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Kyle J. Mosteller v. Geela Naiman

December 3, 2010

KYLE J. MOSTELLER, PLAINTIFF-APPELLANT,
v.
GEELA NAIMAN, DEFENDANT-RESPONDENT, AND COYNE TREE SERVICE, INC., DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-3635-06.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued October 25, 2010 - Decided

Before Judges Lisa, Reisner,*fn1 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 the subject 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 rental units, 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.*fn2 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.*fn3

Plaintiff filed a civil action in the Law Division against defendant and Coyne,*fn4 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 tree stumps. 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.*fn5 Defendant further argued that plaintiff 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 the diminution in value of plaintiff's ...


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