RICHARD TUOSTO VS. THERESE BRADY (L-5696-15, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3374-16T2

RICHARD TUOSTO and
CHERYL TUOSTO,

Plaintiff-Respondents/
Cross-Appellants,

v.

THERESE BRADY and
STEPHEN CORUM,

Defendants-Appellants/
Cross-Respondents,

v.

BOROUGH OF GLEN RIDGE,
MICHAEL ROHAL, Administrator,
MICHAEL ZICHELLI, Director of
Planning/Deputy Administrator, and
SHEILA BYRON-LAGATTUTA,
Chief of Police,

Respondents.1
______________________________

1
The Borough and its officials are not parties in this appeal. Their designation
as "respondents" on the caption refers to their status as defendants in appellants'
mandamus action.
 Argued May 9, 2019 – Decided June 17, 2019

Before Judges Simonelli, Whipple and Firko.

On appeal from Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-5696-15.

Jack Thomas Spinella argued the cause for
appellants/cross respondents (Nicoll Davis & Spinella
LLP, attorneys; Jack Thomas Spinella and Steven C. De
Palma, on the briefs).

Jason L. Bittiger argued the cause for
respondents/cross-appellants (Bittiger Elias & Triolo
PC, attorneys; Jason L. Bittiger, of counsel and on the
brief; Michael Colin Feinberg, on the brief).

PER CURIAM

In this dispute between neighbors, plaintiffs Richard Tuosto and Cheryl

Tuosto filed a complaint for trespass alleging defendants Therese Brady's and

Stephen Corum's chain-linked fence encroached on their property. Defendants

counterclaimed, alleging adverse possession and easement by prescription with

respect to the fence and that the noise from plaintiffs' two newly installed central

air conditioning units was a nuisance. Defendants also asserted a third-party

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mandamus action against the Borough of Glen Ridge (Borough) and Borough

officials2 to compel their enforcement of the Borough's noise ordinance.

Defendants appeal from: (1) the October 6, 2016 order severing the

mandamus action from the nuisance action; (2) the November 15, 2016 order

granting partial frivolous litigation attorney's fees to defendants for defense of

the trespass complaint;3 (3) the March 1, 2017 final judgment dismissing

defendants' nuisance claim; and (4) the April 10, 2017 order awarding

defendants $4821 for attorney's fees and costs. Plaintiffs cross-appeal from the

November 15, 2016 and April 10, 2017 orders. We affirm all orders, but remand

to the trial court for entry of an order modifying the amount of the attorney's

fees and costs to $4281 to reflect the amount the court actually awarded.

I.

The Properties

Defendants moved to Glen Ridge in 1996. They previously lived in the

Gramercy Park section of Manhattan for twenty years, and moved to Glen Ridge

2
We shall sometimes collectively refer to the Borough and Borough officials
as the Borough defendants.
3
In a separate October 6, 2016 order, the court granted summary judgment to
defendants and dismissed the trespass complaint with prejudice. In an April 13,
2017 order, the court dismissed defendants' adverse possession and easement by
prescription claims as moot. These orders are not subject to this appeal.
A-3374-16T2
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because they wanted to live in a quiet place. Corum was retired, but previously

worked in the music and sound effects business. He was also a Vietnam veteran.

Brady was an attorney who specialized in litigation.

Defendants' lot is approximately 50 feet by 140 feet and their house is

approximately twenty feet from plaintiffs' house. Defendants' house was built

in 1912 with plaster walls, and they never updated the insulation. The house has

three bedrooms on the second floor. Corum's bedroom is in the front of the

house on the north side nearest to plaintiffs' house. Corum's bedroom has a

window facing plaintiffs' house in which he installs a 5000 BTU window air

conditioner from May to October. The window is approximately twenty-two

feet from plaintiffs' two central air conditioning units. There is a bathroom in

the rear of house on the north side, which also has a window facing plaintiffs'

house. The bathroom is across a hallway and approximately ten feet from

Corum's bedroom. Brady's bedroom is in the front of the house on the south

side, away from plaintiffs' house. The third bedroom, which defendants use as

a study, is located in the rear of the house on the south side, away from plaintiff's

house.

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 Plaintiffs moved into their house in August 2013. The south side of their

house, which faces defendants' house, has a living room on the first floor and

two bedrooms on the second floor.

Plaintiffs' Air Conditioning Units

In 2014, plaintiffs hired Thomas Mastandrea, a licensed heating-

ventilation-air conditioning contractor, to install a quiet, energy efficient central

air conditioning system. Plaintiffs paid Mastandrea $25,000 to oversee and

complete the entire process, including permits, installation, and final

inspections. Mastandrea chose to install two Ruud Model UARL-025JEC air

conditioning units because they were energy efficient and "one of the quietest

on the market" (the units). The units were two-stage units, which were more

efficient because they operated at a lower level in stage one and a higher level

in stage two.

Mastandrea chose to install the units in plaintiffs' side yard between their

house and defendants' house. He applied for a permit and submitted the

manufacturer's specifications for the units, which indicated the units generated

71 decibels (dB) of sound in stage one and 74 dB in stage two.

Mastandrea delivered the units to plaintiffs' property in April 2014. When

Brady saw an unmarked white panel truck delivering "two large, industrial

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looking air conditioning units[,]" she contacted the Borough requesting a stop

work order because she was concerned the contractor was unlicensed and the

units would violate the Borough's noise ordinance and setback requirements.4

Brady called the units a "nuisance" and threatened to alert state and federal

authorities if the Borough did not take action. On May 9, 2014, Brady sent the

Borough's Director of Planning and Deputy Administrator, Michael P. Zichelli,

an email that included the American Academy of Audiology noise level chart,

which indicated that a sound of 50 decibels (dBA) was equivalent to moderate

rainfall and 60 dBA was equivalent to a normal conversation or a dishwasher.

Alleged Noise Impacts on Defendants

Corum claimed plaintiffs operated the units day and night from May to

October. On June 17, 2016, Corum made an audio-video recording of the units

through the open window of the second floor bathroom, which the trial court

viewed, as did we. He testified he made the recording after plaintiffs took

corrective measures to lower the noise level, and the sound level on the video

was "a pretty a good estimation of" what the units sounded like from the

bathroom window.

4
Brady later admitted the setback requirements did not apply to air conditioning
units and that Mastandrea was licensed.
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 Corum testified he did not sleep at all when the units were operating.

Corum claimed that although he operated his window air conditioner during the

same months plaintiffs operated the units and his air conditioner made noise,

that noise did not interfere with his ability to sleep. He testified the noise from

the units overpowered his window air conditioner, and he could not move his

bedroom somewhere else in the house to escape the noise because it permeated

every room, including the basement. He said the noise was "horrendous. You

can . . . hear the noise in every single room in the house. It even vibrates.

Sometimes it makes the windows even vibrate."

Corum claimed he suffered from extreme stress and irritability,

depression, headaches, and apprehension due to the noise from the units and

believed the stress from the noise exacerbated his diabetes. He testified he did

not suffer from headaches, irritability, or stress prior to the installation of the

units and claimed he never had a headache before in his life, even when he was

in the military. He admitted he never saw a doctor for any of his symptoms and

no doctor informed him that these symptoms were directly related to the noise

from the units.

Corum also testified that the noise from the units interfered with

defendants' enjoyment of their back deck. He claimed that if defendants ate

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dinner on the deck they could not have a conversation at a normal level and had

to "basically yell at each other."

Brady testified that the noise from the units "was absolutely unbelievable

. . . [a]nd . . . sounded [to her] like . . . [they] were living next to an industrial

park." She claimed there was no place in the house to get refuge from the noise

because the noise permeated the entire house, vibrated throughout the house,

and was "horrendous." Contrary to Corum's description of the sound level on

the audio-video recording as "a pretty a good estimation of" what the units

sounded like from the bathroom window, Brady testified "the volume [on the

audio-video recording] was . . . exceedingly less than what [they] experienced."

Brady claimed the noise from the units gave her headaches, caused her

extreme anxiety, made her extremely depressed, and left her "extremely

fatigued" because it affected her sleeping and every aspect of her life. She said

even earplugs did not help because the noise was "unrelenting." She claimed

she never suffered these symptoms prior to installation of the units. She

admitted she never saw a doctor for any of her symptoms and no doctor informed

her that these symptoms were directly related to the noise from the units.

Defendants believed the only effective way to rectify the noise was to

remove or relocate the units, a position they held since before the units were

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operational, and a remedy they sought as injunctive relief. They also sought

monetary damages of $4000 per month for the eighteen months plaintiffs had

used the units, plus an additional unspecified amount.

Richard Tuosto, by contrast, testified that the noise from the units, which

were situated below plaintiffs' second-floor bedroom, did not interfere with

plaintiffs' sleep or use of their yard. He said he could hear defendants' window

air conditioners from inside his house if his windows were open.

Noise Testing

1. Initial Noise Test Results

The Borough's noise ordinance requires that sound may not exceed 65

dBA during the day, from 7:00 a.m. to 10:00 p.m., and 50 dBA during the night,

from 10:00 p.m. to 7:00 a.m.5

Plaintiffs began operating the units in late May 2014. On June 3, 2014,

Brady complained to the Borough about the noise from the units. In response,

5
The Noise Control Act of 1971 (Act), N.J.S.A. 13:1G-1 to -23, authorized the
New Jersey Department of Environmental Protection (NJDEP) to adopt
regulations governing noise control. N.J.S.A. 13:1G-4. It also authorized
municipalities to adopt noise control ordinances in conformance with the Act
and its implementing regulations, N.J.A.C. 7:29-1.1 to -2.12, subject to NJDEP
approval. N.J.S.A. 13:1G-21. NJDEP's noise regulations provided that a
municipality could adopt a noise control ordinance in accordance with the
statewide scheme of noise control if it received written approval from NJDEP.
N.J.A.C. 7:29-1.8(a).
A-3374-16T2
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on June 6, 2014, representatives from the Essex Regional Health Commission

and Bloomfield Department of Health and Human Services conducted a joint

noise test. Their daytime noise readings from defendants' property ranged from

53 dBA to 54 dBA, within the 65 dBA daytime sound limit. However, their

nighttime noise readings exceeded the 50 dBA nighttime sound limit.

On June 17, 2014, Zichelli advised plaintiffs they could not operate the

units during the night because noise from the units exceeded the nighttime sound

limit. Brady testified plaintiffs continued to operate the units at nights, which

Richard Tuosto denied. In July 2014, Brady sent several emails to the Borough

again complaining about the noise from the units. She claimed the Borough did

nothing about her complaints

On July 17, 2014, Police Officer Christopher Grogan of the Glen Ridge

Police Department took nighttime noise readings from defendants' property line,

which measured 53.4 dBA. Between August 2014 and July 2015, Brady sent

additional emails to the Borough complaining that plaintiffs continued to

operate the units at night, which Richard Tuosto denied.

2. Plaintiffs' Corrective Measures

After Grogan's noise test, plaintiffs took corrective measures to attenuate

the sound emanating from the units. Mastandrea advised plaintiffs that placing

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noise blankets in the units' compressors and installing a taller fence would

reduce the noise level. In July 2014 plaintiffs placed foam compressor blankets

in the units, and in September 2014, they installed a six-foot vinyl fence between

the units and defendants' house. In June 2015, plaintiffs hung sound absorbing

blankets on their house, which Brady referred to as "a baby's quilt." Plaintiffs

also set up a "quiet fence" in front of the units, which defendants referred to as

"plastic eggshell cartons." Defendants did not believe the corrective measures

were effective.

3. Grogan's Second Noise Test Results

On September 7, 2014, Brady sent an email to the Borough advising that,

going forward, defendants required notice at least one week prior to allowing

entry onto any part of their property for noise tests. Zichelli responded the next

day, stating he received Brady's request and would schedule a time that was

mutually convenient to all parties.

On July 9, 2015, the Borough informed defendants it would be conducting

a noise test on July 13, 2015. On that day and the following day, Brady sent

emails to the Borough objecting to the noise test and stating she would not

permit anyone to enter her property. Brady testified that she and Corum objected

because they did not receive adequate advance notice and did not believe the

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weather was hot enough for an appropriate test. Chief of Police Sheila Byron-

Lagattuta responded that Grogan would not enter defendants' property without

permission and the test therefore would be in relation to plaintiffs' permit, not

defendants' noise complaints. Byron-Lagattuta advised defendants to contact

her to schedule a test concerning their noise complaint.

On July 13, 2015, Grogan took nighttime noise readings from plaintiffs'

back yard, near the units, which measured 45.1 dBA, under the 50 dBA sound

limit. Brady did not believe Grogan's results were valid because Grogan took

the readings from plaintiffs' property instead of defendants' property and noise

should be measured from the affected or receiving property. Nevertheless,

defendants stipulated to the admissibility of Grogan's report of his nighttime

noise test.

4. The Permit and Certificate of Approval

The Borough had issued plaintiffs a summons for violating the nighttime

sound limit. The Borough later vacated the summons because Grogan's July 13,

2015 noise test showed the units did not violate the nighttime sound limit. The

Borough issued plaintiffs a permit and certificate of approval, which allowed

them to operate the units at night.

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 Zichelli testified that he reviewed thirty to fifty permit applications for

central air conditioning units in the Borough every year. He explained that the

Borough did not usually require a noise test for the installation of central air

conditioning units, but did in this case because of defendants' complaints. The

certificate of approval issued to plaintiffs explicitly stated it did "not preclude

anyone from filing a noise complaint." Zichelli said he did not typically include

that language in a certificate of approval.

Because the units had passed the nighttime noise test and plaintiffs had

received a certificate of approval, on August 3, 2015, a Glen Ridge police

lieutenant sent an email to all Borough police officers advising them to not

respond to noise complaints from defendants and instead to enter the complaints

into the computer-aided dispatch system.

Defendants' Expert

Defendants' acoustical engineering expert, Jack Zybura, conducted a

nighttime noise test on July 13, 2015 at the same time Grogan conducted his

test. Zybura took noise readings from the ground on defendants' side of the

property line nearest defendants' house, which measured 55 dBA, and from

outside the second floor window of defendants' bathroom, which measured 51

dBA.

A-3374-16T2
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 Zybura testified that the Borough's noise ordinance required noise testing

to be conducted in conformance with NJDEP's regulations, specifically,

N.J.A.C. 7:29-2.5(a)(2), which requires noise readings to be taken at or within

the property line of any affected person. He opined that Grogan's testing did not

conform to that regulation because Grogan took measurements from plaintiffs'

property. Zybura also questioned whether Grogan's equipment conformed to the

noise regulations.

Zybura explained that in addition to overall sound, which was measured

in A-weighted decibels because of how the human ear perceived it, sound could

be broken down into its component octave band frequencies, which he

analogized to separating white light into the different component parts of the

rainbow. He further explained that the Borough's noise ordinance had separate

sound limits for different octave band frequencies. Zybura measured the sound

in the 125 Hertz (Hz) octave band at 70 dB at the property line, and betwee n 62

dBA and 63 dBA at the mid-stair landing window, both of which were above

the Borough's nighttime limit for sound in the 125 Hz frequency. Zybura

acknowledged that the human ear was most sensitive to sound at frequencies

between 1000 Hz and 4000 Hz, and that 125 Hz was a low frequency. For that

reason, a reading of 70 dBA in the 125 Hz frequency band was approximately

A-3374-16T2
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equivalent to an overall sound reading of 55 dBA, which is what he measured

from the ground on defendants' side of the property line nearest defendants'

house.

Zybura testified that the sound scale was logarithmic. Although two

identical sources making noise at the same time would create double the sound

energy, it would not double the perception to the human ear, but instead result

in an increase of approximately 3 dBA. A doubling of sound perceptible to the

human ear would equate to a roughly 10 dBA increase.

Zybura also testified that the second stage of a two-stage air conditioning

unit was generally louder than the first stage. He did not know if the units were

operating in the first or second stage when he took his readings, and did not see

any window air conditioners operating in defendants' house at that time. He said

defendants gave him the manufacturer's specifications for the units, but he did

not use that information in his analysis.

Zybura agreed that the Borough's 65 dBA daytime sound limit was meant

to protect people having a normal conversation at a distance of three feet . He

testified that the noise from the units at the levels he measured would not

interfere with normal conversation, and agreed that the noise from the units

would not affect defendants having a conversation on their back deck. This

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contradicted Corum's testimony that if defendants ate dinner on the deck they

had to yell at each other to have a normal conversation.

Zybura agreed that the Borough's 50 dBA nighttime sound limit was

meant to protect sleep with the windows partially open. He also agreed that

closing the bathroom window where he took the sound readings would reduce

the sound level by over 2 dBA. He clarified there are different indoor versus

outdoor noise limits and different procedures to measure noise outdoors versus

indoors. However, he did not take any sound readings from inside defendants'

house.

Zybura testified that a window air conditioner would likely mask external

sounds, meaning that a person in the room would notice the sound from the

window air conditioner more than sounds from outside. Corum did not make a

recording of the noise from his window air conditioner and Zybura did not

measure the sound from the window air conditioner.

Zybura testified that the corrective measures plaintiffs took are ordinarily

effective, but he offered no opinion as to the effectiveness of the corrective

measures plaintiffs took. He also testified he was not qualified to opine about

whether the noise from the units affected defendants' mental or physical health.

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 The Court's Decision

The court held defendants failed to prove by clear and convincing

evidence that the noise from the units was more than a mere annoyance. The

court noted that Corum testified the noise on the audio-video recording was a

good estimation of what the units sounded like, whereas Brady testified that the

actual noise was louder than the recording. The court listened to the recording

and found the noise was not horrendous and "[c]ertainly . . . not loud enough to

cause the windows to vibrate." The court also noted defendants produced no

other recording consistent with Brady's characterization of the noise.

The court found that Zybura's and Grogan's nighttime noise test results

were inconsistent. Nevertheless, the court concluded that even without

considering Grogan's test results, Zybura's test results would not result in the

level of noise that would vibrate the house and windows, as defendants testified.

The court found that Zybura's nighttime reading of 55 dBA was less than the

sound of a "normal conversation," which was approximately 60 dBA.

The court found "unbelievable" defendants' testimony that they never

suffered from stress, headaches, or anxiety prior to the installation of the units,

particularly in light of their background as a lawyer and a war veteran who

previously resided in Manhattan. The court found defendants did not seek any

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medical treatment despite their complaints about the effects of the noise from

the units. The court, however, was careful to note it was not making a finding

that expert testimony must be produced to prove a nuisance. Rather, the court

emphasized defendants were not credible witnesses.

II.

On appeal, defendants contend the court erred by finding they failed to

prove the noise from the units was a nuisance. They argue that Zybura's

nighttime noise test proved the units violated the Borough's noise ordinance, and

a violation of a municipal noise ordinance is a per se nuisance. We disagree.

Our review of a trial court's determination in a non-jury case is limited.

Scannavino v. Walsh, 445 N.J. Super. 162, 167 (App. Div. 2016). We will not

disturb a trial court's factual findings "unless we are convinced that they are so

manifestly unsupported by or inconsistent with the competent, relevant and

reasonably credible evidence as to offend the interests of justice." Ibid. (quoting

D'Agostino v. Maldonado, 216 N.J. 168, 182 (2013)). Our review of legal issues

is de novo. Ibid.

"The essence of a private nuisance is an unreasonable interference with

the use and enjoyment of land." Sans v. Ramsey Golf & Country Club, Inc., 29

N.J. 438, 448 (1959). To establish a noise nuisance, a complaining party must

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prove by clear and convincing evidence: "(1) injury to the health or comfort of

ordinary people to an unreasonable extent, and (2) unreasonableness under all

the circumstances, particularly after balancing the needs of the maker to the

needs of the listeners." Traetto v. Palazzo, 436 N.J. Super. 6, 12 (App. Div.

2014) (quoting Malhame v. Borough of Demarest, 162 N.J. Super. 248, 261

(Law Div. 1978)).

Under the first prong, a "mere annoyance" such as the interruption of a

conversation or occasional disturbance of sleep is insufficient to establish an

actionable injury. Id. at 13 (quoting Malhame, 162 N.J. Super. at 261). A

cognizable injury includes "temporary physical pain" or "more than usual

anxiety and fright." Id. at 12-13 (quoting Malhame, 162 N.J. Super. at 263). It

is an objective standard measured "not according to exceptionally refined,

uncommon or luxurious habits of living, but according to the simple tastes and

unaffected notions generally prevailing among plain people." Sans, 29 N.J. at

449 (quoting Sans v. Ramsey Golf & Country Club, Inc., 50 N.J. Super. 127,

134 (App. Div. 1958)). "Injury to a particular person in a peculiar position or

of specially sensitive characteristics will not render the noise an actionable

nuisance." Benton v. Kernan, 130 N.J. Eq. 193, 198 (E. & A. 1941) (quoting

Tortorella v. H. Traiser & Co., 188 N.E. 254, 256 (Mass. 1933)).

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 If the complaining party establishes the first prong, the second prong

requires the court to balance the utility of the conduct generating the noise with

the harm to the complaining party. Traetto, 436 N.J. Super. at 13. Under the

second prong, "[t]he question is not simply whether a person is annoyed or

disturbed, but whether the annoyance or disturbance arises from an unreasonable

use of the neighbor's land or operation of his business." Sans, 29 N.J. at 449.

Relevant factors for a court to consider include "the character, volume,

frequency, duration, time, and locality" of the noise. Lieberman v. Twp. of

Saddle River, 37 N.J. Super. 62, 67 (App. Div. 1955). Also relevant, though not

dispositive, is whether the conduct and the noise it generates comply with

controlling government regulations. Traetto, 436 N.J. Super. at 13.

Defendants rely on Rose v. Chaikin, 187 N.J. Super. 210 (Ch. Div. 1982),

to support their argument that violation of a municipal noise ordinance is a per

se nuisance. However, trial court opinions do not constitute precedent and are

not binding on this court or the trial court. Brundage v. Estate of Carambio, 195

N.J. 575, 593 (2008); S & R Assocs. v. Lynn Realty Corp., 338 N.J. Super. 350,

355 (App. Div. 2001).

Nevertheless, Rose does not support defendants' argument. In Rose, 187

N.J. Super. at 214, 218-20, the court found the noise from a windmill constructed

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ten feet from the plaintiffs' property was a nuisance. The court recognized that

whether the noise complied with controlling governmental regulations, such as

a local noise ordinance, was a factor to consider when determining whether it

was a nuisance. Id. at 218. The court cautioned, however, that this factor was

"not dispositive on the question of private nuisance[.]" Ibid. Ultimately, the

court considered several factors and found the plaintiffs established the windmill

was a nuisance "independent" of any violation of the noise ordinance. Id. at

218-19.

Contrary to defendants' argument, even if Zybura's nighttime noise test

showed the units violated the Borough's noise ordinance, that alone was not

sufficient to prove a nuisance. The proper approach when determining whether

noise is a nuisance is to apply the two-part test elucidated in Traetto. The court

applied the two-part test here and found defendants failed to prove by clear and

convincing evidence that the noise from the units was more than a mere

annoyance. Because the court applied the proper test, and because the record

amply supports the court's findings, we discern no reason to reverse.

III.

Defendants contend for the first time on appeal that the court erred in

allowing Mastandrea and Zichelli to testify because their testimony was

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irrelevant. Because defendants did not object to the testimony on relevancy

grounds, we review this issue for plain error. See R. 1:7-2 and R. 2:10-2. "[T]he

question of whether plain error occurred depends on whether the error was

clearly capable of producing an unjust result. Relief under the plain error rule,

[Rule] 2:10-2, at least in civil cases, is discretionary and 'should be sparingly

employed.'" Baker v. Nat'l State Bank, 161 N.J. 220, 226 (1999) (quoting Ford

v. Reichert, 23 N.J. 429, 435 (1957)).

Relevant evidence is presumptively admissible. N.J.R.E. 402. Evidence

is relevant if it has "a tendency in reason to prove or disprove any fact of

consequence to the determination of the action." N.J.R.E. 401. To determine

whether evidence is relevant, courts look at "the logical connection between the

proffered evidence and a fact in issue." Verdicchio v. Ricca, 179 N.J. 1, 33

(2004) (quoting State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990)).

Courts determine "whether the evidence proffered 'renders the desired inference

more probable than it would be without the evidence.'" Ibid. (quoting State v.

Davis, 96 N.J. 611, 619 (1984)). The "test is broad and favors admissibility."

Davis, 96 N.J. at 619 (quoting State v. Deatore, 70 N.J. 100, 116 (1976)).

We first note that defendants do not assert any prejudice from the

admission of the now complained-of testimony. Nevertheless, Mastandrea's

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testimony was relevant to the issues in this case. He testified Richard Tuosto

wanted a quality unit for efficiency purposes and a unit that was going to be

quiet inside and out the house, and he selected the specific units because they

were one of the quietest on the market and decided where to install them.

Mastandrea testified about the installation and permit processes, and confirmed

that that all of the installation work was in accordance with the permit and the

units were functioning properly. He also advised plaintiffs on corrective

measures they could take to reduce the noise from the units. Indeed, defendants

admit that Mastandrea's testimony was relevant to the extent he applied for the

permit on plaintiffs' behalf and included the manufacturer's specifications with

the permit application.

Zichelli's testimony was also relevant to the issues in this case. He

testified about the Borough's permit process for installation of a residential

central air conditioning unit, the Borough's policy regarding location of central

air conditioning units on an applicant's property, and the Borough's customary

practice of conducting noise tests for newly installed residential central air

conditioning units. He also testified about the Borough's review of plaintiffs'

permit application, and confirmed that plaintiffs' complied with all of the

Borough's requirements for installing and operating the units.

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 Zichelli also testified he received thirty to fifty permit applications per

year for central air conditioning units. The number of homes in the Borough

with central air conditioning units was relevant to the second element of the

nuisance test, which includes consideration of the social utility of the conduct

generating the noise. Further, contrary to defendants' assertion that Zichelli's

testimony may have confused the court with respect to the Borough's

construction code and noise ordinance, Zichelli explained that the construction

code and noise ordinance were two separate and distinct issues. Accordingly,

there was no error, let alone plain error, in the admission of Mastandrea's and

Zichelli's testimony.

IV.

Defendants contend the court erred by finding their testimony was not

credible. We reject this contention.

We "do not weigh the evidence, assess the credibility of witnesses, or

make conclusions about the evidence." Mountain Hill, LLC v. Twp. of

Middletown, 399 N.J. Super. 486, 498 (App. Div. 2008) (quoting State v.

Barone, 147 N.J. 599, 615 (1997)). In particular, we "are not in a good position

to judge credibility and ordinarily should not make new credibility findings."

Ibid. "[A] trial judge who observes witnesses and listens to their testimony,

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develops 'a feel of the case' and is in the best position to 'make first -hand

credibility judgments about the witnesses who appear on the stand.'" Slutsky v.

Slutsky, 451 N.J. Super. 332, 344 (App. Div. 2017) (quoting N.J. Div. of Youth

& Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). "In contrast, review of the

cold record on appeal 'can never adequately convey the actual happenings in a

courtroom.'" Ibid. (quoting N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J.

420, 448 (2012)).

Defendants argue the court's credibility findings were improper because

it found that—as a class—former residents of Manhattan, Vietnam veterans, and

attorneys were not credible. Defendants misunderstand the basis of the court's

credibility findings. The court did not find defendants' testimony unbelievable

because they were members of any particular class. Instead, the court

disbelieved their testimony that as longtime residents of Manhattan they had

never before suffered from stress, anxiety, or headaches. Likewise, the court

found it unbelievable that both a lawyer and a war veteran, who went into a

career in music and sound effects, never experienced any negative effects from

noise until hearing the noise from the units.

Defendants assert that the court was obligated to accept their testimony

about the impact of the noise because their testimony was not refuted. The court,

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however, found defendants' testimony was not supported by the audio-video

recording and was counter to that of their own expert. The record supports that

finding. For instance, Corum testified defendants had to yell at each other to

have a conversation on their back deck. Zybura testified, however, that the noise

from the units would not interfere with defendants having a normal conversation

on their back deck. Zybura also testified that defendants' window air

conditioners would mask the sound from the units, and defendants would notice

the sound from the window air conditioners more than the sound coming from

outside, which was contrary to defendants' testimony. Further, there was no

evidence supporting defendants' claim that the noise level Zybura measured was

"horrendous" and caused the house and windows to vibrate. Accordingly, we

find no error in the court's credibility determination.

V.

Defendants contend the court erred by failing to admit the manufacturer's

specifications for the units during defendants' case in chief. This contention

lacks merit.

"When a trial court admits or excludes evidence, its determination is

'entitled to deference absent a showing of an abuse of discretion, i.e., [that] there

has been a clear error of judgment.'" Griffin v. City of E. Orange, 225 N.J. 400,

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413 (2016) (alteration in original) (quoting State v. Brown, 170 N.J. 138, 147

(2001)). "Thus, we will reverse an evidentiary ruling only if it 'was so wide off

the mark' that a manifest denial of justice resulted." Ibid. (quoting Green v. N.J.

Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)).

The court initially declined to admit the manufacturer's specifications on

hearsay grounds, but permitted defendants to provide limited testimony about

the specifications. After Mastandrea testified that he submitted the

manufacturer's specifications with the permit application, the court ruled the

specifications were admissible as an adoptive admission under N.J.R.E.

803(b)(2). Thus, it is difficult to discern how defendants were prejudiced.

In any event, the court's the initial decision to preclude the manufacturer's

specifications on hearsay grounds was correct. Hearsay is an oral or written

statement made by someone other than the testifying witness that is offered to

prove the truth of the matter asserted. N.J.R.E. 801. Hearsay is admissible as

an adoptive admission, however, if it is "a statement whose content the party

had adopted by word or conduct or in whose truth the party has manifested

belief[.]" N.J.R.E. 803(b)(2). To qualify as an adoptive admission, the party

seeking to introduce the statement must prove that the other party: (1) was aware

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of and understood the statement, and (2) assented to the statement. McDevitt v.

Bill Good Builders, Inc., 175 N.J. 519, 529-30 (2003).

The manufacturer's specifications were hearsay because defendants were

offering the document to prove the units produced noise in the 71 dB to 74 dB

range. It was only after Mastandrea testified he submitted the specifications

with the permit application that court found the document qualified as an

adoptive admission, an exception to the hearsay rule under N.J.R.E. 803(b)(2),

McDevitt, 175 N.J. at 529-30, and admitted it into evidence. We discern no

abuse of discretion in court court's ruling.

Defendants also argue the court erred by failing to rely on the

manufacturer's specifications in its opinion. However, the key issue in the

nuisance trial, as defense counsel admitted, was not the manufacturer's

specifications, but the noise defendants were receiving on their property. There

were four nighttime noise tests of the units, including one by Zybura, and the

highest sound reading was 54 dBA. Zybura testified he did not rely on the

manufacturer's specifications in rendering his opinion, and there was no

evidence that the units ever generated between 71 dBA and 74 dBA of sound.

Thus, there was no reason for the court to rely on the manufacturer's

specifications.

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 VI.

Defendants contend the court erred by severing the mandamus action from

the nuisance action. We disagree.

In ordering severance, the court reasoned that even if the units violated

the Borough's noise ordinance, it was insufficient evidence on which to grant

mandamus or prove a nuisance. The court noted that the nuisance trial would

require testimonial evidence about numerous issues not relevant to the

mandamus action, including why the plaintiffs located the units where they did

and if there were any alternatives. The court also noted that a mandamus action,

by contrast, was a "simple" and "straight forward . . . bench trial" with "no

money involved." The court was not willing "to drag the [Borough defendants]

through this nightmare of a fight between neighbors" in the nuisance trial , and

"make the taxpayers sit and pay to observe" the trial when plaintiffs and

defendants "don't even agree on what day of the week it is half the time ."

A trial court "has broad case management discretion." Lech v. State Farm

Ins. Co., 335 N.J. Super. 254, 260 (App. Div. 2000). To that end, Rule 4:38-

2(a) instructs that "[t]he court, for the convenience of the parties or to avoid

prejudice, may order a separate trial of any claim, cross-claim, counterclaim,

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third-party claim, or separate issue, or of any number of claims, cross-claims,

counterclaims, third-party claims, or issues."

Rule 4:30 similarly provides that "[a]ny claim against a party may be

reserved or severed and proceeded with separately by court order." When

deciding whether severance is warranted, courts consider whether "the same

evidence would have been proffered whether the cases had been tried separately

or jointly." Rendine v. Pantzer, 141 N.J. 292, 309 (1995). The decision whether

to sever a claim is left "to the sound exercise of a trial court's discretion." Id. at

310.

The court did not abuse its discretion in ordering severance. The legal

elements of a nuisance action differ from those of a mandamus action. A

nuisance requires proof by clear and convincing evidence of (1) unreasonable

injury to ordinary people, and (2) unreasonableness under all of the

circumstances after balancing the utility of the conduct generating the noise with

the harm to the complaining party. Traetto, 436 N.J. Super. at 12-13.

Mandamus, by contrast, is an action "(1) to compel specific action when the duty

is ministerial and wholly free from doubt, and (2) to compel the exercise of

discretion, but not in a specific manner." Vas v. Roberts, 418 N.J. Super. 509,

522 (App. Div. 2011) (quoting Loigman v. Twp. Comm. of Middletown, 297

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N.J. Super. 287, 299 (App. Div. 1997)). The differing legal standards for a

nuisance action versus mandamus action, and the different evidence needed to

prove each cause of action, provided a sufficient basis for the court to order

severance. Accordingly, severance of the mandamus and nuisance actions was

proper.

VII.

Defendants contend the court erred by failing to find plaintiffs' trespass

complaint was frivolous when it was filed, and the court should have awarded

defendants more frivolous litigation attorney's fees. On cross-appeal, plaintiffs

argue the court erred by finding their trespass complaint was frivolous and

awarding any attorney's fees. We reject both arguments.

On April 15, 2016, defendants served an expert's report from a licensed

surveyor, which confirmed defendants' chain-linked fence did not encroach on

plaintiffs' property. On May 6, 2016, defense counsel sent plaintiffs' counsel a

safe-harbor letter pursuant to Rule 1:4-8 demanding that plaintiffs withdraw

their trespass complaint or face frivolous litigation sanctions. Plaintiffs did not

do so.

On July 22, 2016, defendants filed a motion for summary judgment on

their nuisance claim and on plaintiffs' trespass complaint. In an October 6, 2016

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order, the court granted defendants' motion as the trespass claim and dismissed

that claim with prejudice. The court denied summary judgment on defendants'

nuisance claim.

In October 2016, defendants filed a motion for frivolous litigation

attorney's fees pursuant to Rule 1:4-8 and N.J.S.A. 2A:15-59.1. In a November

15, 2016 order, the court granted defendants' motion in part. The court found

plaintiffs' trespass complaint was not frivolous when filed, but became frivolous

when plaintiffs became aware through discovery that defendants' chain-linked

fence did not encroach on their property. The court concluded that plaintiffs

should have withdrawn their complaint at that time rather than forcing

defendants to incur attorney's fees and costs associated with defendant' motion

for summary judgment. The court explained it would award attorney's fees

related solely to that portion of defendant' summary judgment motion regarding

plaintiffs' trespass claim for the period July 22, 2016 to October 22, 2016, and

directed defendants to file a second motion for frivolous litigation sanctions with

appropriate documentation of their attorney's fees.

Defendants subsequently filed a motion seeking $17,060.91 in attorney's

fees and costs relating to the defense of the trespass claim. They had retained

new counsel, but relied on a certification of services from their prior counsel.

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Prior counsel attached invoices to his certification, and next to the majority of

the entries was written "1/2," indicating defendants were seeking one-half of the

billed amount for those entries.

The court agreed with plaintiffs that prior counsel's certification and

invoices were insufficient because they did not contain any explanation for the

"1/2" notations. However, the court was able to calculate a reasonable fee award

based on the invoices. With respect to preparing the summary judgment motion,

prior counsel billed $8785 on one invoice, and $1975 on another invoice. The

court found only one-fourth of the summary judgment motion addressed the

trespass claim, and consequently awarded one-fourth of those amounts,

$2,196.25 and $493.75 respectively, instead of the one-half defendants sought.

The court did not award fees for defendants' reply brief because it was unable to

determine how much of the billed time related to the trespass claim. Prior

counsel billed $1365 for oral argument on the summary judgment motion. The

court found that one-half of the argument focused on the trespass claim, and

awarded one-half of that amount, or $682.50.

The court explained that because it had granted defendants' prior motion

for frivolous litigation sanctions in part and denied it in part, it would not award

defendants all of the fees they sought. The court did not award fees for preparing

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prior counsel's certification and invoices, or arguments related thereto, because

it had denied that portion of the motion. Instead, the court found that prior

counsel's invoice entries for oral argument on the sanctions motion, $770, and

oral argument preparation, $140, were reasonable, and awarded those amounts .

The court added all of the amounts awarded and rounded the total to $4281;

however, the April 10, 2017 order incorrectly awarded defendants $4821.

Rule 1:4-8 permits the court to issue sanctions, including attorney's fees,

in connection with frivolous litigation. The term "frivolous" has been "strictly

construed" to avoid limiting access to the courts. First Atl. Fed. Credit Union

v. Perez, 391 N.J. Super. 419, 432-33 (App. Div. 2007). A claim is frivolous

only if "no rational argument can be advanced in its support, or it is not

supported by any credible evidence, or it is completely untenable." United

Hearts, LLC v. Zahabian, 407 N.J. Super. 379, 389 (App. Div. 2009) (quoting

Perez, 391 N.J. Super. at 432). A court will not award attorney's fees if a party

has a "reasonable and good faith belief in the merit of the cause[.]" Ibid. (first

alteration in original) (quoting Perez, 391 N.J. Super. at 432).

An attorney has an obligation to withdraw or correct a complaint if

"reasonable opportunity for further investigation or discovery indicates

insufficient evidentiary support[.]" R. 1:4-8(a)(3). Thus, even if litigation is

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not frivolous when the complaint is filed, it may become so if a party continues

to prosecute a meritless claim because the "requisite bad faith or knowledge of

lack of well-groundedness may arise during the conduct of the litigation."

United Hearts, 407 N.J. Super. at 390 (quoting Iannone v. McHale, 245 N.J.

Super. 17, 31 (App. Div. 1990)). In those cases, courts will award fees only for

expenses incurred after the litigation became frivolous. See DeBrango v.

Summit Bancorp, 328 N.J. Super. 219, 228-30 (App. Div. 2000) (finding that

litigation became frivolous after plaintiffs learned information in discovery and

awarding fees prospectively from that date). Otherwise, "[i]f costs and fees were

awarded for activity preceding the time when litigation became frivolous, we

would discourage filing of complaints that were reasonably based, but required

some discovery for proper development." Id. at 230.

We review the court's decision on a motion for frivolous litigation

sanctions under an abuse-of-discretion standard. McDaniel v. Man Wai Lee,

419 N.J. Super. 482, 498 (App. Div. 2011). Reversal is warranted "only if [the

decision] was not premised upon consideration of all relevant factors, was based

upon consideration of irrelevant or inappropriate factors, or amounts to a clear

error in judgment." Ibid. (quoting Masone v. Levine, 382 N.J. Super. 181, 193

(App. Div. 2005)).

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 Defendants argue the court erred by finding plaintiffs' complaint was not

frivolous when it was filed. However, plaintiffs based their trespass complaint

on a survey they believed showed the chain-linked fence encroached on their

property, and attached that survey to the complaint. Although the survey

included a disclaimer that it was "not for construction purposes," it still provided

plaintiffs with a good faith basis to assert their trespass claim. Thus, the court's

finding that plaintiffs' complaint was not frivolous when filed was not an abuse

of discretion.

Plaintiffs argue the court erred by finding their litigation became frivolous

after they decided not to retain an expert to rebut defendants' expert surveyor.

Plaintiffs do not contend they had evidence to support their trespass claim, but

instead offer three arguments for why they were not required to withdraw their

complaint. First, they claim they did not know defendants were claiming

ownership of the property on which the chain-linked fence was located because

defendants never pled ownership by title or quiet title as a defense or

counterclaim in their answer. Defendants' answer, however, stated they owned

the property on which the fence was located. In addition, as the court found,

defendants' safe harbor letter made it clear defendants owned the property on

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which the fence was located and had ample proof thereof, which plaintiffs

acknowledged in their opposition to defendants' motion for summary judgment .

Second, plaintiffs contend they were not required to withdraw their

trespass complaint unless and until defendants withdrew their counterclai ms for

adverse possession and easement by prescription. However, in order to prove

their trespass claim, it was plaintiffs' burden to show the fence encroached on

their property. Defendants were under no obligation to dismiss their

counterclaims before plaintiffs dismissed their trespass claim. As the court

recognized, defendants' counterclaims would only become relevant if plaintiffs

first proved they owned the property on which the fence was located, which they

did not do.

Third, plaintiffs maintain they attempted to settle the matter and withdraw

their trespass complaint, but defendants refused. However, as the court found,

plaintiffs never made an unconditional offer to withdraw their trespass

complaint. Not only does the record support the court's finding, plaintiffs'

counsel admitted as much at oral argument of the summary judgment motion.

Plaintiffs could and should have unilaterally withdrawn their trespass complaint

once they acknowledged defendants owned the property on which the fence was

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located. Indeed, under Rule 1:4-8(a)(3) plaintiffs were obligated to do so once

they knew their trespass claim lacked any evidentiary support.

The parties also present contrary arguments regarding the sufficiency of

prior counsel's certification. Defendants argue the certification was sufficient,

and they were entitled to all of the fees claimed therein. Plaintiffs counter the

certification was so deficient that the court should not have awarded any

attorney's fees.

Rule 4:42-9(b) requires that an application for attorney's fees "be

supported by an affidavit of services addressing the factors enumerated by RPC

1.5(a)." Those factors include:

(1) the time and labor required, the novelty and
difficulty of the questions involved, and the skill
requisite to perform the legal service properly;

(2) the likelihood, if apparent to the client, that the
acceptance of the particular employment will preclude
other employment by the lawyer;

(3) the fee customarily charged in the locality for
similar legal services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the
circumstances;

(6) the nature and length of the professional
relationship with the client;

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 (7) the experience, reputation, and ability of the lawyer
or lawyers performing the services; [and]

(8) whether the fee is fixed or contingent.

[RPC 1.5(a).]

"When a party is entitled to attorney's fees for only some of the work

performed, the relevant services should be identified or a reasonable explanation

made for the failure to do so." Ricci v. Corp. Express of the E., Inc., 344 N.J.

Super. 39, 48 (App. Div. 2001).

The record supports the court's finding that prior counsel's certification

did not sufficiently distinguish between covered fees incurred defending against

plaintiffs' trespass claim, and non-covered fees. The invoices simply listed "1/2"

next to numerous entries, without any attempt to delineate the actual time

counsel spent on the trespass claim in each instance.

Plaintiffs are incorrect, however, that defendants are therefore entitled to

no fees. The court, using the invoices, was able to determine the approximate

amount of time counsel had spent on various tasks. For example, the court found

that the trespass claim comprised one-fourth of defendants' summary judgment

motion, and awarded one-fourth of the fees incurred by defendants for that

motion. The court also listened to prior oral arguments, determined the

proportional amount of time spent arguing about the trespass claim in each

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instance, and then awarded that portion of the total fee to defendants. For

instances in which the court was unable to determine the proportional amount

of time defendants' prior counsel spent on certain tasks, including defendants'

summary judgment reply brief and their sanctions motion, the court

appropriately did not award any fees.

The court considered and rejected the same arguments the parties advance

on appeal. The court did not abuse its discretion with respect to the frivolous

litigation attorney's fees, and we defer to its ruling. However, we remand to the

court to enter an order modifying the attorney's fee award to $4281.

VIII.

Lastly, defendants contend the court erred by: (1) admitting Grogan's July

13, 2015 nighttime noise test results into evidence; (2) finding plaintiffs'

corrective measures were successful in reducing the noise to a level in

compliance with the Borough's noise ordinance; (3) requiring defendants to

present medical testimony to prove a nuisance; (4) failing to award defendants

nuisance damages; and (5) the court erred by accepting "junk science" presented

by plaintiffs. We have considered these contentions in light of the record and

applicable legal principles and conclude they are without sufficient merit to

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warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). However, we make

the following brief comments.

(1) Grogan's July 13, 2015 nighttime test results were admitted into

evidence as a defense exhibit and defendants stipulated to their admissibility.

Although Grogan was on plaintiffs' witness list and defendants believed he

would testify on plaintiffs' case in chief, when defendants became aware he

would not testify they did not object to the admissibility of his test results or

withdraw their stipulation. Thus, the doctrine of invited error bars defendants

from challenging the admissibility of the test results on appeal. Brett v. Great

Am. Recreation, Inc., 144 N.J. 479, 503 (1996). Nevertheless, the court did not

rely on Grogan's test results in its opinion.

Further, "[t]he absence of an objection suggests that trial counsel

perceived no error or prejudice, and, in any event, prevented the trial judge from

remedying" the issue. Bradford v. Kupper Assocs., 283 N.J. Super. 556, 573-

74 (App. Div. 1995). If defendants had objected at trial, plaintiffs "could have

taken steps to satisfy any evidentiary requirements needed for the admission of

the documents or presented a witness or witnesses in place of the documents."

N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 341 (2010). This

concern is heightened here because the test results likely were admissible as

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business records under N.J.R.E. 803(c)(6) and/or as public records under

N.J.R.E. 803(c)(8). Indeed, plaintiffs were prepared to call Grogan if necessary.

Defendants' failure to object deprived plaintiffs of the opportunity to overcome

that objection and deprived the court of the opportunity to rule on defendants'

objection.

(2) The court made no finding that the corrective measures plaintiffs took

were successful in reducing the noise from the units to a level in compliance

with the Borough's noise ordinance. Rather, the court found plaintiffs spent

approximately $1000 on corrective measures in an attempt to attenuate the noise,

including constructing a vinyl fence, installing a quiet fence, and using sound

blankets. The court also recognized that defendants believed those measures

were not effective. In addition, the court stated that Zybura testified the

corrective measures plaintiffs took are ordinarily effective but did not offer an

opinion as their effectiveness. The court also noted that Zybura's and Grogan's

nighttime noise tests were conducted subsequent to the implementation of the

corrective measures.

(3) The court did not require defendants to present medical testimony to

prove a nuisance. The court found defendants never sought medical treatment

for the stress, headaches, or anxiety they claimed to experience as the result of

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the noise from the units. The court recognized, however, that medical testimony

was not necessary in a nuisance case and explained it was "not making a finding

that expert testimony must be produced in proving this issue." Instead, the court

emphasized it was ruling against defendants because it found their testimony

was not credible.

(4) Defendants did not prove their nuisance claim. As the losing party,

they are not entitled to nuisance damages.

(5) Defendants' "junk science" argument is unclear, but appears to revolve

around the fact that plaintiffs did not present an expert and that plaintiffs'

counsel asked Zybura hypothetical questions. Plaintiffs were not required to

present expert testimony. Defendants, as the complaining party, bore the burden

of proving the noise from the units was a nuisance. Traetto, 436 N.J. Super. at

12. The record amply supports the court's conclusion that defendants failed to

meet that burden.

In addition, N.J.R.E. 705 contemplates the use of hypothetical questions

when questioning an expert witness. Defendants did not object to the questions

posed by plaintiffs' counsel to Zybura, which "suggests that [defense] counsel

perceived no error or prejudice[.]" Bradford, 283 N.J. Super. at 573-74.

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 Affirmed. This matter is remanded to the trial court to enter an order

modifying the attorney's fee award to $4281.

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