Defendants have filed a petition for review in this case charging several factual misstatements. We have reexamined each of the claimed misstatements. Without detailing them, we conclude that defendant’s objections are without any real substance. When the smoke is cleared away we are still left with an equal split in the еvidence and testimony as to whether a settlement ever occurred.
Defendant raises one point that merits discussion, and that is the contention that we erred in remanding the case to circuit court for trial of plаintiffs claim for breach of the covenant of quiet enjoyment because plaintiff failed to allege facts sufficient to constitute a cause of action. The allegation of plaintiffs complaint in question reads:
"Defendants have harassed, annoyed and interfered with plaintiff in the conduct of its lumber business on the leasеd premises by asserting groundless claims against plaintiff and by the filing of groundless and vexatious litigation to evict plaintiff * * *.”
Defendant’s sole argument on this point is that the filing of the FED action in the spring of 1975 did not amount to a breach of the covenant of quiet enjoyment.
The general rule is that the mere commencement of an action to evict does not constitute a breach of that covenant, Restatement (Second), Property, §4.3 (d) (1977); Annotatiоn, 41 ALR2d 1414, 1433 (1955), at least in the absence of some showing that the lawsuit was groundless and maliciously brought.
See Roseneau Foods, Inc., v. Coleman,
*210 We also held that plaintiff was entitlеd on remand to present evidence on its cause of action for breach of the covenant of quiet enjoyment because it had been misled into failing to present such evidence at trial. It may be that othеr litigation to evict plaintiff was brought by defendants, although the record fails to disclose such a fact as we would expect it might, given the mention by plaintiff’s president of the second FED action filed after the complaint. In any event, plaintiff will have an opportunity to establish that fact because we conclude that the cаse was properly remanded.
Defendants do not address the second aspect of plaintiff’s allegаtion — that that the defendants asserted groundless claims which interfered with the conduct of plaintiff’s lumber business. Generally, a claim for breach of quiet enjoyment is predicated on the actual or constructive eviction 1 of the tenant evidenced by abandonment of the premises. 49 Am Jur2d, Landlord and Tenant §333, at 347 (1970). Some courts require actual dispossession before a quiet enjoyment action will lie. Annotation, 41 ALR2d 1414, 1424 (1955). More recent authorities tаke the view, however, that a tenant may elect to remain in possession and sue for damages. In Guntert v. City of Stockton, 55 Cal Apр 3d 131, 126 Cal Rptr 690, 127 Cal Rptr 602 (1976), the court held a tenant entitled to recover where it was shown that the city arbitrarily gave thе tenant, a manufacturer of barges, a notice to quit pursuant to a lease clause which permitted termination if the city obtained a bona fide offer to develop the site upon which plaintiff’s operation was located. Plaintiff was able to show that the termination notice caused uncertainty about prosрects of retaining the leasehold, which prevented plaintiff from bidding on certain contracts and resulted in substantial loss of profits.
*211
Without a record on the matter, we have no way of knowing what "groundless claims” plaintiff refеrs to in its complaint or how assertion of such claims has disrupted plaintiffs business. It is clear from the record, howеver, that plaintiff has remained in possession of the property since the inception of the leasе. Absent Oregon authority requiring eviction, actual or constructive, as a pre-requisite to the right to sue for breаch of quiet enjoyment, we hesitate to hold, as a matter of law, that plaintiff could prove no facts under its allegation which would demonstrate a substantial interference with the peaceful enjoyment of plаintiffs leasehold. It is clear that the disruption plaintiff complains of must amount to more than emotional distress of plaintiffs officers and employes.
2
Brewer v. Erwin,
Reconsideration allowed; former opinion adhered to.
Notes
In
Perrigo et al. v. Boehm et al.,
There is some suggestion in the record that plaintiffs efforts to settle the FED action were occasioned by its attempt to ease the strain on the president of its lumber operation, who was having heart problems.