Sanctions, Damages for a Removed “Bamboo Fence,” and a 4-3 Supreme Court Vote

Kornbleuth v. Westover, 241 N.J. 289 (2020). The Supreme Court of the United States frequently seems to split 5-4. It is relatively rare for the Supreme court of New Jersey to split 4-3. Yesterday, in a case involving the unauthorized removal by one set of neighbors of a “fence” made of bamboo on the neighboring residential property, was one of those times.

There were two issues before the Court: (1) sanctions imposed against plaintiffs’ counsel, who (having been designated as trial counsel pursuant to Rule 4:25-4) was unwilling to proceed with trial because his associate and his IT person were unavailable due to illness and the need to deal with “senior parents,” respectively, and (2) the proper measure of damages for the removal of the bamboo fence. The end of the story is that the majority voted to uphold the sanctions (the dissenters disagreed), and to affirm a summary judgment for defendants on the ground that plaintiffs needed to prove that the removal of the bamboo fence diminished the value of their property, which plaintiffs did not do. Plaintiffs instead offered proof of the cost to replace the bamboo, a measure of damages that the dissenters endorsed.

Justice Solomon wrote the majority opinion. He was joined by Chief Justice Rabner and Justices Patterson and Fernandez-Vina. Justice LaVecchia authored the dissent, joined by Justices Albin and Timpone.

On the sanctions issue, the abuse of discretion standard of review applied. The majority ruled that “[a]bsent exceptional circumstances, parties are entitled to have their designated trial counsel represent them at trial.” But, noting that only one trial counsel per party may be designated, the majority said that “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 majority found further justification in the fact that the trial court offered its own IT staff to “do whatever [they] could” to aid plaintiffs’ counsel in the absence of his own IT person. Plaintiffs’ counsel declined that offer. The majority thus found no abuse of discretion in the trial court’s decision to dismiss the case without prejudice and impose sanctions.

The dissenters addressed the sanctions issue only in a footnote at the end of their opinion. Justice LaVecchia was “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 beyond their control. His adjournment request was not unreasonable and to have it met with sanctions is confounding.”

The appeal on the legal issue of the proper measure of damages for defendants’ removal of the bamboo fence arose from the denial of a motion for reconsideration. The majority thus applied the abuse of discretion standard on that issue as well.

The damage issue revolved around section 929 of the Restatement (Second) of Torts. That section, which relates to damages for trespass, permits either of the two measures of damages cited above to be used, “at [plaintiff’s] election in an appropriate case. But a comment states that if the cost of restoring the land to its pre-trespass 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.”

Looking to two prior Appellate Division cases, Mosteller v. Naiman, 416 N.J. Super. 632 (App. Div. 2010), and Huber v. Serpico, 71 N.J. Super. 329 (App. Div. 1962), the majority noted that Huber was the only case in New Jersey history to apply the “peculiar value” of trees or shrubs as the measure of damages in a case like this. Mosteller and other cases rejected that measure of damages in favor of diminution of the overall property value. Moreover, Huber had stated that the “touchstone” is reasonableness. Accordingly, the majority found no error in the trial court’s ruling that the only permissible damages model was diminution in the property’s value, and because plaintiffs did not offer proof of that, summary judgment was properly granted against them.

The dissenters completely disagreed. Plaintiffs had a privacy interest that was compromised, or even destroyed, by the total removal of the “bamboo fence.” Like the majority, the dissent cited section 929 of the Second Restatement of Torts. But the dissenters found that the majority had wrongly applied that section “restrictively.” Justice LaVecchia cited a number of cases from other jurisdictions that had permitted plaintiffs to measure their damages by the cost to replace trees or shrubs. She also believed that the majority misapplied Huber and Mosteller.

Finally, the dissent stated that the diminution in property value measure of damages “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.”

To this reader, the dissent had the better of the argument on both issues. It is hard to see what difficulty would have been caused if trial had been adjourned to accommodate plaintiffs’ counsel’s staffing issues. It is true that enforcing trial dates gives credibility to the calendar and often can encourage settlements. But calendar control, though important, is not the highest value. The majority’s position avoids a potential slippery slope, as once an exception is made for one case, others could claim the same right. But still, ….

On the damages issue, the dissent’s marshaling of out-of-state cases and its overall analysis seem more persuasive than the view of the majority. But everyone should read the competing opinions in full. They well illustrate the two sides of this very interesting issue.