This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




Peter R. Paidar, et al.,



Charles E. Hughes,defendant and third-party plaintiff,



Guardian Title, Inc., et al.,

third-party defendants,

Fidelity National Title Insurance Company of New York, third-party defendant,


Filed May 11, 1999


Short, Judge

Washington County District Court

File No. C9973628

Joseph B. Marshall, Marshall and Associates, P.A., 9501 Lexington Avenue North, Circle Pines, MN 55014 (for appellant)

James A. Beitz, Michael C. Hagerty, Hagerty, Johnson, Albrightson & Beitz, P.A., 701 Fourth Avenue South, Suite 901, Minneapolis, MN 55415 (for respondent)

Considered and decided by Short, Presiding Judge, Peterson, Judge, and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N

SHORT, Judge

After entering into a purchase agreement to sell a piece of property, Charles E. Hughes discovered Fidelity National Title Insurance Company of New York (Fidelity) held a prior assignment of interest in the same property. Although Hughes was able to sell the property, he was involved in litigation over the purchase agreement and title conflicts. Hughes sued Fidelity for slander of title, and sought permission to amend his complaint to include a claim for punitive damages. The trial court denied Hughes's motion to add punitive damages and granted summary judgment to Fidelity. On appeal, Hughes argues the trial court erred by granting Fidelity's motion for summary judgment and denying his motion to amend. We affirm.


On appeal from summary judgment, this court examines whether there are any genuine issues of material fact and whether the trial court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990), see Minn. R. Civ. P. 56.03 (setting forth trial court standard for summary judgment). Although this court views the evidence in the light most favorable to the party against whom judgment was granted, summary judgment is appropriate against a party who fails to establish the existence of an element essential to its case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552 (1986); Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). We review questions of law de novo. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).

Hughes argues attorney fees amassed during prior litigation constitute special damages and are recoverable in this slander of title action against Fidelity. But Hughes may not recover for title disparagement unless he can prove pecuniary loss attributable to Fidelity's statements. See Advanced Training Sys., Inc. v. Caswell Equip. Co., Inc., 352 N.W.2d 1, 7 (Minn. 1984) (noting plaintiff may not recover for slander of property unless plaintiff is able to prove direct pecuniary loss). Here, the prior litigation involved: (1) the buyers suing Hughes for specific performance of the purchase agreement with Hughes defending and seeking cancellation; and (2) a separate action by Hughes to evict the buyers from the premises. Any attorney fees amassed during that litigation did not arise as a consequence of Fidelity's actions, and are thus not recoverable. See Hill v. Okay Constr. Co., 312 Minn. 324, 347, 252 N.W.2d 107, 121 (1977) (holding attorney fees recoverable when litigation with third party was necessary); Prior Lake State Bank v. Groth, 259 Minn. 495, 499-500, 108 N.W.2d 619, 622-23 (1961) (holding attorney fees recoverable when litigation with third party was natural and proximate consequence of defendant's tortious conduct); Tarnowski v. Resop, 236 Minn. 33, 39, 51 N.W.2d 801, 804 (1952) (holding attorney fees from litigation with third party were recoverable when "plainly traceable" to defendant's conduct); Stickney v. Goward, 161 Minn. 457, 459, 201 N.W. 630, 631 (1925) (holding attorney fees not recoverable because tort of defendants did not necessitate lawsuit with third party).

Hughes also argues the trial court erred by denying his motion to amend his complaint to include punitive damages. But Hughes must suffer special damages to recover punitive damages. See Jacobs v. Farmland Mut. Ins. Co., 377 N.W.2d 441, 445 (Minn. 1985) (noting punitive damages generally are permitted only where plaintiff is entitled to actual or compensatory damages). Because Hughes has suffered no special damages as a result of Fidelity's actions, the trial court properly denied his motion to amend.