COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

BEAU PARRY

, I ndividually and as N ext

F riend to his Minor D aughters,

Appellant,

v.

JASON A. SHAFFER, VANEZA R.

SHAFFER, and TEA M TUTTLE, INC.

d/b/a LEGACY REAL ESTATE

SERVICES

,

Appellee s. §

§

§

§

§

§

§ No. 08-21-00094-CV

Appeal from the

120th Judicial District Court

of El Paso County, Texas

(TC# 2019DCV1811)

O P I N I O N

In City of Tyler v. Likes 1 the Texas Supreme Court laid out a framework for deciding when

a person may sue for mental anguish damages

. In this case

, we must decide whether a mental

anguish-only claim exists for persons who w ere unknowingly videoed in the privacy of their home,

but the recording was never shown to have been seen by, or transmitted to , anyone outside the

home. The sole claim before us is for negligence against the former occupiers of the house who

left an active security system in place

. We are not deal ing with the intentional tort of invasion of

privacy, nor a claim by one household member who surveils someone else in the house. B ased on

1 962 S.W.2d 489 (Tex. 1997)2 the facts developed in the summary judgment record, we conclude that a mental

- anguish

- only

claim conflicts with Likes and the genre of cases that address when mental anguish is a recoverable

element of damage

. And because mental anguish was the only element of damage pleaded or

proven in response to a no

- evidence motion for summary judgment challenging the element of

damages, w e affirm the trial court ’ s grant of the summary judgment motions below.



### I. B ACKGROUND

A. Factual Background 2

Jason and Vaneza Shaffer ( t he Shaffers) purchased and lived for a time in a residential

property in El Paso, Texas

. F or the security of their family, and infant child, the Shaffers installed

a video recording home security system

. The system consisted of five cameras

. Two of the

cameras

— that loo ked like obvious cameras

— were located at the front and back door to the house.

Three cameras were located inside the house and looked like motion sensors. One of those inside

cameras was in the “ great room

, ” one in the “ nursery

, ” and one in a closet of the master bedroom.

All the cameras were motion activated, and all were connected by hard wires to a recording device

in the attic. The recording device included a hard drive that would store record ed video clips ; when

the system ’ s memory capacity was reached, the system would record over the older files

.

The security system allowed the Shaffers to view recordings when they were away from

the house. Through an internet connection, the recordings could be accessed from a website by

someone with the correct password. However, the Shaffers could not access the recordings

remotely if the security system was not connected to the internet. W ithout an internet connection,

the only way to access the recordings was through the hard drive in the attic of the home.

2 This case comes to use from a granted summary judgment. The recitation of facts is taken from the summary

judgment record, stated in the light most favorable to the non

- movant.3 In March 2017, t he Shaffers vacated the house intending to sell it. When the y did so, they

terminated the internet service to the home and believed that they unplugged the security system.

Mr. Shaffer a dmit s, however, that he did not uninstall the batteries from the cameras when they

moved out of the home. And if the system was plugged in, it would continue to record even if the

system was not connected to the internet

.

Initially, t he Shaffers listed the property with Team Tuttle, Inc. d/b/a Legacy Real Estate

Services (Team Tuttle) to act as their sales agent

. When the house did not sell quickly

, the Shaffers

decided to lease the property

. To that end, they entered a “ Residential Leasing and Property

Management Agreement ” with Team Tuttle to act as their property manager. The agreement

outlined Team Tuttle ’ s responsibilities

, including showing the home to prospective renters,

preparing a lease agreement, collecting rent, and handling repairs

. Before renting the property

,

Team Tuttle performed a “ walkthrough ” inspection. T he walkthrough process for new properties

adheres to Team Tuttle ’ s policy to identify needed repairs and ensure s that it is renting safe

properties

. During this inspection, the Team Tuttle employee did not inspect the attic where the

hard drive of the security system was located because he was unsure that the ladder leading to the

attic would support his weight. Som e testimony supports the p roposition that had the inspector

gone into the attic, he would have seen the recording device with its hard drive

. Team Tuttle claims

that the Shaffers never disclosed the security system in the home and that Team Tuttle did not

learn about the security system until this litigation

. Mr. Shaffer claims that he did disclose the

security system to Team Tuttle

, but he admits that there is no written record or any record of this

disclosure.

In December 2017

, Appellant Beau Parry rented the Shaffers ’ property. Before signing the

lease, Mr. Parry did his own walk through of the home

, but he too, never checked the attic of the4 home. He did notice the two outside cameras

, but he concluded they were not activated because

an accessible security system panel in the foyer was inoperable. On December 29, 2017

, he and

his two daughters moved into the house

.

Eight days after their move in, the Parry s noticed that one of the outside cameras appeared

to be active when a light on it energized. Mr. Parry then traced the wiring to the attic and discovered

the system ’ s hard drive. Mr. Parry followed the other wires from the recording device and

discovered that the three apparent motion sensors inside the home were also cameras. When he

looked at the downloaded video clips on the hard drive, he discovered that the system had recorded

he and his family for the time that they had been living in the home. His daughters ’ bedroom was

in the same room as the Shaffer s ’ nursery, and the camera in that room had record his daughters

(then 12 and 13 years old) walking in and out of the bathroom while nude. Mr. Parry then shut

down the security system.

B. Procedural History

Beau Parry for himself and on behalf of his minor children (the Parry s ) sued the Shaffers

and Team Tuttle

. T heir original petition asserted causes of action against the Shaffers for invasion

of privacy, intentional infliction of emotional distress, and negligence. The Parrys also claimed

that Team Tuttle was negligent for not disclosing the existence of the active cameras to them

. As

to both defendants, t he Parrys sought damages for severe emotional pain and mental anguish a long

with exemplary damages

.

After several months of discovery, the Shaffers filed a no

- evidence motion for summary

judgment claiming that the Parrys had no evidence to support several essential elements for each

of the three claims that they had asserted against the Shaffers in their original petition. The motion

generally hinged on the claim that the Parrys “ have no evidence that the Shaffers videotaped the5 [Parrys], viewed any alleged video recording of the [Parrys], or that any alleged video recording

of the [Parry s] was transmitted out of the home. ” As for the negligence claim, the Shaffers

contended that any duty of care arose under premise s liability law, and as such, the Parrys h a d no

evidence that the Shaffers controlled the property, owed any dut ies to the Parry s

, breached any

duties, or that any breach proximately caused any damages.

Team Tuttle filed a no

- evidence and traditional motion for summary judgment claiming

that the Parrys

, who sued Team Tuttle only under a negligence theory, were limited to a premises

liability claim under Texas law

. Under that theory

, Team Tuttle contended that : (1) it was not an

owner or possessor of the property, (2) it had no actual or constructive knowledge of the active

recording system, and (3) because the images never left the property, or were viewed by others,

that there was no evidence of damages.

In response to the summary judgment motions, the Parrys amended their petition to drop

their invasion of privacy and intentional infliction of emotional dis tress claim s

. They also filed

respon s e s to both the Shaffers ’ and Team Tuttle ’ s motions for summary judgment which included :

(1) the deposition s of Patrick Tuttle and Jason Shaffer; (2) photographs of the cameras and

recording device in the house ; ( 3) the Tuttle property walkthrough report ; and (4) Beau Parry ’ s

declaration. Their response acknowledged that the negligence claim was grounded in premises

liability, and acknowledged that a lessor of property generally has no duty to a tenant or their

invitees for dangerous conditions on the leased premises. 3 But the response built the Parrys ’ case

around an exception to that rule such that a lessor may be liable when they conceal a known defect

on the lease d premises. 4 The Parrys argued that the Shaffers knew of the system because they

3 See Johnson Cnty. Sheriff ’ s Posse, Inc. v. Endsley , 926 S.W.2d 284, 285 (Tex. 1996) ( “ This general rule stems from

the notion that the lessor relinquishes possession or occupancy of the premises to the lessee. ” )

.

4 Id

. , citing R ESTATEMENT (S ECOND ) OF T ORTS § 358 (1965 ).6 installed it

, and Team Tuttle knew or should have learned of the system when it had control of the

rental property. They claim both defendants concealed the fact of the operational security cameras.

As for damages

, Beau Parry ’ s declar ation state s that after finding the operational cameras:

Thereafter, I and my daughters were terrified, untrusting of our management

company, disgusted, horrified, and anguished at the thought that the hidden cameras

could have been accessed either directly or remotely, and fearful that whatever was

recorded could have been viewed, shared, streamed, or uploaded by any number of

individuals. My daughters believed people were entering the attic at that point, while

we were there. We no longer felt safe. We have, at various times, been unable to

sleep and suffered from depression. We continue to suffer from extreme anxiety and

nervousness caused by the uncertainty of what was recorded by the video cameras,

who knows of the videos, who has seen the videos, whether such videos were

broadcast on the internet, and for what deviant purpose viewers may be watching

such vid eos. We have been plagued by the thought that someone was recording us

in our most private sanctuary

- our home. Despite having now moved away from

El Paso, we continue to suffer from these aff l ictions and do not know when that will

end.

Both the Shaffers and Team Tuttle then filed replies that challenged whether this evidence

was legally sufficient to establish recoverable damages under City of Tyler v. Likes which attempts

to define when one may sue for mental anguish/ emotional distress.

T he trial court granted both Team Tuttle ’ s traditional and no

- evidence motion for summary

judgment and the Shaffers ’ no

- evidence motion for summary judgment without identifying which

element or argument it accepted

.



### II. S TANDARD OF 

### R EVIEW

Under Rule 166a(i) of the Texas Rules of Civil Procedure

, “ a party without presenting

summary judgment evidence may move for summary judgment on the grounds that there is no

evidence of one or more essential elements of a claim or defense on which an adverse party would

have the burden of proof at trial. ” T EX .R.C IV .P. 166a(i). A court must grant a no

- evidence motion

for summary judgment “ unless the respondent produces summary judgment evidence raising a

genuine issue of material fact. ” Id

.7 A no-evidence motion for summary judgment is like a pre

- trial motion for directed verdict

,

as both are reviewed under the same legal sufficiency standard of review. Jones v. Coppinger , 642

S.W.3d 51, 61 (Tex.App.

-- El Paso 2021, no pet.) ; Sage v. Howard

, 465 S.W.3d 398, 402

(Tex.App.

-- El Paso 2015, no pet.), citing King Ranch, Inc. v. Chapman , 118 S.W.3d 742, 750-51

(Tex. 2003). “A properly filed no-evidence motion shifts the burden to the nonmovant to present

evidence raising a genuine issue of material fact supporting each element contested in the motion.”

JLB Builders, L.L.C. v. Hernandez , 622 S.W.3d 860, 864 (Tex. 2021) . A genuine issue of material

fact is one supported by more than a scintilla of evidence. Sage , 465 S.W.3d at 403, citing King

Ranch, Inc. , 118 S.W.3d at 751. More than a scintilla of evidence exists if the evidence “ rises to a

level that would enable reasonable and fair

- minded people to differ in their conclusions.” King

Ranch, Inc. , 118 S.W.3d at 751, quoting Merrel Dow Pharms., Inc. v. Havner , 953 S.W.2d 706,

711 (Tex. 1997). “Under this standard, we review the evidence in the light most favorable to the

non-movant, credit evidence favorable to that party if reasonable jurors could, and disregard

contrary evidence unless reasonable jurors could not.” Sage , 465 S.W.3d at 402.

A trial court should grant a no evidence motion for summary judgment when: (1) there is

a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or evidence

from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to

prove a vital fact is no more than a mere scintilla; or (4) the evidence conclusively established the

opposite of a vital fact

. Sage , 465 S.W.3d at 403, citing King Ranch, Inc. , 118 S.W.3d at 751. 5 We

review a trial court ’s decision to grant a summary judgment de novo. Salazar v. Ramos , 361

5 Team Tuttle filed a hybrid motion for summary judgment, that included affirmative proofs seeking to disprove many

elements that i t claimed the Parrys lacked any evidence on. We generally first review the no evidence portion of a

hybrid motion for summary judgment. Salazar v. Ramos , 361 S.W.3d 739, 745 (Tex.App.

-- El Paso 2012, pet. denied)

. Even at that, the Texas Supreme Court has noted that t hough the burdens vary for traditional and no

- evidence motions,

when both parties bring forward evidence as part of a hybrid motion , th e “ differing burdens are immaterial and the

ultimate issue is whether a fact issue exists. ” Neely v. Wilson , 418 S.W.3d 52, 59 (Tex. 2013)

, citing Buck v. Palmer

, 381 S.W.3d 525, 527 n.2 (Tex. 2012)

.8 S.W.3d 739, 745 (Tex.App.

-- El Paso 2012, pet. denied)

.



### I II. D ISCUSSION

On appeal, the Parrys argue that the trial court erred in granting both the Shaffers and Team

Tuttle ’ s motions for summary judgment. As they must, the Parry ’ s address each element of their

negligence claim. Because we decide the case based only on the element of damages, we limit our

discussion to that issue.

The parties take as a given that the P arrys ’ needed to present evidence th at an y breach of a

duty by the Shaffers and Team Tuttle must have proximate ly cause d the m injury. See State Dep ’ t

of Highways & Pub. Transp. v. Payne

, 838 S.W.2d 235, 237 (Tex. 1992) (noting damages is an

essential element in premises liability claim regardless of the plaintiff ’ s status on the property)

.

The only damages that the Parrys pleaded for, or offered evidence on, was for the ir mental anguish

upon learning of the recording device, and their fear that the video files could have been viewed

by someone outside the house. The problem with that theory

, however, is that while “ mental

anguish is a real and serious harm

, ” it is not always a recoverable element of damage. City of Tyler

v. Likes

, 962 S.W.2d 489, 4 94 (Tex. 1997) ( “ For many breaches of legal duties, even tortious ones,

the law affords no right to recover for resulting mental anguish. ” )

.

In Likes

, for instance, a homeowner sued the City of Tyler for property damage from a

flood and for her mental anguish upon discovering after the flood that the water had destroyed her

personal records, family correspondence, family photographs

, and keepsakes

. Id

. at 493. She also

premised the mental anguish claim on “ her feelings of insecurity both for her home, personal

property and personal safety during times of rainfall. ” Id. While not questioning that the anguish

from losing irreplaceable items was real

, the court concluded that the loss of her personal property

could not support a related reward for mental anguish. Id

. at 497

.9 The Likes court establishes a “ framework ” and not “ u nif ied theory ” to decide which claims

do and which do n o t permit awards for mental anguish. Id

. at 496. That framework starts with the

premise that Texas does not recognize a general legal duty to avoid negligently inflicting mental

anguish. Id

. at 494

, citing Boyles v. Kerr

, 855 S.W.2d 593, 597 (Tex. 1993)

. In Boyles v. Kerr

, the

defendant surreptit i ou s ly video

- taped he and his girlfriend having sex. 855 S.W.2d 593, 594

(Tex. 1993). He then shared the video with several of his friends, and both the video and news of

the video, quickly spread through the school that the girl attended. Id

. She sued her now former

boyfriend and several of his friends for negligent infliction of emotional distress and obtained a

substantial jury verdict. Id

. The Texas Supreme Court, however, concluded that “ there is no

general duty in Texas not to negligently inflict emotional distress. ” Id

. Instead, a “ claimant may

recover mental anguish damages only in connection with defendant ’ s breach of some other legal

duty. ” Id.

The Likes court acknowledged several situations that allow for the recovery of mental

anguish damages:

(1) when the mental anguish is the foreseeable result of a breach of duty arising out of

certain special relationships, such as the relationship between a physician and a patient;

(2) for some common law torts that generally involve intentional or malicious conduct such

as libel and, by analogy, for violations of certain st atutes such as the DTPA;

(3) in virtually all personal injury cases where the defendant ’ s conduct causes serious

bodily injury ;

(4) Even absent intent or malice by the defendant, for those “ few types of cases involving

injuries of such a shocking and disturbing nature that mental anguish is a highly foreseeable

result. ” This latter category include s wrongful death, and actions by bystanders who

witness a close family member ’ s serious injury.

Likes

, 962 S.W.2d at 494

- 96.

Later courts have declined to permit mental anguish damages in other contexts. See

Douglas v. Delp

, 987 S.W.2d 879, 885 (Tex. 1999) ( “ [W] e hold that when a plaintiff ’ s mental10 anguish is a consequence of economic losses caused by an attorney ’ s negligence, the plaintiff may

not recover damages for that mental anguish. ” ) ; Krishnan v. Sepulveda

, 916 S.W.2d 478, 482

(Tex. 1995) (a husband may not recover mental anguish damages suffered because of his wife ’ s

injury and loss of her fetus) ; Petco Animal Supplies, Inc. v. Schuster

, 144 S.W.3d 554, 563

(Tex.App.

-- Austin 2004

, no pet. ) ( “ Because there is no support in Texas law for awarding mental

anguish damages for the loss of a dog, we reverse the trial court ’ s award of mental anguish

damages. ” ); Verinakis v. Med. Profiles, Inc.

, 987 S.W.2d 90, 96 (Tex.App.

-- Hous ton

. [14th Dist.]

1998

, pet. denied ) (rejecting mental anguish claim based on false positive reporting of patient

being HIV positive where no physical injury was sustained)

.

The Likes court acknowledged its list of exceptions was not exhaustive, but t wo decisions

by the Texas Supreme Court, o ne noted by Likes

, and one that followed it

, are instructive here. In

Motor Express, Inc. v. Rodriguez

, the court addressed Boyles v. Kerr ’ s “ breach of some other legal

duty ” language. 925 S.W.2d 638, 639 (Tex. 1996) (per curiam)

. In Motor Express

, two truck

drivers parked their rigs in front of the defendant ’ s business. As one driver alighted from his rig,

he was st r uck and killed by a passing motorist. The other driver

— t he plaintiff in the suit

— sued

the business for mental anguish from witness ing the event and his own “ life

- threatening

experience. ” Id

. The court of appeals rejected a bystander injury claim

, but based on Boyles v.

Kerr ’ s language that a claim might proceed if based on “ some other legal duty

, ” it permitted a

mental anguish claim based on a possible breach of the landowner ’ s duty to provide safe parking

on its premises. Id

. The Texas Sup r eme Court, however, disagreed and declined to allow mental

anguish damages to a person who witnesses an accidental death on a landowner ’ s property, but

who themselves suffered no personal physical injury. The court concluded : “ While there may be

certain relationships that give rise to a duty which, if breached, would support an emotional distress11 award even absent proof of physical injury, the landowner

- invitee relationship is not one. ” Id

. at

639 ( internal citations omitted )

. Likes cites Motor Express

, and we consider it as part of the

framework for deciding when mental anguish damages are a recoverable element of damage.

In a case that followed Likes the court in Temple

- Inland Forest Products Corp. v. Carte r

declined to permit a plaintiff to recover f or the fear of contracting cancer from asbestos exposure

when the plaintiff did not actually have an asbestos related disease

. 993 S.W.2d 88, 91 (Tex. 1999)

.

The court r epeat ed its observation from Likes

, that whether a “ plaintiff can recover mental anguish

damages without physical injury ‘ depends on both the nature of the duty breached and the quality

of proof offered by the plaintiff. ’” Id

. , quoting Likes

, 962 S.W.2d at 494

. The plaintiff in Temple

Inland sued a property owner on whose land he claimed to have been exposed to asbestos. The

court

, focusing on the duty issue, reiterated its view from Motor Express that “ a landowner ’ s

tortious breach of his duty to invitees

. . . i s not a wrong for which mental anguish is compensable

absent physical injury. ” Id

. This was true whether the plaintiff ’ s claim was grounded only in the

common law or based on a federal regulation

. Id

.

Likes

, Motor Express

, and Temple

- Inland

, preclude any claim by the Parrys that a breach

of premises liability duties can cons t itute the “ breach of some other legal duty ” that might support

a mental anguish claim. In M otor Express and Temple

- Inland

, the courts rejected breach by a

landowner of their duties to an invitee as ground s to assert a mental anguish claim (at least where

there was no accompanying personal injury claim). Motor Express

, 925 S.W.2d at 639 ; Temple

Inland

, 993 S.W.2d at 91

. Likewise, those cases would belie any argument that the landlord

- tenant

relationships is one of those “ special relationships ” supporting a mental anguish claim. And Beau

Parry ’ s declaration that the events here caused the Parrys to l o se sleep, is not the sort of serious

personal injury that can underpin a mental anguish claim. See Likes

, 962 S.W.2d at 496 ( “ Likes12 has not claimed damages for bodily injury, however, and the minor physical symptoms she

describes, such as difficulty sleeping, are not serious bodily injuries that can form the basis for

recovering mental anguish damages. ” ).

Understandably, t he Parrys focus on another exception noted in Likes

— claims of a

“ shocking and disturbing nature. ” Id. ( “ Without intent or malice on the defendant ’ s part, serious

bodily injury to the plaintiff, or a special relationship between the two parties, we 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. ” )

. The only examples for those type of

claims suggested by Likes are wrongful death suits, and bystander claims for witnessing a close

family relative ’ s serious injury. Id

. In the abstract, we could agree that being surreptitiously filmed

in one ’ s own home, particularly in one ’ s own bedroom

, by dictionary definition

, could be shocking

and disturbing

. And w e of course agree that a “ person in their home who is not standing in front

of a window with open curtains may reasonably expect that they are not subject to public view

. . .

and that [t] he State has an interest in protecting its citizens ’ personal privacy and security in the

seclusion of their homes where they have a legitimate right to expect to be free from prying eyes

and lenses. ” Ex parte Metzger

, 610 S.W.3d 86, 10 3 (Tex.App.

-- San Antonio 2020

, pet. ref ’ d )

. But

that shock loses its luster when coupled with the fact that the images never left the sole possession

of the Parrys. The Shaffer ’ s motion for summary judgment beg ins with the proposition that there

is no evidence that any of the video recordings were transmitted out of the home

. Team Tuttle ’ s

affirmative motion for summary judgment included evidence th at when the Shaffer ’ s moved out

of the house, they cancelled the internet service. And the record contains evidence that absent an

internet connection, the only way to access the images on the hard drive was directly from the hard

drive itself, which was located in the house. Mr. Parry acknowledged in his deposition that he had13 no evidence that any of the images were ever transferred over the internet. 6

The Parry s’ respond with one reference in Beau Parry ’s declaration that while he w as in

the house for those first eight days, Team Tuttle “ sent several repair people and individuals in and

out of the Property to perform several repairs , including but not limited to re -keying the locks.”

Their reply brief posits that one of those repair persons could have view ed or transmitted the

images, or plugged the security system into a downstairs router, and somehow downloaded images.

While we accord the non-movant to summary judgment every fair inference from the evidence,

Sage , 465 S.W.3d at 402, the Parrys simply ask too much from this evidence. Any repair person

in the house while they were the leaseholders, would be subject to the Parrys oversight. Nothing

in the declaration suggests any of the repairpersons we nt into the attic, or that the Parrys had an

operational router connected to the internet, or if that they did, that any repairperson had access to

it. Nor does the declaration explain how the repairperson

— such as the locksmith —would have

known there was salacious video on the hard drive in the attic. In sum, there is simply no evidence

that any images were transmitted outside the house. See Wal

- Mart Stores, Inc. v. Gonzalez , 968

S.W.2d 934, 936 (Tex. 1998) (“ [M] eager circumstantial evidence from which equally plausible

but opposite inferences may be drawn is speculative and thus legally insufficient to support a

finding.” ); Browning- Ferris, Inc. v. Reyna , 865 S.W.2d 925, 928 (Tex.1993) (holding that a factual

finding must be supported by more than mere surmise or suspicion).

6 We note these excerpts from his deposition:

Q. And as

-- as we sit here today, you have no evidence that any of these images were ever

transmitted over the Internet. Correct?

A. I have no evidence of that.

. . .

Q. Have you

-- has anyone ever told you, approached you, or have you ever come across anything

on the Internet that would be an image, whether an image or video recording, of

-- of what you

claim to have found on that hard drive?

A. No. That was one of my goals in disconnecting that device and removing it.14 Without an actual release of any of the images to a third party, the Parrys are left with only

the argument that they feared that a release might have occurred. 7 As they argue in their Reply

Brief, “ In the age of the internet, wireless internet, remote access

, and hacking, the instant reaction

is: A video of me or my daughters, in the nude, is now on the internet or being remotely viewed. ”

Reply Brief at 23. 8 But Likes and Temple Inland foreclose that argument. The plaintiff in Likes

also based her mental anguish claim on the fear that the City ’ s failure to manage flood waters

would make her insecure during future rainfalls. The court dispensed with that claim because “ [i] t

has been established for over a century that ‘ [a] person who is placed in peril by the negligence of

another, but who escapes without injury, may not recover damages simply because he has been

placed in a perilous position. Nor is mere fright the subject of damages. ’” Likes

, 962 S.W.2d at

500

, quoting Gulf, C. & S.F. Ry. Co. v. Trott

, 25 S.W. 419, 420 (Tex. 1894)

. And also to the point,

Temple

- Inland rejected a mental anguish claim based on the fear of contracting cancer, where a

plaintiff inhaled a carcinogenic substance, but otherwise had no personal injury claim. Temple

Inland

, 993 S.W.2d at 91

. The Parrys ’ fear that visual images on a hard drive located in a premises

that they controlled, with no apparent link to the outside world, is not th e “ disturbing and shocking ”

sort of claim that allows for mental anguish damages.

7 We draw a sharp distinction from the fact s here, to those where an improper recording of a person in their home is

shared outside the house. In Doty v. ADT, LLC , for ins t ance, the court entertained a claim filed by a homeowner against

ADT, a home security company. No. 20

- 60972

- CIV

- SINGHAL , 2020 WL 9071421, at *5

– 6 (S.D. Fla. Dec. 30, 2020)

(applying Texas law) . One of ADT ’ s employees obtained the passwords and downloaded videos from an ADT home

security system without the permission of the homeowner. The court declined to dismiss one count of that suit based

on a Likes rationale. That set of facts is not before us, an d we express no opinion on how Likes might apply to that

situation. We also emphasize that there is no allegation or proof that either defendant left operat ional video cameras

in the home with the intent to re

- enter the house once the Parrys left to retrieve any recordings.

8 This precise statement was made in response to Team Tuttle ’ s argument that it owed no duty to the Parrys because

the video system, wit hout a link to the outside world, was not an “ unreasonably dangerous ” condition, which is one

element for a premises liability claim. W e decline to reach that duty issue , as the question of what damages might be

recoverable assuming a duty exists, is the n arrower question

. See VanDevender v. Woods , 222 S.W.3d 430, 433

(Tex. 2007) ( “ [T] he cardinal principle of judicial restraint

— if it is not necessary to decide more, it is necessary not to

decide more [.] ” )

, quoting PDK Labs., Inc. v. U.S. Drug Enf ’ t Admin.

, 362 F.3d 786, 799 (D.C. Cir

. 2004) (Roberts,

J., concurring).15 We note one other factor from the framework set out in Likes

. Part of the court ’ s rationale

for declining to permit mental anguish damages for the loss of persona l property is that the law

already allows a recovery for the full value of the personal property. Likes

, 962 S.W.2d at 497

.

And here, the law already allows for recovery for the intentional tort of invasion of privacy

. See

Billings v. Atkinson

, 489 S.W.2d 858, 860

- 61 (Tex. 1973) (allowing d amages for mental suffering

without the need to show actual physical injury in a case of “ willful invasion of the right of

privacy ” ) ; Valenzuela v. Aquino

, 853 S.W.2d 512, 513 (Tex. 1993) (defining elements of claim to

include “ (1) an intentional intrusion, physically or otherwise, upon another ’ s solitude, seclusion,

or private affairs or concerns, which (2) would be highly offensive to a reasonable person ” ). Or, a

plaintiff may seek mental anguish damages (without a physical injury) for the intentional infliction

of emotional distress. Twyman v. Twyman

, 855 S.W.2d 619, 620 (Tex. 1993) ( expressly adopt ing

the tort of intentional infliction of emotional distress ); Boyles

, 855 S.W.2d at 603 ( remanding case

in the interest of justice so plaintiff might pursue the newly adopted intentional infliction of

emotional distress cause of actions )

. Finally, we note that the legislature has criminalized the

photography and transmissions of images created by surreptitiously placed devices in a home,

bathroom, or changing room

. T EX .P ENAL C ODE A NN

. § 21.15 ( b)(1); Ex parte Metzger

, 610

S.W.3d at 104

- 0 6 ( upholding constitutionality of statute). We view these other avenues of relief

and enforcement as a hedge against those who might intentionally seek to improperly record others

in the privacy of the home.



### I V

. C ONCLUSION

The Parrys ’ only element of a pleaded for and evidenced damages

, is mental anguish. W e

conclude, however, that mental anguish damages are not a recognized element for the unauthorized

recording of a person in their home where : (1) the allegation is base d on negligent, and not16 intentional conduct; (2) the negligence duty arises, if at all, from the owner/occupier ’ s obligations

under premises liability law to a tenant; (3) no evidence supports that the unauthorized recordings

were ever released beyond the plaintiff ’ s possession and control; and (4) the claim involves no

other damage claim, such as a serious personal injury. With these important limitations, we

overrule the Parrys ’ Issue s One and Two, and affirm the trial court ’ s judgment below.

JEFF ALLEY, Justice

November 16, 2022

Before Rodriguez, C.J., Palafox, and Alley, JJ.