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

• Court: Supreme Court of New Jersey
• Decided: March 11, 2020
• Docket: A-71-18
• Status: Published

Opinion

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

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.

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,

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.

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.

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.

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.

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