227 A.3d 1209
N.J.2020Background
- Neighbors (Westovers) hired contractors who removed bamboo that formed a privacy "bamboo fence" along a shared property line; removal occurred while neither party was home. Plaintiffs Joseph and Donna Kornbleuth sued for trespass and conversion.
- Plaintiffs produced landscape-architect estimates for restoration costs (~$17,000–$41,000) but offered no evidence of diminution in overall property market value or other monetary metrics to compare restoration costs against.
- On the first day of trial plaintiffs’ designated trial counsel refused to proceed because his associate and IT assistant were unavailable; the court offered courthouse IT support, denied adjournment, dismissed without prejudice, later reinstated the complaint, and imposed $8,500 in sanctions under Rule 1:2-4.
- Defendants moved for summary judgment arguing plaintiffs lacked evidence of diminution in value and therefore could not recover restoration costs; the trial court granted summary judgment and denied reconsideration.
- The Appellate Division affirmed both the sanctions order and the denial of reconsideration; the New Jersey Supreme Court granted certification and affirmed the Appellate Division.
- Majority held: (1) trial court did not abuse discretion in denying adjournment or imposing sanctions; (2) restoration costs are not an unfettered election — recovery depends on reasonableness, proportionality, and proof (including evidence to assess diminution or a personal/peculiar value), and plaintiffs offered insufficient evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Sanctions for refusing to proceed on trial day | Kornbleuths: adjournment reasonable because lead counsel’s second-chair and IT assistant were unavailable | Westover: refusal to proceed despite counsel’s presence and court-offered IT support constituted failure to appear | Court: No abuse of discretion; Rule 1:2-4 permits sanctions for refusal to proceed; parties not entitled to auxiliary staff that would delay trial |
| 2) Measure of damages for trespass (restoration costs vs. diminution in value) | Kornbleuths: may elect restoration costs; bamboo had peculiar/personal value (privacy, aesthetics) and expert restoration estimates suffice | Westover: plaintiffs must show diminution in property value or peculiar value; restoration costs disproportionate and unsupported | Court: Recovery of restoration costs is not a simple election; Restatement §929 requires reasonableness and (when restoration is disproportionate) either evidence of peculiar personal value or comparable yardstick (e.g., diminution) — plaintiffs offered insufficient evidence, so summary judgment proper |
| 3) Nominal damages for intentional trespass | Plaintiffs (in dissent): nominal damages and right to present restoration evidence should have allowed case to proceed | Defendants: no meaningful market-decrease evidence to support more than nominal relief | Court (majority): plaintiffs did not press nominal damages below; majority did not base decision on denial of nominal damages; dissent argued plaintiffs should at least have proceeded on nominal/restoration theory |
Key Cases Cited
- Huber v. Serpico, 71 N.J. Super. 329 (App. Div. 1962) (permitted restoration costs where trees/shrubbery had "peculiar value" to owner)
- Mosteller v. Naiman, 416 N.J. Super. 632 (App. Div. 2010) (rejected restoration-cost recovery where replacement cost was disproportionate to negligible diminution in market value)
- Gonzalez v. Safe & Sound Sec., 185 N.J. 100 (2005) (dismissal/sanctions for failure to appear are within trial court discretion)
- Ross v. Lowitz, 222 N.J. 494 (2015) (trespass liability requires intentional entry regardless of proof of harm)
- Jenkins v. Etlinger, 432 N.E.2d 589 (N.Y. 1982) (plaintiff need only present evidence under one measure of damages; absence of evidence under alternative measure does not defeat recovery)
- Keitges v. VanDermeulen, 483 N.W.2d 137 (Neb. 1992) (allowed restoration-cost recovery for destruction of residential/recreational trees without requiring ornamental designation)
- Ellison v. R & B Contracting, Inc., 32 S.W.3d 66 (Ky. 2000) (plaintiff presenting restoration costs need not prove diminution to avoid directed verdict)
- Nappe v. Anschelewitz, Barr, Ansell & Bonello, 97 N.J. 37 (1984) (recognition that nominal damages are available for trespass)