## Facts

- Prospective purchasers submitted an offer to buy a parcel of real estate owned by the sellers.
- The sellers accepted the offer subject to rescission of an existing contract concerning the same property.
- The purchasers were later informed the prior contract had not been canceled, and their earnest money was returned.
- Despite the collapse of the transaction, the purchasers recorded their real estate contract and filed a notice of lis pendens against the property.
- The sellers alleged these filings clouded title and impaired their ability to sell, and they asserted a counterclaim for slander of title.
- The counterclaim alleged the filings were made “without legal justification” but did not expressly allege malice.

## Issues

1. Whether a slander of title counterclaim states a claim when it omits an express allegation of malice but alleges the challenged filing was made “without legal justification.”
2. Whether the trial court abused its discretion by denying leave to file a second amended counterclaim when the movant did not tender a proposed amendment or explain how it would cure the defect.

## Decision

- The appellate court affirmed dismissal of the amended counterclaim for failure to state a claim.
- The court held that malice is an essential element of slander of title and must be pleaded; “without legal justification” did not substitute for malice.
- The court affirmed denial of leave to file a second amended counterclaim because defendants made only an oral request and did not tender a proposed amendment showing a cure.

## Legal Principles

- Slander of title requires a false and malicious publication that disparages another’s title and causes special damages.
- Malice, in this context, is not established by strict liability; liability requires knowledge of falsity or reckless disregard of truth or falsity, plus intent or recognition that publication is likely to cause pecuniary harm.
- Recording a document that clouds title is actionable only if done maliciously; reasonable grounds to believe in a claim to the property negate malice.
- Under Illinois pleading rules, failure to plead an essential element warrants dismissal.
- Leave to amend rests within the trial court’s discretion and may be denied when the party does not tender a proposed amended pleading or show how amendment would cure the deficiency.

## Conclusion

The court upheld dismissal of the sellers’ slander of title counterclaim because it failed to plead malice, and it upheld denial of further amendment where defendants neither presented a proposed amended pleading nor explained how they would correct the defect.


Whildin v. Kovacs, 403 N.E.2d 694 (Ill. App. Ct. 1980)