrieved landowner of the fair cost of
restoring his land to a reasonable approximation of its
former condition, without necessary limitation to the
diminution in the market value of the land, where a
trespasser has destroyed shade or ornamental trees or
shrubbery having peculiar value to the owner.
[Id. at 345 (emphases added).]
The court did question the reasonableness of the plaintiff’s more than
$100,000 restoration estimate but found “its admission was harmless since the
verdict does not appear to be founded thereon.” Id. at 346-47.
Significantly, the almost sixty-year-old decision in Huber is the only one
in this State’s history to find that trees or shrubbery had “peculiar v alue”
justifying restoration costs in excess of diminution of value in the context of a
trespass or conversion claim. In contrast, New Jersey cases have historically
rejected claims that certain foliage had peculiar value warranting damages for
trespass beyond diminution in value. See, e.g., Mosteller, 416 N.J. Super. at
634-35; Hollister v. Ruddy, 66 N.J.L. 68, 78 (Sup. Ct. 1901) (rejecting that
18
certain trees had “peculiar” or “special value” to the owner such that
trespassory removal of those trees could justify punitive damages in addition
to compensation for diminution in value).
Mosteller is the most recent case rejecting a claim premised on the
peculiar value of certain trees. 416 N.J. Super. at 634-35. There the plaintiff
was a non-resident landowner of several rental properties. Ibid. The
defendant, who owned the property adjoining plaintiff’s, hired a tree service to
remove several trees from what she believed to be her yard. Id. at 635. Six
mature trees were removed from the plaintiff’s property without the plaintiff’s
knowledge or permission. Ibid. Distinguishing Huber, the Appellate Division
in Mosteller held that the facts before it required application of the diminution
in value standard. Id. at 641. In applying diminution of value as the
appropriate measure of damages, the Appellate Division agreed with the trial
court that the trees removed had no peculiar value and acknowledged that the
plaintiff did not “reside at the property” and “[had] a more difficult burden in
proving that the trees were of peculiar or special importance to him.” Ibid.
The court concluded the enormity of the cost to replace the lost trees
unreasonably outweighed the “perhaps even negligible” diminution of the
property’s market value. Id. at 641-42.
19
We now apply the principles distilled from the Restatement and case law
to the facts of this case.
B.
The Kornbleuths’ counsel argued at length at the hearing on their motion
for reconsideration that “[p]laintiff’s right was to elect restoration. . . . They
could have made any number of elections, certainly at least two that we know
of, because diminution is recognized as an alternative remedy. . . . They
elected restoration.” The Kornbleuths never alleged or offered evidence of any
losses incident to removal of the bamboo, cf. Huber, 71 N.J. Super. at 340-41
(presenting evidence of losses in terms of the value of trees as timber or as
shade trees, as well as losses related to cleaning up debris), or sought to prove
diminution of value damages. They instead claim the nature of the damages
sought here -- restoration costs -- is an election available to the aggrieved party
in a claim for trespass to land, and the trial court’s failure to honor their
election of restoration costs was palpably incorrect. Based upon the relevant
legal sources, we cannot agree with counsel’s assertions. 6
6
We note that the Kornbleuths never argued that the trial court should have
denied summary judgment because they are entitled to at least nominal
damages, notwithstanding opportunities to so argue in their opposition to
summary judgment, in their motion for reconsideration, in their briefs to the
Appellate Division, or in their briefs to this Court. Indeed, the issue of
nominal damages was raised for the first time in this appeal in a question from
20
Comment (b) to section 929 of the Restatement limits damages
recoverable for trespass to land to the diminution in the value of the land when
the restoration costs are disproportionate to the diminution in value and there
is no reason personal to the owner for restoring the property to its original
condition. However, even when restoration costs are disproportionate to the
diminution in value, those costs may be recovered if there is a reason personal
to the owner for restoring the property to its original condition and those costs
are not unreasonable. See Mosteller, 426 N.J. Super. at 638-40.
The Kornbleuths claim that the bamboo fence had peculiar value because
they lived on the property and because the fence provided privacy and had
aesthetic value to them. Plaintiffs’ evidence of peculiar value is summarized
in the following excerpt from Ms. Kornbleuth’s deposition:
I wouldn’t buy a house looking at anybody’s underside
of their house. . . . My house was built around a deck,
a beautiful backyard with bamboo, a waterfall,
whatever was there when we bought the house . . . . We
enjoy -- looking out our windows. Now I look under
their ugly house with their crap and live like pigs. . . .
I love my backyard; I love the privacy of it, you know,
felt like I was in the woods.
The trial court concluded that plaintiffs’ general interest in privacy and vague
assertions of aesthetic worth cannot, as a matter of law, establish value
the Court at oral argument and now again in the dissent. See post at ___ (slip
op. at 15-19).
21
personal to the owner that might justify the award of restoration costs.
Additionally, the trial court recognized that the Kornbleuths offered no
evidence that their property’s value declined when contractors removed the
bamboo fence.
After the trial court granted summary judgment, plaintiffs sought
reconsideration but offered no new evidence, citations, or explanation with any
tendency to show that the court’s decision to grant summary judgment was
palpably incorrect or irrational, or that the court failed to appreciate the
significance of probative, competent evidence. See R. 4:49-2; Guido, 202 N.J.
at 87-88. The Kornbleuths’ motion for reconsideration maintained that it is
their right to choose restoration costs over diminution of value regardless of
the difference in amount between restoration and diminution, thereby ignoring
Restatement section 929 and New Jersey law on damages for trespass to land.
Only evidence of damages “likely to afford full and reasonable
compensation” is presented to the trier of fact. Mosteller, 416 N.J. Super. at
638; see also id. at 640 (“[T]he cardinal principles are flexibility of approach
and full compensation to the owner, within the overall limitation of
reasonableness.” (quoting Huber, 71 N.J. Super. at 346)). When restoration
costs are disproportionate to diminution of value and there is no reason
personal to the owner for restoring the property to its original condition,
22
restoration costs are not reasonable. Even when there is a reason personal to
the owner for restoring the property to its original condition, the upper limit of
damages is “reasonableness.” In short, whether restoration costs may be
recovered is not an election of the aggrieved party but is dependent upon a
showing that such damages are reasonable.
Plaintiffs’ assertions of peculiar value do not resemble those set forth in
Huber -- a diverse grove of some fifty colorful seventy- to eighty-five-year-old
trees. See 71 N.J. Super. at 333. Nor do they resemble those described in the
Restatement commentary -- a “building such as a homestead [that] is used for a
purpose personal to the owner[,]” or a “garden [that] has been maintained in a
city in connection with a dwelling house.” Restatement (Second) of Torts
§ 929 cmt. b. A general interest in privacy and vague assertions of the
aesthetic worth of bamboo as opposed to any other natural barrier do not
establish value personal to the owner.
Additionally, even if the Kornbleuths presented legally sufficient
evidence of peculiar value, proportionality and reasonableness of restoration
costs could not be determined without evidence of diminished value or some
similarly helpful yardstick for comparison. In Huber, for example, the
plaintiffs presented evidence of the property’s value when purchased, damages
resulting from the loss of timber, the value of the lost trees as shade trees, and
23
other incidental damages, which together formed a basis for comparison. 71
N.J. Super. at 340-41. The jury returned a verdict in favor of the plaintiffs in
the amount of $6500; more than the cost of replacing the trees with three
saplings, but far less than the approximately $100,000 estimate of replacement
costs using mature trees. Id. at 346-47.
On the evidence presented by plaintiffs here, a trier of fact would be
legally disabled from determining whether restoration costs are a reasonable
measure of damages since plaintiffs produced no evidence against which
proportionality or reasonableness might be assessed. Hence, the trial court
rationally explained its decision relying upon existing legal principles when it
found no evidence of diminished value and no “genuine issue of material fact
that there was some peculiar value as to the specific type of bamboo that was
lost.” The trial court’s decision therefore was not “based upon a palpably
incorrect or irrational basis.” Guido, 202 N.J. at 87-88. Thus, we conclude
that the trial court did not abuse its discretion in refusing to reconsider its
order granting summary judgment to defendants.
VI.
For the foregoing reasons, the judgment of the Appellate Division is
affirmed.
24
CHIEF JUSTICE RABNER and JUSTICES PATTERSON and
FERNANDEZ-VINA join in JUSTICE SOLOMON’S opinion. JUSTICE
LaVECCHIA filed a dissent, in which JUSTICES ALBIN and TIMPONE join.
25
Joseph Kornbleuth, DMD,
and Donna Kornbleuth,
husband and wife,
Plaintiffs-Appellants,
v.
Thomas Westover and Betsy
Westover, husband and wife,
Defendants-Respondents,
and
New Jersey Bamboo Landscaping,
LLC, and Alexander Betz,
Defendants.
JUSTICE LaVECCHIA, dissenting.
Today’s decision by the majority diminishes the protections provided
under the law of trespass and is out of step with persuasive and soundly
reasoned decisions from other jurisdictions. It denies fair compensation to a
property owner whose trees or landscaping are destroyed by a trespasser. It
also cheapens the worth of the trees and landscaping both in their aesthetic and
monetary value. I therefore respectfully dissent from the Court’s affirmance of
the dismissal of this action.
1
I.
Plaintiffs Joseph and Donna Kornbleuth filed this action against
defendants, their neighbors, Thomas and Betsey Westover, and their agents,
alleging trespass, conversion, and negligence based on defendants’
unauthorized entry onto plaintiffs’ land and destruction and removal of “dense,
mature [bamboo] trees and elevated vegetation growth” that had created
privacy and a border in the rear of the Kornbleuths’ backyard. According to
the complaint, on a day when neither plaintiffs nor their neighbors were home,
a landscaper, no longer a party to this action, entered plaintiffs’ property and
removed mature bamboo trees and vegetation growing between the
neighboring properties. Plaintiffs allege that the landscaper was told that
plaintiffs had agreed to the removal -- an assertion that plaintiffs vehemently
deny.
To the Kornbleuths, the bamboo privacy screen was important and
valuable. When deposed, Mr. Kornbleuth testified that, prior to its removal, he
had enjoyed both the beauty and privacy the bamboo provided for his
backyard. As he described his residential property, “the back of [his] house is
all windows that look[] out into the back and the woods and it was complet ely
private.” He testified, “I love my backyard, I love the privacy of it”; “I
2
thoroughly enjoyed it”; “you know, [I] felt like I was in the woods and . . . it
was destroyed.”
Plaintiffs’ two-count complaint alleged that defendants willfully and
intentionally engaged in trespassing conduct. In addition, plaintiffs
specifically contended that defendants intentionally caused harm to their
property and claimed general, special, and punitive damages as recompense.
For that, they presented evidence of the cost to restore the property. However,
notwithstanding the claimed intentional trespass and undisputed destruction
and removal of trees and vegetative growth in plaintiffs’ residential backyard,
plaintiffs found their claims dismissed 1 because -- according to the trial court,
Appellate Division, and now this Court -- they did not present proof of a
diminution in the overall value of their residential property.
That approach is unsound. It overextends the holdings and reasoning of
the prior Appellate Division decisions on which it relies, Mosteller v. Naiman,
416 N.J. Super. 632 (App. Div. 2010), and Huber v. Serpico, 71 N.J. Super.
329 (App. Div. 1962), altering our law and making it less protective of
residential property owners.
1
The case was initially dismissed without prejudice on the day of trial.
Reinstatement was conditioned on payment of a sanction. The complaint was
eventually reinstated.
3
The majority decision is not in keeping with the commonly accepted
approach to the demonstration of compensatory damages for intentional harm
to land, over and above damages that are presumed for the tort of intentional
trespass. The majority’s approach makes it virtually impossible for a
residential property owner to secure relief from a trespassing neighbor who, in
pique, decides to come onto the owner’s property and remove bushes, trees, or
other landscaping or natural growth that the neighbor does not like.
II.
A.
A plaintiff can obtain recovery for the damage done to one’s land by an
intentional invasion. Compensatory and other relief is available for harm to
land based on a past invasion.
Plaintiffs pleaded such harm and produced evidence of the replacement
cost in support of their pursuit of compensatory damages, but they were not
permitted to present that evidence to a factfinder. Plaintiffs are correct that the
trial court erred in holding that the proper measure of damages for destroyed
noncommercial or non-ornamental trees on their residential property was the
difference between the property’s value before and after the harm. They are
also correct that it was error to dismiss their action because plaintiffs presented
4
in their prima facie case only evidence of proposed replacement costs for the
destroyed and removed trees.
B.
Compensatory, or actual, damages are understood in this state to mean
compensation to make the injured party whole, to put that person in the same
position he was in prior to the damage; in other words, to restore the injured
party, as nearly as possible through the payment of money, to the position he
was in before the wrongful injury occurred. See, e.g., Nappe v. Anschelewitz,
Barr, Ansell & Bonello, 97 N.J. 37, 48 (1984); Patusco v. Prince Macaroni,
Inc., 50 N.J. 365, 368 (1967) (“An injured person is entitled to be made
whole.”); Berg v. Reaction Motors Div., Thiokol Chem. Corp., 37 N.J. 396,
412 (1962); Maul v. Kirkman, 270 N.J. Super. 596, 618 (App. Div. 1994).
Replacement-cost damages represent the actual price of remedying an
injury to land based on a past invasion and, as such, are legitimately
compensatory damages. The Restatement (Second) of Torts (Am. Law. Inst.
1979) (“Restatement”) section 929 supports restoration costs as a proper
measure of damages for injury to real property in certain circumstances.
Section 929 provides in part,
(1) If one is entitled to a judgment for harm to land
resulting from a past invasion and not amounting to a
total destruction of value, the damages include
compensation for
5
(a) the difference between the value of the land
before the harm and the value after the harm, or
at his election in an appropriate case, the cost of
restoration that has been or may be reasonably
incurred.
[Restatement § 929.]
Comment (b) to section 929 further explains the availability of restoration
damages. It states, in full, as follows:
Even in the absence of value arising from personal use,
the reasonable cost of replacing the land in its original
position is ordinarily allowable as the measure of
recovery. Thus if a ditch is wrongfully dug upon the
land of another, the other normally is entitled to
damages measured by the expense of filling the ditch,
if he wishes it filled. If, however, the cost of replacing
the land in its original condition is disproportionate to
the diminution in the value of the land caused by the
trespass, unless there is a reason personal to the owner
for restoring the original condition, damages are
measured only by the difference between the value of
the land before and after the harm. This would be true,
for example, if in trying the effect of explosives, a
person were to create large pits upon the comparatively
worthless land of another.
On the other hand, if a building such as a homestead is
used for a purpose personal to the owner, the damages
ordinarily include an amount for repairs, even though
this might be greater than the entire value of the
building. So, when a garden has been maintained in a
city in connection with a dwelling house, the owner is
entitled to recover the expense of putting the garden in
6
its original condition even though the market value of
the premises has not been decreased by the defendant's
invasion.
[Restatement § 929 cmt. b.]
That the Restatement supports the use of replacement damages in a harm-to-
property action is well recognized. See Vaught v. A.O. Hardee & Sons, Inc.,
623 S.E.2d 373, 376 (S.C. 2005) (citing cases approving section 929).
The majority opinion of this Court adopts the Restatement’s section 929
approach but applies that section restrictively. The Court outright states, as a
rule, that a plaintiff, like our residential property owners here, cannot elect to
present restorative damages. And, even though accepting that restorative
damages may be available, the majority imposes too strict a test for such an
award. Other jurisdictions have adopted more measured approaches while still
providing a rubric that both ensures reasonableness in award and adheres to the
approach that actual damages aim to restore the injured party, so far as money
can, to the position he or she was in prior to injury.
C.
Several courts view access to restorative damages at a plaintiff’s election
as an application of normal tort recovery that should not be dispensed with
when dealing with injury to land. And those courts readily recognize that
diminution in value can serve as a reasonableness marker when assessing the
7
restorative damages that a plaintiff seeks; however, the plaintiff is allowed to
make an election on how to proceed with his or her case in the first instance.
The State of New York provides a prime example. The Court of
Appeals in New York, in Jenkins v. Etlinger, 432 N.E.2d 589 (N.Y. 1982),
addressed whether it is the plaintiff’s burden to present proof of both
restoration and diminution in value evidence in a trespass case. The plaintiffs’
pond and trees were destroyed when the defendant’s “landfill” washed onto the
plaintiffs’ property. Id. at 590. The plaintiffs sought restoration damages,
ibid., and the defendant argued that it was the plaintiffs’ burden to provide
evidence both of restoration and diminution in value, id. at 591. Accordingly,
in resolving that burden allocation, the New York Court explained that
the plaintiff need only present evidence as to one
measure of damages, and that measure will be used
when neither party presents evidence going to the other
measure.
Plaintiffs here met their obligation to provide
evidence of the amount of the injury. That they did not
prove their injury under every potentially applicable
measure should not operate to deprive them of
recovery.
[Ibid.]
Recognition that a plaintiff in a harm-to-property case is not limited to
diminution-in-value damages, but rather can seek restorative damages, is
present in numerous other decisions. Such cases reflect that there is a burden
8
shift at work, hence the decisions reflect adherence to the goal of
reasonableness in award without placing undue burden on a plaintiff --
particularly a residential property owner -- when it comes to peculiar value of
the property that is harmed. See, e.g., Mikol v. Vlahopoulos, 340 P.2d 1000,
1001 (Ariz. 1959) (holding that, in a trespass case, where two measures of
damages are available and the plaintiff presents evidence of one, “it is up to
the defendant, who has the burden of showing a reduction in damages, to show
that the other measure would be less”); Farr W. Invs. v. Topaz Mktg. L.P., 220
P.3d 1091, 1095 (Idaho 2009) (plaintiff sued for trespass and presented
restoration damages; the court held that the party who injured the property
bears the burden of showing the diminution in value because that party “will
benefit by establishing the reduction in the property’s value”); cf. Bd. of Cty.
Comm’rs v. Slovek, 723 P.2d 1309, 1310 (Colo. 1986) (holding that, in a
negligence action tried before a judge, “[t]he measure of damages for injury to
real property ‘is not invariable’” and the goal is to compensate the property
owner for the actual loss suffered; the court further clarified that the rule for
diminution in value “is not of universal application”); John Thurmond &
Assocs., Inc. v. Kennedy, 668 S.E.2d 666, 668-69 (Ga. 2008) (holding that, in
a negligence case, the plaintiff may choose its method of measuring damages
and the burden shifts to the defendant to present contradictory evidence);
9
Langlois v. Town of Proctor, 113 A.3d 44, 58-59 (Vt. 2014) (holding that, in a
negligence case where the plaintiff introduced evidence of restoration costs
and the defendant offered no evidence of damages, the plaintiff satisfied her
prima facie case and the burden of producing additional evidence was on the
defendant).
The respective burdens placed on plaintiffs and defendants in harm-to-
property cases and the calculation of compensatory damages was elaborated on
in a Kentucky case. The Kentucky Supreme Court recognizes that a plaintiff
seeking restoration cost damages in an injury to property trespass case need
not introduce evidence of the fair market value being diminished as a condition
of stating a prima facie case and defeating a motion for directed verdict.
Ellison v. R & B Contracting, Inc., 32 S.W.3d 66, 74 (Ky. 2000) (citing
Newsome v. Billips, 671 S.W.2d 252, 254-55 (Ky. Ct. App. 1984)). Even
when the defense advances evidence of diminution of value, the Kentucky
Court has allowed a plaintiff reasonable inferences from restoration-cost-
damages evidence to avoid a directed verdict at the close of plaintiff’s case,
notwithstanding that plaintiffs did not present an appraisal. Id. at 75-77.
But by far the most persuasive discussion of these issues was presented
in a case decided by the Supreme Court of Nebraska. In Keitges v.
VanDermeulen, 483 N.W.2d 137 (Neb. 1992), the Nebraska Court addressed
10
what, for it, was a novel question: “whether a plaintiff is entitled to recover
the cost of restoring trees and vegetation on land which he holds for residential
or recreational purposes when a portion of a natural woods is destroyed.” Id.
at 140.
The plaintiffs in Keitges sought damages under willful trespass and
negligent trespass after the defendant, while installing fencing between the two
properties, used a bulldozer to destroy trees, shrubs, and vegetation on their
property. Id. at 138. The plaintiffs asserted that the trial court erred by not
permitting them to present restoration costs to the jury. Ibid. The trial court
decided that, because the trees were not “ornamental” or harvested for timber,
the plaintiffs’ only remedy was for diminution in value damages. Id. at 140.
However, the Nebraska Supreme Court rejected the distinction between
ornamental and other trees. Id. at 143. The Nebraska Court read the
Restatement and its comment on restorative damages as consistent with its
general approach to the allowance of damages to restore an injured person to
the position he or she would have been in had there been no injury, to the
extent money could do that. Id. at 142. Hence it viewed restorative damages
as fitting compensation for the injury done even when land is involved,
provided it can be restored to its prior condition. Id. at 142-43.
11
Importantly, when presented with the defendant’s argument that the
plaintiffs were required to use diminution-in-value damages and were
precluded from restorative-cost damages unless the destroyed trees could be
characterized as “ornamental,” the Court asserted the following:
[W]e believe that is an artificial distinction. One
person’s unsightly jungle may be another person’s
enchanted forest; certainly the owner of such land
should be allowed to enjoy it free from a trespasser’s
bulldozer. Indeed, a trespasser should not be allowed,
with impunity, to negligently or willfully wreak havoc
on a landowner’s natural woods, and the landowner’s
attempted recovery for such injury should not be
entirely frustrated by the fact that the market does not
reflect his personal loss.
[Id. at 143.]
The Nebraska Court held that when a plaintiff intends to use the property for
residential or recreational reasons “according to his personal tastes and
wishes” and seeks to restore the property, “diminution in value has no
relevance.” Ibid. The plaintiff may recover the cost of reasonable restoration
of his property to its preexisting condition or to a condition as close as
reasonably feasible. Ibid. In remanding for a new trial, the court instructed
that such costs may not exceed the market value of the property before the
injury. Ibid.
In sum, many jurisdictions do not require a plaintiff to show diminution
in value in order to state a prima facie case in an injury-to-property cause of
12
action. Although the cases span various forms of injury to property, they
reflect consistency in allowing a property owner the choice to present evidence
of damages in the form of restoration damages and, to the extent that reduction
in the overall value of the property serves as a cap on the reasonableness of
damages, the burden is on the alleged tortfeasor to come forward to show that
the requested restoration cost is unreasonable.
D.
I would follow the approach employed in the cases discussed above,
which recognizes that a plaintiff has a choice, in presenting a prima facie case,
to proceed with a claim based on injury to land by presenting replacement cost
damages. Those cases present a fair and balanced approach to assessment of
compensatory damages in this matter. The majority’s pronouncement that
plaintiffs had to present their claim for compensatory damages by showing a
diminution in value, see ante at ___ (slip op. at 23), provides an illusory
remedy for New Jersey residential homeowners who might have a portion of
their backyard landscaping demolished and removed by a trespasser. When it
comes to injury to property on which a person resides, diminution-in-value
damages will, only in the most extreme case, allow for recovery of damages
caused by an intentional invasion.
13
To the extent that the majority offers the slim hope that universally
acclaimed “ornamental” trees and shrubbery can be replaced, that is too
restrictive an application. For the majority, it is the sine qua non of being able
to ask for any damages at all when it comes to one’s backyard natural and
landscaped grounds.
In taking that position on the law, both the Appellate Division and now
this Court extended the prior holding in Mosteller, on which they rely.
Mosteller did not set forth requirements for allowing a case involving harm to
property to get to the factfinder. It addressed the fairness of the assessment of
damages. Mosteller, 416 N.J. Super. at 641, 643. Further, the majority
overlooks that both Huber and Mosteller expressly recognized that diminution
in value was not the required measure of damages but played a role in the
assessment of reasonableness. See id. at 641; Huber, 71 N.J. Super at 346.
Indeed, in Huber, the Appellate Division stated that in the arena of cases
involving trespass and harm to property held as a homesite, “the cardinal
principles are flexibility of approach and full compensation to the owner,
within the overall limitation of reasonableness.” 71 N.J. Super at 346. Even
in Mosteller, the Appellate Division declined to pronounce any hard and fast
rule about insistence on diminution in value; rather, it upheld a case-specific
measure of damages upon review of a motion court’s ruling about the interests
14
involved. 416 N.J. Super. at 643. Again, the Appellate Division did not
purport to impose mechanistic requirements to get before the factfinder. The
Mosteller court in fact recognized the prospective need that plaintiffs recover
restoration damages in other cases not before it, such as where there was a
“need to deter deliberate wrongdoing or reckless behavior.” Id. at 642. In
fact, neither appellate decision addressed circumstances such as this case
presented, where plaintiffs were denied the opportunity to present their case to
the factfinder.
In sum, one’s personal taste in backyard ambiance is entitled to more
respect from our courts and our tort system of recovery for an intentional
wrong.
III.
A.
Moreover, I am compelled to add that the summary dismissal of
plaintiffs’ intentional trespass action is fundamentally at odds with the
interests served by the tort and the universal recognition that nominal damages
are presumed for intentional trespass. The Court’s dismissive comment that
plaintiffs did not plead nominal damages risks sowing confusion over what the
tort protects and how it is vindicated.
15
B.
To understand the modern application of trespass, it is important to
consider its background. Stuart M. Speiser et al., American Law of Torts
§ 23:1 (1983). Trespass originated as a criminal action; it was considered a
breach of the peace that placed the peace of the community at danger. Ibid. In
part to discourage “disruptive influences in the community,” a plaintiff who
suffered no actual damages could still seek relief. Ibid.
Under the common law, the most important consideration was the
possessor’s right to exclusive use of the property. W. Page Keeton et al.,
Prosser and Keeton on Torts § 13, at 67 (5th ed. 1984); see also Dan B. Dobbs
et al., Law of Torts § 49, at 125 (2d ed. 2011) (stating it is enough that there is
an “intentional interference with the rights of exclusive possession”). The
interest protected amounted to nothing more than “a feeling that what a person
owns or possesses should not be interfered with and that the person is entitled
to protection under the law.” Speiser, § 23:1. Every direct entry upon
another’s land amounted to some damage, “if nothing more, the treading down
of grass or herbage.” Keeton, § 13, at 75. Therefore, at common law, a
plaintiff could recover nominal damages even if the trespass resulted in a
benefit to the plaintiff. Ibid.
16
New Jersey has long recognized the principle that nominal damages are
recoverable in a trespass claim. In an early suit against a defendant for cutting
down the plaintiff’s timber, the Court of Errors and Appeals reversed the trial
court’s dismissal of the plaintiff’s claim for failure to present evidence of
damages to the jury. Lance v. Apgar, 60 N.J.L. 447, 448 (E. & A. 1897). The
Court stated that, at common law, “the committing of a trespass upon the
rights of another was, per se, a legal injury from which some damage to the
plaintiff would be inferred.” Ibid. Even if no injury was shown, the law
implies nominal damages where there is “actionable misconduct” by the
defendant. Ibid.
More recent cases in New Jersey, as well as elsewhere, recognize
nominal damages for trespass regardless whether damage is proved. See
Nappe, 97 N.J. at 46 (stating that, in a trespass-on-property action, “in the
absence of actual damages, the law vindicates the right by awarding nominal
damages”); N.J. Mfrs.’ Ass’n Fire Ins. Co. v. Galowitz, 106 N.J.L. 493, 494-96
(E. & A. 1930) (“[W]here actionable misconduct is shown, the law implies
nominal damages at the least.” (citing Apgar, 60 N.J.L. at 447)); see, e.g.,
Ellison, 32 S.W.3d at 71 (recognizing that, where appropriate, “even if the
plaintiff suffered no actual damage as a result of the trespass, the plaintiff is
entitled to nominal damages”); Goforth, 352 P.3d at 250 (“‘[A]t least’ nominal
17
damages are available where an actionable trespass has occurred.” (quoting
Bellis v. Kersey, 241 P.3d 818, 825 (Wyo. 2010))); see also Dobbs, § 56, at 49
(“[A] trespasser is always liable to the possessor for at least nominal damages
for the intrusion upon possession.”).
In its most modern pronouncement on the subject, the Restatement
section 158 summarizes that very principle in addressing a defendant’s liability
for intentional intrusion on land:
One is subject to liability to another for trespass,
irrespective of whether he thereby causes harm[2] to any
legally protected interest of the other, if he intentionally
(a) enters land in the possession of the other, or
causes a thing or a third person to do so, or
(b) remains on the land, or
(c) fails to remove from the land a thing which he
is under a duty to remove.
This Court has adopted section 158, reiterating only recently that “[a]
defendant is liable in trespass for an ‘intentional[]’ entry onto another’s land,
2
Section 158, comment d., explains that “harm” is defined in Restatement
section 7. Section 7 defines injury, harm, and physical harm; its comment a.
explains the difference between harm and injury, stating that “any intrusion
upon land in the possession of another is an injury, and, if not privileged, gives
rise to a cause of action even though the intrusion is beneficial, or so transitory
that it constitutes no interference with or detriment to the land or its beneficial
enjoyment.”
18
regardless of harm.” Ross v. Lowitz, 222 N.J. 494, 510 (2015) (emphasis
added); see also Restatement § 163 (“One who intentionally enters land in the
possession of another is subject to liability to the possessor for a trespass,
although his presence on the land causes no harm to the land . . . .”).
Plaintiffs were entitled to the enjoyment of their residential property free
of intentional interference by defendants. They also were entitled to pursue
their action before a factfinder without the trial court short-circuiting and
dismissing their claim as if plaintiffs had no valid cause of action.
IV.
I express no view on the ultimate outcome of this action. However,
based on their allegations, plaintiffs presented a claim for which nominal
damages are presumed under settled law of trespass and also presented a prima
facie claim for reasonable damages for the alleged destruction of the bamboo
trees and vegetation that provided their backyard with an atmosphere of
privacy and seclusion.
Although plaintiffs no doubt bear the ultimate burden when seeking
compensatory damages in a harm-to-land case based on invasion, plaintiffs
should not be compelled to produce evidence of diminution in value of the
entirety of the property in order to get before the factfinder. Plaintiffs should
be permitted to proceed with evidence of restoration damages for the trees
19
destroyed. Ultimately, the factfinder would determine the reasonableness of
the claimed compensatory damages. It should be up to the alleged wrongdoer
defendants to call into question the reasonableness of the damages in order to
get a damage award reduced. When there is proven harm to residential
property, a victim is entitled to reasonable damages, and that principle remains
apt whether the harm is to a shrub that is acclaimed as “ornamental” or simply
the preferred trees, shrubs, or vegetation of the property owner.
The Court’s resolution of this matter has big consequences for future
cases involving damage to residential property. The Court has now established
that a residential property owner, whose trees, shrubs, or other vegetation on
his or her property are destroyed by actions of trespassing neighbors, has no
recompense unless that owner comes to court armed with proof of diminished
overall property value. I cannot join in that development in our common law;
it unduly restricts the right of residential property owners to the restoration of
their property.
I respectfully dissent. 3
3
I also respectfully dissent from the affirmance of the sanction imposed on
plaintiffs as a condition of this matter being reinstated. Plaintiffs’ counsel
made an adjournment request. He stated reasons for the request. I am at a loss
to understand the treatment of plaintiffs’ claim and their counsel, who is a
senior member of the bar and was depending on an associate and his IT
assistant in presenting his case. Both were unavailable for legitimate reasons
20
beyond their control. His adjournment request was not unreasonable and to
have it met with sanctions is confounding.
21