Fidelity Mutual Life Insurance Company v. Kaminsky

768 S.W.2d 818 (1980)

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Nature of the Case

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Facts

D is a gynecologist whose practice includes performing elective abortions. D executed a lease contract with P for a two-year term. The terms of the lease required D to use the rented space solely as 'an office for the practice of medicine.' Paragraph 35 of the lease contains an express covenant of quiet enjoyment conditioned on D's paying rent when due. Abortion protestors began to picket and protest around the building. The protests took place chiefly on Saturdays, the day D 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 D of 'killing babies.' As the protests increased, the demonstrators often occupied the stairs leading to the office and prevented patients from entering the office by blocking the doorway. Occasionally they succeeded in gaining access to the office waiting room area. D complained, and there was virtually no response by P. Agents were instructed to notice the protestors to leave, but that was never done. From D’s request, the sheriff refused to ask the protestors to leave unless P or its agents directed the sheriff to act. D abandoned the premises and refused to pay any additional rent. P sued D for the rent due. The jury found for D in that P had constructively evicted D. P appealed claiming that the protestors were responsible for the constructive eviction. P claimed that D was not permanently deprived or the use and enjoyment of the office.