JOSEPH KORNBLEUTH, DMD VS. THOMAS WESTOVER (L-1486-14, CAMDEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5182-16T1
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.
_______________________________
Submitted June 7, 2018 – Decided September 6, 2018
Before Judges Simonelli and Gooden Brown.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Docket No.
L-1486-14.
Heine Associates, PA, attorneys for appellants
(I. Michael Heine, on the briefs).
Martin, Gunn & Martin, PA, attorneys for
respondents (William J. Martin, Stacy C. Cohen
and Ryan W. Kelly, on the brief).
PER CURIAM
On April 15, 2014, plaintiffs Joseph and Donna Kornbleuth
filed a two-count complaint against their neighbors, Thomas and
Betsy Westover, and New Jersey Bamboo Landscaping, LLC (New Jersey
Bamboo), a bamboo clearing landscaper hired by the Westovers,
(collectively defendants). The complaint alleged causes of action
for trespass, conversion and negligence1 based upon defendants'
unauthorized removal of bamboo from the property line plaintiffs
shared with the Westovers.
On October 27, 2015, the day trial was to commence, the trial
judge denied plaintiffs' counsel's belated request for an
adjournment, and in a November 9, 2015 order, dismissed the
complaint without prejudice based on plaintiffs' refusal to
proceed to trial. On January 6, 2016, the judge granted
plaintiffs' motion for reinstatement, conditioned upon payment of
an $8500 counsel fee award for defendants' trial preparation costs.
Thereafter, the judge denied plaintiffs' motion for
disqualification, and on April 28, 2017, a different judge granted
the Westovers' motion for summary judgment for failure to prove
1
The negligence count pertained to New Jersey Bamboo only.
2 A-5182-16T1
damages.2 On June 23, 2017, the same judge denied plaintiffs'
motion for reconsideration.
On appeal, plaintiffs urge several errors in the underlying
proceedings, warranting reversal and remand. First, plaintiffs
argue the judge erred in dismissing their complaint for failing
to appear for trial because just excuse existed for the adjournment
request and plaintiffs' counsel's conduct "was neither malicious,
purposeful, nor a product of inattention[.]" Next, they argue the
judge erred in awarding attorneys' fees as a sanction upon
reinstatement, and erred in calculating the award. They also
argue the judge erred in not permitting them to reinstate their
complaint by posting a surety bond in lieu of a cash payment, and
erred in denying their motion for disqualification under Rule
1:12-2 based upon perceived bias. Finally, they argue the judge
erred in granting defendants summary judgment.
Although plaintiffs assert errors in several orders,
plaintiffs' notice of appeal only identified the June 23, 2017
order, denying their motion for reconsideration of the summary
judgment order. It is well-settled 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.
2Plaintiffs settled with New Jersey Bamboo.
3 A-5182-16T1
456, 459 (App. Div. 2004). See also R. 2:5-1(f)(3)(A). Stated
differently, any arguments raised by plaintiffs that fall outside
the four corners of the notice of appeal likewise fall outside the
scope of our appellate jurisdiction, and are therefore not
reviewable as a matter of law.
We recognize that a challenge on reconsideration may argue
the legal sufficiency of an underlying order. R. 4:49-2. However,
if, as here, the notice of appeal "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(f)(1) (2018).
Furthermore, although plaintiffs' notice of appeal only
identified the order entered on the motion for reconsideration,
plaintiffs present no legal argument or citation of law in their
merits brief on why the motion judge erred in denying
reconsideration. Rule 2:6-2(a)(5) "requires that the party's
legal argument be made under 'appropriate point headings.' Those
are the arguments we consider." Almog v. Israel Travel Advisory
Serv., Inc., 298 N.J. Super. 145, 155 (App. Div. 1997).
Plaintiffs' noncompliance with the rule effectively waives their
challenge to the reconsideration ruling on appeal. Id. at 155-
56.
4 A-5182-16T1
Moreover, although several of the underlying orders referred
to reasons placed on the record, plaintiffs provided transcripts
for the October 27, 2015 and June 23, 2017 proceedings only.3 "A
party on appeal is obliged to provide the court with 'such other
parts of the record . . . as are essential to the proper
considerations of the issues.'" Soc'y Hill Condo. Ass'n, Inc. v.
Soc'y Hill Assocs., 347 N.J. Super. 163, 177 (App. Div. 2002)
(alteration in original) (quoting R. 2:6-1(a)(1)(H)). Thus, our
review is further precluded by plaintiffs' failure to provide
transcripts of the pertinent proceedings. Cipala v. Lincoln Tech.
Inst., 179 N.J. 45, 55 (2004) (declining review because plaintiff
failed to provide transcripts of proceedings).
Although we have in the past declined to review appeals in
their entirety because of these types of record deficiencies and
rule violations, notwithstanding plaintiffs' noncompliance, we
have elected to treat this matter indulgently and address the two
issues for which plaintiffs have provided the complete
transcripts. El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super.
145, 155 n.4 (App. Div. 2005). Thus, we review the denial of
plaintiffs' application for an adjournment of the trial and
3
Plaintiffs provided only a four-page excerpt of the summary
judgment motion heard on April 28, 2017. Although Rule 2:5-3(c)
permits parties to submit an abbreviated transcript if the parties
consent or by order of the trial court, neither occurred here.
5 A-5182-16T1
resulting dismissal of the complaint, and the denial of plaintiffs'
motion for reconsideration of the order granting defendants
summary judgment, both of which we affirm.
First, we consider plaintiffs' request for an adjournment.
When the parties appeared for trial on October 27, 2015,
plaintiffs' counsel requested a continuance, citing the
unavailability of his support staff. While acknowledging that he
was the designated trial counsel, he indicated that he was "unable
to proceed" because his purported "second chair" was sick and his
secretary assistant, who was crucial to operate the equipment for
his electronic presentation, was incapacitated due to the
hospitalization of her elderly parents. Plaintiffs' counsel also
refused to proceed with the adjudication of the pending motions
in limine previously filed by the parties, and refused to proceed
with jury selection after spending "a considerable amount of time"
the previous day in a pre-trial conference with the court and
counsel, preparing the voir dire questions.
Judge Louis R. Meloni denied counsel's adjournment request,
noting that "[a]ll designated trial counsel" were present, fifty-
five jurors were reserved for jury selection, and "[he] was
prepared to decide" the motions in limine. After plaintiffs'
counsel adamantly refused to proceed, the judge dismissed the
complaint without prejudice. Acknowledging that he did not expect
6 A-5182-16T1
any evidence presentation until the following day and offering
assistance with the operation of counsel's equipment, the judge
explained:
This is the second listing for this case.
[Plaintiffs' counsel is] the designated
trial counsel. I've never seen anyone adjourn
a case because of the unavailability of
support staff. I've made it clear that we
would do whatever we could with the electronic
presentation with our IT staff and equipment
. . . to aid . . . plaintiff[s] to present
. . . whatever they thought they needed to
present by that mechanism.
I also feel that the other parties are
ready and prepared to go forward. I do not
consider the circumstances here to be so
exceptional as to adjourn this to a new trial
date. And for that reason, and the
plaintiff[s]'[] indication that they will not
go forward, I will dismiss the case. I will
dismiss it without prejudice, provided that
. . . a motion to reinstate is made within
[thirty] days.
At that time, I will consider, in
connection with the application to reinstate,
any application by either or both of the
defendants for trial preparation costs for
today's trial, because my inclination is that
in the event I do grant a reinstatement . . .
defendants should be reimbursed a reasonable
cost for their trial preparations, which I
normally would add as a condition of any
reinstatement. But I'll consider that at the
time of any application.
7 A-5182-16T1
On November 9, 2015, the judge entered a memorializing order
dismissing plaintiffs' complaint without prejudice.4
On appeal, plaintiffs argue the judge erred in denying their
request for an adjournment based on "trial team personnel
illnesses[,]" and assert that the circumstances did not "warrant
dismissal, much less financial sanction." We disagree.
Trial courts have broad discretion in determining whether to
grant or deny an adjournment request. State v. Jenkins, 349 N.J.
Super. 464, 478 (App. Div. 2002); State v. McLaughlin, 310 N.J.
Super. 242, 259 (App. Div. 1998). When reviewing the exercise of
such discretion, we do not substitute our judgment for that of the
trial court. Gillman v. Bally Mfg. Corp., 286 N.J. Super. 523,
528 (App. Div. 1996). We only consider whether the trial court
"pursue[d] a manifestly unjust course." Ibid. (quoting Gittleman
v. Central Jersey Bank & Tr. Co., 103 N.J. Super. 175, 179 (App.
Div. 1967), rev'd on other grounds, 52 N.J. 503 (1968)).
We are satisfied that the trial judge's denial of plaintiffs'
adjournment request was not a mistaken exercise of discretion. As
the judge noted, plaintiffs' attorney was the designated trial
counsel and the judge afforded him several accommodations, all of
4
The judge also struck plaintiffs' answer to the Westovers'
counterclaim. Following reinstatement, a different judge granted
plaintiffs' motion for summary judgment on the counterclaim on
September 30, 2016.
8 A-5182-16T1
which he rejected. We are also satisfied that the judge did not
err by dismissing the complaint without prejudice when plaintiffs
refused to proceed to trial, which was tantamount to a failure to
appear for trial. Rule 1:2-4(a) provides in pertinent part that
the trial court may dismiss a complaint if "without just excuse
or because of failure to give reasonable attention to the matter,
no appearance is made on behalf of a party . . . on the day of
trial."
Dismissals for failure to appear are generally without
prejudice "unless the court for good cause orders otherwise."
Connors v. Sexton Studios, Inc., 270 N.J. Super. 390, 393 (App.
Div. 1994). Furthermore, Rule 1:2-4(a) authorizes additional
sanctions for failure to appear in appropriate circumstances, as
here, including "the payment by the delinquent attorney or party
. . . of costs, in such amount as the court shall fix, . . . to
the adverse party;" or "the payment by the delinquent attorney or
party . . . of the reasonable expenses, including attorney's fees,
to the aggrieved party . . . ."
Turning to plaintiffs' motion for reconsideration, at the
June 23, 2017 hearing on the motion, initially Judge Yolanda C.
Rodriguez summarized the facts as follows:
9 A-5182-16T1
Just a brief recap, per [Rule] 4:46 and the
Brill5 case, I had granted the defendants
summary judgment after giving all reasonable
inferences to the non-moving party.
With respect to the trespass claim, I
found that the undisputed facts are that the
plaintiffs and defendants are neighbors. And
one day when none of them were home, New Jersey
Bamboo . . . , which had been a defendant, but
I believe settled a while ago, . . . had cut
all the bamboo between their properties
instead of just the bamboo that was on the
defendants' property.
. . . . And after oral argument and
reviewing the briefs and the record, I found
that this case was more like the Mosteller6
case, and the appropriate measure of damages
was diminution of value. Unfortunately,
. . . plaintiffs did not have an expert or
were [un]able to provide any evidence with
respect to that kind of opinion. And so
defendants moved for summary judgment since
plaintiffs can't prove their damages, and I
agreed.
As I stated last time, the undisputed
record is that the primary reason for the
bamboo fence was to provide privacy. I found
the Mosteller decision to be on point . . . I
also granted summary judgment with respect to
conversion, finding that conversion deals with
chattel, and this is more like trees,
shrubbery, it's realty. So I granted summary
judgment with respect to the conversion count,
and I also granted summary judgment with
respect to punitive damages per the Punitive
5
Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995).
6
Mosteller v. Naiman, 416 N.J. Super. 632 (App. Div. 2010).
10 A-5182-16T1
Damages Act7 and the Longo8 case. Since there
are no actual damages, there can't be any
punitive damages.
Following oral argument, after citing the standard for
reconsideration under Rule 4:49-2 and applying Palombi v. Palombi,
414 N.J. Super. 274 (App. Div. 2010) and D'Atria v. D'Atria, 242
N.J. Super. 392 (Ch. Div. 1990), the judge concluded there was no
"new evidence presented or case . . . overlooked" to warrant
reconsideration. In rejecting plaintiffs' challenge to the
dismissal of their trespass claim, Judge Rodriguez reiterated that
based on plaintiffs' deposition testimony, "the primary purpose
and focus" of plaintiffs' "trespass claim was the privacy of this
bamboo fence." Judge Rodriguez noted that under Mosteller, the
measure of damages for claims concerning trees and shrubbery that
"typically provide privacy, shade, [and] beauty" is "diminution
of market value" unless plaintiffs prove a peculiar value as
articulated in Huber v. Serpico, 71 N.J. Super. 329 (App. Div.
1962).
Because privacy did not meet the peculiar value standard, the
judge concluded that "the appropriate measure of damages" under
7
N.J.S.A. 2A:15-5.9 to -5.17.
8
Longo v. Pleasure Prods., Inc., 215 N.J. 48 (2013) (noting that
"punitive damages may be awarded only if compensatory damages have
been awarded in the first stage of the trial.").
11 A-5182-16T1
Mosteller was the diminution of market value approach. The judge
pointed out that plaintiffs presented no evidence, expert or
otherwise, on damages based on diminution of market value. Thus,
she determined that summary judgment was appropriate on the
trespass claim and reconsideration was unwarranted. The judge
entered a memorializing order and this appeal followed.
Motions for reconsideration are granted only under very
narrow circumstances. We have determined that reconsideration is
not appropriate merely because a litigant is dissatisfied with a
decision of the court or wishes to reargue a motion . . . ."
Palombi, 414 N.J. Super. at 288. However, reconsideration "should
be utilized only for those cases which fall into that narrow
corridor in which either 1) the [c]ourt has expressed its decision
based upon a palpably incorrect or irrational basis, or 2) it is
obvious that the [c]ourt either did not consider, or failed to
appreciate the significance of probative, competent evidence.
D'Atria, 242 N.J. Super. at 401.
We will not disturb a trial judge's denial of a motion for
reconsideration absent a clear abuse of discretion. Pitney Bowes
Bank, Inc. v. ABC Caging Fulfillment, 440 N.J. Super. 378, 382
(App. Div. 2015). An abuse of discretion only arises on
demonstration of "manifest error or injustice[,]" State v. Torres,
183 N.J. 554, 572 (2005) (quoting State v. Ravenell, 43 N.J. 171,
12 A-5182-16T1
182 (1964)), and occurs when the trial judge's decision is "made
without a rational explanation, inexplicably departed from
established policies, or rested on an impermissible basis." Flagg
v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002) (citation
omitted).
Judge Rodriguez' decision was not palpably incorrect, nor did
plaintiffs offer any evidence the judge failed to consider. Thus,
we discern no abuse of discretion. As the judge observed, one of
two measures is employed to determine damages for injury done to
land. The diminution of value measure allows recovery for the
"difference in the value of [the plaintiff's] property immediately
before and immediately after the injury to it, that [is], the
amount [the] property has diminished in value as a result of the
injury." Mosteller, 416 N.J. Super. at 638 (second alteration in
original) (emphasis omitted) (quoting Velop, Inc. v. Kaplan, 301
N.J. Super. 32, 64 (App. Div. 1997)). On the other hand, "the
replacement-cost or restoration-cost measure . . . awards the
plaintiff the reasonable cost of restoring or repairing the
damage." Ibid. (quoting Velop, 301 N.J. Super. at 64).
"The predominant measure of damages in cases involving the
destruction or removal of trees and ornamental shrubs is the
diminution-of-market-value measure." Id. at 639. The rationale
for applying this measure is that "such trees are ordinarily not
13 A-5182-16T1
marketable commodities whose value can thus be measured, but
. . . their value principally inheres in what they impart to the
realty on which they stand." Ibid. (quoting Kristine Cordier
Karnezis, Annotation, Measure of Damages for Injury to or
Destruction of Shade or Ornamental Tree or Shrub, 95 A.L.R.3d 508,
§ 2 (2008)).
However, we have recognized that in "special instances" such
as "where a trespasser has destroyed shade or ornamental trees or
shrubbery having peculiar value to the owner[,]" the proper measure
of damages is the replacement or restoration approach "without
necessary limitation to the diminution in the market value of the
land." Id. at 639-40 (quoting Huber, 71 N.J. Super. at 345). In
Huber, the plaintiffs owned a fourteen-and-a-half acre tract of
land used for enjoyment and recreation that contained a grove of
seventy-year-old to eighty-five-year-old trees that the defendant-
trespasser cut down while the plaintiffs were away on vacation.
71 N.J. Super. at 345. In those circumstances, we held that a
restoration-cost approach was the fairest method of quantifying
the plaintiff's loss, because of the "peculiar value" of the trees
to the plaintiff. Ibid.Conversely, in Mosteller, we concluded that the trial court
correctly applied the diminution-of-market-value approach as an
appropriate measure of damages to defendant's unauthorized removal
14 A-5182-16T1
of six mature trees from rental property owned by plaintiff. 416
N.J. Super. at 634. There, like here, the defendant, an adjacent
property owner, hired a company to remove several trees on what
she believed to be her side of the property line. Id. at 635.
Six of the trees located on plaintiff's side of the property line
were removed without plaintiff's knowledge or permission. Ibid.We determined that plaintiff "established no 'peculiar value'
in the lost trees that might justify a replacement value approach."
Id. at 636. We concluded
that the assorted items of damage cited by
plaintiff, including the loss of shade, the
increased erosion and insect risks, . . . did
not rise to the level of a special harm that
warranted a departure from the diminution-of-
market-value test. These are typical negative
consequences that unfortunately result from
the destruction of trees and shrubbery, and
they do not establish that plaintiff's trees
were of peculiar value to him. They provide
no special justification for a more generous
measure of damages . . . .
[Id. at 641.]
Here, we agree with Judge Rodriguez that this case was more
akin to Mosteller because plaintiffs' loss of privacy did not
establish a peculiar value in relation to the bamboo to justify a
replacement value approach. A generalized desire for a privacy
screen, much like providing shade, did not establish that
plaintiffs' bamboo was of peculiar value to them. As such, the
15 A-5182-16T1
judge properly found that the diminution of value approach was the
appropriate measure of damages. Because plaintiffs failed to
provide any expert or other testimony that their property
diminished in value as a result of the removal of the bamboo,
Judge Rodriguez did not abuse her discretion in denying plaintiffs'
motion for reconsideration.
Affirmed.
16 A-5182-16T1