dissenting.
I concur with parts I, II, IV and VI.
I also concur with part III except for the majority's determination that the element of malice was not established.
Our decisions have adopted a standard of actual malice in slander of title claims. Freiburger v. Fry (1982), Ind.App., 439 N.E.2d 169; Display Fixtures, Inc. v. R.L. Hatcher, Inc. (1982) Ind.App., 438 N.E.2d 26, Harper v. Goodin (1980) Ind.App., 409 N.E.2d 1129. Thus, the claimant must establish that the defendant uttered the statement with knowledge of its falsity or with reckless disregard for whether or not it was false.
The majority asserts that this standard was not met because "it was not unreasonable for Davis to pace his faith in [the two land surveys]". It appears to me that this confuses the issue and involves this court in reweighing the evidence, a task we eschew.
The issue is not whether there was evidence which might be credited in order to reverse the trial court but whether there was evidence and reasonable inference which might sustain it. Translated, that means was there evidence sufficient to support the determination that Davis' actions were taken with reckless disregard for whether or not his claim was false. Mere negligence was not sufficient, but the evidence would be sufficient if the evidence supported the reasonable inference that Davis entertained serious doubts about the validity of his claim when he acted.
In Freiburger we held the evidence sufficient to sustain the inference of actual malice where, despite the description in his deed, the defendant had actual knowledge of an existing fence separating the property and that the owner on the other side refused to remove it.
In the present case, despite what appeared on the surveys, Davis had actual knowledge from both his own predecessor in title and the Sponhauers that they were the owners of the disputed area. Furthermore, regardless of the surveys, Davis could not shut his eyes to what he saw concerning the use and maintenance of the disputed area. From the evidence favorable to the judgment the trial court could have reasonably inferred that Davis made his claims by word and deed at a time when he entertained serious doubts as to their validity. For that reason the finding of slander of title should be affirmed.
I also dissent to the majority's analysis and disposition of issue V, concerning at torney fees. The majority states that the fact a defendant asserts the same defense at trial that he did at a preliminary injunetion hearing does not compel the conclusion that the defense was frivolous, unless the same was true from the commencement of the proceedings. It then focuses its attention exclusively on Davis' initial assertion of his position. In so doing, the majority ignores I.C. 8$4-1-32-1(b)(2), which permits the court to award attorney fees if it finds a party "continued to litigate the action or defense after the party's claim or defense *304clearly became frivolous, unreasonable or groundless." In this case the court did not determine that the defense, itself, was frivolous or unreasonable. It did determine that Davis' continued assertion of the defense, after the full evidentiary hearing on the preliminary injunction and despite Davis' failure "to present any significant facts or evidence to contradict the case already presented," constituted an unreasonable or frivolous (i.e., harassing) continuation of the litigation. In accord with the definitions adopted in Kahn v. Cundiff (1989) Ind.App., 533 N.E.2d 164, aff'd Ind., 543 N.E.2d 627. the court could have properly so found. The award should be affirmed.
I would affirm the judgment in its entirety.