Sanders v. Brown, A02A1899.

• Decision Date: 23 September 2002
• Docket Number: No. A02A1899.,A02A1899.
• Citation: 571 S.E.2d 532,257 Ga. App. 566
• Parties: SANDERS v. BROWN.
• Court: Georgia Court of Appeals

571 S.E.2d 532

257 Ga. App. 566

SANDERS v. BROWN.

No. A02A1899.

Court of Appeals of Georgia.

September 23, 2002.

Donald L. Mize, Marietta, for appellant.

Moore, Ingram, Johnson & Steele, John H. Moore, Amy K. Weber, for appellee. ELDRIDGE, Judge.

James D. Sanders, plaintiff and defendant-in-counterclaim, appeals from the judgment entered against him on the jury verdict finding for the defendant, Laura Sanders Brown, his sister, on his complaint, on her counter claim for slander of title in the amount of $8,068.88, and on her claim for attorney fees and expenses of litigation in the amount of $37,794.20, and from the denial of his motion for new trial. Finding no merit to the appeal, we affirm.

In 1938, Sanders contended that Mrs. Effie Furr gave a bond for title for 50 acres to him; however, no bond for title was recorded or introduced in evidence. On October 31, 1942, Mrs. Furr conveyed by deed the 50 acres to Brown, reciting that the bond for title to Brown and Sanders was transferred and assigned to Brown; the Furr deed was never marked recorded. However, this deed appears as recorded on October 31, 1942, in Deed Book 149, page 402, Cobb County Records. On October 9, 1943, Brown deeded to Sanders ten acres of the Furr property in a sale, showing $1.10 in revenue stamps and reciting a purchase price of $1,000. In April 1962, Brown conveyed by sale an additional piece of the Furr property to Sanders. In March 2000, Brown contracted to sell 12.5 acres of the Furr property contingent upon rezoning the land commercial; on November 21, 2000, the rezoning was granted. Subsequently, Brown and her purchaser entered into a contract for four acres of the original 12.5 acres; neither contract closed, because of Sanders' claims.

In 1943 and again in 1962, Brown conveyed two separate parcels to Sanders; however, a 1962 survey plat, drawn by Aubrey Harris and filed at the same time as the last deed, showed a triangle of land of .0851 acres in Land Lots 765 and 790 as Sanders' land. On July 6, 1994, Brown erected a fence on this small disputed land, and Sanders sought an injunction against her. Brown answered and counterclaimed against Sanders for abusive litigation to such disputed property, after various amendments. On February 9, 1998, after many amendments, Sanders claimed that all the 50 acres of the Furr land was his and that Brown had obtained the deed fraudulently so that he equitably owned the 38.62 acres titled in Brown's name. By amendment, Sanders claimed the land in dispute by adverse possession. On May 7, 2001, by leave of court, Brown amended her counterclaim to assert a claim for slander of title for Sanders' claim to the 38.62 acres not titled in his name. No lis pendens was tendered into evidence.

From October 15 through 18, 2001, the jury heard the case and returned a verdict on the latter date. On October 22, 2001, judgment was entered. On January 16, 2002, the trial court heard Sanders' motion for new trial on general grounds, which was never amended to set forth any special grounds. On January 17, 2002, the trial court denied Sanders' motion for new trial on the general grounds.

Sanders contends that the trial court erred in denying his motion for a new trial. We do not agree.

Where the jury returns a verdict which the trial court enters as a judgment, the judgment must be affirmed on appeal if there is any evidence to support the verdict, because the jurors are the exclusive judges of the weight and credibility of the evidence; on motion for new trial, the appellate courts must construe the evidence with every inference and presumption in favor of the verdict and judgment and affirm if there is any evidence to support the verdict. Butts v. Williams, 247 Ga.App. 253-254, 543 S.E.2d 779 (2000).

Slander or libel of title to land is defined by OCGA § 51-9-11 as: "[t]he owner of any estate in lands may bring an action for libelous or slanderous words which falsely and maliciously impugn his title if any damage accrues to him therefrom." The essential elements of this tort are: (1) publication of slanderous or libelous words; (2) that they were malicious; (3) that the plaintiff sustained special damages thereby; and (4) that the plaintiff possessed an estate in the property slandered or libeled. Schoen v. Maryland Cas. Co., 147 Ga. 151, 153, 93 S.E. 82 (1917); Daniels v. Johnson, 191 Ga.App. 70, 73(2), 381 S.E.2d 87 (1989). An oral claim of ownership does not create a cloud on the title which can be removed by court decree; therefore, the remedy for such false claim which affects the title is an action for damages for slander or libel of title to such land. Weyman v. City of Atlanta, 122 Ga. 539, 542, 50 S.E. 492 (1905). Such cause of action accrues when the false, slanderous, and malicious words impugning the title of the person's land are first published, causing special damages. King v. Miller, 35 Ga.App. 427, 133 S.E. 302 (1926). The owner can recover in such action only such special damages as he actually sustained as a consequence of the wrongful acts, which damages must be pled and proven with particularity. Copeland v. Carpenter, 203 Ga. 18, 19-20(3), 45 S.E.2d 197 (1947). Costs of litigation and attorney fees arising from such action do not constitute the special damages necessary to support this action. Hicks v. McLain's Bldg. Materials, 209 Ga.App. 191, 192(1), 433 S.E.2d 114 (1993). However, where specific figures are proven that show special damages caused by a contractor's lien with reasonable certainty, which prevented further bank construction draws, delaying completion of the house and sale of the house—for example, interest attributable to the delay or increased rate of interest, increased construction cost from inflation, cost of a bond for the lien, or difference between the fair market value if completed on time and the actual fair market value on completion, or costs directly attributable to the delay—such constitute recoverable special damages. See generally Harmon v. Cunard, 190 Ga.App. 19, 20, 378 S.E.2d 351 (1989).

(a) Sanders contends that his filing a notice of lis pendens and the lawsuit came under privileged communications. OCGA § 51-5-8; Alcovy Properties v. MTW Investment Co., 212 Ga.App. 102, 103(1), 441 S.E.2d 288 (1994). Under OCGA § 51-5-8, an absolute privilege is created:

[a]ll charges, allegations, and averments contained in regular pleadings filed in a court of competent jurisdiction, which are pertinent and material to the relief sought, whether legally sufficient to obtain it or not, are privileged. However false and malicious such charges, allegations, and averments may be, they shall not be deemed libelous.

See Alcovy Properties v. MTW Investment Co., supra at 103, 441 S.E.2d 288. "An owner of realty may bring an action for libel or slander which falsely and maliciously impugn[s] his title, if any damage accrues to him. OCGA § 51-9-11. However, this tort is subject to the privilege of OCGA § 51-5-8 accorded all regular pleadings filed in a court of competent jurisdiction." (Citations and punctuation omitted.) Panfel v. Boyd, 187 Ga.App. 639, 647(4), 371 S.E.2d 222 (1988). Thus, any of the pleadings in this lawsuit asserting title in Sanders and not in Brown were within the litigation privilege. See OCGA § 51-5-8.

However, on September 30, 1993, Sanders rerecorded a deed, as well as a plat, in order to assert a claim to 18 feet of land titled in Brown, which became later the subject of his initial suit. In 1994 when the Browns took the fence down and put it up at another place which Sanders claimed, Sanders called the police and told the police that he owned the land where Brown was erecting the fence. Both the recordation of the plat to claim the additional 18 feet and the oral report to the police of the claim to the land where the Browns tried to erect the fence constituted nonjudicial slander of title that did not come within the litigation privilege.

Further, on March 20, 2001, when Brown sought to rezone part of her property, Sanders made oral...