Adbаr Company, L.C. (“Purchaser”) appeals the entry of summary judgment as to liability only on Dr. Richard Bechtle’s (“Seller”) claim for slander of title.
Seller may terminate this Contract if the purchase of the Turley Martin 1031 Exchange property, of which Seller is currently one of the Purchasers becomes void on or before January 2, 1998 and Seller givеs written notice of such voiding to [Hilliker Corporation] Purchaser on or before said date at sellers free choice if seller is unsatisfied with the exchange property.
It is undisputed that one of the primary considerations for Seller in entering into this real estate transaction centered on the tax implications resulting therefrom. He was willing to sell the Property if he could find a like-kind property so that he could defer any taxes that might be owed.
Seller exercised his termination right on January 2, 1998. On that same day, however, the parties entered into a subsequent agreement entitled First Amendment to Sale Contract (“First Amendment”). This agreement extended the time for Seller to locate a replacement property, and contained the following language, in relevant part:
In the event that, for any reason, Seller is not able to obtain a binding, legally enforсeable contract for acquisition of 1031 Exchange property, which contract and the property, the price, and the terms and conditions must be satisfactory to Seller, in Seller’s sole judgmеnt and discretion, on or before January 29, 1998, Seller may, at Seller’s option, terminate the Sale Contract by giving to Purchaser written notice of termination on or before January 29,1998.
Seller was unable tо acquire what he considered to be a satisfactory replacement property and on January 20, 1998, pursuant to the terms of the First Amendment notified Purchaser in writing that he was electing to terminate the agreement. Purchaser does not dispute that it received this notice within the requisite timeframe.
However, on January 30,1998, Adelman, acting on behalf of Purchaser, recorded a “Notice” with the St. Lоuis County Recorder of Deeds, which stated, in relevant part:
Pursuant to said Sale Contract, as amended, the undersigned purchaser, Adbar Company, L.C., has the right to acquire fee title to the above dеscribed real property.
Seller requested that Purchaser withdraw and release the Notice from the records office, but it refused to do so.
On March 3, 1998, Seller filed a petition alleging Purchaser slandered the title to the Property by filing the Notice, which contained statements that were false at the time they were published, and made with the knowledge that they were false. Seller also sought dеclaratory judgment as to his right to terminate the sales contract. Purchaser counterclaimed for specific performance of the sales contract, a declaratory judgment, аnd damages, asserting that
Seller then filed a motion for summary judgment оn both counts of his petition, and on all counts of Purchaser’s counterclaim. On May 18, 1999, the trial court granted the motion for summary judgment, as to liability only, in favor of Seller and against Purchaser on all counts of both petitions. The trial court certified the judgment as final for purposes of appeal. Purchaser appeals only the trial court’s grant of summary judgment on Seller’s slander of title claim.
When we consider an appeal from summary judgment, we review the record in a light most favorable to the party against whom the judgment was entered. ITT Commercial Finance Corp. v. Mid-America Marine Supрly Corp.,
The burden of persuasion is on the moving party to demonstrate a lack of genuine factual issues. Strickland v. Taco Bell Corp.,
On appeal, Purchaser argues the trial court erred in granting Seller’s motion for summary judgment on Count I of his petition because Seller failed to prove he was entitled to judgment as a matter of law as to all of the essential elements required to recover on an action for slander of title. Under Missouri law, a claim of slander of title requires the plaintiff to demonstrate: 1) some interest in the property, 2) that the words published were false, 3) that the words were maliciously published, and 4) that he suffered pecuniary loss or injury as a result of the false statement. Kennedy v. Kennedy,
In its second subpoint, Purchaser alleges there is a genuine issue of material fact as to whether the Notice was filed maliciously. An action for slander оf title cannot exist without a malicious intent. Tongay v. Franklin County Mercantile Bank,
In support of the motion for summary judgment, Seller attached the portion of Adelman’s deposition wherein he was asked why the Notice was filed when he knew Seller had previously notified Purchaser of his termination of the contract. Adelman responded that “if we can’t get the property then no one is going to get it for now.” Seller argues that this statement proves malice on the рart of Purchaser in filing the Notice. In response, Purchaser states that it had a reasonable
To infer the existence of malice, the evidence of plaintiffs must support a reаsonable inference that the representation not only was without legal justification or excuse, but also was not innocently or ignorantly made. Tongay,
In the present case, even if the Notice was false when it was filed, a jury could nonetheless find that Purchaser did not act with malicious intent. A fair reading of the entire deposition portion of Adelman submitted by Seller in support of its motion would support a finding that Purchaser believed it had a right to protect its colorable interest in the property until a legal determination could be made. It is undisputed that Purchaser’s representatives were real estate professionals, and not attorneys. Although the evidence cited by Seller would certаinly support a contrary finding, it does not establish that Purchaser acted with malice as a matter of law.
Accordingly, we hold that the trial court erred in entering summary judgment in favor of Seller on Count I of his petition and reverse and remand that count for further proceedings consistent with this opinion. In all other respects, the judgment is affirmed.
Notes
. Although the trial court entered summary judgment in favor of Seller on Counts I and II of his petition, and in favor of Seller on Counts I, II, and III of Purchaser's counterclaim, Purchaser only alleges error with Count I regarding the slander of title issue. Therefore, Purchaser has waived its right to appеal with respect to all counts other than Count I. Robinson v. May Dept. Stores Co.,
. Although Purchaser claims to dispute certain facts, a review of the record, including the motions, affidavits, and depositions submitted to the trial court on the summary judgment issue, reveals the only real dispute involves the liability of the individual managers of Purchaser and the legal conclusions to be drawn from the parties’ actions. The parties agree that Bаrket and Adelman, in their individual capacities, are not parties to this appeal. Thus, any reference to their alleged individual liabilities will be omitted.
. It appears from the record that a tax in the sum of approximately $129,000.00 would be imposed upon Seller if an exchange property qualifying for an IRS 1031 exemption was not procured.