GMO FORESTRY FUND 3, L.P., a Delaware limited partnership v. Jeffrey L. Ellis

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1472
GMO FORESTRY FUND 3, L.P., a Delaware limited partnership,
Plaintiff – Appellee,
v.
JEFFREY L. ELLIS,
Defendant – Appellant.
No. 08-1495
GMO FORESTRY FUND 3, L.P., a Delaware limited partnership,
Plaintiff – Appellant,
v.
JEFFREY L. ELLIS,
Defendant – Appellee.
Appeals from the United States District Court for the Southern
District of West Virginia, at Bluefield. David A. Faber,
District Judge. (1:04-cv-00841)
Argued: May 14, 2009 Decided: June 11, 2009
Before SHEDD and DUNCAN, Circuit Judges, and Frederick P.
STAMP, Jr., Senior United States District Judge for the Northern
District of West Virginia, sitting by designation.

-- 1 of 5 --

Affirmed by unpublished per curiam opinion.
Eric B. Snyder, BAILEY & GLASSER, LLP, Charleston, West
Virginia, for Jeffrey L. Ellis. Kenneth Eugene Webb, Jr.,
BOWLES, RICE, MCDAVID, GRAFF & LOVE, PLLC, Charleston, West
Virginia, for GMO Forestry Fund 3, L.P., a Delaware limited
partnership.
Unpublished opinions are not binding precedent in this circuit.
2

-- 2 of 5 --

PER CURIAM:
Jeffrey L. Ellis appeals the finding of the district court
that GMO Forestry Fund 3, L.P. (“GMO”) has superior title to a
334.89-acre tract of land in McDowell County, West Virginia
(“subject property”). GMO cross-appeals the district court’s
grant of summary judgment in Ellis’ favor on its claim of
slander of title. Finding no reversible error, we affirm.
I.
GMO filed suit against Ellis seeking to quiet title to the
subject property and alleging that Ellis had committed slander
of title by recording a deed claiming ownership of the subject
property. The district court granted partial summary
judgment in favor of Ellis on GMO’s slander of title claim but
held that GMO had valid and proper title to the subject property
superior to Ellis’ claim of title.
In granting summary judgment on the slander of title claim,
the district court found that GMO had not met its burden of
showing that Ellis acted with the requisite malice necessary to
support such a claim. See TXO Production Corp. v. Alliance
Resources Corp., 419 S.E.2d 870, 879 (W.Va. 1992) (holding that
malice is an element of a slander of title action). GMO argued
that Ellis acted with malice by not conducting a title search
and by ignoring a notation on the plat of the survey performed
3

-- 3 of 5 --

at Ellis’ request that stated that the surveyor did not warrant
ownership of the property surveyed.1 The district court noted
that although Ellis’ actions may have been questionable, no
reasonable jury could find that he acted with malice as defined
by TXO; therefore, the court granted Ellis’ motion for summary
judgment on the slander of title claim.
In regard to GMO’s action to quiet title against Ellis, the
parties agreed to the appointment of a special master. The
special master held an evidentiary hearing at which both parties
produced documentary evidence and live testimony relevant to
their respective claims to the subject property. The special
master issued a report that found that GMO had valid legal and
equitable title to the subject property superior to that of
Ellis. See J.A. 415. GMO moved the district court to adopt the
report. Ellis opposed GMO’s motion and also made specific
objections to the report. After sustaining several of Ellis’
objections, the district court adopted the report and entered
judgment against Ellis.2
1 At oral argument, GMO conceded that there was no evidence
in the record that Ellis had knowledge of any other claim to the
subject property when he filed his deed.
2 Ellis also argues that the district court erred by not
requiring GMO to produce evidence of actual possession as an
element of its quiet title action. The district court correctly
found that proof of actual possession is not required. See
(Continued)
4

-- 4 of 5 --

5
II.
We review the district court’s grant of summary judgment on
the slander of title claim de novo. See Fuisz v. Selective Ins.
Co. of Am., 61 F.3d 238, 241 (4th Cir. 1995). On the quiet
title action, we review the district court’s findings of fact
for clear error and review its legal conclusions de novo. See
United States v. Green, 436 F.3d 449, 456 (4th Cir. 2006).
Having reviewed the record and the applicable law, and
having had the benefit of oral argument, we affirm the judgment
based substantially on the reasoning of the district court.
AFFIRMED
Flynn Coal & Lumber Co. v. F.W. White Lumber Corp., 157 S.E.
588, 589 (W.Va. 1931).

-- 5 of 5 --