## Facts

- Fidelity Mutual Life Insurance Company (“Fidelity”) leased office space in an office building to Dr. Robert P. Kaminsky, M.D., P.A. (“Kaminsky”), a gynecologist whose practice included performing abortions.
- The lease was executed in May 1983 for a two-year term beginning June 1, 1983, and required the premises be used solely as “an office for the practice of medicine.”
- The lease included an express covenant of quiet enjoyment, conditioned on the tenant paying rent when due.
- The lease also required Fidelity to provide security service on Saturdays.
- Beginning in June 1984, anti-abortion protesters began picketing at and inside the building, most often on Saturdays, when Kaminsky generally scheduled abortions.
- As the protests continued, protesters entered the building, occupied the stairs leading to Kaminsky’s office, and blocked or impeded patients from entering.
- Kaminsky repeatedly complained to Fidelity through its managing agents and requested action to stop the interference and maintain patient access.
- Fidelity did not provide the Saturday security required by the lease.
- Fidelity’s attorneys instructed its managing agents to distribute notices demanding that protesters leave, but the agents did not actually distribute the notices.
- Fidelity’s response, through its agents, was essentially limited to acknowledging awareness of the problem.
- When Kaminsky sought assistance from the sheriff’s department, officers refused to ask the protesters to leave unless Fidelity or its agents directed them to do so.
- Kaminsky paid rent through November 1984, then abandoned the premises on or about December 3, 1984, and ceased paying rent.
- Fidelity sued to recover the remaining rent due under the lease; Kaminsky defended on the ground that Fidelity’s breach of the covenant of quiet enjoyment amounted to constructive eviction.
- The jury found in Kaminsky’s favor, and the trial court rendered judgment that Fidelity take nothing. Fidelity appealed.

## Issues

1. Whether legally and factually sufficient evidence supported a finding that Fidelity’s failure to act (including failing to provide contract-required Saturday security) materially interfered with Kaminsky’s beneficial use of the premises, constituting constructive eviction.
2. Whether interference largely caused by third-party protesters can be treated as a breach by the landlord when the landlord controls the common areas where the interference occurred and fails to respond after notice.
3. Whether the evidence supported the “permanent deprivation” and timely abandonment components required to relieve a tenant from further rent based on constructive eviction.

## Decision

- The Court of Appeals of Texas (First District, Houston) affirmed the take-nothing judgment for Kaminsky.
- The court held the evidence was legally and factually sufficient for the jury to find that Fidelity breached the express covenant of quiet enjoyment and constructively evicted Kaminsky.
- The court rejected Fidelity’s argument that the protesters alone caused the interference, concluding the jury could attribute the deprivation to Fidelity’s omissions in areas under Fidelity’s control and in light of Fidelity’s contractual security obligation.
- The court also held the evidence supported findings that Kaminsky was effectively deprived of the beneficial use of the premises for the leased purpose and that he abandoned within a reasonable time after Fidelity failed to remedy the problem.

## Legal Principles

- Constructive eviction occurs when a tenant leaves leased premises due to the landlord’s conduct (including a significant omission) that materially interferes with the tenant’s beneficial use of the premises.
- To be relieved of future rent based on constructive eviction, a tenant must show: (1) a material act or omission by the landlord that substantially interferes with the tenant’s use and enjoyment for the leased purpose, (2) deprivation of that beneficial use in a practical, continuing sense, and (3) abandonment within a reasonable time after the interference.
- A landlord may be responsible for serious interference by third parties when the interference occurs in common areas under the landlord’s control and the landlord, after notice, fails to take reasonable steps that are within its power.
- When a lease expressly requires the landlord to provide security (here, Saturday security), the landlord’s failure to provide it can support a finding that the landlord materially contributed to the loss of quiet enjoyment.
- “Permanent deprivation” is evaluated by practical effect on the tenant’s ability to use the premises for the leased purpose, not only by physical expulsion or a single isolated incident.

## Conclusion

The court affirmed that Kaminsky could treat the lease as terminated because Fidelity’s repeated inaction—especially its failure to provide promised Saturday security and to take effective steps in common areas under its control—allowed targeted protests to block and deter patients, materially interfering with the medical-office use contemplated by the lease and supporting a jury finding of constructive eviction that excused rent after Kaminsky’s timely abandonment.


Fidelity Mutual Life Insurance Co. v. Kaminsky, 768 S.W.2d 818 (1989)