holding that special damages include impairment of vendibility or value caused by disparagement and the expense of measures reasonably necessary to counteract the publication, including litigation
How later courts described this case
- holding that special damages include impairment of vendibility or value caused by disparagement and the expense of measures reasonably necessary to counteract the publication, including litigation
- holding while a defaulting defendant has conceded liability, he "does not concede the [a]mount of liability" (alteration by court) (quoting Howard v. Holiday Inns, Inc., 271 S.C. 238, 242 , 246 S.E.2d 880, 882 (1978))
- stating a "defaulting defendant has conceded liability" but "does not concede the [a]mount of liability" (emphasis added
- finding a motion was not preserved for appellate review when the special referee alluded to the motion but the record did not contain either side's argument or the actual ruling
Written by the judges who cited it.
The opinion
FEW, C.J.,
concurring in part and dissenting in part.
I concur in Section II of the majority opinion. However, I would resolve the issues addressed in Section I by finding the special referee committed two errors of law: (1) awarding the amount of the loan as special damages and (2) awarding punitive damages. I would reverse the judgment of actual and punitive damages and remand for a new trial as to actual damages only, at which Solley must prove special damages *216 proximately resulting from the conduct the Bank admitted in default to be slander of title.
Solley is not entitled to the value of the mortgage as special damages because the mortgage is ineffective. Solley alleged she “has and holds title as a joint tenant with rights of survivorship to the above described real property.” Because the Bank defaulted, that allegation is deemed to be true. See Roche v. Young Bros., Inc., of Florence, 332 S.C. 75, 81 , 504 S.E.2d 311, 314 (1998) (stating “the defaulting party is deemed to have admitted the truth of the plaintiffs allegations”).
Taking as true the allegation that Solley and Mullins owned the property as joint tenants with a right of survivorship, section 27-7-40 of the South Carolina Code (2007) prevented Mullins from encumbering the property. The statute states that if property is held by joint tenants with a right of survivorship, such
joint tenancy includes, and is limited to, the following incidents of ownership: ... (iii) The fee interest in real estate held in joint tenancy may not be encumbered by a joint tenant acting alone without the joinder of the other joint tenant or tenants in the encumbrance, (iv) If all the joint tenants who own real estate held in joint tenancy join in an encumbrance, the interest in the real estate is effectively encumbered to a third party or parties.
§ 27 — 7—40(iii)—(iv). Therefore, because the mortgage is ineffective to encumber the property, it was error for the special referee to award Solley $233,000.00 in actual damages.
The majority argues that the ineffectiveness of the mortgage makes Solley’s slander of title action stronger. I do not disagree. However, because the Bank admitted liability for slander of title in default, the strength of Solley’s case is not the issue. The issue is the amount of special damages. I would find it was improper for the referee to measure the award of special damages by the amount of the mortgage because the mortgage is ineffective and does not encumber the property.
The Bank argues Solley is not entitled to punitive damages. I agree. Solley’s cause of action for slander of title against the Bank, even including allegations incorporated by reference, does not contain any allegation of reckless or willful *217 conduct. Therefore, even by admitting Solley’s allegations in default, the Bank has not admitted liability for punitive damages. See Mishoe v. QHG of Lake City, Inc., 366 S.C. 195, 201 , 621 S.E.2d 363, 366 (Ct.App.2005) (“In order to receive an award of punitive damages, the plaintiff has the burden of proving by clear and convincing evidence the defendant’s misconduct was willful, wanton, or with reckless disregard for the plaintiffs rights.”). I would reverse the award of punitive damages.