Strategic Takeaways From NJ Trespass Ruling – Hector D. Ruiz Writes for Law360
The following article originally appeared on Law360.
Partner Hector D. Ruiz authored an article on the New Jersey Supreme Court’s decision addressing damages available to an injured landowner in a trespass to property case; which also offered guidance to trial practitioners preparing for trial. Since issuing this recent decision, the Supreme Court has ordered modifications to court operations to address the current COVID-19 pandemic. Therefore, trial courts may be required to be much more accommodating and lenient with trial teams during this unprecedented COVID-19 emergency.
On March 11, the New Jersey Supreme Court issued its decision in Joseph Kornbleuth DMD v. Thomas Westover, which addressed the measure of damages available to an injured landowner in a trespass-to-property case. Also embedded in the Supreme Court’s decision is a significant ruling concerning the unavailability of designated trial counsel and trial staff.
The Kornbleuths and the Westovers shared a rear property line, marked by a bamboo barrier which provided visual privacy between the neighbors. After the bamboo was removed from both properties by the Westovers’ contractor without the Kornbleuths’ permission, the Kornbleuths sued for trespass and conversion, arguing that the removal interfered with their privacy and aesthetic interests.
On the day trial was scheduled to commence, the Kornbleuths’ designated trial counsel requested a continuance, citing the unexpected unavailability of his second chair and information technology assistant due to medical reasons. Although the trial court offered its own IT staff to aid in the presentation, counsel refused to proceed with the adjudication of pending motions in limine and jury selection. The trial court declined to adjourn the trial and dismissed the case without prejudice.
The Kornbleuths succeeded in reinstating the case, but were sanctioned by the court in the amount of the Westovers’ costs associated with trial preparations.
In granting the Westovers’ motion for summary judgment, the trial court held that the appropriate measure of damages was diminution value, and the Kornbleuths failed to provide such evidence. The trial court also found that the generalized desire for a privacy screen failed to raise any genuine issue of material fact that the bamboo was of peculiar value to the Kornbleuths.
As discussed below, the New Jersey Supreme Court’s analysis provides important substantive guidance to plaintiffs and defendants in trespass-to-property cases, and vital procedural advice to trial practitioners in New Jersey.
No Entitlement to Trial Team of Party’s Choice if They Will Delay Proceedings
The Supreme Court explained that the choice of designated trial counsel is an important consideration, emphasizing that parties are entitled to have designated counsel represent them pursuant to New Jersey Court Rule 4:25-4, absent exceptional circumstances. The court made abundantly clear, however, that “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.”
Underlying the court’s ruling is the principle that the court rules afford a party only one designated counsel. Accordingly, the Supreme Court held that the trial court appropriately exercised its discretion in denying the adjournment request and imposing sanctions.
Measure of Damages in Trespass-to-Land Cases
The Supreme Court examined the framework outlined in Section 929(a)(1) of the Restatement (Second) of Torts, which limits damages recoverable for trespass to diminution in value when there is no reason personal to the owner for restoring the property to its original condition.
The court also turned to Appellate Division decisions involving its consideration of diminution of value and restoration costs as compensation for trespassory tree removal. For instance, in Huber v. Serpico, the only case in this state’s history to hold that trees or shrubbery can have peculiar value, the plaintiffs owned and occupied a tract of land containing their home as well as an assorted grove of some 70- to 85-year-old trees.
The Kornbleuths maintained that their election of restoration costs was supported by discovery, and the bamboo fence was of peculiar value to them because they lived on the property and the fence provided privacy and held aesthetic value to them. The Supreme Court was unpersuaded, citing a lack evidence of diminished value, and finding no genuine issue of material fact that there was some peculiar value as to the bamboo.
The court explained that “[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.” Observing that the touchstone of damages is reasonableness, the court concluded that even if the Kornbleuths presented legally sufficient evidence of peculiar value, reasonableness could not be determined “without evidence of diminished value or some similarly helpful yardstick for comparison.”
First, this recent decision should serve as a cautionary tale for counsel planning for trial. Plainly, courts in New Jersey place great importance on a parties’ designated counsel. Indeed, according to the Supreme Court, 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.” 
Notably, the court’s declaration that a party is entitled to designated counsel’s representation serves as unambiguous guidance to trial courts addressing adjournment requests relating to designated counsel’s personal availability.
Nevertheless, while courts should be more accommodating to adjournment requests pertaining to designated trial counsel; trial staff, including co-counsel, is not afforded the same status. In a time of the ever-increasing ubiquity of courtroom technology and sophisticated digital presentations, trial counsel in New Jersey is warned to plan ahead and create redundancy with trial teams.
Given the current COVID-19 emergency, however, it is unclear how trial courts will treat adjournment requests in practice. For instance, after the Supreme Court issued this decision, the court ordered modifications to court operations including, “suspending certain court proceedings, extending deadlines, and tolling time periods” to deal with the health crises. Therefore, trial courts may afford trial teams much more flexibility during this unprecedented COVID-19 emergency.
Lastly, when seeking damages in a trespass-to-land case, there are several considerations.
First, the Supreme Court makes clear that the touchstone in addressing damages to an injured landowner is reasonableness. At a minimum, a reasonableness determination requires evidence of diminished value even where restoration or other damages are sought.
Second, given that New Jersey courts have historically rejected claims that certain foliage has peculiar value, general interests and vague assertions of aesthetic worth cannot, as a matter of law, establish value personal to the owner that might justify the award of restoration costs.
Third, the Supreme Court’s ruling suggests that claimants who do not reside on the property will face a more difficult burden in establishing that aesthetic worth is personal to the owner.
 (A-71-18) (081898).
 Plaintiffs also asserted a negligence claim against the bamboo clearing landscaper hired by defendants, but subsequently settled with the contractors.
 A-71-18 at 10.
 Id. at 12.
 Id. at 10 (citing 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”).
 Prior to seeking leave to appeal, the Kornbleuths unsuccessfully moved for reconsideration of the trial court’s decisions. Therefore, the New Jersey Supreme Court’s review was pursuant to the abuse of discretion standard.
 Id. at 11.
 Restatement (Second) of Torts § 929(1) (Am. Law Inst. 1979).
 71 N.J. Super. 329 (App. Div. 1962).
 The plaintiffs in Huber presented evidence of restoration damages along with diminution of value damages.
 The Supreme Court also examined Mosteller v. Naiman, 416 N.J. Super. 632 (App. Div. 2010), where the Appellate Division rejected a claim premised on the peculiar value of certain trees where the plaintiffs did not reside on the property and cited assorted items of damage like loss of shade, increased erosion and insect risks.
 A-71-18 at 21 (Mr. Kornbleuth testified at deposition, for example, that the Kornbleuth’s “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 Kornbleuths submitted expert reports by their landscape architect projecting restoration bamboo costs, but failed to provide proof of other losses, such as a diminution of the property’s market value.
 A-71-18 at 23.
 A-71-18 at 10.
 Supreme Court of New Jersey Order Extending COVID-19-Related Suspensions of Court Proceedings and Other Matters (March 27, 2020).