HOUSTON – A Texas appeals court has stripped mental anguish damages and an injunction from a Brazoria County court’s finding in a long-standing nuisance suit between rival neighbors in Brookside Village, and otherwise affirmed the trial court’s original result.
On Oct. 1, Fourteenth Court of Appeals justices Ken Wise, Jerry Zimmerer and Margaret Poissant upheld the 239th District Court of Brazoria County, Texas’s ruling, in a case brought by David Adrian Canales, Angie Marie Canales and their minor son versus Edward Curtis Vandenberg.
Wise wrote the Court’s opinion in this case.
“Edward Vandenberg and Angie and David Canales are neighbors in the City of Brookside Village. Angie and David, individually and as next friend of their minor son A., sued Vandenberg for assault and intentional infliction of emotional distress after Vandenberg entered the Canaleses’ property and got into a fistfight with David. Vandenberg asserted counterclaims for assault, slander, nuisance and an injunction to stop the Canaleses’ playing of loud music. A jury found against the Canaleses on their claims and for Vandenberg on the issue of nuisance and awarded mental anguish damages to Vandenberg against David and Angie. The trial court signed a judgment awarding the damages and permanently enjoined the Canaleses from playing loud music,” Wise said.
“All parties appealed. The Canaleses contend, among other things, that no evidence supports the jury’s nuisance finding; Vandenberg’s liability questions cannot legally support a judgment for mental anguish damages; and the trial court erred by awarding a permanent injunction. Vandenberg contends that the trial court erred by not submitting his slander claims to the jury.”
Wise found that mental anguish damages were not applicable in this case.
“Vandenberg acknowledges that the Canaleses ‘may be correct in that plaintiffs, in general, may not recover mental anguish damages caused by negligent conduct’ resulting in a nuisance. Citing no analogous authority, Vandenberg suggests that this case involves particularly disturbing events such that ‘mental anguish ought to be presumed.’ In City of Tyler v. Likes, the [state] Supreme Court identified cases involving ‘injuries of such a shocking and disturbing nature that mental anguish is a highly foreseeable result’ as those involving wrongful death or actions by bystanders for a close family member’s serious injury. The injury in Likes was the flooding of the plaintiff’s home, which the court declined to recognize as one giving rise to mental anguish damages based on a shocking and disturbing injury. We decline to extend the ‘shocking and disturbing’ exception to a negligent nuisance involving loud music,” Wise stated.
“Vandenberg urges this court to review the record, contending that evidence was presented to support a finding [of intentional nuisance] against both David and Angie. Although the record reveals that both David and Angie were aware of complaints of loud music on different occasions, evidence regarding their intent was materially different. For example, only Angie received municipal court citations or warnings regarding loud music. There was evidence that only David referred to potential fines as ‘the price of giving a party,’ and David testified about hiring police officers to make sure they weren’t ‘breaking the law as far as the noise.’ Finally, Vandenberg contends that the Canaleses waived their argument by not objecting before submission of the case to the jury. But Vandenberg’s contention is based on a conclusion that the question was not ambiguous. The Canaleses preserved their complaint about the judgment by raising it in a post-verdict motion. Having sustained the Canaleses’ fourth and fifth issues, we agree that the portion of the judgment awarding damages and interest against David and Angie cannot stand.”
In referring to the permanent injunction which had been handed down against the playing of loud music exceeding 85 decibels on the Canaleses’ property, Wise noted, however, that this injunction was properly levied.
“The Canaleses contend that there is no evidence of an imminent harm because the last complaint to the police was made in 2014. However, when a jury has found a nuisance “occurring and continuing up to or near the date of the trial, the trial court may, in equity, determine that the defendant has engaged in a settled course of conduct and may assume that it will continue, absent clear proof to the contrary,” Wise said.
“The trial court heard evidence that, despite David and Angie’s awareness of their neighbors’ complaints and numerous visits from the police, many of which resulted in municipal court citations or warnings, David and Angie continued to throw late-night parties with loud music that could be heard and felt 300 yards away. They only stopped in 2014 after the trial court issued a temporary injunction. Thus, the court had before it ample evidence to support a finding that future harm was imminent. The trial court did not abuse its discretion by enjoining David and Angie as described above.”
Wise next turned to Vandenberg’s contention of slander.
“In two issues, Vandenberg contends that the trial court erred by denying his requested jury questions on his claims for slander. Vandenberg first complains about a group of rejected questions concerning statements other than ones Angie made during a 911 call on the night that Vandenberg and David had a fistfight (the ‘non-911’ slander claim); he next complains about a group of rejected questions concerning statements that Angie made during the 911 call,” Wise said.
“The Canaleses contend that the trial court did not err by denying Vandenberg’s questions regarding the non-911 statements because, among other reasons, the questions were not substantially correct. The Canaleses contend that the trial court did not err regarding statements Angie made during a 911 call because, among other reasons, no evidence supports the element of actual malice. We agree with the Canaleses and overrule Vandenberg’s issues.”
Wise concluded that Vandenberg “did not secure a valid liability finding to support (1) the award of mental anguish damages against Angie and David, or (2) the permanent injunction against [the minor child].”
“Thus, we modify the trial court’s judgment to delete this relief. In all other respects, we overrule the parties’ issues and affirm the trial court’s judgment as modified,” Wise said.
However, Poissant dissented from the majority.
“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. 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. 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,” Poissant countered.
“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. Furthermore, the facts of this case support an award of mental-anguish 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. 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.”
Poissant added that “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.”
“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. For these reasons, I respectfully dissent. I agree with the majority opinion in all other aspects,” Poissant said.
Fourteenth Court of Appeals for the State of Texas case 14-22-00404-CV
239th District Court, Brazoria County, Texas case 71132
From the Southeast Texas Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com