concurring in part and dissenting in part.
I respectfully dissent as to Divisions 1 (b) (ii) and 2 of the majority opinion. I otherwise concur fully in the rest of the opinion.
1. Contrary to the majority’s view, I believe that the record evidence supports a valid slander of title claim and precludes the entry of summary judgment based upon the April and October statements made by the agent for Southern Tradition and Martin Brothers to third parties.
Under OCGA § 51-9-11, “[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.” In determining whether a statement is defamatory or slanderous, the statement must be viewed in context. See Webster v. Wilkins, 217 Ga. App. 194, 195 (1) (456 SE2d 699) (1995).
As a defamatory statement may be made in indirect terms or by insinuation, the publication thereof must be construed as a whole. In doing so, the courts will not hunt for a strained construction in order to hold the words used as being defamatory. In considering whether a [statement] is *290defamatory as a matter of law, any relevant extrinsic circumstances will be considered, because a statement may carry a defamatory meaning only by reason of extrinsic fact or circumstances by use of innuendo, inducement and colloquium.
(Citations and punctuation omitted.) Stalvey v. Atlanta Business Chronicle, 202 Ga. App. 597, 599 (1) (414 SE2d 898) (1992). Generally, whether a published statement is defamatory is a question for the jury. Id.
The sellers’ slander of title claim pertinently alleged that the agent for Southern Tradition and Martin Brothers made statements to third parties that Southern Tradition and Martin Brothers intended to pursue enforcement of the contracts for the properties “in order to teach [Fritts] a lesson” and that they “had enough money to keep the [properties] tied-up in litigation for the next 5 to 10 years.” Southern Tradition and Martin Brothers contend that the alleged statements were not false and did not reflect upon or impugn the sellers’ title to the property. The majority finds this argument persuasive. I disagree.
While the majority appears to view the statements narrowly, the legal standard for evaluating a slander of title claim requires that the statements be viewed in context, considering the circumstances in which the statements were made. See Webster, supra, 217 Ga. App. at 195 (1); Stalvey, supra, 202 Ga. App. at 599 (1). When viewed in this context, the statements falsely insinuated that the contracts for the properties were enforceable, when in fact, the contracts had been terminated and were unenforceable based upon their plain, unambiguous terms. Accordingly, to the extent that the statements asserted a false claim of entitlement to enforce the contracts after their lawful terminations, a jury would be authorized to find that the statements were false and that Southern Tradition and Martin Brothers had asserted a false claim to the properties.
Moreover, based upon the statements, a jury would be authorized to find that Southern Tradition and Martin Brothers were acting out of malice, with a purpose to harass the sellers and to bind their property. In addition, the statement’s reference to bind or “tie[ ]- up” the properties recognized that a cloud on the title would exist during the pendency of the litigation. As such, the statements could reasonably be construed as having the effect of maliciously impugning the sellers’ title to the properties. See OCGA § 51-9-11; Sanders v. Brown, 257 Ga. App. 566, 569 (a) (571 SE2d 532) (2002).
I disagree with the majority’s assertion that the statements could not be deemed as false since the parties disputed whether the contracts had been lawfully terminated and the properties were *291indeed tied up in litigation for several years after the statements were uttered. Significantly, the statements did not reflect that there was a legitimate dispute as to the lawful termination of the contracts, but rather, that enforcement of the contracts would be pursued “to teach [Fritts] a lesson.” And, contrary to the majority’s assertion, a jury would be authorized to find that the statements were not merely expressions of opinion or hyperbole. Based upon the evidence, a jury could determine that Southern Tradition and Martin Brothers proceeded to act in accordance with their malicious plan to cloud the properties’ title during the pendency of the protracted litigation. Their actions taken to carry out the plan tended to further establish the slander of title claim and supported the sellers’ claim for damages in having to defend against a rezoning proceeding and lawsuit that, as reflected by the statements, were pursued for a malicious purpose. Such statements and actions are precisely what the slander of title claim is intended to address. See OCGA § 51-9-11; Sanders, supra, 257 Ga. App. at 568-569 (a).
The evidence further established the element of publication to third parties. Clark averred that the April statement was made at a Board of Commissioners meeting, in his presence as well as in the presence of others. Although Clark averred that he was an original member of Executive and that the October statement was made to him, there was evidence reflecting publication of the October statement to third parties, as well. Notably, although Clark was an agent of Executive, there was no evidence that he was an agent of Fritts or Sterling Trust, who had ownership interests over the separate four-acre tract. Consequently, the publication of the statements to Clark was sufficient to establish a valid claim as to Fritts and Sterling Trust. See Baskin v. Rogers, 229 Ga. App. 250, 252 (3) (493 SE2d 728) (1997) (“A defamatory matter is published as soon as it is communicated to any person other than the impugned party.”) (citations and punctuation omitted). More importantly, while Clark averred that the statement was made to him, he further averred that real estate developers had informed him that the properties were unmarketable as a result of the “statements,” in plural, indicating that those third parties had heard each of the statements. As such, the evidence supported the element of publication as to each of the sellers’ claims. Id.
The evidence also would permit a finding that the agent for Southern Tradition and Martin Brothers was authorized to make the slanderous statements.
[UJnder general principles of tort law, the doctrine of respondeat superior does not apply in slander cases, and a principal is not liable for the slanderous utterances of an *292agent acting within the scope of his employment, unless it affirmatively appears that the agent was expressly directed or authorized to slander the plaintiff.
(Punctuation and footnote omitted.) Tootle v. Cartee, 280 Ga. App. 428, 430 (634 SE2d 90) (2006). Here, the evidence showed that the agent made the statements on behalf of Southern Tradition and Martin Brothers and in furtherance of their stated plan to “tie[ ]-up” or cloud title to the respective properties. Their actions taken to pursue the rezoning and lawsuit after the contracts had been lawfully terminated served as evidence that the statements had been authorized and ratified. See Jordan v. Hancock, 91 Ga. App. 467, 472 (2) (86 SE2d 11) (1955) (ruling that one may become liable for slander published by another if the statements were made in pursuance of a common design and purpose).
Since the statements were allegedly made to third parties at the Board of Commissioners meetings, they were made separately from the litigation and thus, were not covered under the litigation privilege. See Sanders, supra, 257 Ga. App. at 569 (a). And, since the statements could be construed as expressing malice, as previously explained, the statements were not definitively covered under the qualified privilege set forth in OCGA § 51-5-7, governing statements made in good faith and fair and honest reports. See Baskin, supra, 229 Ga. App. at 253 (4).
I further believe that the evidence sufficiently supported the sellers’ claim that they sustained special damages as a result of the statements. See OCGA § 51-9-11; Premier Cabinets v. Bulat, 261 Ga. App. 578, 583 (6) (583 SE2d 235) (2003).
Special damages are those which actually flow from a tortious act; they must be proved in order to be recovered. 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.
(Citations and punctuation omitted.) Sanders, supra, 257 Ga. App. at 569 (b).
Here, the sellers alleged that as a result of the slanderous statements, they sustained special damages in the form of an increased tax liability after their property was rezoned and a decrease in the properties’ marketability and values. In his affidavit, Clark attested that Southern Tradition and Martin Brothers continued to pursue the rezoning application over the sellers’ objections and after the contracts had been rescinded. As a result, the 15-acre tract was rezoned and the property taxes for the tract increased from *293$3,220.50 in 2007 prior to the rezoning to $6,278.51 in 2008 after the rezoning.
Clark further attested that he worked in the construction industry for approximately 30 years and that he assisted Excellence and Sterling Trust in evaluating any purchase offers or contracts pertaining to the properties. Clark stated that he had knowledge of the location, dimensions, and characteristics of the properties; that he had the opportunity to discuss the value of the properties with various real estate professionals; and that he regularly monitored the listings and sales of comparable properties in the area. Clark attested that based upon his knowledge, discussions, and investigation, the subject properties could have been sold in November 2007 with proper marketing for $145,000 per acre. Clark asserted, however, that as a result of the slanderous statements, the properties became unmarketable and licensed realtors have stated that the current value of the properties has depreciated to approximately $80,000 per acre.
In this regard, Clark’s affidavit provided opinion evidence showing the decrease in the properties’ value after the slanderous statements were made.
Opinion evidence offered by a non-expert witness as to the value of an item, in order to have probative value, must be based upon a foundation that the witness has some knowledge, experience, or familiarity with the value of the property in question or similar property and he must give reasons for the value assessed and also must have had an opportunity for forming a correct opinion.
(Citations and punctuation omitted.) Reeves v. Crawford, 185 Ga. App. 518 (364 SE2d 895) (1988). The attestations in Clark’s affidavit laid a proper foundation for admissibility of his opinion as to the properties’ decreased value. Although Clark’s opinion of value was partly based upon hearsay and information supplied by other real estate professionals, it was not rendered invalid.
Market value is exclusively a matter of opinion even though expressed as a fact. It may rest wholly or in part upon hearsay, provided the witness has had an opportunity of forming a correct opinion. If it is based on hearsay this would go merely to its weight and would not be a ground for valid objections.
(Citations and punctuation omitted.) Unified Govt. &c. v. Watson, 255 Ga. App. 1, 4 (2) (564 SE2d 453) (2002). See also OCGA § *29424-9-66.1 Clark’s affidavit reflected that his opinion of value was not a mere conduit for the opinion of others, but rather, was based upon his own knowledge about the properties and his independent investigation. Clark therefore had an opportunity to form a correct opinion of the properties’ value and his affidavit was probative of the special damages issue. See id. at 4-5 (2); Gibbs v. Clay, 137 Ga. App. 381, 382 (1) (224 SE2d 46) (1976). The aforementioned evidence was sufficient to present a jury question as to the special damages issue. See, e.g., Sanders, supra, 257 Ga. App. at 569 (a).2
Based upon the foregoing, the evidence presented a valid claim for slander of title. A jury would be authorized to construe the statements as reflecting that Southern Tradition and Martin Brothers asserted a false claim over the sellers’ properties after the contracts had been terminated and “tied-up,” i.e., impugned, the sellers’ titles to the respective properties “in order to teach [Fritts] a lesson” and to be undeservedly vengeful or hostile. See, e.g., Schecter v. Strickland, 189 Ga. App. 82, 84 (2) (375 SE2d 93) (1988). In this regard, we must remain mindful of the summary judgment standard: “To prevail at summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the nonmovant’s favor, warrant judgment as a matter of law.” (Citations and punctuation omitted; emphasis supplied.) Latson v. Boaz, 278 Ga. 113, 113-114 (598 SE2d 485) (2004). See also OCGA § 9-11-56 (c), (e). Viewed in the sellers’ favor, the evidence regarding the statements presented a genuine issue of material fact as to the slander of title issue. Under the circumstances presented, the jury should not have been precluded from considering the motivation for Southern Tradition’s and Martin Brothers’s statements and actions, and the trial court was not authorized to usurp the province of the jury where the evidence would support a finding that the statements amounted to slander of title. See, e.g., Schecter, supra, 189 Ga. App. at 84 (2). I believe that the trial court’s decision granting summary judgment as to this issue was erroneous.
*2952. As to Division 2,1 also disagree with the majority’s reversal of the trial court’s decision granting the motion for attorney fees filed by the sellers under OCGA § 9-15-14. I believe that the trial court’s ruling was authorized.
In awarding attorney fees to the sellers, the trial court made a finding that Southern Tradition and Martin Brothers presented claims in their lawsuits that lacked substantial justification and contained no justiciable issue of law or fact. In their complaints, Southern Tradition and Martin Brothers asserted claims for contract reformation, specific performance, and attorney fees. The Martin Brothers complaint also asserted claims for declaratory judgment, mandatory injunction, and fraud. As stated in the trial court’s order, these claims rested on Southern Tradition’s and Martin Brothers’s legally erroneous contentions that they were entitled to unilaterally revise the April 1, 2007 rezoning deadline that was unambiguously set forth in the contracts that were prepared by their agent. The evidence supports the trial court’s finding that these claims were meritless and failed to contain a justiciable issue.
The terms of the rezoning contingency and the April 1 deadline were clear and unambiguous. When the terms of a contract are plain and unambiguous, the contract must be enforced as written, so long as it is within the bounds of the law. See Toy Wright Ventures v. Radio Foods, 281 Ga. App. 278, 280-281 (635 SE2d 862) (2006); Cox u. U. S. Markets, 278 Ga. App. 287, 289-290 (2) (628 SE2d 701) (2006). The contract clearly gave the sellers the right to rescind the contract “in the event a final determination [was] not made on [the rezoning] application by the City of Oakwood or Hall County, on or before April 1, 2007[.]” When the rezoning deadline was not met, the sellers promptly exercised their right to rescind the contract.
The majority opinion nevertheless finds credence in Southern Tradition’s and Martin Brothers’s argument that the April 1 rezoning deadline was a scrivener’s error and that the parties’ intent was to instead provide a June 1 deadline. The uncontroverted evidence, however, reflects that they did not raise any such claim of scrivener’s error until after it became apparent that the deadline would not be met. On March 28, 2007, counsel for Southern Traditions and Martin Brothers sent a letter to Executive attempting to unilaterally remove the rezoning contingency from the contracts. Significantly, the letter made no mention of any alleged scrivener’s error. Fritts sent a letter in response, which objected to the unilateral attempt to remove the rezoning contingency, and he further averred that the April 1 rezoning deadline was not a mistake.
*296Longstanding Georgia precedent establishes that
equity will not decree the reformation of an instrument because of mistake of one of the parties alone unmixed with any fraud or knowledge on the part of the other equivalent to mutual mistake. For a mistake to be relievable in equity by reformation, it must be mutual, or else mistake on the part of one to the contract and fraud on the part of the other.
(Citation and punctuation omitted.) Prince v. Friedman, 202 Ga. 136, 138-139 (1) (42 SE2d 434) (1947). Here, there was no evidence of a mutual mistake or fraud.
Contrary to the majority opinion, the evidence did not establish that the contract set an unattainable deadline at its inception. The contracts provided that the rezoning applications were required to be filed “within [s]ixty (60) days” of the contracts’ formation. (Emphasis supplied.) Significantly, the agent for Southern Trust and Martin Brothers conceded in his deposition testimony that if the rezoning applications had been filed earlier in January 2007, rather than near the end of the deadline period in February 2007, the April 1 deadline could have been met.3 There was no evidence that the parties were laboring under the same misconception or that the sellers acted inconsistently with the specified deadline. Rather, when the deadline was not met, the sellers rescinded the contract in accordance with its terms. While the majority questions whether there was a benefit flowing to the sellers under the rezoning contingency, there is no need for this Court to second guess or question the parties’ reasoning in fixing the clear, unambiguous terms. Simply, Southern Tradition and Martin Brothers were not allowed to re-write the contract to avoid operation of the terms when they were no longer deemed to be favorable. As such, the trial court was authorized to find that the claims seeking reformation and reinstatement of the contract were without merit. See Prince, supra, 202 Ga. at 138-139 (1); Toy Wright Ventures, supra, 281 Ga. App. at 280-281.
Likewise, the trial court was authorized to find that there was no merit to Martin Brothers’s fraud claim, alleging that Fritts misrep*297resented his authority to execute the contract for the four-acre tract on behalf of Sterling Trust. To present a valid fraud claim, Martin Brothers was required to show that it justifiably relied upon Fritts’s alleged misrepresentation. See Lester v. Bird, 200 Ga. App. 335, 338 (1) (408 SE2d 147) (1991).4 “A plaintiff may not recover on the basis of warranty of authority or fraud when he could have protected himself by the exercise of ordinary care.” (Citation and punctuation omitted.) Walker v. Williams, 177 Ga. App. 830, 833 (341 SE2d 487) (1986). The evidence established that Martin Brothers’s agent was fully aware that the property was held under a trust by Sterling Trust, and in fact, he designated Sterling Trust as the seller and listed the address for Sterling Trust in the contract that he prepared. Yet, there was no evidence that Martin Brothers’s agent contacted Sterling Trust or took any action in the exercise of ordinary care to ascertain Fritts’s authority to execute the contract. Martin Brothers’s lack of diligence bars its recovery for fraud. See id.
Decided March 30, 2011 Reconsideration denied April 14, 2011 Berman, Fink & Van Horn, Charles H. Van Horn, Anne E. Andrews, Matthew J. Simmons, for appellants. Stewart, Melvin & Frost, Frank Armstrong III, Nancy L. Richardson, for appellees.Because the record supports the trial court’s finding that the claims of the complaint lacked substantial justification and failed to present a justiciable issue, I believe that the decision to award attorney fees was authorized. See OCGA § 9-15-14 (a), (b); Robinson v. Glass, 302 Ga. App. 742, 743-746 (691 SE2d 620) (2010).
I am authorized to state that Presiding Judge Phipps joins in this opinion.
OCGA § 24-9-66 provides that “[d]irect testimony as to market value is in the nature of opinion evidence. One need not be an expert or dealer in the article in question but may testify as to its value if he has had an opportunity for forming a correct opinion.”
Southern Tradition and Martin Brothers contend that the instant case is distinguishable from that of Sanders, supra, 257 Ga. App. at 569-570 (b), since there was no evidence that the sellers lost any actual contracts for sale of the properties due to the slander of title. Notwithstanding their attempt to distinguish Sanders, however, the sellers presented evidence that there was a decrease in marketability of the properties as a result of their inability to give a good and marketable title to the properties during the pendency of the lawsuit. This evidence, along with the opinion evidence calculating the decrease in the properties’ value, was sufficient to show with reasonable particularity the special damages that were allegedly sustained. See, e.g., Sanders, supra, 257 Ga. App. at 570 (b); Reeves, supra, 185 Ga. App. at 518.
The majority opinion also reflects misplaced reliance upon the agent’s testimony that he miscalculated the deadline by failing to correctly analyze the consequences of a rescheduled county commission meeting. The rescheduled meeting referenced in the agent’s testimony had initially been scheduled for May 10, 2007, which fell after the April 1 rezoning deadline. The agent testified that when the May meeting was canceled, it was rescheduled for an earlier date of April 26, 2007. Nevertheless, since the rescheduled May meeting and the April 26 meeting both were after the April 1 rezoning deadline, they could not be relied upon as impacting or excusing the buyers’ failure to properly calculate or meet the April 1 rezoning deadline.
The elements of a fraud claim are: (1) false representations made by the defendant; (2) that the defendant knew the representations were false; (3) an intention by the defendant to induce the aggrieved party to act or refrain from acting in reliance on the representations; (4) justifiable reliance by the aggrieved party on the representations-, and (5) damage to the aggrieved party.
(Citation omitted; emphasis supplied.) Lester, supra, 200 Ga. App. at 338 (1).