Fidelity Mutual Life Insurance Co. v. Kaminsky

Court of Appeals of Texas, Houston (14th Dist.).

No. B14-88-188-CV.

FIDELITY MUTUAL LIFE INSURANCE COMPANY, Appellant, v. ROBERT P. KAMINSKY, M.D., P.A., Appellee.

Feb. 23, 1989.

Before MURPHY, ROBERTSON and SEARS, JJ.

Wesley S. Caddou, Houston, for appel­lant.

Michael Maness, Houston, for appellee.

OPINION

MURPHY, Justice.

The issue in this landlord-tenant case is whether sufficient evidence supports the jury’s findings that the landlord and appel­lant, Fidelity Mutual Life Insurance Com­pany [“Fidelity”], constructively evicted the tenant, Robert P. Kaminsky, M.D., P.A. [“Dr. Kaminsky”] by breaching the express covenant of quiet enjoyment contained in the parties’ lease. We affirm.

Dr. Kaminsky is a gynecologist whose practice includes performing elective abor­tions. In May 1983, he executed a lease contract for the rental of approximately 2,861 square feet in the Red Oak Atrium Building for a two year term which began on June 1, 1983. The terms of the lease required Dr. Kaminsky to use the rented space solely as “an office for the practice of medicine.” Fidelity owns the building and hires local companies to manage it. At some time during the lease term, Shelter Commercial Properties [“Shelter”] replaced the Home Company as managing agents. Fidelity has not disputed either manage­ment company’s capacity to act as its agent.

The parties agree that: (1) they executed a valid lease agreement; (2) Paragraph 35 of the lease contains an express covenant of quiet enjoyment conditioned on Dr. Ka-­minsky’s paying rent when due, as he did through November 1984; Dr, Kaminsky abandoned the leased premises on or about December 3, 1984 and refused to pay addi­tional rent; anti-abortion protestors began picketing at the building in June of 1984 and repeated and increased their demon­strations outside and inside the building until Dr. Kaminsky abandoned the premis­es.

When Fidelity sued for the balance due under the lease contract following Dr. Ka-­minsky’s abandonment of the premises, he claimed that Fidelity constructively evicted him by breaching Paragraph 35 of the lease. Fidelity apparently conceded during trial that sufficient proof of the construc­tive eviction of Dr. Kaminsky would relieve him of his contractual liability for any re­maining rent payments. Accordingly, he assumed the burden of proof and the sole issue submitted to the jury was whether Fidelity breached Paragraph 35 of the lease, which reads as follows:

Quiet Enjoyment.

Lessee, on paying the said Rent, and any Additional Rental, shall and may peace­ably and quietly have, hold and enjoy the Leased Premises for the said term.

A constructive eviction occurs when the tenant leaves the leased premises due to conduct by the landlord which mate­rially interferes with the tenant’s beneficial use of the premises. See Downtown Real­ty, Inc. v. 509 Tremont Bldg., 748 S.W.2d 309, 313 (Tex.App.—Houston [14th Dist.] 1988, n.w.h.); McNabb v. Taylor Oil Field Rental Co., 428 S.W.2d 714, 716 (Tex.Civ.­App.—Ban Antonio 1968, writ ref d n.r.e.). Texas law relieves the tenant of contractu­al liability for any remaining rentals due under the lease if he can establish a con­structive eviction by the landlord. Down­town Realty, Inc., 748 S.W.2d at 312; Ravkind v. Jones Apothecary, Inc., 439 S.W.2d 470, 471 (Tex.Civ.App.—Houston [1st Dist] 1969, writ ref’d n.r.e.).

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. Kamin-­sky 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. E.g., Downtown Realty, Inc., 748 S.W.2d at 311; Metroplex Glass Center, Inc. v. Vantage Properties, Inc., 646 S.W.2d 263, 265 (Tex.App.—Dal­las 1983, writ ref’d n.r.e.); Steinberg v. Medical Equip. Rental Serv., Inc., 505 S.W.2d 692, 696-97 (Tex.App.—Dallas 1974, no writ); Ravkind, 439 S.W.2d at 472; Richker v. Georgandis, 323 S.W.2d 90, 95-96 (Tex.Civ.App.—Houston 1959, writ ref’d n.r.e.); Stillman v. Youmans, 266 S.W.2d 913 (Tex.Civ.App. — Galveston 1954, no writ).

During oral submission of this case, Fi­delity conceded it did not object to an in­struction or the four special issues which tracked the foregoing elements. By an­swering each special issue affirmatively, the jury found that Dr. Kaminsky had es­tablished each element of his constructive eviction defense. The trial court entered judgment that Fidelity take nothing on its suit for delinquent rent.

Fidelity raises four points of error. Each recites that the trial court erred by denying Fidelity’s Motion for Judgment Non Obstante Veredicto or to Disregard Jury Findings. Each claims, in the alterna­tive, that the evidence is factually insuffi­cient to support the jury’s verdict and that the trial court therefore erred by denying Fidelity’s motion for a new trial. Tex.R. App.P. 74(d) permits combining these con­tentions in a single point of error and Tex. R.App.P. 74(p) requires us to construe briefing rules liberally. Nonetheless, this court determines whether a point chal­lenges the legal or factual sufficiency of the evidence, or both, by analyzing both the wording of the point and the record refer­ences and argument under the point. Tex.­R.App.P. 74(d); accord, Pool v. Ford Motor Co., 715 S.W.2d 629, 633 (Tex.1986) (opinion on motion for rehearing), quoting Holley v. Watts, 629 S.W.2d 694, 696 (Tex.1982) (fac­tual sufficiency); O’Neil v. Mack Trucks, Inc., 542 S.W.2d 112, 114 (Tex.1976), opin­ion reissued, 551 S.W.2d 32 (Tex.1977) (le­gal sufficiency). The test is whether the point, record references and argument suf­ficiently direct our attention to the nature of the complaint made. Tex.R.App.P. 74(d).

Fidelity’s first point of error relies on Angelo v. Deutser, 30 S.W.2d 707 (Tex.Civ.­App.—Beaumont 1930, no writ), Thomas v. Brin, 38 Tex.Civ.App. 180, 85 S.W. 842 (1905, no writ) and Sedberry v. Verplanck, 31 S.W. 242 (Tex.Civ.App.1895, no writ). These cases all state the general proposi­tion that a tenant cannot complain that the landlord constructively evicted him and breached a covenant of quiet enjoyment, express or implied, when the eviction re-­suits from the actions of third parties act­ing without the landlord’s authority or per­mission. Fidelity insists the evidence con­clusively establishes: a) that it did nothing to encourage or sponsor the protestors and; b) that the protestors, rather than Fidelity or its agents, caused Dr. Kaminsky to abandon the premises. Fidelity concludes that reversible error resulted because the trial court refused to set aside the jury’s answers to the special issues and enter judgment in Fidelity’s favor and because the trial court denied its motion for a new trial. We disagree.

Although this point of error appears to challenge both the legal and factual suffi­ciency of the evidence, we have construed it as raising only a “no evidence” or legal sufficiency challenge for two reasons. First, Fidelity relies on record references to “undisputed” evidence and bases its argu­ments on “established” rules of law. After reviewing Fidelity’s oral and written argu­ments and its references to the record, we conclude that Fidelity essentially disputes the legal sufficiency of the evidence to show that its own conduct constructively evicted Dr. Kaminsky. This involves only a question of law in the instant case and thereby fails to raise a factual sufficiency challenge. See Pool, 715 S.W.2d at 633; Holley, 629 S.W.2d at 696. In addition, a properly preserved1 complaint of the denial of a motion for judgment non obstante veredicto traditionally raises only a “no evidence” challenge. E.g., Northwest Mall, Inc. v. Lubri-Lon Int'l, 681 S.W.2d 797 (Tex.App.-Houston [14th Dist.] 1984, writ ref’d n.r.e.).

Accordingly, this court must ap­ply the following standard of review: we will consider only the evidence, and reason­able inferences drawn from that evidence, which supports the jury’s verdict and must disregard all contrary evidence and infer­ences. Sherman v. First Nat’l Bank, 760 S.W.2d 240, 241 (Tex.1988); Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex.1987); King v. Bauer, 688 S.W.2d 845, 846 (Tex.­1985); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). This court must sustain a legal sufficiency point of error when the record discloses that: 1) the evidence con­clusively establishes the opposite of a vital fact; 2) there is complete absence of evi­dence of a vital fact; 3) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; or 4) there is no more than a scintilla of evidence to prove a vital fact. Blevco Energy, Inc. v. Getty Oil Co., 32 Tex.Sup.Ct.J. 96, 96 (Dec. 7, 1988), citing Calvert, No Evidence and Insufficient Ev­idence Points of Error, 38 Tex.L.Rev. 361 (1960). But when more than a scintilla of evidence supports the jury’s findings, we have no choice but to overrule a “no evi­dence” point of error. Sherman, 760 S.W.­2d at 242; Stafford, 726 S.W.2d at 16; see In re King’s Estate, 150 Tex. 662, 664, 244 S.W.2d 660, 661 (1951). After applying this standard of review we conclude the evi­dence is legally sufficient to support the jury’s findings.

The protests took place chiefly on Satur­days, the day Dr. Kaminsky generally scheduled abortions. During the protests, the singing and chanting demonstrators picketed in the building’s parking lot and inner lobby and atrium area. They ap­proached patients to speak to them, distrib­uted literature, discouraged patients from entering the building and often accused Dr. Kaminsky of “killing babies.” As the pro­tests increased, the demonstrators often occupied the stairs leading to Dr. Kamin-­sky’s office and prevented patients from entering the office by blocking the door­way. Occasionally they succeeded in gain­ing access to the office waiting room area.

Dr. Kaminsky complained to Fidelity through its managing agents and asked for help in keeping the protestors away, but became increasingly frustrated by a lack of response to his requests. ’ The record shows that no security personnel were present on Saturdays to exclude protestors from the building, although the lease re­quired Fidelity to provide security service on Saturdays. The record also shows that Fidelity’s attorneys prepared a written statement to be handed to the protestors soon after Fidelity hired Shelter as its man­aging agent. The statement tracked Tex. Penal Code Ann. § 30.05 (Vernon Supp. 1989) and generally served to inform tres­passers that they risked criminal prosecu­tion by failing to leave if asked to do so. Fidelity’s attorneys instructed Shelter’s representative to “have several of these letters printed up and be ready to distrib­ute them and verbally demand that these people move on and off the property.” The same representative conceded at trial that she did not distribute these notices. Yet when Dr. Kaminsky enlisted the aid of the Sheriff’s office, officers refused to ask the protestors to leave without a directive from Fidelity or its agent. Indeed, an attorney had instructed the protestors to remain un­less the landlord or its representative or­dered them to leave. It appears that Fidel­ity’s only response to the demonstrators was to state, through its agents, that it was aware of Dr. Kaminsky’s problems.

Both action and lack of action can constitute “conduct” by the landlord which amounts to a constructive eviction. E.g., Downtown Realty Inc., 748 S.W.2d at 311; 49 TEX.JuR.3d Landlord & Tenant § 288. In Steinberg v. Medical Equip. Rental Serv., Inc., 505 S.W.2d 692 (Tex.Civ.App.—­Dallas 1974, no writ) accordingly, the court upheld a jury’s determination that the land­lord’s failure to act amounted to a con­structive eviction and breach of the cove­nant of quiet enjoyment. 505 S.W.2d at 697. Like Dr. Kaminsky, the tenant in Steinberg abandoned the leased premises and refused to pay additional rent after repeatedly complaining to the landlord. The Steinberg tenant complained that Steinberg placed trash bins near the en­trance to the business and allowed trucks to park and block customer’s access to the tenant’s medical equipment rental business. The tenant’s repeated complaints to Stein-­berg yielded only a request “to be patient.” Id. Fidelity responded to Dr. Kaminsky’s complaints in a similar manner: although it acknowledged his problems with the pro­testors, Fidelity, like Steinberg, effectively did nothing to prevent the problems.

This case shows ample instances of Fidelity’s failure to act in the fact of re­peated requests for assistance despite its having expressly covenanted Dr. Kamin-­sky’s quiet enjoyment of the premises. These instances provided a legally suffi­cient basis for the jury to conclude that Dr. Kaminsky abandoned the leased premises, not because of the trespassing protestors, but because of Fidelity’s lack of response to his complaints about the protestors. Un­der the circumstances, while it is undisput­ed that Fidelity did not “encourage” the demonstrators, its conduct essentially al­lowed'them to continue to trespass. The general rule of the Angelo, Thomas and Sedberry cases, that a landlord is not re­sponsible for the actions of third parties, applies only when the landlord does not permit the third party to act. See e.g., Angelo, 30 S.W.2d at 710 [“the act or omis­sion complained of must be that of the landlord and not merely of a third person acting without his authority or permis­sion ” (emphasis added) ]. We see no dis­tinction between Fidelity’s lack of action here, which the record shows resulted in preventing patients’ access to Dr. Kamin-­sky’s medical office, and the Steinberg case where the landlord’s inaction resulted in trucks’ blocking customer access to the tenant’s business. We overrule the first point of error.

Fidelity’s remaining three points of er­ror, which it has grouped for purposes of discussion, also combine challenges to the legal and factual sufficiency of the evi­dence. Here its arguments and record ref­erences, as well as its arguments during oral submission, show that it has chal­lenged the factual sufficiency of the evi­dence to support the jury’s answers to three of the four special issues. See Pool, 715 S.W.2d at 633. We review questions of factual sufficiency by analyzing all the evi­dence, both supporting and conflicting, to determine whether a finding by the jury is against the great weight and preponder­ance of the evidence. Lofton v. Texas Brine Corp., 720 S.W.2d 804, 805 (Tex.­1986); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). We have no author­ity to set aside a jury’s finding unless it is so contrary to the overwhelming weight of the evidence that it is clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986); In re King’s Estate, 150 Tex. at 666, 244 S.W.2d at 662. In applying this standard of review, we must be mindful that only the jury may determine the credi­bility of the witnesses and the weight to accord their testimony. Rego v. Brannon, 682 S.W.2d 677, 680 (Tex.App.—Houston [14th Dist.] 1984, writ ref’d n.r.e.).

The challenged special issues establish the first three elements of constructive eviction: intent; act or omission; and per­manent deprivation of the premises. In point of error two, Fidelity raises a two-­pronged challenge to the factual sufficien­cy of the evidence to show it intended that Dr. Kaminsky no longer enjoy the leased premises. Fidelity disputes the evidence of its wrongful intent on the grounds that it at least attempted to manage the protes­tors by drafting the letter threatening the protestors with trespass prosecutions and giving the letter to Dr. Kaminsky to dis­tribute. Fidelity also argues that Dr. Ka-­minsky acknowledged its lack of “encour­agement” or “sponsorship” of the protes­tors. As we have noted above, the jury was entitled to infer Fidelity’s intent from all the circumstances in this case. Down­town Realty, Inc., 748 S.W.2d at 311; Richker, 323 S.W.2d at 98; Stillman, 266 S.W.2d at 916. After reviewing all the evidence on the issue of Fidelity’s intent, we conclude that neither Fidelity’s having made some effort, nor its lack of sponsor­ship or encouragement of the protestors, renders the jury’s finding so against the great weight and preponderance of the evi­dence as to be manifestly unjust. Cain, 709 S.W.2d at 176; In re King’s Estate, 150 Tex. at 666, 244 S.W.2d at 662. We overrule the second point of error.

Fidelity’s third point of error disputes the factual sufficiency of the evidence to show that it committed a material act which substantially interfered with Dr. Ka-­minsky’s use and enjoyment of the premis­es. Here Fidelity essentially raises the same contention we disposed of in its first point of error: that the record unequivocal­ly establishes that Fidelity committed no act which would give rise to a constructive eviction because the protestors committed the acts which caused Dr. Kaminsky to leave. As we have already indicated, the landlord’s acts or omissions can form the basis of a constructive eviction. E.g., Steinberg, 505 S.W.2d at 697. Special Is­sue Number Two, to which Fidelity offered no objection, asked whether Fidelity “com­mitted a material act or omission if any, that substantially interfered with” Dr. Ka-­minsky’s use and enjoyment of the premis­es. Having reviewed all the evidence, both supporting and contrary to the jury’s af­firmative answer to Special Issue Number Two, we find no basis for Fidelity’s argu­ment that the finding was so against the great weight and preponderance of the evi­dence as to be manifestly unjust. Cain, 709 S.W.2d at 176; In re King’s Estate, 150 Tex. at 666, 244 S.W.2d at 662. We overrule the third point of error.

In its fourth point of error, Fidelity main­tains the evidence is factually insufficient to support the jury’s finding that its con­duct permanently deprived Dr. Kaminsky of use and enjoyment of the premises. Fi­delity essentially questions the permanency of Dr. Kaminsky’s being deprived of the use and enjoyment of the leased premises. To support its contentions, Fidelity points to testimony by Dr. Kaminsky in which he concedes that none of his patients were ever harmed and that protests and demon­strations continued despite his leaving the Red Oak Atrium building. Fidelity also disputes whether Dr. Kaminsky actually lost patients due to the protests.

The evidence shows that the protestors, whose entry into the building Fidelity failed to prohibit, often succeeded in block­ing Dr. Kaminsky’s patients’ access to his medical office. Under the reasoning of the Steinberg case, omissions by a landlord which result in patients’ lack of access to the office of a practicing physician would suffice to establish a permanent depriva­tion of the use and enjoyment of the prem­ises for their leased purpose, here “an of­fice for the practice of medicine.” Stein­berg, 505 S.W.2d at 697; accord, Down­town Realty, Inc., 748 S.W.2d at 312 (not­ing jury’s finding that a constructive evic­tion resulted from the commercial land­lord’s failure to repair a heating and air conditioning system in a rooming house).

Texas law has long recited the require­ment, first stated in Stillman, 266 S.W.2d at 916, that the landlord commit a “materi­al and permanent” act or omission in order for his tenant to claim a constructive evic­tion. However, as the Steinberg and Downtown Realty, Inc. cases illustrate, the extent to which a landlord’s acts or omissions permanently and materially de­prive a tenant of the use and enjoyment of the premises often involves a question of degree. Having reviewed all the evidence before the jury in this case, we cannot say that its finding that Fidelity’s conduct per­manently deprived Dr. Kaminsky of the use and enjoyment of his medical office space was so against the great weight and preponderance of the evidence as to be manifestly unjust. Cain, 709 S.W.2d at 176; In re King’s Estate, 150 Tex. at 666, 244 S.W.2d at 662. We overrule the fourth point of error.

We affirm the judgment of the trial court.

1

. Fidelity preserved its "no evidence" point in its Motion for Judgment Non Obstante Veredicto and To Set Aside the Jury’s Findings as well its Motion for a New Trial. See Aero Energy, Inc. v. Circle C Drilling Co., 699 S.W.2d 821, 822 (Tex.1985).