2011 VT 37


Sullivan v. Stear
(2010-176)
 
2011 VT 37
 
[Filed 07-Apr-2011]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions, Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801 of any errors in order that
corrections may be made before this opinion goes to press.
 
 

2011 VT 37

 

No. 2010-176

 

Ann E. Sullivan


Supreme Court


 


 


 


On Appeal from


     v.


Windsor Superior Court 


 


 


 


 


James R. and Betty Stear


November Term, 2010


 


 


 


 


Harold
  E. Eaton, Jr., J.


 

Mark L. Sperry and Hobart F. Popick
of Langrock Sperry & Wool, LLP, Burlington, for
  Plaintiff-Appellant
 
Andrew C. Boxer and Jennifer K. Moore of Ellis Boxer &
Blake, Springfield, for 
  Defendants-Appellees.
 
 
PRESENT:  Reiber, C.J.,
Dooley, Johnson, Skoglund and Burgess, JJ.
 
 
¶ 1.            
REIBER, C.J.   Plaintiff Ann E. Sullivan appeals a
grant of summary judgment to defendants James and Betty Stear
on her slander-of-title claim.  We affirm.
¶ 2.            
The facts giving rise to this action are undisputed.  Plaintiff and
defendants own neighboring plots in the Andover Ridge subdivision in the Town
of Andover.  Plaintiff has owned her lot, Lot No. 34, since 1970
but has never developed it.  Defendants acquired their lots, Lot No. 35
(Parcel I) and Lot No. 36 (Parcel II), in 1985 and built a house on one parcel
the following year.  The deed conveying Parcel II to defendants also
purported to convey a “Parcel III” described in the deed as “a private driveway
and cul de sac.”  The “private driveway”
referred to in that deed is the access road at issue in this dispute.  
¶ 3.            
In 2006, plaintiff decided to list her property for sale and hired
contractors and engineers to prepare a house site on her parcel.  In
October of that year, one of plaintiff’s contractors tried to use the access
road to do some site clearing on plaintiff’s parcel when defendant James Stear accused him of trespassing on his private
driveway.  Defendant stated, “[t]his is my driveway, I own it” and “I have
a deed to this strip of land.”  He then told the contractor that he would
call the State Police and have him arrested if he continued to use the
road.  The contractor reported this incident to plaintiff and her husband
subsequently called defendant James Stear.  In
their conversation, defendant told plaintiff’s husband that he had a deed and
“clear title” to the access road.  Plaintiff’s husband protested that the
road was a town highway.  This was the first time that plaintiff or
her husband had heard of defendants’ deed to the access road.  
¶ 4.            
Following this incident, plaintiff concluded that defendants’ claim
would render her lot unsaleable, except at a
prohibitive discount[1]
and thus chose to postpone putting the lot up for sale until the question of
the access road was resolved.  Plaintiff sought a declaration in Windsor
Superior Court that the access road had become a town highway in 1969 or
1970.  She also sought damages representing attorney’s fees, diminished
property value, and certain carrying costs associated with her inability to
sell.  On plaintiff’s claim that the access road was a town highway, the
court entered partial summary judgment in plaintiff’s favor in August
2008.  The court acknowledged that the access road was not listed on the
town highway map and had not been treated as a road by the town highway
commissioner but noted that plaintiff’s claim was based on a theory of
dedication and acceptance, which focuses on whether the road was ever accepted
by the town as public rather than whether the town thereafter maintained the
road.  The court found that the evidence of acceptance was “so strong”
that plaintiff was entitled to summary judgment regardless of whether the town
had ever actually maintained the road.  This determination was not appealed.

¶ 5.            
After this decision, to which the town was not made a party, defendant
James Stear went to a selectboard
meeting and requested that the selectboard clarify
the status of the access road.  The selectboard
determined, “that all they could do [wa]s issue a statement that this ‘driveway’ has never been a
town road,” and subsequently wrote a letter to this effect.[2] 
¶ 6.            
It was against this backdrop that plaintiff brought her slander of title
claim.[3]  
Plaintiff contended that defendants slandered her title by: (1) recording the
1985 deed; (2) announcing to plaintiff’s contractor in October 2006 that
they had exclusive ownership of the access road; and (3) appearing at the town selectboard meeting in November 2008 and requesting a
declaration as to the status of the access road.  The trial court granted
summary judgment in favor of defendants.  We agree and affirm.  

¶ 7.            
This Court reviews a motion for summary judgment de novo using the same
standard as the trial court.  Springfield Terminal
Ry. Co. v. Agency of Transp., 174 Vt. 341, 344, 816 A.2d 448, 452 (2002). 
We will affirm summary judgment “if there is no genuine issue as to any
material fact” and the moving party is entitled to judgment as a matter of
law.  V.R.C.P. 56(c)(3). 
¶ 8.            
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.). 
“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.
¶ 9.            
Plaintiff claims that defendants slandered her title by recording their
1985 deed, which showed defendants as the owners of the access road.  The
preliminary question in addressing plaintiff’s claim under a Wharton
slander-of-title analysis is whether the recording of a deed amounts to
publication.  The common law treats “publication” for the purposes of
slander of title the same way it treats “publication” in defamation actions
generally.  See Restatement (Second) of Torts § 624 cmt.
e, § 623A cmt. e (1977).  Virtually any written or oral false
statement of fact concerning Plaintiff’s property made to a third party will
satisfy the “publication” element of a slander-of-title action.  See id.
§ 623A cmt. e (explaining that publication of the false statement must
be made to a third person, but “may be in writing or it may be oral.  It
may also be implied from conduct and not expressed in words”).
¶ 10.         Under
this broad standard, the recording of a deed as public record is most certainly
a publication.  Further, the statements within the deed—that defendants
owned “Parcel III”—were false.[4]
 This leaves the question of whether the false statements in the 1985 deed
concerned plaintiff’s title.  We conclude they did not.
¶ 11.         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.  In other
words, one claiming slander of title must have a transferrable ownership
interest capable of disparagement.  Restatement (Second)
of Torts, supra, § 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.”). 
Plaintiff had no such interest in the access road.  Plaintiff may have had
a right to use the road, but this right was derived from her status as a member
of the public.  All members of the public have a right to use public
roadways, but the right to traverse a public road is not equivalent to a
transferable ownership interest capable of profitable disposal.  Thus,
while defendant’s deed may have amounted to publication of false facts, it did
not concern plaintiff’s title because plaintiff had no legally protected
interest in the road, and therefore no statement by defendants could possibly
affect plaintiff’s ability to enter into “dealings” with others regarding the
road.[5]

¶ 12.         The
other two theories on which plaintiff bases her slander-of-title action fail for similar reasons.  Plaintiff contends
that defendant’s statements to her contractor effected
a slander of her title.  She also argues that defendant slandered her
title by appearing at the town selectboard meeting to
request a declaration as to the status of the access road.  Even if these
statements amounted to publication of false facts, for the reasons outlined
above, plaintiff can show no interest concerning her title that has been
disparaged, and thus these statements do not concern plaintiff’s title. 
We therefore affirm the trial court’s grant of summary judgment in favor of
defendants.
Affirmed.
 
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Chief
  Justice

 





[1] 
We note that plaintiff presented no evidence, nor did she contend,
that she ever actually put her property on the market.


[2] 
It was not until April 2009 that the town reversed its position and formally
adopted the access road as a class 4 town highway (later upgraded to class 3). 
 


[3]
 Plaintiff also brought claims for tortious
interference with her right to public travel and fraudulent recording of a
deed.  Summary judgment was granted in defendants’ favor on these claims,
and plaintiff has not appealed.  The only issue before the Court is the
slander-of-title claim. 


[4] 
The trial court found that the access road has been a public highway since 1969
and this decision was not appealed.


[5] 
Plaintiff argues that the false statements in defendant’s deed concerned her
title because under Vermont common law, property owners have a right to access
abutting public roads and access to and from a public highway is an incident of
property ownership.  However the right to access public roads as an
incident of property ownership is similar to the right of the general public to
traverse roads; it is not an interest capable of profitable disposal.  The
right could never be the subject of bargain or dealings with third parties and
hence does not concern plaintiff’s title.



