Savage v. Timsah: Kansas Rejects Attorney-Fee “Special Damages” in the Slander-of-Title Action Itself

Court: Supreme Court of Kansas Date: May 15, 2026 Case: Savage v. Timsah, No. 127,122

1. Introduction

Savage v. Timsah addresses a recurring pressure point in property-tort litigation: whether a plaintiff who proves common-law slander of title may recover, as “special damages,” the attorney fees spent litigating the very case in which the slander-of-title claim is asserted. The appellees—Paul L. Savage and Gayle Williams (Trustees), and Paul and Paula Savage individually—owned Wichita rental property benefitted by an easement over an alleyway. After appellant Amal Timsah (owner of the burdened parcel) obstructed the alley and denied the easement’s existence, the plaintiffs sued for declaratory and injunctive relief.

Although the pleadings did not expressly demand damages, the pretrial order (by agreement) included a slander-of-title theory, and plaintiffs sought to treat their in-case attorney fees as “damages” flowing from the alleged cloud on their easement. The district court awarded $33,165 in attorney fees as slander-of-title damages. The Court of Appeals affirmed, reasoning the award compensated plaintiffs for the cost of removing the cloud rather than shifting fees based on prevailing-party status. The Kansas Supreme Court granted review on that single issue and reversed.

Core issue: Does Kansas law allow attorney fees incurred in the same slander-of-title action to be recovered as “special damages” absent statute, contract, or separate third-party litigation?

2. Summary of the Opinion

The Kansas Supreme Court held that Kansas’ “American Rule” bars recovering attorney fees incurred in the litigation in which the slander-of-title claim is asserted, even though special damages are an element of slander of title. The Court clarified (and formally recognized) the elements of Kansas slander of title, reaffirmed that special damages must be pleaded with specificity under K.S.A. 60-209(g), and limited the “third-party litigation exception” to circumstances involving litigation against a third party caused by the defendant’s tortious conduct. Because this case involved no third-party litigation and no statutory or contractual fee authorization, the attorney-fee award was unauthorized.

Key holdings (as distilled from the syllabus)

  • Attorney fees are not recoverable absent a clear statute or party agreement.
  • Kansas slander-of-title elements include false disparagement, malice/lack of probable cause, publication to others, and resulting pecuniary loss (special damages).
  • Special damages must be pleaded with specificity (K.S.A. 60-209[g]).
  • The “third-party litigation exception” permits recovery of fees incurred in litigation with a third party caused by defendant’s tort; it does not apply where there is no third party.
  • Absent contract, statute, or third-party litigation, slander-of-title special damages do not include attorney fees incurred in the same case.

3. Analysis

3.1. Precedents Cited

Authority (exact title as cited) Role in the Court’s reasoning
Idbeis v. Wichita Surgical Specialists, P.A., 285 Kan. 485, 173 P.3d 642 (2007) Anchors Kansas’ articulation of the American Rule: fees are not recoverable without statute or agreement; equitable powers do not supply authority; fee statutes are strictly construed. The Court treated this as the baseline rule plaintiffs could not circumvent by labeling fees “damages.”
Stover v. Johnnycake, 9 Kan. 367, 1872 WL 638 (1872) Historical reinforcement that attorney fees for services in the same case are not allowed absent stipulation or express statutory authorization.
Unruh v. Purina Mills, LLC, 289 Kan. 1185, 221 P.3d 1130 (2009) Supplies the standard of review: whether a court has authority to award fees is a question of law reviewed without deference.
Schutt v. Foster, 320 Kan. 852, 572 P.3d 770 (2025); In re D.J., 321 Kan. 75, 573 P.3d 255 (2025) Used to discuss preservation (Rule 6.02[a][5]) and appellate discretion regarding unpreserved issues; ultimately, the Court held the preservation objection was itself unpreserved due to Rule 8.03(c)(3)(B).
State v. Ballard, 320 Kan. 269, 566 P.3d 1092 (2025) Supports the point that failure to cross-petition can forfeit an issue for Supreme Court review; applied to reject plaintiffs’ preservation challenge.
Stark v. Chitwood, 5 Kan. 141, 1869 WL 415 (1869) Foundational Kansas slander-of-title case: special damages must be alleged (general loss allegations are insufficient); malice and probable cause are central; advice of counsel can negate liability where a bona fide claim is asserted. The Court used this lineage to justify formalizing the elements.
Dennis v Smith, 186 Kan. 539, 352 P.2d 405 (1960); Watkins v. Conway, 124 Kan. 79, 257 P. 937 (1927); Bourn v. State Bank, 116 Kan. 231, 226 P. 769 (1924); Carbondale Inv. Co. v. Burdick, 67 Kan. 329, 72 P. 781 (1903) Cited to show continuity of Kansas doctrine: slander of title requires malice and special pecuniary loss; damages are not presumed.
LaBarge v. City of Concordia, 23 Kan. App. 2d 8, 927 P.2d 487 (1996); Safety Federal Savings & Loan Assn. v. Thurston, 8 Kan. App. 2d 10, 648 P.2d 267 (1982) Provided a modern shorthand definition; the Supreme Court built upon these to “formally recognize” a five-element test including publication to someone other than the owner and special damages.
In re Long, No. 09-12827, 2011 WL 721531 (Bankr. D. Kan. 2011) (unpublished opinion) Used as descriptive support: slander of title as an intentional tort requiring special damages and malice/probable cause.
Sahgal v. DMA Electric, Inc., No. 105,466, 2012 WL 718945 (Kan. App. 2012) (unpublished opinion) Quoted for the prior gap in Kansas law—no direct answer on in-suit attorney fees as slander-of-title damages—setting the stage for this “first impression” resolution.
Dwelle v. Home Realty & Inv. Co., 134 Kan. 520, 7 P.2d 522 (1932) The Court acknowledged it as suggesting fees might have been awarded in a slander-of-title/quiet-title context, but held that any such implication is no longer good law, expressly stating it “abrogate[s] prior caselaw suggesting otherwise.”
Woodmont Corp. v. Rockwood Ctr. Partnership, 811 F. Supp. 1478 (D. Kan. 1993) Cited for the concept of special damages and why they must be specifically pleaded; paired with K.S.A. 60-209(g).
Hawkinson v. Bennett, 265 Kan. 564, 962 P.2d 445 (1998) Central to the Court’s rejection of plaintiffs’ theory: Kansas recognizes a narrow “third-party litigation exception” (treated here as a form of special damages), permitting recovery of fees incurred in separate litigation with a third party caused by the defendant’s tort. The Court emphasized it does not apply when there is no third-party litigation.
Duggan v. Rooney, 749 F. Supp. 234 (D. Kan. 1990) Quoted (via Hawkinson) for the third-party-litigation formulation; the Court partially disavowed an overbroad embedded quotation used in some retellings, narrowing the “exception” to the third-party scenario.
Harder v. Foster, 54 Kan. App. 2d 444, 401 P.3d 1032 (2017) (Harder I) Used to describe the rationale and mechanics of third-party litigation recovery, including that such fees can be compensatory damages “collaterally related” to the tortious act.
D.M. Osborne & Co. v. Ehrhard, 37 Kan. 413, 15 P. 590 (1887); McOsker v. Federal Insurance Co., 115 Kan. 626, 224 P. 53 (1924); Bank v. Williams, 62 Kan. 431, 63 P. 744 (1901); Bank v. Robbins, 71 Kan. 748, 81 P. 487 (1905); Vaught v. Jonathan L. Pettyjohn & Co., 104 Kan. 174, 178 P. 623 (1919); Drumm v. Cessnum, 61 Kan. 467, 59 P. 1078 (1900) These cases illustrate (sometimes inconsistently) the limited Kansas tradition of awarding litigation-related fees as damages when they are the consequence of separate proceedings (e.g., defending prior suits, malicious prosecution, defending third-party claims) caused by the defendant’s wrongdoing. The Court used them to confirm the “third-party litigation exception” exists—but also to show why it does not justify fees incurred in the same action.
Nicholson v. Fawley, 112 Kan. 124, 210 P. 482 (1922); Evans v. Central Life Insurance Co., 87 Kan. 641, 125 P. 86 (1912); Rexroad v. Kansas Power & Light Co., 192 Kan. 343, 388 P.2d 832 (1964) Cited to show Kansas courts have refused attorney fees when they arise from the action itself (even where wrongdoing is alleged), reinforcing the Court’s concern that allowing in-suit fees as “damages” would erode the American Rule.
Campbell v. Cubbon, 98 Kan. 642, 158 P. 1121 (1916); Reese v. Brame, No. 67,131 (Kan. App.) (unpublished opinion) The district court relied on Campbell v. Cubbon and Reese v. Brame as authority for fees. The Supreme Court distinguished them: Campbell v. Cubbon involved prior litigation (and additional parties), fitting the third-party framework, and did not decide whether fees are available as slander-of-title damages in the same action. Reese v. Brame was said to misread Cubbon.
Horgan v. Felton, 123 Nev. 577, 170 P.3d 982 (2007); Rorvig v. Douglas, 123 Wash. 2d 854, 873 P.2d 492 (1994); Restatement (Second) of Torts § 633 These were central to the Court of Appeals’ rationale for allowing fees to “clear title.” The Supreme Court acknowledged out-of-state support and the Restatement view, but found the contrary line more persuasive given Kansas’ American Rule and institutional role (leaving expansion to the Legislature).
Latson v. Boaz, 278 Ga. 113, 598 S.E.2d 485 (2004); Montgomery Props. Corp. v. Econ. Forms Corp., 305 N.W.2d 470 (Iowa 1981); Clark v. Lewis, 684 S.W.2d 161 (Tex. App. 1984) Persuasive authority adopted by the Court: these decisions reject attorney fees as the “special damages” needed for slander of title, absent statute/contract/third-party action. The Court used them to support the conclusion that recognizing in-suit fees would dangerously broaden fee recovery.
State v. Johnson, 297 Kan. 210, 301 P.3d 287 (2013) Used to explain why the Court did not address whether plaintiffs properly pleaded special damages: Timsah challenged only the fee award, not the slander-of-title judgment itself.

3.2. Legal Reasoning

A. The Court treats the “fee-as-damages” label as an attempted end-run around the American Rule

The Court began from an uncontroversial premise: Kansas follows the American Rule and permits fee shifting only by statute or contract (and not through general equitable power). Because no statute or agreement authorized fees, the fee award could stand only if Kansas tort law independently treated the in-suit attorney fees as compensable damages. The Court declined that move, reasoning that allowing fees incurred in the very case being litigated to serve as the plaintiff’s “special damages” would effectively convert many disputes into fee-shifting cases whenever a plaintiff can describe the need to sue as “damage.”

B. The Court formalizes slander-of-title elements and locks special damages to pecuniary loss (but not in-suit fees)

Drawing from early and modern Kansas authorities, the Court formally recognized a five-element slander-of-title test: (1) disparagement of an owner’s title to property, (2) falsity, (3) malice and lack of probable cause, (4) publication to someone other than the owner, and (5) special damages—actual pecuniary loss. It then emphasized K.S.A. 60-209(g): special damages must be pleaded with specificity.

But the dispositive move was definitional: even though special damages are required, the Court held they cannot include attorney fees incurred “within the slander of title litigation” itself. That conclusion both (i) preserves the American Rule and (ii) distinguishes Kansas’ limited willingness to award litigation-related fees as consequential damages only when those fees arise from separate litigation.

C. The “third-party litigation exception” is recast as narrow, and it does not apply without a third party

The Court treated much of the fee-friendly Kansas precedent as belonging to a specific category: cases where the defendant’s wrongdoing forced the plaintiff into other litigation (often against a third party), and the plaintiff then sought to recoup that separate-litigation expense as consequential damages. The Court reinforced the narrowness of this doctrine, including disavowing an overbroad formulation quoted in prior discussions, and holding that the exception does not apply where (as here) there is no third-party litigation.

D. Institutional-choice rationale: any broader fee recovery in slander of title is for the Legislature

The Court acknowledged that other jurisdictions and the Restatement (Second) of Torts § 633 support fee recovery to remove a cloud on title, and that the Court of Appeals found that approach persuasive. But the Supreme Court prioritized Kansas’ entrenched fee rule and warned of doctrinal spillover: if fees in the same action can be “special damages,” then fees become recoverable in many disputes merely because litigation was necessary. The Court thus invited legislative action if Kansas should create a tailored statutory fee remedy in slander-of-title cases.

3.3. Impact

  • Clear rule against in-suit fee recovery for slander of title: Kansas litigants can no longer rely on trial-level practice or ambiguous older cases to seek attorney fees as “damages” in the same slander-of-title case, absent statute/contract.
  • Pleading discipline for “special damages”: By spotlighting K.S.A. 60-209(g) and re-centering special damages as a required element, the Opinion increases the risk of early dismissal or limitation where plaintiffs fail to plead pecuniary loss with specificity.
  • Third-party litigation theory remains available—but cabined: Plaintiffs who truly incurred fees in separate third-party litigation caused by a defendant’s tortious conduct may still pursue those amounts as consequential damages, but Savage makes the “no third party, no exception” boundary explicit.
  • Quiet-title/easement disputes may shift toward statutory or contractual strategies: Parties seeking fee recovery will likely look to contractual fee clauses, statutory bases (where available), sanctions, or other recognized mechanisms rather than attempting to embed fee recovery inside a slander-of-title damages theory.
  • Doctrinal harmonization with American Rule states: The Court’s embrace of decisions like Montgomery Props. Corp. v. Econ. Forms Corp. signals an intent to maintain the American Rule’s integrity over adopting Restatement-based expansions in this area.

4. Complex Concepts Simplified

  • “American Rule”: Each side pays its own attorney fees unless a statute or contract says otherwise. Courts generally cannot award fees just because it feels fair.
  • “Slander of title”: A tort where someone falsely and maliciously says (or records) something that disparages another’s property title, causing actual financial loss.
  • “Special damages”: Specific, out-of-pocket financial harm that is not presumed and must be spelled out in the pleadings. In Kansas civil procedure, K.S.A. 60-209(g) requires pleading them with specificity.
  • “Third-party litigation exception” (as treated here): A narrow situation where the defendant’s tort forces the plaintiff to litigate with someone else (a third party). Fees from that separate litigation may be recovered as consequential damages against the defendant-tortfeasor.
  • Why “fees in this very case” are different: If fees spent suing the wrongdoer counted as “damages,” then many plaintiffs could always claim fees as damages whenever a lawsuit is needed—effectively turning most litigation into fee-shifting litigation, contrary to the American Rule.

5. Conclusion

Savage v. Timsah establishes a decisive Kansas rule: even though special damages are an element of slander of title, those damages do not include attorney fees incurred in the same slander-of-title lawsuit, absent contract, statute, or separate third-party litigation caused by the defendant’s tort. The Court also formalized the elements of slander of title and underscored the procedural requirement that special damages be pleaded with specificity under K.S.A. 60-209(g). The Opinion’s broader significance lies in its refusal to allow doctrinal re-labeling (“fees as damages”) to erode the American Rule—and in its message that any expansion of fee recovery in this niche tort belongs to the Legislature rather than judicial innovation.

Appendix: Note on the separate writing

Justice Wall (joined by Justice Stegall) concurred in part and dissented in part, accepting that the American Rule bars recovery of fees for prosecuting the slander-of-title claim, but arguing Kansas law should permit recovery of fees necessary to clear/quiet the slandered title (distinguishing “fees as damages” from “fees as fees”), and would have remanded to segregate those amounts. The majority rejected that approach as inconsistent with Kansas’ fee doctrine absent third-party litigation or legislative authorization.