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

MAJORITY OPINION

Edward Vandenberg 1 and Angie and David Canales are neighbors in the
City of of Brookside Village. Angie and David, individually and as next friend of
their minor son Adrian, sued Vandenberg for assault and intentional infliction of

1
Vandenberg’s name is sometimes spelled “Vanden Berg” in the record and briefs. We
use the spelling that is in the trial court’s judgment.
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.

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.

We agree with the Canaleses that Vandenberg’s liability questions cannot
support a judgment for mental anguish damages, and the trial court erred by
enjoining Adrian, against whom there was no liability finding. Thus, we modify
the trial court’s judgment by deleting the award of mental anguish damages and
accompanying interest against David and Angie and the injunction against Adrian.
We overrule the remainder of the parties’ issues and affirm the judgment as
modified.

I. LIABILITY FOR NUISANCE

In their second issue, 2 the Canaleses contend that there is no evidence to
support the jury’s findings that David and Angie created a private nuisance. We
hold that the evidence is legally sufficient.

2
In light of our resolution of other issues providing the same relief to the Canaleses in
this appeal, we do not address the Canaleses’ first issue regarding the sufficiency of the evidence
to support the jury’s award of mental anguish damages or their third issue regarding the
2
A. Standard of Review and Legal Principles

The test for legal sufficiency is whether the evidence at trial would enable
reasonable and fair-minded people to reach the verdict under review. W & T
Offshore, Inc. v. Fredieu, 610 S.W.3d 884, 898 (Tex. 2020). If more than a
scintilla of competent evidence supports the judgment, the jury’s verdict must be
upheld. Id.

In the absence of an objection, as here, we review the sufficiency of the
evidence based on the jury charge. See Seger v. Yorkshire Ins. Co., 503 S.W.3d
388, 407 (Tex. 2016).3 Question No. 14, to which the jury answered affirmatively,
asked, “Did David and Angie Canales negligently create a private nuisance?”
Consistent with precedent regarding nuisance, the charge informed the jury that the
Canaleses create a private nuisance “if their conduct substantially interferes with
Ed Vandenberg’s use and enjoyment of his property interest.” See Crosstex N.
Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 593 (Tex. 2016). The charge
explained that “substantial interference” means that the Canaleses’ “conduct must
cause unreasonable discomfort or annoyance to a person of ordinary sensibilities
attempting to use and enjoy the person’s land. It is more than a slight
inconvenience or petty annoyance.” See id. at 593, 595–96.

B. Evidence

Vandenberg and his wife, Phyllis Waltz, live on a 5.8-acre lot in the City of
Brookside Village. The city is a “pretty small town” with about 1,700 residents
and 470 homes. It is a residential area, but there are some businesses.

sufficiency of the evidence to support the jury’s finding of intentional nuisance. See Tex. R.
App. P. 47.1.
3
The Canaleses objected to the submission of a nuisance question based on a lack of
evidence, but they agree that the instructions in this case substantially track the standards for
nuisance from Crosstex North Texas Pipeline, L.P. v. Gardiner, 505 S.W.3d 580 (Tex. 2016).

3
Vandenberg and Waltz live about 300 yards down the road from the
Canaleses, who have a 3200-square-foot “party barn” on their property in addition
to their residence. Another neighbor, Gerry Mills, also lives with his wife about
300 yards from the Canaleses.

Vandenberg, Waltz, and Mills testified similarly that the Canaleses have
held parties in their barn late at night into the early morning hours. David Canales
agreed sometimes the parties would start to wind down after 1:00 a.m.; sometimes
they would go on until 3:00 a.m. Mills testified that the Canaleses would hold
parties about ten times per year for six or seven years until a temporary injunction
was entered in 2014. He testified that the music usually continued after midnight,
sometimes until 2:00 a.m. The events would usually occur for holidays, birthdays,
and the like. David testified that they would often have fifty to sixty guests, or up
to eighty guests. Vandenberg estimated at least one party had more than a hundred
guests. A friend of the Canaleses’ testified that they would use police officers to
control parking and direct traffic during the parties.

Waltz testified that the music and bass from the Canaleses’ parties would
vibrate their house. She could go to the far end of her house with noise canceling
earphones, and wrap a blanket over her head, and she would still hear the noise and
feel the bass. Vandenberg testified that he knew a party was over when the house
“quit shaking.” Mills testified that they could physically feel the low frequency
bass. His house would vibrate, and the windows would rattle and shake. Mills
testified that it was impossible to sleep when the music was playing. Vandenberg
testified similarly that when he saw cars piling up on the Canaleses’ property, he
knew there would be no sleep that night.

The first time Mills experienced the music and bass, he asked David to turn
it down. David said he would, but it didn’t happen. On one occasion, David told

4
Mills, “[I]t doesn’t matter if I’m fined or ticketed. That’s the price of giving a
party.”

Mills started making complaints to the Brookside Police Department in
2008. Vandenberg and Waltz also complained to the police and documented
eighteen instances between 2010 and 2014. Mills didn’t track all of his
complaints, but many times he would report the disturbances to the police or
Brazoria County Sheriff’s Office, and nothing would be done about it. Mills
would ask “if they could have them just turn the bass down and—and many
occasions it was turned up.”

Vandenberg introduced evidence of more than ten police reports relating to
these incidents. Mills testified that a report was not made every time he
complained. In several of the reports, the officers indicated that they were inside
the Millses’ home and could hear the music or feel the vibration of the bass. On
multiple occasions, officers asked one of the Canaleses to turn the music down or
off, and the Canaleses complied. Also on multiple occasions, the officers issued
Angie municipal court citations or warnings for “disorderly conduct –
unreasonable noise.”

C. Analysis

“Noise, if sufficiently extreme, may constitute a nuisance.” Pool v. River
Bend Ranch, LLC, 346 S.W.3d 853, 857 (Tex. App.—Tyler 2011, pet. denied); see
also Schneider Nat. Carriers, Inc. v. Bates, 147 S.W.3d 264, 269 (Tex. 2004)
(“There is no question that foul odors, dust, noise, and bright lights—if sufficiently
extreme—may constitute a nuisance.”).

Recently the Supreme Court of Texas provided an example of a nuisance
that could justify a permanent injunction:

5
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.

Huynh v. Blanchard, 694 S.W.3d 648, 677 n.32 (Tex. 2024).

Here, the jury heard that the Canaleses held late-night parties about ten times
per year and played music so loud it could be heard inside homes more than 300
yards away, and the bass would vibrate the homes and windows. Residents of
those homes could not sleep or otherwise avoid the vibrations and noise even by
taking extreme measures.

Reasonable and fair-minded jurors could have found that the Canaleses’
conduct—repeatedly hosting late-night parties with loud music and strong bass—
caused an unreasonable discomfort or annoyance to a person of ordinary
sensibilities attempting to use and enjoy the person’s land. See Pool, 346 S.W.3d
at 857–59 (upholding nuisance finding based on noise from a neighboring
landowner’s hosting of events for motorcycles and all-terrain vehicles); see also
Huynh, 694 S.W.3d at 677 n.32 (providing as example of nuisance “fantastically
loud all-night parties”).

The Canaleses’ second issue is overruled.

II. MENTAL ANGUISH DAMAGES

In their fourth and fifth issues, the Canaleses contend that neither of
Vandenberg’s jury questions on the issue of nuisance can support the award of
mental anguish damages. We agree with the Canaleses.

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A. Negligent Nuisance

In their fifth issue, the Canaleses contend that the jury’s finding of a
negligent nuisance cannot support an award of mental anguish damages.

As mentioned above, the jury answered affirmatively Question No. 14,
which asked, “Did David and Angie Canales negligently create a private
nuisance?” The jury found in another question that the nuisance was a
“temporary” rather than “permanent” nuisance.

“Texas does not recognize a general legal duty to avoid negligently inflicting
mental anguish.” City of Tyler v. Likes, 962 S.W.2d 489, 494 (Tex. 1997).
“Without intent or malice on the defendant’s part, serious bodily injury to the
plaintiff, or a special relationship between the two parties, [courts] permit recovery
for mental anguish in only a few types of cases involving injuries of such a
shocking and disturbing nature that mental anguish is a highly foreseeable result.”
Id. at 496.

“It has long been the rule in Texas that if a nuisance is temporary, the
landowner may recover only lost use and enjoyment (measured in terms of rental
value) that has already accrued.” Schneider Nat. Carriers, Inc. v. Bates, 147
S.W.3d 264, 276 (Tex. 2004); see also Crosstex N. Tex. Pipeline, L.P. v. Gardiner,
505 S.W.3d 580, 609–12 & n.21 (Tex. 2016) (discussing the types of damages
available for nuisance as loss of rental or use value, cost of restoring land, or lost
market value, but noting authority for “annoyance and discomfiture” damages).
Although a nuisance finding may authorize the award of damages for “annoyance
and discomfiture,” a “[m]ere nuisance has never been a basis for recovery of
mental anguish in Texas.” Likes, 962 S.W.2d at 504; see also Comm. on Pattern
Jury Charges, State Bar of Tex., Texas Pattern Jury Charges: General Negligence

7
PJC 12.6 cmt. (2022) (“If the nuisance claim is based on negligence, mental
anguish damages are not recoverable.”).

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 Likes, the 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. Likes, 962 S.W.2d at 496.
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. See id. at 493, 496. We decline to extend the
“shocking and disturbing” exception to a negligent nuisance involving loud music.

The Canaleses’ fifth issue is sustained.

B. Intentional Nuisance

In their fourth issue, the Canaleses contend that the jury’s finding of an
intentional nuisance cannot support the judgment for mental anguish damages
against both David and Angie, jointly and severally, because the question asked if
either of them was liable—not both of them. 4

The jury answered affirmatively Question No. 13, which asked, “Did David
or Angie Canales intentionally create a private nuisance?” (emphasis added).

4
The Canaleses’ brief appears to assume that mental anguish damages are recoverable
for an intentional nuisance—a question we need not address.

8
Vandenberg, as the party seeking a liability finding against multiple
defendants, was required to submit jury questions on liability for each individual
defendant. See W & F Transp., Inc. v. Wilhelm, 208 S.W.3d 32, 45 (Tex. App.—
Houston [14th Dist.] 2006, no pet.). When a question asks in the disjunctive, as
here, whether one defendant or another should be liable, the trial court has no basis
upon which to render a judgment against both or either of them. See J & C
Drilling Co. v. Salaiz, 866 S.W.2d 632, 640 (Tex. App.—San Antonio 1993, no
writ); see also Tanglewood Homes Ass’n, Inc. v. Feldman, 436 S.W.3d 48, 61
(Tex. App.—Houston [14th Dist.] 2014, pet. denied) (holding that the jury’s
answer to a question seeking to impose liability in favor of two plaintiffs, which
asked about one “and/or” the other, was ambiguous and could not support a
judgment). Here, the jury’s “yes” answer to Question No. 13 “could have meant
that [David] was negligent but [Angie] was not, or [Angie] was negligent but
[David] was not, but not that both were negligent.” See J & C Drilling, 866
S.W.2d at 640.

This court must try to interpret a jury finding in a manner that supports the
judgment, and we may review the remainder of the jury charge and the record to
do so. See Tanglewood, 436 S.W.3d at 61–62. Review of the remainder of the
jury charge and the explanatory paragraphs and definitions in Question No. 13 is of
no help. Although parts of the charge refer to “David and Angie Canales,”
Question No. 13 asks whether “David or Angie Canales” created a private
nuisance. In several instances, the instructions refer to “the Canales” with an
apostrophe added to the end of “Canales” instead of an es and an apostrophe to
indicate the plural possessive, which itself does not help resolve the ambiguity.
See The Chicago Manual of Style 7.6, 7.9, 7.18 (15th ed. 2003) (plural possessive
formed by adding es and apostrophe, with examples Martinezes’ and Williamses’).

9
Immediately following the “or” question, the charge states that “intentionally”
means “the Canales’ acted with respect to the nature of his conduct or to a result of
his conduct when it was the conscious objective or desire to engage in the conduct
or result.” (emphasis added). We do not believe that review of the charge resolves
the ambiguity in Question No. 13 such that we may substitute the word “and” for
the word “or” and assume that the jury found both David and Angie liable.

Vandenberg urges this court to review the record, contending that evidence
was presented to support a finding 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.”

“This is not a case in which undisputed facts in the record allow us to
ascertain the intent of the jury’s liability findings ‘with definiteness and
certainty.’” Tanglewood, 436 S.W.3d at 62 (quoting Rountree Motor Co. v. Smith
Motor Co., 109 S.W.2d 296, 300 (Tex. App.—Beaumont 1937, writ dism’d)).
This court “cannot use the record to supply a finding of liability in the face of
ambiguity.” Id. Even if the evidence “could support a finding” against both David
and Angie, “the verdict does not clearly show that is what the jury intended to
find.” Id. (quotation omitted). This court is not “permitted to speculate as to what
the jury intended by an ambiguous answer which, because of its ambiguity, cannot
constitute a proper basis for a judgment.” Id. (quotation omitted).

Finally, Vandenberg contends that the Canaleses waived their argument by
not objecting before submission of the case to the jury. But Vandenberg’s

10
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. See id. at 64.

The Canaleses’ fourth issue is sustained.

C. Conclusion

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.

III. PERMANENT INJUNCTION

In their sixth issue, the Canaleses contend that the trial court abused its
discretion by awarding a permanent injunction because there is no imminent
danger of loud music. They argue further that the court erred by enjoining Adrian
Canales—David and Angie’s minor child—in the absence of any liability finding
against Adrian. We overrule the Canaleses’ complaint regarding the injunction
generally but sustain their complaint regarding Adrian.

A. The Injunction

In the final judgment, the trial court included a permanent injunction:

[T]he Enjoined Persons set forth below are permanently enjoined
from playing music on the [Canaleses’ property] that exceeds 85
decibels measured at the property line of [Vandenberg’s property] that
lies closest to the [Canaleses’ property] after the person playing the
music receives notice from a magistrate or peace officer that the
music exceeds 85 decibels.
The court included David, Angie, and Adrian as “enjoined persons,” along with
“their agents, employees, tenants, or those persons in active concert or

11
participation with them who have actual knowledge of this injunction, by service
or otherwise.”

B. Standard of Review and Legal Principles

Injunctive relief is a remedy that is available to a claimant who prevails on a
private-nuisance claim. See Huynh v. Blanchard, 694 S.W.3d 648, 672–73 at *11
(Tex. 2024). “To be entitled to a permanent injunction, a party must prove (1) a
wrongful act, (2) imminent harm, (3) an irreparable injury, and (4) the absence of
an adequate remedy at law.” Id. at 674. (quoting Pike v. Tex. EMC Mgmt., LLC,
610 S.W.3d 763, 792 (Tex. 2020)).

The decision to grant a permanent injunction is within the sound discretion
of the trial court, and its action will be reversed only when a clear abuse of
discretion is shown. Id. at 673. A trial court abuses its discretion by acting
arbitrarily and unreasonably or misapplying the law to the established facts of the
case. Id. at 674.

C. No Abuse of Discretion Regarding David and Angie

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.” Id. at *676 (quoting State v. Tex. Pet Foods, Inc., 591 S.W.2d 800, 804
(Tex. 1979)). “The probability of the continuation of the prohibited practices is not
a matter which is susceptible of direct proof, and injunctive relief is proper when
the trial court finds it justified under the rules of equity, notwithstanding a

12
defendant’s cessation of the activity or solemn promises to cease the activity.”
Tex. Pet Foods, 591 S.W.2d at 804, quoted in Huynh, 694 S.W.3d at 676.

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. See Huynh, 694 S.W.3d at 675–77 & n.32; Tex. Pet
Foods, 591 S.W.2d at 804. The trial court did not abuse its discretion by enjoining
David and Angie as described above.

The Canaleses’ sixth issue is overruled as applied to David and Angie.

D. Abuse of Discretion Regarding Adrian

A permanent injunction is “available only if liability is established under a
cause of action.” Etan Indus., Inc. v. Lehmann, 359 S.W.3d 620, 625 n.2 (Tex.
2011); see also Valenzuela v. Aquino, 853 S.W.2d 512, 514 n.2 (Tex. 1993) (“No
final relief, including a permanent injunction, can be granted in a contested case
without a determination of legal liability . . . .”).

Vandenberg contends that the jury found Adrian liable for a temporary
nuisance under Question No. 15, which asked, “Was the nuisance caused by the
Canales Family permanent or temporary?” The jury answered, “Temporary.” The
jury was instructed to answer Question No. 15 only “If you answered ‘Yes’ to
Question 13, and/or 14.” Question Nos. 13 and 14, as discussed above, asked
whether “David or Angie Canales intentionally create[d] a private nuisance” and
whether “David and Angie Canales negligently create[d] a private nuisance.”

13
We disagree with Vandenberg that the jury’s “Temporary” answer to
Question No. 15 was a finding of liability against Adrian. Without a finding of
liability against Adrian, the injunction against him was an abuse of discretion. See
Gilbreath v. Horan, 682 S.W.2d 454, 547 (Tex. App.—Houston [1st Dist.] 2023,
pet. denied) (abuse of discretion to enjoin a party against whom there was no
finding of liability).

The Canaleses’ sixth issue is sustained as applied to Adrian.

IV. 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.

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.

A. General Legal Principles for Submission of Jury Questions

A trial court must submit jury questions, instructions, and definitions that are
raised by the written pleadings and the evidence. Brumley v. McDuff, 616 S.W.3d
826, 831 (Tex. 2021) (citing Tex. R. Civ. P. 278). “Concomitantly, a trial court
must not submit claims or affirmative defenses that the pleadings and evidence do

14
not support, unless the parties tried the claim or defense by consent.” Id. “When a
trial court refuses to submit a requested instruction on an issue raised by the
pleadings and evidence, the question on appeal is whether the request was
reasonably necessary to enable the jury to render a proper verdict.” Shupe v.
Lingafelter, 192 S.W.3d 577, 579 (Tex. 2006).

The failure to submit an instruction is not a ground for reversal of the
judgment unless the party complaining of the judgment has requested in writing
and tendered a substantially correct instruction. Union Pac. R.R. Co. v. Williams,
85 S.W.3d 162, 166 (Tex. 2002); see also Tex. R. Civ. P. 278. “Substantially
correct” does not mean absolutely correct. Placencio v. Allied Indus. Int’l, Inc.,
724 S.W.2d 20, 21 (Tex. 1987). Nor does it mean that the instruction is merely
sufficient to call the matter to the attention of the trial court. Id. “It means one that
in substance and in the main is correct, and that is not affirmatively incorrect.” Id.

We review the trial court’s submission of the charge for an abuse of
discretion. Brumley, 616 S.W.3d at 831. The omission of an instruction is
reversible error only if the omission probably caused the rendition of an improper
judgment. Shupe, 192 S.W.3d at 577; see also Tex. R. App. P. 44.1(a).

B. The Refused Questions

Vandenberg requested the submission of a series of slander questions, which
the trial court refused to submit. First, Vandenberg contends that the court should
have submitted his Proposed Question Nos. 20–25 concerning seven statements
that were made other than during the 911 call, i.e., the “non-911” statements.
Proposed Question No. 20 asked, “Did Angie or David Canales publish any of the
following statements with regard to Ed Vandenberg to anyone other than the 911
operator?” It instructed to the jury to answer “yes” or “no” to a list of seven
specific statements. Proposed Question No. 21 asked whether each of the
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statements was defamatory. Proposed Question No. 22 asked whether each of the
statements was false. Proposed Question No. 23 asked whether Angie (i.e., only
Angie) made each statement with actual malice. Proposed Question Nos. 24 and
25 asked about damages.

Next, Vandenberg contends that the trial court should have submitted his
Proposed Question Nos. 10–15 concerning two statements Angie made during a
911 call on the night Vandenberg and David had a fistfight. Respectively, the
proposed questions asked whether Angie published each statement, whether each
statement was defamatory, whether each statement was false, whether Angie made
the statements with actual malice by clear and convincing evidence, and the
amount of damages and exemplary damages to award.

C. Non-911 Questions Not Substantially Correct

Regarding the non-911 statements, the first question asked whether “David
or Angie” published each statement, and a later question inquired only about
Angie’s actual malice in making the statements. The questions do not ask about
each of the defendants’ liability separately. These questions suffer from the same
defect discussed above in Part II.B of this opinion because the questions are
ambiguous and could not support a judgment against either David or Angie. See J
& C Drilling Co. v. Salaiz, 866 S.W.2d 632, 640 (Tex. App.—San Antonio 1993,
no writ); see also Tanglewood Homes Ass’n, Inc. v. Feldman, 436 S.W.3d 48, 61
(Tex. App.—Houston [14th Dist.] 2014, pet. denied); W & F Transp., Inc. v.
Wilhelm, 208 S.W.3d 32, 45 (Tex. App.—Houston [14th Dist.] 2006, no pet.). In
this regard, these questions were not substantially correct, and their omission could
not have caused an improper judgment because their inclusion could not have

16
supported a judgment for Vandenberg on his non-911 slander claim, to the extent
any were pleaded. 5

D. 911 Questions Not Supported by Evidence of Actual Malice

Vanderberg’s proposed questions regarding Angie’s allegedly slanderous
statements to a 911 operator concern the events of December 4, 2012, when
Vandenberg entered the Canaleses’ property, shut off the electricity to the party
barn, and got into a physical fight with David. Because the issue of actual malice
is dispositive, we focus our discussion of the evidence and law on the omitted
question regarding actual malice.

1. Actual Malice Question

Vandenberg’s Proposed Question No. 13 would have submitted the issue of
Angie’s actual malice as follows:

QUESTION 13
Do you find by clear and convincing evidence that at the time Angie
Canales made the statement in Question 10
1. Angie Canales knew it was false as it related to Ed
Vandenberg, or
2. Angie Canales made the statement with a high degree of
awareness that it was probably false, to the extent that Angie
Canales in fact had serious doubts as to the truth of the
statement?
“Clear and convincing evidence” is that measure of degree of
proof that will produce in the mind of the jury a firm belief or
conviction as to the truth of the allegations sought to be
established.
Answer “Yes” or “No” for each subpart to this question.

5
In light of this disposition, we do not reach the parties’ arguments concerning the
sufficiency of Vandenberg’s pleadings and evidence to support submission of the non-911
slander claim.

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a. He barged into our building and started vandalizing our
building.
Answer: ______________
b. He has a gun, and he has it to my husband.
Answer: ______________

2. Evidence

On the night of December 4, 2012, Adrian was practicing with new music
equipment in the party barn along with David when Vandenberg entered their
property and shut off a breaker box for the barn. David and Vandenberg
confronted each other outside the barn and began physically fighting. David told
Adrian to go inside and get a gun. Angie was inside the home watching television
when Adrian came in and told her to get the gun.

Angie called 911, and a transcript of the call was admitted as an exhibit.
The call began:

Operator: 911. What is your emergency?
Angie: I need a cop out here right now.
Operator: Okay.
Angie: I’m fixing to shoot some mother fucker.
Operator: Hello. Where—where are you?
Angie: I need a gun out here. [address]
Operator: Okay. Why are you threatening to shoot someone?
Angie: He—the neighbor came. He has a gun, and he has it to
my husband.
Operator: Okay. What—what’s your name, ma’am?
Ange: Angie Canales.
Operator: Okay. He has a gun to your husband right now?
Angie: Yes. Oh, my gosh.

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Angie said during the call repeatedly that that she had a gun in her hand and that
she would shoot the man. Later, discussion of the gun continued:

Angie: They’re—right now I don’t want to mess it up. And I
have a gun. So I don’t want to go out because I know
I’m going to shoot somebody or my husband. So stay
away from me.
Operator: You cannot—you—I cannot give you permission to
shoot someone. You’re not—your life is not currently in
danger. And if he doesn’t have a gun to your husband
right now, his life is not in danger.
Angie: I cannot see out there. There is no lights. I don’t know if
he has a gun to my husband. There is no lights.

After Angie informed the operator that she did not know who the assailant was and
that he had left the property and was walking along the main road, the following
exchange occurred:

Operator: And the next—like, if this ever happens again, don’t go
outside and engage him.
Angie: I’m just—we—
Operator: Just call the police.
Angie: Listen to me, he barged into our building and he started
vandalizing our building.
Operator: Okay.
Angie: He barged in and vandalized it, and my husband and my
kid were in there practicing.
Operator: Okay.
Angie: He vandalized it. He’s the one that came in here.

Vandenberg testified that he had never met or talked to the Canaleses before
that night. Angie testified that when Adrian ran in the house, he was frantic and
screaming. She testified about what she heard Adrian say and the conclusions she
drew:

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There was a man beating up his dad, and I heard gun. So, when I hear
gun, I’m thinking, okay, I need to get a gun or they have a gun. I
heard gun. Adrian screams gun. Mom, there’s a man beating up Dad.
Get a gun or there’s a gun.
....
At the time, I mean, I’m—you know, my—my kid is running in crazy
and I hear his dad getting is beat up and I hear gun. So, when his Dad
is getting beat up, I’m thinking okay. There’s—you know, I’m—
we’re not used to handling guns. So, when I hear gun, I’m thinking
okay. Somebody has a gun to David or something.

She testified that it “happened so fast and I was scared.” It was dark outside, and
Adrian was frantic. Angie “went from zero to a hundred.” She felt her, her
child’s, and her husband’s lives were in danger.

She explained that when she said on the 911 call that she did not know if
Vandenberg had a gun, at that moment she could not see outside. When asked if
Vandenberg barged into the barn, she testified:

Angie: At that moment, that’s what I believed. So, that’s what I
said.
Question: But you had no basis to believe that, did you? You just
said it.
Angie: When my child is running in and tells me, I know they’re
in the building, and somebody went in there fighting his
dad, I said barge. That’s what I’m assuming happened.

Angie confirmed at trial that she never actually saw a gun when she went outside.

3. Analysis

Actual malice requires at a minimum that the “defendant have, subjectively,
significant doubt about the truth of his statements at the time they are made.”
Bentley v. Bunton, 94 S.W.3d 561, 596 (Tex. 2002). To prove actual malice in a
defamation case, “the plaintiff must offer clear and convincing affirmative proof to

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support a recovery.” Turner v. KTRK Television, Inc., 38 S.W.3d 103, 124–25
(Tex. 2000) (quoting Casso v. Brand, 776 S.W.2d 551, 558 (Tex. 1989)). It is not
enough for the jury to disbelieve the defendant’s testimony; discredited testimony
does not constitute clear and convincing evidence of actual malice. Id. at 124.
Indeed, a defendant may be able to negate actual malice conclusively by their own
testimony. Bentley, 94 S.W.3d at 596. “An understandable misinterpretation of
ambiguous facts does not show actual malice, but inherently improbable assertions
and statements made on information that is obviously dubious may show actual
malice.” Id. “A failure to investigate fully is not evidence of actual malice; a
purposeful avoidance of the truth is.” Id.

On appeal, Vandenberg cites to no evidence to support a finding of actual
malice other than the transcript of the 911 recording itself. He contends that
Angie’s statements “show that her intention was malicious, seeking to either justify
her intention to shoot [Vandenberg], or exaggerating the situation and seeking that
the police shoot [Vandenberg].”

At best, the evidence shows that Angie’s statements about Vandenberg
having a gun to her husband and vandalizing their property were understandable
misinterpretations of ambiguous facts that she did not fully investigate before
making the statements. Once she did investigate, she informed the 911 operator
that she did not see a gun. The evidence was undisputed that before Angie made
these statements, Vandenberg and Angie had never met or spoken. She knew only
that a neighbor had entered her property and assaulted her husband, that the
electricity had been shut off, and that her son came into her house frantically
screaming about a gun. Whether Vandenberg’s conduct of reaching into a breaker
box and turning off the power amounted to entering a building and vandalizing it,
similarly, was an understandable misunderstanding of ambiguous facts. Cf. Saks &

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Co., LLC v. Li, 653 S.W.3d 306, 315–16 (Tex. App.—Houston [14th Dist.] 2022,
no pet.) (no evidence of actual malice when the defendants reported an employee
to the police for theft after the employee allowed customers to use credit cards
belonging to other people to make purchases).

Considering all of the admitted evidence, the trial court could have
concluded that there was legally insufficient evidence to support a finding of actual
malice in Vandenberg’s favor by clear and convincing evidence, and thus,
Vandenberg’s slander claim based on the 911 statements was not raised by the
evidence. The trial court did not abuse its discretion by refusing to submit
Vandenberg’s questions about his claim for slander based on Angie’s statements to
the 911 operator.

E. Unpreserved and Waived Complaints About Submitted 911 Question
Vandenberg contends that the trial court “erred in submitting a criminal type
question on the issue of Angie Canales’ 911 report, which required intent for a
‘yes’ finding by the jury.” Vandenberg also contends, in two sentences from his
63-page brief, that the jury’s “no” finding to this question was against the great
weight and preponderance of the evidence.

The trial court included in the jury charge the following Question No. 17:
“Did Angie Canales knowingly and with the intent to deceive, make false
statements to the 911 operator on December 4, 2012?” The jury answered “no.”

Vandenberg did not object to the inclusion of this question in the jury
charge; indeed, he told the trial court, “[W]e appreciate the submission of the
question.” He merely requested his other slander questions be submitted “as well”
and “in addition to the question of 911.” Thus, Vandenberg did not preserve any
error regarding the submission of this question. See, e.g., In re B.L.D., 113 S.W.3d
340, 349 (Tex. 2003) (“[A]ny complaint to a jury charge is waived unless
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specifically included in an objection. . . . A party must make the trial court aware
of the complaint, timely and plainly, and obtain a ruling.”); see also Tex. R. Civ. P.
274; Tex. R. App. P. 33.1.

To the extent Vandenberg has asserted on appeal and preserved a factual
sufficiency challenge to this question, 6 he has waived it due to inadequate briefing.
See St. John Missionary Baptist Church v. Flakes, 595 S.W.3d 211, 215 (Tex.
2020) (noting that “courts of appeals retain their authority to deem an unbriefed
point waived”); see also Tex. R. App. P. 38.1(f), (i).

Vandenberg’s issues are overruled.

V. CONCLUSION

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 Adrian. 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.

/s/ Ken Wise
Justice

Panel consists of Justices Wise, Zimmerer, and Poissant.

6
The Clerk’s Record does not contain a motion for new trial filed by Vandenberg, which
is required to preserve a factual sufficiency challenge. See, e.g., In re D.T., 625 S.W.3d 62, 75
n.8 (Tex. 2021) (“Preservation of a factual-sufficiency challenge requires a motion for new
trial.”).

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