Parry v. Shaffer

656 S.W.3d 660

Beau PARRY, Individually and as Next Friend to his Minor Daughters, Appellant,

v.Jason A. SHAFFER, Vaneza R. Shaffer, and Team Tuttle, Inc. d/b/a Legacy Real Estate Services, Appellees.

No. 08-21-00094-CV

Court of Appeals of Texas, El Paso.

November 16, 2022

ATTORNEY FOR APPELLANT: James Feuille, Scott Hulse P.C., 201 East Main Dr. 1100 Chase Tower, El Paso, TX 79999-9123.

ATTORNEY FOR APPELLEE: Gregory R. Ave., Walters, Balido & Crain, L.L.P., Meadow Park Tower, 15th Floor, 10440 North Central Expressway, Dallas, TX 75231, Ken Slavin, Kemp Smith, 221 N. Kansas, Suite 1700, El Paso, TX 79901.

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

OPINION

JEFF ALLEY, Justice

In City of Tyler v. Likes¹ 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 were 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 dealing with the intentional tort of invasion of privacy, nor a claim by one household member who surveils someone else in the house. Based on 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, we affirm the trial court's grant of the summary judgment motions below.

I. BACKGROUND

A. Factual Background²

Jason and Vaneza Shaffer (the Shaffers) purchased and lived for a time in a residential property in El Paso, Texas. For 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 looked 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 recorded 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. Without an internet connection, the only way to access the recordings was through the hard drive in the attic of the home.

In March 2017, the Shaffers vacated the house intending to sell it. When they did so, they terminated the internet service to the home and believed that they unplugged the security system. Mr. Shaffer admits, 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, the 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. The walkthrough process for new properties adheres to Team Tuttle's policy to identify needed repairs and ensures 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. Some testimony supports the proposition 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 the 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 Parrys 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 Shaffers’ 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 Parrys) sued the Shaffers and Team Tuttle. Their 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, the Parrys sought damages for severe emotional pain and mental anguish along 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 the [Parrys], viewed any alleged video recording of the [Parrys], or that any alleged video recording of the [Parrys] was transmitted out of the home." As for the negligence claim, the Shaffers contended that any duty of care arose under premises liability law, and as such, the Parrys had no evidence that the Shaffers controlled the property, owed any duties to the Parrys, 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 distress claims. They also filed responses to both the Shaffers’ and Team Tuttle's motions for summary judgment which included: (1) the depositions 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 leased premises.⁴ The Parrys argued that the Shaffers knew of the system because they 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 declaration states 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

...