Petition for Review from the Court of Appeals for the Fifth
District of Texas
of title" consists of a "false and malicious
statement made in disparagement of a person's title to
property which causes special damages." Marrs &
Smith P'ship v. D.K. Boyd Oil & Gas Co., 223
S.W.3d 1, 20 (Tex. App.-El Paso 2005, pet. denied); see
also 3 Dan B. Dobbs, Paul T. Hayden & Ellen M.
Bublick, The Law of Torts § 656, at 617 (2d ed. 2011)
(describing the tort as a form of injurious falsehood in
which the defendant casts doubt on the plaintiff's
title). Special damages are simply economic damages. In
re Lipsky, 460 S.W.3d 579, 592 n.11 (Tex. 2015). In this
appeal from a slander-of-title judgment, the parties dispute
how the special or economic damages should be measured.
trial court awarded damages based in part on the difference
between the disparaged property's contract price and the
owner's mortgage balance-the amount the property owner
would have received from the property's sale but for the
defendant's disparagement of his title. The court of
appeals affirmed.__S.W.3d__ (Tex. App.-Dallas 2016) (mem.
op.). We disagree that this measure represents the
plaintiff's economic loss and accordingly reverse.
parties are Marc Pieroni and his ex-wife, Bonnie
Allen-Pieroni. They divorced on September 11, 2009, after ten
years of marriage. In the divorce, Marc was awarded the
family business. Bonnie was awarded $500, 000, payable in
monthly installments of $10, 000, which Marc dutifully paid.
six months after the divorce, Marc purchased a new home in
Collin County. Bonnie subsequently recorded in the county
property records an abstract of judgment that reflected
Marc's $500, 000 debt from the divorce decree. The
abstract created an ostensible lien on Marc's property.
See Tex. Prop. Code § 52.001 (providing that a
properly recorded and indexed abstract of judgment creates a
lien on the judgment debtor's non-exempt real estate in
the county). Marc did not discover the abstract of judgment
until years later. Unfortunately, the discovery came while he
was preparing to close on the sale of the Collin County
property. That sale fell through after Bonnie refused to
release her lien. And because Marc had agreed to purchase
another home, he ended up owning two. The Collin County
property remained vacant for seven months while Marc looked
for a tenant.
the property's aborted sale, Marc sued Bonnie to quiet
title and for damages, asserting an equitable action to
remove her lien and a tort action for slander of title. A
bench trial ensued. In the end, the court rendered judgment
for Marc, removing the cloud on his title and awarding him
damages of $98, 438 and attorney's fees.
findings of fact, the trial court determined that Marc would
have netted $80, 000 from the property's sale had
Bonnie's invalid lien not cost him that opportunity. The
$80, 000 gain was based on the property's contract price
of $285, 000 less Marc's remaining mortgage balance of
$205, 000. The court also found that Bonnie's slander
caused Marc to incur additional expenses of $18, 438 during
the period the property was vacant. The trial court then
calculated Marc's damages to be $98, 438 by adding
together Marc's equity in the home and his out-of-pocket
court of appeals reversed the award of attorney's fees
but otherwise affirmed the trial court's judgment.
__S.W.3d__ at . To support its conclusion that the profit
Marc would have made from the sale was an appropriate measure
of damages, the court cited Ramsey v. Davis, 261
S.W.3d 811 (Tex. App.-Dallas 2008, pet. denied).
Ramsey, another slander-of-title case decided by the
court, stated in dict a that the measure of
"[d]amages for slander of title include[s] the amount of
money the seller would have realized if the sale had been
consummated and the amount of additional payments made due to
the loss of the sale." Id. at 817.
Bonnie does not complain about the award of Marc's
out-of-pocket expenses, she does contend that the $80, 000
award, representing the difference between the contract price
and Marc's loan balance at the time of the frustrated
sale, was erroneous and contrary to the measure of damages
approved by this Court in Reaugh v. McCollum Exploration
Co., 163 S.W.2d 620 (Tex. 1942). We agree and remand in
accordance with Bonnie's prayer for relief.
does not presume damages as a consequence of slander of
title; rather, the plaintiff must prove special damages.
Ellis v. Waldrop, 656 S.W.2d 902, 905 (Tex. 1983).
Special damages exist when the plaintiff can show the loss of
a specific, pending sale that was frustrated by the slander.
A.H. Belo Corp. v. Sanders, 632 S.W.2d 145, 146
(Tex. 1982). But the seller's lost profit from the sale
is not the relevant measure of those damages. Instead, in a
case in which the plaintiff still owns the property at the
time of trial, the amount of actual damages caused by the
slander is generally the difference between the contract
price (the amount the plaintiff would have received but for
the defendant's title disparagement) and the
property's market value at the time of trial with the
cloud removed. Reaugh, 163 S.W.2d at 622. In
Reaugh, we adopted this measure, quoting in support
a Restatement comment we found directly on point:
(d) Extent of loss, how proved. The extent of the pecuniary
loss caused by the prevention of a sale is determined by the
difference between the price which would have been realized
by it and the salable value of the thing in question after
there has been a sufficient time following the frustration of
the sale to permit its marketing. The depreciation of the
thing from any cause after such time has elapsed is
Id. (quoting Restatement of Torts § 633, cmt.
concedes that the record contains no evidence of the
slandered property's market value at the time of trial,
but contends that Bonnie had the burden to prove such value
in mitigation of his damages. But what special damage was she
to mitigate? Like the court of appeals, Marc presumes that
Bonnie's disparagement of his title caused him an
economic loss, but there is no evidence of this: no evidence
exists that Marc's property was worth less than the
previous contract price at the time of trial or that
Bonnie's invalid lien had any continuing effect on the
property's value or marketability following its removal.
As the party seeking affirmative relief, Marc had the burden
to prove these damages. See Vance v. MyApartment ...