Kornbleuth v. Westover, A-71 September Term 2018

CourtUnited States State Supreme Court (New Jersey)
Citation241 N.J. 289,227 A.3d 1209
Docket NumberA-71 September Term 2018,081898
Parties 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.
Decision Date11 March 2020

241 N.J. 289
227 A.3d 1209

Joseph KORNBLEUTH, DMD, and Donna Kornbleuth, Husband and Wife, Plaintiffs-Appellants,
Thomas WESTOVER and Betsy Westover, Husband and Wife, Defendants-Respondents,
New Jersey Bamboo Landscaping, LLC, and Alexander Betz, Defendants.

A-71 September Term 2018

Supreme Court of New Jersey.

Argued November 6, 2019
Decided March 11, 2020

I. Michael Heine argued the cause for appellants (Heine Associates, attorneys; I. Michael Heine, Cherry Hill, on the briefs).

William J. Martin, Westmont, argued the cause for respondents (Martin Gunn & Martin, attorneys; William J. Martin and Michael A. Mascino, on the brief).

JUSTICE SOLOMON delivered the opinion of the Court.

227 A.3d 1212
241 N.J. 294

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 discretion with respect to either issue and affirm the judgment of the Appellate Division.

241 N.J. 295


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

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

227 A.3d 1213
241 N.J. 296

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 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.

241 N.J. 297

Upon the conclusion of discovery, the Westovers moved for summary judgment, arguing the Kornbleuths failed to produce evidence of the 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

227 A.3d 1214

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. 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, 206 A.3d 957 (2019).

241 N.J. 298


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, 176 A.2d 805 (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, 7 A.3d 803 (App. Div. 2010) (rejecting plaintiff's restoration cost claim because plaintiff was non-resident landlord and failed to establish peculiar value). As such, they contend that their elected remedy of restoration costs provides the appropriate measure for recovery because they provided expert reports on restoration costs and deposition testimony on how the lost bamboo fence was of peculiar value to them.

The Westovers argue that because the Kornbleuths' expert's reports addressed only the cost of replacing the bamboo and failed to estimate diminution of market value consequent to its removal, they are unable to establish damages. The Westovers assert that the Kornbleuths gave no "special aesthetic parameters to achieve [their] goal of restoring the privacy of [their] backyard" and that Ms. Kornbleuths' statement that she did not want to see the Westovers' "ugly house" is evidence that the Kornbleuths cared only about the loss of privacy and there was no peculiar value of the bamboo to the Kornbleuths. The Westovers conclude that without "prov[ing] that the lost bamboo held a peculiar value," replacement costs cannot be recovered as a matter of law.


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