Property II, Pages 442–446

Fidelity Mutual Life Ins. Co. v. Kaminsky

Court of Appeals of Texas, 1989


Defendant was an abortion doctor who rented a space in plaintiff's building. Anti-abortion protesters picketed outside the office until defendant left. Defendant then refused to pay rent, claiming that plaintiff breached a covenant of quiet enjoyment, constructively evicting him. Plaintiff sues to collect the delinquent rent.

Procedural History:

Jury found for defendant on each element of constructive eviction, and trial court entered judgment that plaintiff take nothing in its suit for rent.


Did plaintiff constructively evict defendant?

Plaintiff's Argument:

Plaintiff did not constructively evict defendant because it had nothing to do with the protesters that caused him to leave. Plaintiff even tried to get them to stop. The protesters also never injured defendant or any of his patients.


LexisNexis IconWestLaw LogoGoogle Scholar LogoPage 443, Top

In order to prevail on his claim that Fidelity constructively evicted him and thereby relieved him of his rent obligation, Dr. Kaminsky had to show the following:

  1. Fidelity intended that he no longer enjoy the premises, which intent the trier of fact could infer from the circumstances;
  2. Fidelity, or those acting for Fidelity or with its permission, committed a material act or omission which substantially interfered with use and enjoyment of the premises for their leased purpose, here an office for the practice of medicine;
  3. Fidelity's act or omission permanently deprived Dr. Kaminsky of the use and enjoyment of the premises; and
  4. Dr. Kaminsky abandoned the premises within a reasonable period of time after the act or omission.


  • Plaintiff agreed to provide security for defendant on Saturdays, when he did his business, but did not. Plaintiff just wrote the activists letters, telling them not to trespass. Defendant could not even get the Sheriff's office to eject them without the permission of plaintiff, who could not be contacted. The general rule that a plaintiff has to do something to constructively evict someone only applies when he doesn't let a third-party do so.

  1. Plaintiff trying a little to stop the protesters and not supporting them at all is not enough to make it "manifestly unjust" that the jury decided that plaintiff intended this anyway.
  2. Again, plaintiff did not do much to stop the protesters, so this substantially interfered with defendant's use and enjoyment.
  3. A person's use and enjoyment can be permanently deprived by different degrees. The jury's finding that defendant was permanently deprived was not so against the evidence as to be "manifestly unjust."


Yes, not taking stronger actions against the protesters constructively evicted defendant. Affirmed.