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 
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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).