dissenting in part.
On appeal, we determine whether summary judgment was appropriate based on whether a material fact remains unanswered. See, e.g., K.C. Props. of Nw. Ark., Inc. v. Lowell Inv. Partners, LLC, 373 Ark. 14, 280 S.W.3d 1 (2008). Appellants’ argument on appeal is that there remain material issues of fact on their slander-of-title claim, and therefore summary judgment was inappropriate. Using procedural intrigues, the majority dispenses with this argument.
Appellants argue on appeal that they raised a genuine issue of material fact as to whether appellee acted with malice in filing its lien. Malice is the gist of a slander-of-title claim. Hicks v. Earley, 235 Ark. 251, 357 S.W.2d 647 (1962). Further, while malice may be express or implied, the action cannot be maintained if the claim was asserted in good faith and was founded on probable cause or reasonable belief. Id. A fraudulent overstatement of a lien |ncan invalidate the lien. Lyman Lamb Co. v. Arkansas Shell Homes, Inc., 241 Ark. 83, 406 S.W.2d 708 (1966).
The majority states that the circuit court did not rule on appellants’ assertion of malice and asserts that the “order appealed from is based upon the theory of privilege, and therefore, this opinion need not address that portion of appellants’ argument.” The circuit court did rule on appellants’ argument. Not only did the circuit court find that there was probable cause, thus finding there was no malice, the court also ruled that there was no “clear and convincing” evidence of malice to support punitive damages. And to the extent that the circuit court did find that the filing of the lien was privileged, appellants argued that appellee acted with malice, and proof of malice may defeat certain claims of privilege. See 103 Am.Jur. Trials Slander of Title Claims § 20 (2007). I thus conclude that the issue of malice was addressed by the circuit court.
Next, the majority asserts that the slander-of-title claim is moot and was abandoned on appeal. They reach this conclusion based on their observation that the majority affirmed the circuit court’s finding that the lien waivers only applied to the original contract and not the subsequent oral agreement for rock removal. Presumably, the majority is asserting that appellants’ slander-of-title claim was based on appellee’s filing of a materialman’s lien after appellee executed hen waivers that applied only to the original contract and not the oral agreement for rock removal.
|iaThis characterization of the slander-of-title claim is incorrect. Rather, in their complaint, appellants acknowledge the existence of a construction contract for which appellee was paid $30,000. What they argued, however, in their complaint for slander of title, is that the claim for an additional $51,825 was “grossly excessive and fraudulent” and that appellee “had no just, reasonable, or probable cause to believe” the amount was correct. Appellants then concluded that appellee acted “maliciously” and slandered their title. Accordingly, the slander-of-title claim was based on appellants’ assertion that appellee had filed a materialman’s lien in excess of $50,000 and not on a claim that appellee slandered their title by filing a lien after having executed lien waivers. Further, this argument was raised in appellants’ brief on appeal, as appellants asserted that appel-lee maliciously filed the lien in that appel-lee made assertions it knew to be false. The majority reads appellants’ argument on appeal far too narrowly to reach its conclusion that the issue of malice is moot and was abandoned on appeal.
Thus, the majority fails to recognize the basis for appellants’ slander-of-title claim and that appellants created a question of fact on whether appellee acted with malice in filing a lien for over $50,000. The lien was for much more than the $30,000 the circuit court awarded for rock removal. Furthermore, appellants presented evidence that Doug Dickerson stated that the rock removal would cost no more than $20,000. Also, appellee’s lien claim included charges that predated the rock-removal agreement or the date that rock was actually encountered during construction and included charges for certain equipment used for | ^construction for which Dickerson stated he would not charge for use in rock removal. This evidence creates a factual question on whether appellee acted with malice.
Thus, I respectfully dissent from the majority’s decision to affirm the circuit court’s grant of summary judgment on the slander-of-title claim.
BAKER, J., joins this dissent.