Chichester v. Cook

Decision Date02 October 2014
Docket NumberNo. 13–0925.,13–0925.
Citation234 W.Va. 183,764 S.E.2d 343
CourtWest Virginia Supreme Court
PartiesElizabeth CHICHESTER, as personal representative of the ESTATE OF George P. COOK; Elizabeth Chichester, individually; and Katherine Lambson; Defendants and Counter–Plaintiffs Below, Petitioners v. Posey Gene COOK, Plaintiff and Counter–Defendant Below; and James D. Cook; Jerry Lee Cook; and Toney's Fork Land, LLC; Defendants Below, Respondents.

G. Todd Houck, Esq., Mullens, WV, Jackson O. Brownlee, Phv., Beusse Wolter Sanks Mora & Maire, P.A., Orlando, FL, for Petitioners.

John F. Hussell, IV, Esq., Staci N. Criswell, Esq., Mary R. Rowe, Esq., Dinsmore & Shohl, LLP, Charleston, WV, for Respondent, Posey Gene Cook.

Amy M. Smith, Esq., Steptoe & Johnson, PLLC, Bridgeport, WV, Steven P. McGowan, Esq., Jennifer A. Hill, Esq., Steptoe & Johnson, PLLC, Charleston, WV, for Respondent Toney's Fork Land, LLC.


Justice KETCHUM :

This action arose from a dispute between a brother and two sisters concerning the authenticity of a power of attorney for the parties' father and the validity of two deeds. Pursuant to the power of attorney, the brother, Gene Cook, conveyed two tracts of their father's land in Wyoming County to himself. He later leased the land to Toney's Fork Land, LLC.

Gene Cook's two sisters, Elizabeth Chichester and Katherine Lambson, are challenging the authenticity of the power of attorney and the conveyance by Gene Cook to himself.

On March 19, 2013, the Circuit Court of Wyoming County entered an order granting summary judgment in favor of Gene Cook. The court found that the power of attorney was authentic and that the deeds executed by Gene Cook were valid. The circuit court entered an order on August 12, 2013, dismissing the action with prejudice. The two sisters now appeal to this Court.

Upon review, this Court concludes that the evidence reveals genuine issues of material fact surrounding the authenticity of the power of attorney, which thereby brings into dispute the validity of the deeds. Accordingly, we reverse the orders of the Circuit Court of Wyoming County entered on March 19, 2013, and August 12, 2013, and remand this action to that court for proceedings consistent with this opinion.

I. Factual Background

George P. Cook is the father of the litigating siblings in this action. In 1962, George P. Cook inherited land in Wyoming County through the Will of his deceased father G.W. Cook. The inheritance included an undivided 1/5 interest in two tracts of land that are now in dispute. The Will of G.W. Cook identified the tracts by setting out the acreage of the tracts and referencing the prior deeds which conveyed him title to those two tracts.

While still owning a 1/5 interest in those two tracts, George P. Cook became a resident of Florida. In October 1994, he executed a Will. Sixteen months later, on May 17, 1996, he executed the power of attorney that is in dispute in this case. The document appointed his son, Gene Cook, as his power of attorney or attorney-in-fact. The power of attorney stated, in part:

I authorize my attorney-in-fact to handle any and all matters relative to any interest I own in real property or oil, gas, mineral or other interests in any and all property owned by me or to which I am entitled to own under the Estate of the late [G.W.] Cook, in and throughout the State of West Virginia.
I further convey upon my attorney-in-fact, the right to transfer ownership of said property or rights thereto, to himself personally, without limitation.

The two-page power of attorney was signed by George P. Cook and allegedly initialed by him on both pages. Page one of the power contained the above-quoted language. Page two of the power included a notary public's acknowledgment of George P. Cook's signature. The notary public was George P. Cook's daughter, Elizabeth Chichester, who is one of the two sisters now litigating this case.

One month after executing the power of attorney, in June 1996, George P. Cook executed a Codicil to his 1994 Will. The Codicil stated:

At this time, my son, Gene Cook, is protecting my inheritance and insuring that my wife will benefit from any income in the event of my demise, and that my children will own everything equally that I have inherited or am entitled to inherit from my father. * * *
I therefore give, devise and bequeath all my right, title and interest in the [G.W. Cook] Estate assets, to my five children, P. Gene Cook, Jerry Lee Cook, James D. Cook, Katherine Cook–Lambson, and Elizabeth Cook–Chichester, in equal shares, per stirpes.1

The appendix record before this Court contains evidence that, in September 1996, after executing the power of attorney and the Codicil, George P. Cook stated during a family reunion that he no longer wished to own property in West Virginia and that he wanted to transfer the two tracts to one of his children.2

Subsequently, by a deed made on August 28, 1997, Gene Cook, acting as attorney-in-fact for his father under the power of attorney, conveyed to himself George P. Cook's undivided 1/5 interest in the two tracts of land in dispute. The deed description identifying Tract 1 did not contain a metes and bounds description. Instead, Tract 1 was incorrectly identified by reference to a 1929 deed for a property unrelated to Tract 1. Evidently, the 1929 deed was a conveyance to a different G.W. Cook. The deed's scrivener mistakenly failed to refer to the 1910 deed that conveyed the Tract to George P. Cook's father, G.W. Cook. Tract 2 was, however, correctly identified by a metes and bounds description and had a correct deed reference.

Separate from the 1997 deed's faulty description of Tract 1, the deed included the following back-reference concerning both of the tracts conveyed:

And, being the same property, one fifth (1/5) interest, inherited by Grantor, George Posey Cook, under the provision of The Last Will and Testament of [G.W. Cook], duly of probate in the Office of the Clerk of the County Commission of Wyoming County, West Virginia, a copy of the Will which is hereby attached for purposes of reference.

(Emphasis added). The recorded 1997 deed complied with the back-reference. It had attached the Will of G.W. Cook, which devised Tracts 1 and 2 to George P. Cook in 1962 and correctly identified both tracts.

In March 1999, George P. Cook died in Florida.

In 2008, the defect in the identity of Tract 1 was discovered in the 1997 deed to Gene Cook. The identifying deed reference to Tract 1 incorrectly referred to an unrelated 1929 deed, rather than the correct 1910 deed reference set out in the Will of G.W. Cook. In response, on June 6, 2008, Gene Cook executed a corrective deed to himself correcting the faulty deed reference for Tract 1. Although George P. Cook died in 1999, the corrective deed stated that it was made by Gene Cook pursuant to the 1996 power of attorney. Moreover, Gene Cook also signed the 2008 corrective deed as Executor of the Estate of George P. Cook, even though he had never been appointed the Estate's Executor.

On October 24, 2008, Gene Cook, as the ostensible owner of the undivided 1/5 interest in the two tracts, along with the owners of the other 4/5 interest, leased the property to Toney's Fork Land, LLC, for mining activities. In conjunction with the lease, Gene Cook and the other lessors conveyed the surface of the property to Toney's Fork Land, LLC, for so long as the lease remained in effect.

Chichester and Lambson assert that they first discovered that Gene Cook had attempted to convey George P. Cook's two tracts to himself in August or September 2011.3

II. Procedural Background

Gene Cook filed the current action in February 2012 in the Circuit Court of Wyoming County. His complaint sought a declaratory judgment quieting his title to the undivided 1/5 interest in the two Wyoming County tracts. See W.Va. R. Civ. P. 57 (declaratory judgments); West Virginia Uniform Declaratory Judgments Act, W.Va.Code, 55–13–1 [1941]et seq. In an amended complaint, Gene Cook alleged, inter alia, that the defect concerning the identifying deed reference to Tract 1 in the 1997 deed was mere surplusage resulting from a clerical error of the scrivener, i.e., that Gene Cook properly acquired title to the two tracts pursuant to that 1997 deed and the 2008 corrective deed.

Chichester and Lambson filed an answer to the amended complaint and a counterclaim, alleging that the Estate of George P. Cook was the owner of the two tracts and that Gene Cook had no authority to enter into the lease with Toney's Fork Land, LLC.

Specifically, Chichester and Lambson alleged that the 1997 deed was invalid because the defect therein was not mere surplusage and because Gene Cook's conveyance of the property to himself constituted a breach of his fiduciary duty to George P. Cook under the power of attorney. In addition, Chichester and Lambson alleged that Gene Cook committed fraud with regard to the 2008 corrective deed (1) by using the power of attorney after the death of George P. Cook and (2) by signing the corrective deed as Executor of George P. Cook's Estate, even though Gene Cook had never been appointed the Estate's Executor. Finally, Chichester and Lambson alleged wrongful interference with testamentary expectancy and sought damages, plus an accounting of all sums due the Estate of George P. Cook.4

Elizabeth Chichester testified in her deposition that, although she did not have a copy of the original power of attorney in her possession, she typed the original document and notarized George P. Cook's signature thereon. She further testified that the original document did not include a paragraph allowing Gene Cook to convey the property to himself and that the true initials of George P. Cook do not appear on page one of the power of attorney submitted into evidence by Gene Cook. Elizabeth Chichester also testified that George P. Cook made the June 1996 Codicil to his Will, which directed that his children would “own everything...

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4 cases
  • Parks v. Mut. Benefit Grp.
    • United States
    • West Virginia Supreme Court
    • October 28, 2021
    ...265 (1986) ("The plain language of Rule 56(c) mandates the entry of summary judgment...."); Chichester ex rel. Estate of Cook v. Cook , 234 W. Va. 183, 188, 764 S.E.2d 343, 348 (2014) (applying plain language of Rule 56); Mason v. Smith , 233 W. Va. 673, 678, 760 S.E.2d 487, 492 (2014) (app......
  • Parks v. Mut. Benefit Grp.
    • United States
    • Virginia Supreme Court
    • October 28, 2021
    ... ... 317, 322 (1986) ("The plain ... language of Rule 56(c) ... mandates the entry of summary judgment ... "); ... Chichester ex rel. Estate of Cook v. Cook, 234 W.Va ... 183, 188, 764 S.E.2d 343, 348 (2014) (applying plain language ... of Rule 56); Mason v ... ...
  • Chichester v. Cook, 15-0657
    • United States
    • West Virginia Supreme Court
    • June 3, 2016
    ...the order of the circuit court is appropriate under Rule 21 of the Rules of Appellate Procedure. In Chichester ex rel. Estate of Cook v. Cook, 234 W.Va. 183, 764 S.E.2d 343 (2014), we recounted the dispute that arose between the petitioners and respondent—siblings—after Respondent/Attorney-......
  • Black v. St. Joseph's Hosp. of Buckhannon
    • United States
    • West Virginia Supreme Court
    • January 8, 2016

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