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Fidelity Mutual Life Insurance Co. v. Kaminsky

Texas Court of Appeals
768 S.W.2d 818 (1989)



Dr. Robert Kaminsky (defendant), a gynecologist whose practice included performing abortions, leased office space from Fidelity Mutual Life Insurance Company (Fidelity) (plaintiff). The lease was executed in May 1983 and contained an express covenant of Dr. Kaminsky’s quiet enjoyment of the leased premises, conditioned on Dr. Kaminsky’s paying rent when due. The lease also required Fidelity to provide security service on Saturdays. In June 1984, anti-abortion protesters began picketing at the office building. Most of the protests were on Saturdays, when Dr. Kaminsky generally scheduled abortions. The protesters repeated and intensified their protests, often entering the building, occupying the stairs leading to Dr. Kaminsky’s office, and blocking patients from entering. Dr. Kaminsky complained to Fidelity through its managing agents. Fidelity and its agents provided no security. While Fidelity’s attorneys instructed its agents to distribute notices to the protesters, demanding that the protesters leave, its agents did not actually distribute those notices. Fidelity’s only response to the protesters was to state, through its agents, that it was aware of the issue. When Dr. Kaminsky sought help from the sheriff’s department, law enforcement officers refused to ask the protesters to leave, unless Fidelity or its agents gave directions to do so. Dr. Kaminsky abandoned the premises on or about December 3, 1984 and ceased to pay rent. Fidelity sued for the balance due under the lease. Dr. Kaminsky argued Fidelity had constructively evicted him, and the jury found in Dr. Kaminsky’s favor. Fidelity appealed, arguing that the protesters, rather than Fidelity, had caused Dr. Kaminsky to abandon the premises and that Dr. Kaminsky was not permanently deprived of the use and enjoyment of the premises.

Rule of Law


Holding and Reasoning (Murphy, J.)

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