David Canales, Jr., Individually, and as Next Friend of David Adrian Canales, and Angie Marie Canales v. Edward Curtis Vandenberg

Affirmed as Modified and Majority and Dissenting Opinions filed October 1,
2024.

In The

Fourteenth Court of Appeals

NO. 14-22-00404-CV

DAVID CANALES, JR., INDIVIDUALLY, AND AS NEXT FRIEND OF
DAVID ADRIAN CANALES, AND ANGIE MARIE CANALES, Appellants /
Cross-Appellees

V.

EDWARD CURTIS VANDENBERG, Appellee / Cross-Appellant

On Appeal from the 239th District Court
Brazoria County, Texas
Trial Court Cause No. 71132

DISSENTING OPINION

I write separately to express my disagreement with the majority’s broad
conclusion that Vandenberg cannot recover mental-anguish damages because the
Canaleses acted negligently and not intentionally in creating a private nuisance. I
also write separately to express my concern that the current state of nuisance law in
Texas leaves citizens like Vandenberg without recovery for harm caused by the
actions or omissions of another party.

The Supreme Court of Texas has held that “nuisance” in Texas does not refer
to a cause of action or to the defendant’s conduct or operations, “but instead to the
particular type of legal injury that can support a claim or cause of action seeking
legal relief.” Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 594 (Tex.
2016) (emphasis in original); see City of Tyler v. Likes, 962 S.W.2d 489, 504 (Tex.
1997) (noting that a private nuisance is “a kind of damage done, rather than any
particular type of conduct”). In other words, “nuisance” “describes a type of injury
that the law has recognized can give rise to a cause of action because it is an invasion
of a plaintiff’s legal rights.” Crosstex N. Tex. Pipeline, L.P., 505 S.W.3d at 594. “The
law of nuisance recognizes that certain injuries to a person’s right to ‘use and
enjoyment of property’ can also constitute a form of legal injury for which a legal
remedy will be granted.” Id. “A ‘nuisance’ is a condition that substantially interferes
with the use and enjoyment of land by causing unreasonable discomfort or
annoyance to persons of ordinary sensibilities attempting to use and enjoy it.” Id. at
593 (quoting Holubec v. Brandenberger, 111 S.W.3d 32, 37 (Tex. 2003)).

“[W]hether negligently inflicted mental anguish damages are recoverable
depends both on ‘the nature of the duty breached’ and on the sufficiency of the
plaintiff’s evidence.” SCI Tex. Funeral Servs. v. Nelson, 540 S.W.3d 539, 544 (Tex.
2018) (quoting Likes, 962 S.W.2d at 494). The Supreme Court of Texas has stated
that “mental anguish damages may be available where the plaintiff establishes intent
or malice on the defendant’s part, serious bodily injury to the plaintiff, or a special
relationship between the two parties . . . [and in] a few types of cases involving
injuries of such a shocking and disturbing nature that mental anguish is a highly

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foreseeable result.’” Id. (quoting Likes, 962 S.W.2d at 496). “But even this list . . . is
not exhaustive.” Id. (emphasis added).

“Because the circumstances of each individual and situation can differ to such
extremes, ‘it is difficult for the law to distinguish between those instances when
mental anguish is reasonably foreseeable from particular conduct and those when it
is so remote that the law should impose no duty to prevent it.’” Id. at 545 (quoting
Likes, 962 S.W.2d at 495). Requiring a special relationship, malice, or a particularly
shocking injury helps alleviate this concern, either by ensuring that the injury and
injured party are foreseeable to the defendant (because of the existence of a special
relationship) or by shifting the risk of overcompensation in only especially egregious
situations. Id.

Mental anguish damages are appropriate under the facts of this case because
(1) the injury to Vandenberg was highly foreseeable to the Canaleses, and (2) the
situation is especially egregious. See Daniel v. Ft. Worth R.G. Ry. Co., 72 S.W. 578,
580 (Tex. 1903) (“No case decided by this court justifies the conclusion that, if a
structure, permanent in character, is a nuisance from which injury results to the
adjacent property, and by which nuisance the health of the occupants is impaired or
the comfortable enjoyment of it is destroyed, the injured party is limited to
compensation for the impairment of the value of the property.”); Reed v. LKQ Corp.,
436 F. Supp.3d 892, 923–24 (N.D. Tex., Jan. 30, 2020) (mem. op. & order)
(awarding property owner mental-anguish damages “caused by the relentless sound
of back-up beepers, scraping metal, and the car crusher, as well as the dust and debris
emanating from LKQ’s facility”). No reasonable person would welcome the party
barn at issue here, with the concomitant noise and vibrations at unreasonable hours
on multiple occasions, to which Vandenberg was exposed. See Hoover v. Horton,
209 S.W.2d 646, 649 (Tex. App.—Amarillo 1948, no writ) (stating that the test for

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whether the use of premises is unreasonable is whether “the act or use [was] a
reasonable exercise of the opinion which the owner of property has by virtue of his
ownership over his property? Having regard to all interests affected, his own and
those of his neighbors, and having in view, also, public policy”).

The Supreme Court of Texas has noted that there are two principal concerns
with mental-anguish damages: (1) genuineness, making verifiability at issue in every
mental anguish case; and (2) foreseeability, because “[m]ental anguish is
substantially more difficult to foresee than other injuries because ‘[t]he invasion of
the same legal right may lead to extreme anguish in one person while causing
essentially no emotional damage to another.’” SCI Tex. Funeral Servs., Inc., 540
S.W.3d at 544–45 (quoting Likes, 962 S.W.2d at 495). These concerns, however, are
not an issue under the facts of this case as a matter of law. See QuikTrip Corp. v.
Goodwin, 449 S.W.3d 665, 674 n.18 (Tex. App.—Fort Worth 2014, pet. denied)
(noting that foreseeability is a question of law when parties do not identify disputed,
material facts that would impact the determination of foreseeability, but rather
“disagree about the legal significance of undisputed facts”).

Here, the record demonstrates that Vandenberg and his wife experienced sleep
deprivation, heard and felt physical vibrations in their bodies and inside their home,
and found no respite from the noise and vibrations despite wearing noise cancelling
speakers, wrapping blankets over their heads, and moving to the side of the house
furthest away from the party barn. The evidence supports that the repeated invasion
of Vandenberg’s right to enjoy and use his home caused him mental anguish as
defined by the high court. See Storey v. Cent. Hide & Rendering Co., 226 S.W.2d
615, 618 (Tex. 1950) (“[T]he law does not allow one to be driven from his home or
compelled to live in substantial danger or discomfort even though the danger or
discomfort is caused by a lawful and useful business.”); see also Bunton v. Bentley,

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153 S.W.3d 50, 53 (Tex. 2004) (per curiam) (concluding there was legally sufficient
evidence of mental anguish in defamation case when there was evidence that
repeated false accusations of corruption “cost [the plaintiff] time, deprived him of
sleep, caused him embarrassment in the community in which he had spent almost all
of his life, disrupted his family, and distressed his children at school . . . .”); Port of
Hous. Auth. v. Aaron, 415 S.W.3d 355, 364 (Tex. App.—Houston [1st Dist.] 2013,
no pet.) (“The only personal injuries actually pleaded by the property owners include
‘sleep deprivation and resulting physical maladies, traumatic stress disorders, and
extreme mental anguish.’ We agree with the Port Authority’s characterization of
these damages as mental anguish and the physical symptoms of mental anguish.”).
It is highly foreseeable that the volume of the noise and vibrations coming from the
Canaleses’ party barn, combined with the hours and duration of the music, would
cause a substantial disruption of any individual’s daily routine and enjoyment of
their property. See Huynh v. Blanchard, No. 21-0676, __ S.W.3d __, __, 2024 WL
2869423, at *14 n.32 (Tex. 2024) (“For example, if a landowner advertises that it
will host fantastically loud all-night parties on its property twelve times during a
year, with each party to be announced twenty-four hours in advance, a trial court
could enjoin future parties at the neighbors’ behest if a jury finds the first few parties
caused noise nuisances even though the parties are sporadic and it is not yet known
when the next one will occur.”); Parkway Co. v. Woodruff, 901 S.W.2d 434, 444
(Tex. 1995) (stating that mental anguish damages could not be awarded without
either “direct evidence of the nature, duration, and severity of their mental anguish,
thus establishing a substantial disruption in plaintiffs’ daily routine,” or other
evidence of “a high degree of mental pain and distress that is more than mere worry,
anxiety, vexation, embarrassment, or anger”).

Furthermore, the facts of this case support an award of mental-anguish

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damages because they are particularly egregious. The activity of one party should
not so substantially and unreasonably restrict another party in the use and enjoyment
of his property to the extent experienced by Vandenberg. See Spann v. City of Dallas,
235 S.W. 513, 515 (Tex. 1902) (“The right to acquire and own property, and to deal
with it and use it as the owner chooses, so long as the use harms nobody, is a natural
right. . . . It is a right which takes into account the equal rights of others, for it is
qualified by the obligation that the use of the property shall not be to the prejudice
of others.”). It is indisputable that the noise coming from the Canaleses’ party barn
would cause Vandenberg and any similarly situated individual a high degree of
mental distress.

As the facts of this case demonstrate, mental anguish damages can be highly
foreseeable and proximately caused by a negligently-created nuisance. It is contrary
to public policy to categorically prevent any injured citizen from recovering these
damages simply because the nuisance was negligently created. See Freedman v.
Briarcroft Prop. Owners, Inc., 776 S.W.2d 212, 216 (Tex. App.—Houston [14th
Dist.] 1989, writ denied) (“Occasionally, the issue of the existence of a nuisance also
raises questions involving technical propositions of law and matters of public
policy.”). I would conclude that the facts of this case support the recovery of mental
anguish damages even if the Canaleses behaved negligently and not intentionally in
creating the nuisance. I would therefore overrule the Canaleses’ fifth issue and
uphold the mental-anguish-damages award.

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For these reasons, I respectfully dissent. I agree with the majority opinion in
all other aspects.

/s/ Margaret “Meg” Poissant
Justice

Panel consists of Justices Wise, Zimmerer, and Poissant. (Wise, J., majority).

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