Robert C. Pelt v. Richard E. Benjamin ( 2021 )


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  •                                                                                             10/07/2021
    IN THE COURT OF APPEALS OF TENNESSEE
    AT NASHVILLE
    August 18, 2021 Session
    ROBERT C. PELT ET AL. v. RICHARD E. BENJAMIN ET AL.
    Appeal from the Chancery Court for Wilson County
    No. 2019CV32      Charles K. Smith, Chancellor
    ___________________________________
    No. M2020-01068-COA-R3-CV
    ___________________________________
    This case concerns an alleged contract for the sale of real property. Although a prior
    written offer regarding the property expired pursuant to its stated terms when it was not
    timely accepted, the trial court held that there was an oral agreement to extend the
    expiration date for acceptance and concluded that the Statute of Frauds did not serve as an
    impediment to enforcement of the parties’ alleged contract when the plaintiffs, the
    appellees herein, filed suit to enforce it. The trial court also concluded that no damages
    should be awarded under former Tennessee Code Annotated section 66-21-108 to the
    defendants, who had asserted a slander of title claim in the trial court. The defendants now
    appeal, challenging both the trial court’s contract law analysis and its decision to not award
    them statutory damages. Although we reverse the trial court’s judgment with respect to
    the plaintiffs’ breach of contract claim, we affirm its refusal to award the defendants
    statutory damages for the reasons stated herein.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed
    in Part, Affirmed in Part, and Remanded
    ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which ANDY D. BENNETT,
    J., and J. STEVEN STAFFORD, P.J., W.S., joined.
    Shawn J. McBrien, Lebanon, Tennessee, for the appellants, Vicki J. Benjamin and Richard
    E. Benjamin.
    E. Kirkham Gore, III, and Blake Harris Reynolds, Franklin, Tennessee, and J. Caralisa
    Connell, Dallas, Texas, for the appellees, Robert C. Pelt and Diane L. Pelt.
    OPINION
    BACKGROUND AND PROCEDURAL HISTORY
    The parties in this case are Robert and Diane Pelt (“the Pelts”) and Vicki and
    Richard Benjamin (“the Benjamins”). The underlying dispute arises from the Benjamins’
    efforts to sell their Lebanon, Tennessee home. The Benjamins originally listed their home
    on the market in December of 2018 for $649,900.00, and on December 21 of that month,
    the Pelts made an offer to purchase the property for $625,000.00. That offer, which was
    reflected in a document styled “Purchase and Sale Agreement,” provided that it would
    terminate at 5:00 p.m. on December 22, 2018.
    The following day, the Benjamins executed a counter-offer in a document entitled
    “Counter Offer #1” (“the Counter-Offer”). Among other things, the Counter-Offer
    proposed that the sales price be $635,000.00. Moreover, as is of consequence to our
    discussion herein, the Counter-Offer specifically stated that it would terminate if not
    accepted by 5:00 p.m. on December 22, 2018.
    The Pelts did not timely accept the Counter-Offer in accordance with its stated
    terms. Accordingly, the offer expired. Nevertheless, it is the Pelts’ contention that
    subsequent activity between the two sides allowed them to accept the Counter-Offer past
    the stated 5:00 p.m. deadline on December 22, 2018. Following the Christmas holiday, on
    December 27, 2018, the Pelts viewed the property with a contractor. A couple of days
    later, on December 29, 2018, the Pelts’ real estate agent called Mr. Benjamin to advise him
    that the Pelts would accept the Counter-Offer. The specific contents of this phone call,
    however, remain a subject of dispute among the parties. According to the trial court’s later
    findings, there was an oral agreement to extend the Counter-Offer’s expiration date for
    acceptance, the new supposed date being fixed at January 4, 2019.
    Regarding the phone call, the Pelts’ agent testified that when she broached the issue
    of her clients being able to sign contractual documents when they returned from a
    California trip, Mr. Benjamin “originally said that he would need to speak to his wife.”
    According to Mr. Benjamin, when the Pelts’ agent said that her clients were going to sign
    the Counter-Offer, he mentioned how the Counter-Offer had expired and that she should
    send him an “extension” so that, after an extension was signed, there could again be a viable
    offer.
    In a December 29, 2018 text message, Mr. Benjamin stated that “we have to wait til
    tomorrow to get back to u on this.” According to his testimony, Mr. Benjamin stated that
    this message concerned the Pelts’ interest in a jewelry box at the property. The following
    day, he sent another message stating as follows: “We have a greed [sic] to the verbal in the
    addendum but will continue to show until we have a signed agreement and preapproval
    letter. And the addendum.” The Pelts’ agent responded to this message by writing as
    follows: “My clients believe in giving their word has [sic] a commitment that they will
    purchase your property. They will sign everything when they return and I will get it sent
    to you on Friday. They believe in respect and honesty. They are truly great people.” Mr.
    Benjamin simply responded, “K great. Thx.”
    -2-
    Although these messages revealed ongoing negotiations and the Benjamins’
    potential willingness to enter into a contractual agreement with the Pelts, nowhere did these
    messages evidence a firm renewed written offer that allowed for an acceptance of the prior
    Counter-Offer outside of its stated—and now expired—terms.1 Again, as already noted,
    that written offer had already expired. Ostensibly relying on the alleged oral agreement to
    extend the Counter-Offer’s acceptance period, the Pelts’ agent later sent the Counter-Offer,
    signed by Mr. Pelt,2 to Mr. Benjamin on January 4, 2019 at 7:13 p.m. The email indicated
    that the “signed counter offer that we verbally agreed to along with the bank letter” were
    attached. (emphases added)
    The following day, Mr. Benjamin responded to the Pelts’ agent’s email by noting
    that he had accepted another offer on January 4 “around 7 PM.” As it turns out, the written
    contract evidencing the Benjamins’ arrangement with other parties, James and Kaycee
    Owen (“the Owen family”), reflects that it was actually executed at 8 p.m. on January 4.
    The Pelts’ agent then sent a follow-up email asking why Mr. Benjamin would not have
    allowed her clients “to bring their highest and best offer.” Mr. Benjamin responded by
    noting that he had previously stated that he and Ms. Benjamin “would continue to show
    the property after [the Pelts’] delayed verbal acceptance.” He further noted that it “appears
    that we were meeting with our buyer at precisely the time you called and sent the expired
    signed counter.”
    The present litigation ensued in the wake of the Benjamins’ contention that they had
    1
    Interestingly, the trial court noted as follows during the course of trial: “I saw one [message] that
    said verbal in the addendum of course was okay that as she’s testified the addendum or the attached items,
    and she went over some of them. But I’m sure she’s got something else that says the verbal contract
    regarding extension of the expiration date is okay, but I haven’t seen that. I would just like to see it.”
    (emphases added) It then later stated again that, “[I]f there’s somewhere else that she wants to show me
    there was verbal approval extension of the time I think, but I don’t think it exists.” As noted herein, the
    trial court ultimately concluded that the expiration date regarding acceptance of the Counter-Offer had
    merely been verbally modified (and sufficiently so in the court’s view). When asked during trial if there
    was no signed extension agreement regarding the Counter-Offer, the Pelts’ agent testified, “That is correct.”
    During Ms. Pelt’s testimony, when asked if she had received a document that said there was a contract
    extension or an extension of any of the prior paperwork, she replied, “No.”
    2
    There is no dispute that the sent, signed copy contained Mr. Pelt’s signature. Whether it contained
    Ms. Pelt’s signature is another question. The record contains a copy signed by only Mr. Pelt, which Mr.
    Benjamin claims to have received, as well as one signed by both of the Pelts. The Pelts’ agent stated that
    she “can’t testify which one was actually attached to the email,” although she thought she attached the one
    with both signatures. She attributed the presence of different copies to how the electronic signature platform
    she uses works, as it requires parties to sign separately. We do not need to definitively resolve whether the
    attached, signed Counter-Offer was signed by both of the Pelts or only Mr. Pelt. That fact is irrelevant to
    our specific discussion herein. Interestingly, the trial court appears to have made a finding that the Pelts’
    agent sent the version containing both signatures, stating that the “Buyers emailed a copy of the Counter-
    Offer signed by Buyers.” The court made this finding despite the agent’s statement that she could not
    testify which copy was actually attached and the testimony of Mr. Benjamin that the copy containing only
    Mr. Pelt’s signature was included.
    -3-
    a binding contract with the Owen family, not the Pelts. The Pelts filed suit in the Wilson
    County Chancery Court (“the trial court”) asserting the Benjamins were in breach of
    contract and seeking an order of specific performance for the sale of the property. The
    Pelts also requested that the court clerk certify an abstract of suit/notice of lien lis pendens.
    Although the Benjamins moved to dismiss the action, in part by invoking the Statute of
    Frauds, the trial court denied the motion.
    The Benjamins later filed an answer and again specifically invoked the Statute of
    Frauds as a defense. They also asserted a counterclaim and contended that they had
    suffered damages as a proximate cause of the Pelts’ alleged “slander of title by the filing
    of the lien lis pendens.” With respect to this claim for relief, the Pelts subsequently filed a
    motion to dismiss, arguing, among other things, that the Benjamins “did not assert anything
    to suggest that the [Pelts] filed their lawsuit against the [Benjamins] maliciously or
    knowing that they did not have a cognizable claim at law.”
    The Benjamins thereafter moved to amend their counterclaim, which they proposed
    would specifically include a claim for damages under former Tennessee Code Annotated
    section 66-21-108, a statute which had provided relief to certain landowners who prevailed
    in certain proceedings, “including in a slander of title proceeding.” The trial court later
    entered an order denying the Pelts’ motion to dismiss, while also granting the Benjamins
    permission to amend their counterclaim.
    Following a multi-day trial, the trial court entered its “Finding[s] of Fact and
    Conclusion[s] of Law” on July 22, 2020 and, on August 6, 2020, its “Final Judgment
    Order.” The trial court concluded that there was a binding contract between the two sides
    and ordered the Benjamins to specifically perform it. In the court’s view, the Counter-
    Offer’s stated expiration date simply did not apply; indeed, the court concluded there had
    been an “oral modification to extend the expiration date to January 4, 2019.” In an attempt
    to support its conclusion that a writing was not required to reflect this modification and
    that a Statute of Frauds defense was “waived,” the trial court referenced Tennessee case
    law holding that oral agreements to modify contracts may be given effect notwithstanding
    written provisions prohibiting the same. Very simply, the court concluded, “the contract
    was orally or verbally modified to extend the expiration date without affecting the validity
    of the contract.” As discussed infra, the trial court’s conclusion that a contract had been
    modified is somewhat confusing inasmuch as it presumably was referencing the Counter-
    Offer, which of course was not a binding contract at the time of the alleged oral extension.
    In addition to awarding the Pelts relief pursuant to their breach of contract claim,
    the trial court also held that the Benjamins’ slander of title counterclaim had not been
    properly proven. Accordingly, the trial court ruled, the Benjamins were not entitled to any
    statutory damages under former Tennessee Code Annotated section 66-21-108. Following
    the entry of judgment, the Benjamins timely appealed to this Court.
    -4-
    DISCUSSION
    As we perceive it, the Benjamins’ brief requires us to address two primary issues.
    First, we must address whether the trial court erred in finding that the Benjamins’ Statute
    of Frauds defense did not serve as a barrier to the Pelts’ breach of contract action. Second,
    we must consider the Benjamins’ contention that they are entitled to statutory damages
    under the provision formerly codified at Tennessee Code Annotated section 66-21-108.
    Statute of Frauds Issue
    The dispute at the center of this litigation concerns an alleged contract for the sale of
    land. Pursuant to Tennessee’s general Statute of Frauds, no action shall be brought “[u]pon
    any contract for the sale of lands” unless “the promise or agreement, upon which such
    action shall be brought, or some memorandum or note thereof, shall be in writing, and
    signed by the party to be charged therewith, or some other person lawfully authorized by
    such party.” Tenn. Code Ann. § 29-2-101(a). As noted earlier, in connection with its
    decision that a valid contract existed between the parties and that the Statute of Frauds
    posed no problem to the Pelts’ pursuit of relief, the trial court determined that there had
    been a waiver incident to the alleged extension of the Counter-Offer. The trial court further
    determined that the parties’ “contract was orally or verbally modified to extend the
    expiration date without affecting the validity of the contract.” As supporting legal authority
    for its opinion on these matters, the trial court cited a prior decision from this Court which
    explained that oral alterations of an agreement can be given effect even where a written
    contract prohibits oral modifications. See Lancaster v. Ferrell Paving, Inc., 
    397 S.W.3d 606
    , 611-12 (Tenn. Ct. App. 2011) (“[W]e find that both parties consented to the oral
    modification of the Security Service Agreement and both parties waived the requirement
    that contractual modifications must be in writing.”).3
    3
    Based on the case law referenced by the trial court and its corollary finding that there had been a
    modification, we interpret its own finding that “the Statute of Frauds defense was waived” as signaling the
    waiver of the provision incorporated into the Counter-Offer which prohibited modifications “unless signed
    by all parties.” Thus, by dint of that alleged waiver, the parties could, in the court’s apparent view, freely
    enter into an oral modification. We explain elsewhere in this Opinion the problems with this reasoning.
    There are places in the record where the Pelts appear to argue that the “waiver” that occurred is in
    relation to the expiration date term itself, not a term concerning signed modifications. Putting aside the fact
    that there were no binding contract terms in existence at the time of the alleged modification (a point we
    will discuss within this Opinion in connection with the court’s findings), the subject of the alleged oral
    agreement and the court’s findings on same appear to bely such an interpretation. Indeed, as it concerns
    the expiration date term, what is being argued about is whether that term was changed, i.e., modified. See
    Hill v. Goodwin, 
    722 S.W.2d 668
    , 670-71 (Tenn. Ct. App. 1986) (noting differences between waiver and
    modification and observing that the former involves elimination and the latter a change).
    The Pelts’ brief also contains an argument on the doctrine of equitable estoppel. Although they do
    not otherwise present the matter as a formal issue for review, the Pelts outline conduct which they submit
    is “sufficient to invoke equitable estoppel.” Indeed, the Pelts contend that the Benjamins “should be”
    -5-
    In addressing the trial court’s reliance on the above authority to allow the Pelts to
    circumvent the application of the Statute of Frauds, we are of the opinion that a couple of
    observations are in order. First, as a technical matter, there was no contract in place to
    modify as the language of the court’s order suggests. Indeed, the Counter-Offer was not
    accepted by the Pelts prior to its stated expiration date, and as such, there simply were no
    contractual rights in existence at the time of the alleged oral agreement to modify the terms
    of the Counter-Offer. Again, the Counter-Offer was merely what its name plainly suggests,
    an offer, and that offer expired. Regardless, the principle articulated in the case law relied
    upon by the trial court in no way means, as the trial court appears to have concluded, that
    a Statute of Frauds defense is somehow negated simply because a party orally agreed to
    modify an existing written agreement, even one with language amounting to a no oral
    modification clause. As one commentator has observed, although there is undoubtedly
    authority (such as that cited by the trial court) allowing for oral modifications of written
    agreements that contain a no oral modification clause, this line of authority “can be
    misleading . . . because taken out of context, [it] fail[s] to account sufficiently for the statute
    of frauds.” Steven W. Feldman, 22 Tenn. Practice: Contract Law and Practice § 10:5
    (September 2021). The Statute of Frauds, therefore, must still be accounted for and taken
    into consideration, making the case law relied upon by the trial court inapposite given the
    subject matter at issue here. Indeed, when a transaction of real estate is at issue, both the
    initial contract and any modification of the contract must be supported in writing.
    Davidson v. Wilson, No. M2009-01933-COA-R3-CV, 
    2010 WL 2482332
    , at *7 (Tenn. Ct.
    App. June 18, 2010) (“In Tennessee, like an initial contract, ‘a modification of a contract
    for the sale of real estate must be in writing.’”); see also Hill v. Goodwin, 
    722 S.W.2d 668
    ,
    671 (Tenn. Ct. App. 1986) (noting a requirement that a modification of a contract for the
    equitably estopped from asserting the Statute of Frauds as a defense. As we liberally interpret it, the Pelts
    are, in the alternative to other arguments made, contending that the trial court should have made such a
    finding of estoppel. The trial court’s order did not address the issue.
    In examining the argument offered by the Pelts on appeal, we conclude that this issue is waived.
    The primary focus of the Pelts’ argument is devoted to the essential elements of an equitable estoppel as
    related to the party to be estopped. Virtually unexamined in their argument, save for a single reference that
    the Pelts “relied upon the Benjamins’ representations,” are the elements of equitable estoppel as they relate
    to the party claiming estoppel. These elements are as follows:
    1) Lack of knowledge and of the means of knowledge of the truth as to the facts in
    question; (2) Reliance upon the conduct of the party estopped; and (3) Action based
    thereon of such a character as to change his position prejudicially[.]
    Consumer Credit Union v. Hite, 
    801 S.W.2d 822
    , 825 (Tenn. Ct. App. 1990) (quoting Callahan v. Town of
    Middleton, 
    41 Tenn.App. 21
    , 
    292 S.W.2d 501
     (1954)). Notably, the Pelts’ argument contains no specific
    discussion of “prejudice,” nor does it contain any discussion of the “lack of knowledge/means of
    knowledge” element. Having failed to offer argument that is sufficiently responsive to all of the elements
    of equitable estoppel, we hold that the matter is waived.
    -6-
    sale of real estate must be in writing). Inasmuch as the trial court here held that an oral
    modification permissibly occurred, it failed to properly recognize the mandates of the
    Statute of Frauds and, as the previously-cited commentator cautioned against, therefore
    took the Lancaster v. Ferrell Paving decision out of context. Of course, we note again that
    there was not a contract in existence to modify at the time of the alleged oral agreement.
    This is a case about contract formation, and the written offer which the Pelts claimed
    to have accepted plainly provided that it expired at 5:00 p.m. on December 22, 2018 if not
    accepted by that time. The Pelts, of course, did not timely accept that offer. Their attempt
    to augment the terms of the offer through proof of an alleged oral agreement is to no avail.
    Contrary to the conclusion effectively reached by the trial court, we agree with the
    Benjamins that the Pelts’ position is foreclosed by the Statute of Frauds. Again, the Statute
    of Frauds provides that no action shall be brought “[u]pon any contract for the sale of
    lands” unless “the promise or agreement, upon which such action shall be brought, or some
    memorandum or note thereof, shall be in writing, and signed by the party to be charged
    therewith, or some other person lawfully authorized by such party.” Tenn. Code Ann. §
    29-2-101(a). Here, there is no signed writing by the Benjamins reflecting their assent to
    sell the property to the Pelts on the date the Pelts purported to accept the Counter-Offer.
    The written Counter-Offer reflected that it expired, and although correspondence was sent
    between the Pelts’ agent and Mr. Benjamin after that expiration date, such correspondence
    merely was evidence that the Benjamins would potentially be open to selling their home to
    the Pelts, not that the Counter-Offer itself formally remained capable of binding acceptance
    until January 4, 2019.
    “The primary purpose of the Statute of Frauds is to reduce the risk of fraud and
    perjury associated with oral testimony,” Smith v. Hi-Speed, Inc., 
    536 S.W.3d 458
    , 474
    (Tenn. Ct. App. 2016) (quoting Waddle v. Elrod, 
    367 S.W.3d 217
    , 223 (Tenn. 2012)), and
    “[b]y requiring certain transactions to be in writing, the statute also helps to ‘prevent the
    proof of verbal agreements after the memory of witnesses has been dimmed by lapse of
    time.’” 
    Id.
     (quoting Boutwell v. Lewis Bros. Lumber Co., 
    27 Tenn.App. 460
    , 
    182 S.W.2d 1
    , 3 (1944)). In this case, the trial court erroneously concluded that the Statute of Frauds
    was no impediment to the Pelts’ pursuit of contractual relief, as it relied upon an alleged
    verbal agreement to change the terms of the Counter-Offer, namely the date by which the
    offer could be accepted.4 As no writing by the Benjamins reflects their binding assent to
    such a change and term,5 the trial court’s judgment is hereby reversed with respect to its
    4
    Again, the court concluded that the alleged verbal agreement was permissible on the basis of case
    law pertaining to modifications of existing contracts. Of course, the principles from that universe of case
    law cannot be blindly extrapolated so as to divorce the application of the Statute of Frauds when the Statute
    of Frauds is otherwise relevant to the subject matter of a given case. See Steven W. Feldman, 22 Tenn.
    Practice: Contract Law and Practice § 10:5 (September 2021).
    5
    We reject arguments that the Pelts have made on appeal to the contrary and note again the trial
    testimony of the Pelts’ agent, who specifically acknowledged there was not a signed extension agreement
    regarding the Counter-Offer. Moreover, whereas the Pelts appear to argue that the text messages exchanged
    -7-
    findings on the existence of an enforceable contract and its concomitant order of specific
    performance.
    Damages under Former Tennessee Code Annotated section 66-21-108
    The Benjamins’ second point of contention on appeal relates to the trial court’s
    decision to deny them damages under former Tennessee Code Annotated section 66-21-
    108, a statute which was repealed effective April 5, 2019. In response to the Benjamins’
    pursuit of relief under this statute, the Pelts advance two primary arguments in their brief
    on appeal. The first argument relates to the statute’s repeal and alleged inapplicability on
    that basis. The second argument concerns the language of the statute itself, alternatively
    proposing that “[e]ven if Tenn. Code Ann. § 66-21-108 is applicable [in spite of its repeal],
    the Benjamins have not met the requirements for relief.”
    We need not definitively resolve either argument by the Pelts in light of the
    Benjamins’ failure to comply with applicable briefing requirements. The Tennessee Rules
    of Appellate Procedure require, among other things, that arguments be supported by
    appropriate references to the appellate record. See Tenn. R. App. P. 27(a)(7) (requiring
    appellants’ briefs to contain an argument supported by appropriate references to the
    record); see also Tenn. R. Ct. App. 6(a) (requiring that written argument include “[a]
    statement of each determinative fact relied upon with citation to the record where evidence
    of each such fact may be found”). It is well-settled law that arguments that do not contain
    appropriate references to the record may be considered waived. See Bean v. Bean, 
    40 S.W.3d 52
    , 55 (Tenn. Ct. App. 2000) (“Courts have routinely held that the failure to make
    appropriate references to the record and to cite relevant authority in the argument section
    of the brief as required by Rule 27(a)(7) constitutes a waiver of the issue.”). Here, the
    Benjamins’ argument in support of their damages issue is devoid of any citations to the
    record. Indeed, despite several generalized references to the “facts” and general allusions
    to how the “facts of the case” warrant damages, no supporting record references are
    provided. The issue is accordingly waived.6
    on December 29 and 30 of 2018 evidence Mr. Benjamin’s agreement to extend the Counter-Offer through
    January 4, 2019, these messages merely evidence a continued willingness on the part of Mr. Benjamin to
    deal with the Pelts. The messages do not evidence his agreement that the Counter-Offer remained open
    and could be binding on him and Ms. Benjamin if accepted by the Pelts on or before January 4. Notably,
    the trial court itself even commented at trial, after referencing the December 30 email correspondence, that
    it had not seen anything “that says the verbal contract regarding extension of the expiration date is okay.”
    6
    With the aim of addressing the merits of the disputes among the parties, we have already
    overlooked other technical briefing deficiencies, namely the Benjamins’ failure to formally present either
    of their two primary issues on appeal in a “statement of the issues presented for review” as required by Rule
    27(a)(4) of the Tennessee Rules of Appellate Procedure. We are less forgiving in our willingness to
    entertain the specific damages issue, however, given the noted briefing deficiencies that exist within the
    included argument. Interestingly, we further observe that the Benjamins fail to even mention or engage
    with the specific basis why the trial court denied their claim for damages. The trial court denied their claim
    for damages as a corollary to its determination that the Benjamins’ asserted slander of title claim was not
    -8-
    CONCLUSION
    For the foregoing reasons, the trial court’s judgment is hereby reversed in part and
    affirmed in part. Specifically, although we reverse the trial court’s finding that an
    enforceable contract existed and reverse its concomitant order of specific performance, we
    affirm the denial of the Benjamins’ claim for statutory damages.
    s/ Arnold B. Goldin
    ARNOLD B. GOLDIN, JUDGE
    properly proven. Indeed, the court’s “Final Judgment Order” specifically stated as follows: “This Court . .
    . finds that Defendants failed to prove slander of title, therefore, no damages are awarded. As Defendants
    did not prevail in this claim, no damages are additionally awarded under T.C.A. 66-21-108 for wrongful
    filing of a lien against said property.” Given the absence of any engagement with this holding, the
    Benjamins of course offer no specific argument as to whether the trial court’s reasoning is supportable, nor
    do they, as the Pelts observe, raise any actual issue concerning the dismissal of the slander of title claim.
    Notably, the Benjamins’ reply brief offers rebuttal argument on damages only as to the Pelts’ argument
    related to the repeal of the statute, thereby in a sense compounding the inadequacies in the argument offered
    by their initial brief.
    -9-