The Supreme Court has ruled in a 4-3 decision that a homeowner whose trees are chopped  down by a neighbor may not recover damages in a trespassing suit without proving diminution of property value.

The court on Wednesday upheld an Appellate Division ruling that said the trial judge showed no abuse of discretion by refusing to reconsider a summary judgment order dismissing the homeowner's claims.

In addition, the court unanimously upheld imposition of an $8,500 sanction against the homeowners because their lawyer sought an adjournment on the designated trial date because his second chair and his courtroom information technology assistant were absent.

That sanction came after attorney I. Michael Heine refused to proceed on the day of trial. Litigants have the right to be represented at trial by their choice of counsel, but parties are not entitled to have other members of the trial team represent them if it would delay the proceedings, the court said when it upheld the sanction.

Joseph and Donna Kornbleuth filed suit for trespassing against Thomas and Betsy Westover after a contractor hired by the Westovers removed a group of bamboo plants along the rear lot between their properties. The Kornbleuths valued the privacy afforded by the bamboo plants, which were 20 feet high, but they had begun to spread onto the Westovers' property.

The Kornbleuths sought reimbursement for restoring the group of bamboo trees and made assertions about reduced aesthetic value and loss of privacy. They claim that restoration costs are available to the aggrieved party in a claim for trespass to land. However, whether restoration costs may be recovered is not an election of the aggrieved party but is dependent on a showing that such damages are reasonable. A general interest in privacy and vague assertions of the aesthetic worth do not establish value personal to the owner, Justice Lee Solomon wrote for the court, joined by Chief Justice Stuart Rabner and Justices Anne Patterson and Faustino Fernandez-Vina.

In addition, even if the Kornbleuths presented legally sufficient evidence of peculiar value, proportionality and reasonableness of restoration costs could not be determined without evidence of diminished value or some similarly helpful yardstick for comparison, Solomon wrote. The court held that the trial court did not abuse its discretion by granting summary judgment to the Westovers.

Based on the evidence provided by the Kornbleuths, a judge could not determine if restoration costs are a reasonable measure of damages, since they produced no evidence from which proportionality or reasonableness might be assessed, Solomon said. Therefore, the trial court correctly ruled that no evidence of diminished value of the property was presented and no issue of material fact raised as to whether the lost bamboo had some special value, he said.

Justice Jaynee LaVecchia, who was joined by Justices Barry Albin and Walter Timpone, said the Kornbleuths presented a valid claim for reasonable damages for destruction of the bamboo. She wrote the majority misapplied applicable case law and that the Kornbleuths should not be compelled to produce evidence of diminution of the entire property in order to go before the judge. Rather, she said, they should be permitted to proceed with evidence of restoration damages for the restored trees.

Heine, of Heine Associates in Cherry Hill, said he had not had a chance to read the decision and declined to comment. William Martin of Martin Gunn & Martin in Westmont, who represented the Westovers, did not respond to a request for comment.