Fidelity Mut. Life Ins. Co. v. Robert P. Kaminsky, M.D., P.A.

• Decision Date: 23 February 1989
• Docket Number: No. B14-88-188-CV,B14-88-188-CV
• Citation: 768 S.W.2d 818
• Parties: FIDELITY MUTUAL LIFE INSURANCE COMPANY, Appellant, v. ROBERT P. KAMINSKY, M.D., P.A., Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 818

768 S.W.2d 818

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

No. B14-88-188-CV.

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

Feb. 23, 1989.

Wesley S. Caddou, Houston, for appellant.

Michael Maness, Houston, for appellee.

Before MURPHY, ROBERTSON and SEARS, JJ.

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 Horne 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. Kaminsky'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. Kaminsky'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.--San 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. 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. 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 results 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 preserved ¹ 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...