                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 08-1472


GMO FORESTRY FUND 3, L.P., a Delaware limited partnership,

                Plaintiff – Appellee,

           v.

JEFFREY L. ELLIS,

                Defendant – Appellant.



                             No. 08-1495


GMO FORESTRY FUND 3, L.P., a Delaware limited partnership,

                Plaintiff – Appellant,

           v.

JEFFREY L. ELLIS,

                Defendant – Appellee.



Appeals from the United States District Court for the Southern
District of West Virginia, at Bluefield.      David A. Faber,
District Judge. (1:04-cv-00841)


Argued:   May 14, 2009                      Decided:   June 11, 2009


Before SHEDD and DUNCAN, Circuit Judges, and Frederick P.
STAMP, Jr., Senior United States District Judge for the Northern
District of West Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.


Eric B. Snyder, BAILEY & GLASSER, LLP, Charleston, West
Virginia, for Jeffrey L. Ellis.   Kenneth Eugene Webb, Jr.,
BOWLES, RICE, MCDAVID, GRAFF & LOVE, PLLC, Charleston, West
Virginia, for GMO Forestry Fund 3, L.P., a Delaware limited
partnership.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

        Jeffrey L. Ellis appeals the finding of the district court

that GMO Forestry Fund 3, L.P. (“GMO”) has superior title to a

334.89-acre     tract   of   land   in    McDowell    County,     West    Virginia

(“subject property”).         GMO cross-appeals the district court’s

grant    of   summary   judgment    in    Ellis’     favor   on   its    claim   of

slander of title.       Finding no reversible error, we affirm.



                                         I.

     GMO filed suit against Ellis seeking to quiet title to the

subject property and alleging that Ellis had committed slander

of title by recording a deed claiming ownership of the subject

property.         The    district        court   granted     partial       summary

judgment in favor of Ellis on GMO’s slander of title claim but

held that GMO had valid and proper title to the subject property

superior to Ellis’ claim of title.

    In granting summary judgment on the slander of title claim,

the district court found that GMO had not met its burden of

showing that Ellis acted with the requisite malice necessary to

support such a claim.          See TXO Production Corp. v. Alliance

Resources Corp., 419 S.E.2d 870, 879 (W.Va. 1992) (holding that

malice is an element of a slander of title action).                     GMO argued

that Ellis acted with malice by not conducting a title search

and by ignoring a notation on the plat of the survey performed

                                         3
at Ellis’ request that stated that the surveyor did not warrant

ownership of the property surveyed. 1                The district court noted

that       although   Ellis’   actions    may   have     been   questionable,      no

reasonable jury could find that he acted with malice as defined

by TXO; therefore, the court granted Ellis’ motion for summary

judgment on the slander of title claim.

       In regard to GMO’s action to quiet title against Ellis, the

parties agreed to the appointment of a special master.                            The

special master held an evidentiary hearing at which both parties

produced      documentary      evidence   and   live     testimony    relevant    to

their respective claims to the subject property.                      The special

master issued a report that found that GMO had valid legal and

equitable      title   to   the   subject     property     superior   to   that    of

Ellis.       See J.A. 415.      GMO moved the district court to adopt the

report.        Ellis   opposed    GMO’s     motion   and    also   made    specific

objections to the report.            After sustaining several of Ellis’

objections, the district court adopted the report and entered

judgment against Ellis. 2




       1
       At oral argument, GMO conceded that there was no evidence
in the record that Ellis had knowledge of any other claim to the
subject property when he filed his deed.
       2
       Ellis also argues that the district court erred by not
requiring GMO to produce evidence of actual possession as an
element of its quiet title action. The district court correctly
found that proof of actual possession is not required.      See
(Continued)
                                          4
                                  II.

    We review the district court’s grant of summary judgment on

the slander of title claim de novo. See Fuisz v. Selective Ins.

Co. of Am., 61 F.3d 238, 241 (4th Cir. 1995).              On the quiet

title action, we review the district court’s findings of fact

for clear error and review its legal conclusions de novo. See

United States v. Green, 436 F.3d 449, 456 (4th Cir. 2006).

     Having   reviewed   the   record   and   the   applicable   law,   and

having had the benefit of oral argument, we affirm the judgment

based substantially on the reasoning of the district court.



                                                                 AFFIRMED




Flynn Coal & Lumber Co. v. F.W. White Lumber Corp., 157 S.E.
588, 589 (W.Va. 1931).



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