Mosteller v. Naiman

• Decision Date: 03 December 2010
• Citation: 7 A.3d 803,416 N.J.Super. 632
• Parties: Kyle J. MOSTELLER, Plaintiff-Appellant, v. Geela NAIMAN, Defendant-Respondent, and Coyne Tree Service, Inc., Defendant.
• Court: New Jersey Superior Court

7 A.3d 803

416 N.J.Super. 632

Kyle J. MOSTELLER, Plaintiff-Appellant,

v. Geela NAIMAN, Defendant-Respondent,andCoyne Tree Service, Inc., Defendant.

Superior Court of New Jersey, Appellate Division.

Argued Oct. 25, 2010.

Decided Dec. 3, 2010.

Randi S. Greenberg argued the cause for appellant (J. Stewart Grad, Woodbridge, attorney; Ms. Greenberg, on the brief).

Frank J. Caruso, Brunswick, argued the cause for respondent (Hoagland, Longo, Moran, Dunst & Doukas, LLP, attorneys; Mr. Caruso, of counsel and on the brief).

Before Judges LISA, REISNER,¹ and SABATINO.

The opinion of the court was delivered by

SABATINO, J.A.D.

The sole issue in this appeal is whether the trial court applied an appropriate measure of damages to defendant's unauthorized removal of six mature trees from rental property owned by plaintiff. We conclude that the trial court correctly adopted a diminution-of-market-value approach, and therefore affirm its decision.

Plaintiff Kyle J. Mosteller resides in Virginia. He has resided there at all times relevant to this litigation. Several years ago, plaintiff purchased various rental properties in Highland Park, including thesubject property, which he bought in 2004 for approximately $440,000. The property has a yard and is located in a residential neighborhood. The property contains two rentalunits, which were both leased and occupied at the time in question. Plaintiff has never resided there himself; his residence in Virginia is approximately four or five hours away by car.

Defendant Geela Naiman owns a dwelling on a lot that adjoins the subject property. The properties are separated by a chain link fence. In July 2005, defendant hired a company, co-defendant Coyne Tree Service, Inc. ("Coyne"), to remove several trees on what she believed to be her side of the property line. The trees were removed without plaintiff's advance knowledge or permission. ² The tree service left stumps where the trees had previously been, along with wood chips and other debris.

After being informed by another neighbor that the trees had been cut down, plaintiff commissioned a survey of the property boundary. The survey revealed that the chain link fence did not correspond to the true boundary, and that six of the removed trees had been located on plaintiff's side of the property line. According to plaintiff, the six trees were all mature and had appeared to be healthy, ranging in height from thirty to sixty-five feet.³

Plaintiff filed a civil action in the Law Division against defendant and Coyne,⁴ seeking damages for the wrongful removal of the six trees. According to plaintiff, the removal of the trees damaged his property in several respects. He contends that his lot is now less private and not as attractive. He further alleges that the destruction of the trees has increased the risks of erosion from wind and rain, and the potential for insect infestation of the treestumps. In addition, the loss of shade from the trees has produced brown spots on plaintiff's lawn.

Plaintiff tendered to defendant an estimate he obtained from a landscaping company for removal of the stumps, repair of certain fencing and railroad ties damaged by Coyne, and replacement of the destroyed trees with six replacement trees. The estimate called for six maples, varying in height, which would be transported to the property and planted there. The most expensive of those trees, as installed, was priced at $130,000. The estimate also included the costs of soil and mulch, reseeding the lawn, cleanup, insurance, and one year of watering and weekly maintenance. The total sum sought in the estimate was $436,750.

After discovery had been conducted, defendant filed a motion requesting the trial court to establish the proper legal measure of damages to be applied in this case. Defendant contended that the appropriate measure of damages would be the difference between the estimated fair market value of plaintiff's property before the trees were removed and after they were removed.⁵ Defendant further argued thatplaintiff had established no "peculiar value" in the lost trees that might justify a replacement value approach. Plaintiff, meanwhile, advocated that he should be awarded the full replacement costs of the trees, regardless of the market-value impact of the tree removal. He filed a cross-motion requesting the trial court to adopt a replacement value measure of damages.

Following oral argument, the motion judge issued an oral opinion adopting defendant's proposed method of quantifying damages and rejecting plaintiff's competing approach. The judge entered a corresponding order on April 25, 2008, declaring that "the measurement of plaintiff's damages [at trial] will be thediminution in value of plaintiff's property with and without the removed trees[,]" and that "plaintiff's cross-motion is denied."

Thereafter, on January 4, 2010, the parties entered into a provisional consent judgment in the amount of $20,000. In the order entering the consent judgment, plaintiff specifically reserved the right to appeal the trial court's April 25, 2008 order setting the measure of damages as the diminution in value of plaintiff's property. Plaintiff also reserved the right to vacate the consent judgment if his appeal were successful.⁶

This appeal ensued. Plaintiff argues that he is entitled to be made whole for the damage to his property, and that the motion judge's ruling falls short of that objective. He argues that the judge should have adopted a replacement-cost method to quantify his damages. Although he disputes the legal necessity of proving "peculiar value" in order to be awarded replacement costs, he contends that the record establishes such peculiar value. Lastly, plaintiff argues that even if a diminution-of-market-value approach is proper to use in this case, he nonetheless should be permitted to present his replacement-cost proofs for comparative purposes at trial.

In considering these arguments, we review de novo the trial court's legal determination as to the appropriate measure of damages. See Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378, 658 A.2d 1230 (1995) (prescribing de novo review of trial court rulings on questions of law). Having done so, we are satisfied that the trial court's decision was legally sound, substantially for the reasons cogently articulated in Judge Andrea Carter Latimer's bench opinion of April 25, 2008. We echo her analysis in the following comments.

"The appropriate measure of damages for injury done to land is a complex subject" and depends "upon the evidence in the particular case." Velop, Inc. v. Kaplan, 301 N.J.Super. 32, 64, 693 A.2d 917 (App.Div.), certif. granted, 152 N.J. 9, 702 A.2d 348 (1997), appeal dismissed, 153 N.J. 45, 707 A.2d 149 (1998) (citing Dobbs, Remedies, § 5.2 to 5.16 at 310-34 (1973)). In almost every case, one of two measures is employed. The first measure, which has been described as "the one most commonly mentioned in the [reported] opinions," is the diminution-of-value measure:

Under this measure the plaintiff is entitled to recover the difference in the value of his property immediately before and immediately after the injury to it, that [is], the amount his property hasdiminished in value as a result of the injury.

[ Ibid. (quoting Dobbs, supra, at 312) (emphasis added).]

A second measure is the replacement-cost or restoration-cost measure. That alternative "awards the plaintiff the reasonable cost of restoring or repairing the damage." Ibid. "Each of these tests has a wide sphere of application, and the court's selection of one test or the other is basically an assessment of which is more likely to afford full and reasonable compensation." Ibid. (emphasis added).

We have recognized that in choosing between these two methods of quantifying property damages, it can be unfair to use the restoration-cost method when "the cost of repairs vastly exceeds ... the probable market value of the property." Correa v. Maggiore, 196 N.J.Super. 273, 285, 482 A.2d 192 (App.Div.1984). In Correa, the jury awarded $33,000 in repair costs with respect to a fraudulently-procured contract for the sale of a home for $25,000. Id. at 277-78, 482 A.2d 192. In reversing a judgment based on that jury award, we observed that "the cost of repairs approach should not be employed where ... it would result in unreasonable economic waste." Id. at 285, 482 A.2d 192 (internal quotation omitted). However, reasonable repair costs that exceed the diminution of the property's value are appropriate "in some circumstances[, such as] where the property owner wishes to use the property rather than sell it." Velop, Inc., supra, 301 N.J.Super. at 64, 693 A.2d 917 (citing Dobbs, supra, at 317).

The predominant measure of damages in cases involving the destruction or removal of trees and ornamental shrubs is the diminution-of-market-value measure. Although various other measures have been applied by courts, the law is not rigid and "ordinarily the measure of damages is the resulting depreciation in the value of the land on which the trees or shrubs stood." 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). "In explaining their adherence to this view, the courts typically reason that such trees are ordinarily not marketable commodities whose value can thus be measured, but that their value principally inheres in what they impart to the realty on which they stand." Ibid.

As the motion judge recognized, the leading case in our state concerning the measurement of damages arising out of the tortious removal of trees is Huber v. Serpico, 71 N.J.Super. 329, 176 A.2d 805 (App.Div.1962). In Huber, the plaintiffs owned a fourteen-and-a-half acre tract of land that contained their residence and outbuildings. The tract also contained a yard, pasturage, and a grove of seventy-year-old to eighty-five-year-old trees. The land was used by the...