Jаmes D. Sanders, plaintiff and defendant-in-counterclaim, appeals from the judgment entered against him on the jury verdict finding for the defendant, Laura Sanders Brown, his sister, on his complaint, on her counterclaim for slander of title in the amount of $8,068.88, and оn her claim for attorney fees and expenses of litigation in the amount of $37,794.20, and from the denial of his motion for new trial. Finding no merit to the appeal, we affirm.
In 1938, Sanders contended that Mrs. Effie Furr gave a bond for title for 50 acres to him; however, no bond for title was recorded or introduced in evidence. On October 31, 1942, Mrs. Furr conveyed by deed the 50 acres to Brown, reciting that the bond for title to Brown and Sanders was transferred and assigned to Brown; the Furr deed was never marked recorded. However, this deed appears as recorded on October 31, 1942, in Deed Book 149, page 402, Cobb County Records. On October 9, 1943, Brown deeded to Sanders ten acres of the Furr property in a sale, showing $1.10 in revenue stamps and reciting a рurchase price of $1,000. In April 1962, Brown conveyed by sale an additional piece of the Furr property to Sanders. In March 2000, Brown contracted to sell 12.5 acres of the Furr property contingent upon rezoning the land commerciаl; on November 21, 2000, the rezoning was granted. Subsequently, Brown and her purchaser entered into a contract for four acres of the original 12.5 acres; neither contract closed, because of Sanders’ claims.
In 1943 and again in 1962, Brown conveyed two separate parcels *567 to Sanders; however, a 1962 survey plat, drawn by Aubrey Harris and filed at the same time as the last deed, showed a triangle of land of 0.851 acres in Land Lots 765 and 790 as Sanders’ land. On July 6, 1994, Brown erected a fence on this smаll disputed land, and Sanders sought an injunction against her. Brown answered and counterclaimed against Sanders for abusive litigation to such disputed property, after various amendments. On February 9, 1998, after many amendments, Sanders claimed that all the 50 acres of the Furr land was his and that Brown had obtained the deed fraudulently so that he equitably owned the 38.62 acres titled in Brown’s name. By amendment, Sanders claimed the land in dispute by adverse possession. On May 7, 2001, by leave of court, Brown amended her counterclaim to assert a claim for slander of title, for Sanders’ claim to the 38.62 acres not titled in his name. No lis pendens was tendered into evidence.
From October 15 through 18, 2001, the jury heard the case and returned a verdict on the latter dаte. On October 22, 2001, judgment was entered. On January 16, 2002, the trial court heard Sanders’ motion for new trial on general grounds, which was never amended to set forth any special grounds. On January 17, 2002, the trial court denied Sanders’ motion for new trial on the generаl grounds.
Sanders contends that the trial court erred in denying his motion for a new trial. We do not agree.
Where the jury returns a verdict which the trial court enters as a judgment, the judgment must be affirmed on appeal if there is any evidence to suppоrt the verdict, because the jurors are the exclusive judges of the weight and credibility of the evidence; on motion for new trial, the appellate courts must construe the evidence with every inference and presumption in favor of the verdict and judgment and affirm if there is any evidence to support the verdict.
Butts v. Williams,
Slander or libel of title to land is defined by OCGA § 51-9-11 as: “[t]he owner of any estate in lands may bring an action for libelous or slanderous words which falsely and maliciously impugn his title if any damage accrues to him therefrom.” The essential elements of this tort are: (1) publication of slanderous or libelous words; (2) that they were malicious; (3) that the plaintiff sustained special damages thereby; and (4) that the plaintiff possessed an estate in the property slandered or libeled.
Schoen v. Maryland Cas. Co.,
(a) Sanders contends that his filing a notice of lis pendens and the lawsuit came under privileged communications. OCGA § 51-5-8;
Alcovy Properties v. MTW Investment Co.,
[a] 11 charges, allegations, and averments contained in regular pleadings filed in a court of competent jurisdiction, which are pertinent and material to the relief sought, whether legally sufficient to obtain it or not, are privileged. However false and malicious such charges, allegations, and aver-ments may be, they shall not be deemed libelous.
See
Alcovy Properties v. MTW Investment Co.,
supra at 103. “An owner of realty may bring an action for libel or slander which falsely and maliciously impugn [s] his title, if any damage accrues to him. OCGA § 51-9-11. However, this tort is subject to the privilege of OCGA § 51-5-8 accorded all regular pleadings filed in a court of competent jurisdiction.” (Citations and punctuation omitted.)
Panfel v. Boyd,
However, on September 30, 1993, Sanders rerecorded a deed, as well as a plat, in order to assert a claim to 18 feet of land titled in Brown, which became later the subject of his initial suit. In 1994, *569 when the Browns took the fence down and put it up at another place which Sanders claimed, Sanders called the police and told the police that he owned the land where Brown was erecting the fence. Both the recordation of the plat to claim the additiоnal 18 feet and the oral report to the police of the claim to the land where the Browns tried to erect the fence constituted nonjudicial slander of title thát did not come within the litigation privilege.
Further, on March 20, 2001, when Brown sought to rеzone part of her property, Sanders made oral representations to the Board of Commissioners for Cobb County that he and not Brown owned the land sought to be rezoned to dissuade them from acting, but Sanders did not seek a restraining order from the court to prevent the rezoning. Title to this portion of the land was in litigation at this time in this suit, but Sanders’ claim of ownership was made separately from the litigation, and thus, was outside the litigation privilege as well. Cf.
Skoglund v. Durham,
(b) Sanders contends that Brown has failed to prove special damages proximately caused by any oral or written statement disparaging Brown’s title. OCGA § 51-12-2 (b); Hicks v. McLain’s Bldg. Materials, supra at 192. We do not agrеe because Brown lost two contracts for sale of the land due to the slander of title.
“Special damages are those which actually flow from a tortious act; they must be proved in order to be recovered.” OCGA § 51-12-2 (b). Special damages must be proven with sufficient particularity for the jury to estimate the amount thereof with reasonable certainty; exact figures are not required for proof.
Nat. Refrigerator &c. Co. v. Parmalee,
For Brown to show special damages from the loss of either sales contract, she had to prove thаt the contracts would have been performed but for the slander of title and that any contingencies in either contract were either met or waived, except for a marketable title. The main contingency of the rezoning of thе land was satisfied when the Cobb County Board of Commissioners rezoned the land. Since the purchase price for the 50 acres was shown to be $2,000, her cost basis was $40 per acre; therefore, her special damages were the contract price less her cost basis per acre plus the real estate commission of ten percent.
On March 31, 2000, the Sofran Group and Brown contracted for the purchase and sale of 12.5 acres for $175,000 per acre with *570 $10,000 earnest money. Closing was within 30 days of the end of the inspection period of 180 days. When Brown could not cure the marketable title within the “Title Cure Period,” she had to refund the earnest money less $100 so that $990 of the refund would have been real estatе commission and $8,910 would have been the balance from the seller. However, on July 8, 2001, the contracting parties agreed to extend the closing date to January 15, 2002. On January 9, 2002, the parties entered into a new contract for the purchаse and sale of only four acres at $195,000 per acre contingent upon conveying a marketable title. But the earnest money of $9,900 had to be returned, because Brown could not give a good and marketable title to the land, because of Sanders’ claims. However, since the rezoning of the 12.5 acres of land, this land has increased in value. The jury found $8,068.88 in special damages for Brown, which was less than her share of the earnest money that had to be returned. Thus, there was еvidence shown with reasonable particularity to support the verdict for special damages.
(c) Sanders contends that Brown had no viable independent counterclaim to authorize the award of attorney fees and expenses of litigation. The award of expenses of litigation under OCGA § 13-6-11 can only be recovered by the plaintiff in an action under the language of the statute; therefore, the defendant and plaintiff-in-counterclaim cannot recovеr such damages where there is a compulsory counterclaim. See
Alcovy Properties v. MTW Investment Co.,
supra at 104 (5);
White v. Lance H. Herndon, Inc.,
On April 30, 2001, the trial court granted Brown leave to file a counterclaim for slander of title, because such claim arose after the lawsuit was first filed. While the slander of titlе could not be based upon Sanders’ claim for fraud in the lawsuit, it could be based upon Sanders’ representations that he owned all the land being rezoned to the Cobb County Board of County Commissioners made to prevent the rezoning. While this basis for slander of title was never raised directly either in the counterclaim or pre-trial order, which only reference Sanders’ claim of ownership, such evidence was introduced at trial without objection; therefore, the pleadings wеre amended by the evidence at trial. OCGA § 9-11-15 (b);
Brackett v. Cartwright,
Thus, Brown had an independent claim for slander of title, which arose after the institution of Sanders’ suit and amendment
*571
asserting fraud, which was not a compulsory counterclaim. OCGA § 9-11-13 (e);
Wagner v. Howell Enterprises,
Judgment affirmed.