Massucco v. Kolodziej, 2024 VT 76 (filed 11/27/2024) (Affirms orders reforming deed and finding slander of title, holding as a matter of first impression that legal expenses incurred in clearing title are “special damages” that can sustain a slander-of-title claim.)
WAPLES, J. Defendants James and Barbara Kolodziej discovered that a parcel of land near their property was seemingly omitted from plaintiff Sarah Massucco’s deed. They arranged for the heirs of a previous owner of the land to deed that parcel to them. Defendants neither talked to plaintiff—who they saw use the parcel—nor confirmed that the heirs owned the parcel. After recording their own deed, defendants informed plaintiff that they owned the parcel and asked her to remove her belongings. Plaintiff sued. The trial court granted plaintiff’s claim for deed reformation on summary judgment and concluded Mr. Kolodziej slandered plaintiff’s title after a bench trial. Defendants appeal and we affirm.
To reform her deed, plaintiff must demonstrate, beyond a reasonable doubt, that the deed fails to express the real agreement between seller and buyer due to a mutual mistake in reducing the agreement to writing. Cassani v. Hale, 2010 VT 8, ¶ 17, 187 Vt. 336, 993 A.2d 422. “Mutual mistake is shown if the evidence establishes that the seller intended to sell and the buyer intended to purchase a different piece of land than that described in the deed.” LaRock v. Hill, 131 Vt. 528, 530, 310 A.2d 124, 126 (1973). The court may reform a deed to what “the deed and extrinsic evidence indicate [the parties] must have intended.” Cassani, 2010 VT 8, ¶ 19. “Intent is rarely proved by direct evidence; it must be inferred from a person’s acts and proved by circumstantial evidence.” State v. Langdell, 2009 VT 125, ¶ 9, 187 Vt. 576, 989 A.2d 556 (mem.) (quotation omitted).
Defendants contend that the language of the Leisey deed precludes summary judgment. But Plaintiff does not dispute that the Leisey deed facially omitted the disputed parcel. Her claim is that the deed does not reflect the true agreement between the Adamses and Mr. Leisey. The undisputed text of the deed alone does not bar a grant of summary judgment on a reformation claim.
Even if Mr. Leisey was hazy on the specific details of the parcel’s boundary the facts set forth by defendants do not create a genuine dispute of fact for trial. The unrefuted deposition testimony demonstrated that the Adamses intended to convey their whole remaining parcel to Mr. Leisey, Without any disputed material facts presented, the trial court appropriately granted summary judgment on plaintiff’s claim for reformation of the Leisey deed and the deeds in her line of title.
To prove slander of title, plaintiff must show that: (1) she has a “transferrable ownership interest capable of disparagement,” (2) defendants published a false statement concerning plaintiff’s title; (3) defendants acted with malice, and (4) the statement caused special damages. Sullivan v. Stear, 2011 VT 37, ¶¶ 8, 11, 189 Vt. 442, 23 A.3d 663.[1] ‘The essence of the tort is the publication of an assertion that is derogatory to the plaintiff’s title to property in an effort to prevent others from dealing with the plaintiff.” Id. ¶ 8 (quoting Wharton v. Tri–State Drilling & Boring, 2003 VT 19, ¶ 14, 175 Vt. 494, 824 A.2d 531 (mem.)).[2]
(1)
There is a split among the states as to whether land acquired through adverse possession can support a slander-of title claim. We conclude that title by adverse possession “is a sufficient interest in property for a claimant to maintain an action for slander of title.” Colquhoun v. Webber, 684 A.2d 405, 409-10 (Me. 1996). In Colquhoun, the Maine Supreme Judicial Court looked to the Restatement (Second) of Torts, which provides that a legally protected interest in land “may be disparaged if the interest is transferable.” . Restatement (Second) of Torts § 624 cmt. c (1977). Because in Maine an adverse possessor has good title after having met the requirements for adverse possession, that title can sustain a slander-of-title claim even before judicial confirmation of the title. Colquhoun, 684 A.2d at 410. We hold the same here. . Plaintiff thus had the title necessary to sustain her slander-of-title claim, even before the court order reforming the Leisey deed becomes final.
(2)
The trial court concluded that the recording of the deed constituted publication of a false statement concerning plaintiff’s title. We agree. By recording a deed that amounted to a false claim of ownership of the disputed parcel, Mr. Kolodziej published a false statement concerning plaintiff’s title.
(3)
Malice in a slander-of-title action requires “conduct manifesting personal ill will, evidencing insult or oppression, or showing a reckless or wanton disregard of plaintiff’s rights.” Though the court found that Mr. Kolodziej “did not have personal ill will” towards plaintiff, he “acted with reckless disregard of the possibility that she had a claim to the disputed property.” --The undisputed evidence demonstrates that Mr. Kolodziej located a parcel of land where the deeds in the land records did not comport with town maps or with plaintiff’s usage of the land. He then arranged to have the parcel deeded to himself and his wife without speaking to the person who he saw had been using the.This evinces a “reckless disregard” for plaintiff’s rights.. The trial court applied the correct legal standard, and we see no error in the conclusions it drew.
(4)
We have never clarified what might constitute special damages for a slander-oftitle claim in Vermont. We have affirmed dismissal of a claim of slander of title for lack of evidence tying “any damages to the alleged slander.” Gardner v. West-Col, Inc., 136 Vt. 381, 387, 16 392 A.2d 383, 387 (1978) (quotation marks omitted). We have also squarely held that pecuniary losses from a lost sale of the property at issue suffice to establish special damages. Wharton, 2003 VT 19, ¶¶ 15, 18. We must now decide whether evidence of damages in the form of legal expenses incurred in clearing title are “special damages” that can sustain a slander-of-title claim. We conclude that they are.
Fees expended in prosecuting the slander-of-title action are not recoverable as special damages in that action, but the costs of actions taken to clear a plaintiff’s title and such other expenses that are reasonably necessary to counteract the disparagement” constitute “special damages for which the tortfeasor should bear liability.
We affirm the trial court’s grant of summary judgment to plaintiff on her claim for reformation of the deeds in her line of title. We further conclude that her reformed deed relates back to the grant of the original deed, and that plaintiff’s interest in the disputed parcel can sustain her slander-of -title claim even before judicial confirmation of the deed reformation becomes final. Finally, we conclude that attorney’s fees and costs expended in clearing her clouded title constitute the special damages necessary to sustain plaintiff’s slander-of-title claim.
Affirmed.
SCOVT NOTES Re Elements of Slander of Title in Vermont precedent:
[1] Sullivan v. Stear, 2011 VT 37, ¶¶ 8, 11 (“To prove slander of title, plaintiff must show that: (1) defendants published a false statement concerning plaintiff's title; (2) the statement caused special damages; and (3) defendants acted with malice. Wharton v. Tri-State Drilling & Boring, 2003 VT 19, ¶ 14, 175 Vt. 494, 824 A.2d 531 (mem._) . . . Whether a statement concerns a person's title revolves around whether it affects that person's ability to make deals with others regarding the property disparaged. Wharton, 2003 VT 19, ¶ 14, 175 Vt. 494, 824 A.2d 531. In other words, one claiming slander of title must have a transferrable ownership interest capable of disparagement. Restatement (Second) of Torts § 624 cmt. c ("Any kind of legally protected interest in land, chattels or intangible things may be disparaged if the interest is transferable and therefore salable or otherwise capable of profitable disposal.").
[2] Wharton v. Tri–State Drilling & Boring, 2003 VT 19, ¶ 14(“The elements of slander of title as a cause of action have not been clearly laid out in Vermont. The tort has been recognized by this Court, however, first in a nineteenth century case in which we declared that we had jurisdiction over claims for slander of title, Sherman v. Champlain Transportation Co., 31 Vt. 162 (1858), and next in a more recent case where we held that an essential element of the cause of action for slander of title is special damages. Gardner v. West-Col, Inc., 136 Vt. 381, 387, 392 A.2d 383, 386 (1978). The essence of the tort is the publication of an assertion that is derogatory to the plaintiff's title to property in an effort to prevent others from dealing with the plaintiff. See Prosser and Keeton on Torts § 128, at 967 (5th ed.1984). To prove slander of title, a plaintiff must prove that a defendant falsely published a statement concerning plaintiff's title that caused special damages to the plaintiff and that defendant acted with malice. Restatement (Second) of Torts §§ 623A, 624 (1977)”)
