IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                     September Term 2014
                                                        FILED
                       _______________              October 2, 2014
                                                     released at 3:00 p.m.
                                                     RORY L. PERRY II, CLERK
                         No. 13-0925               SUPREME COURT OF APPEALS
                       _______________                 OF WEST VIRGINIA




                  ELIZABETH 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



      Appeal from the Circuit Court of Wyoming County
  The Hon. Charles M. Vickers, Judge, by Special Assignment
                  Civil Action No. 12-C-37

                REVERSED and REMANDED



                 Submitted: September 9, 2014
                    Filed: October 2, 2014
G. Todd Houck, Esq.                          John F. Hussell, IV, Esq.
Mullens, West Virginia                       Staci N. Criswell, Esq.
Jackson O. Brownlee, Phv.                    Mary R. Rowe, Esq.
Beusse Wolter Sanks Mora & Maire, P.A.       Dinsmore & Shohl, LLP
Orlando, Florida                             Charleston, West Virginia
Counsel for the Petitioners                  Counsel for Respondent
                                             Posey Gene Cook

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



JUSTICE KETCHUM delivered the Opinion of the Court.
                             SYLLABUS BY THE COURT



              1.     W.Va. Code, 39B-1-110(a)(1) [2012], of the West Virginia Uniform

Power of Attorney Act provides that a power of attorney terminates when the principal dies.



              2.     “A deed will not be declared void for uncertainty if it is possible, by

any reasonable rules of construction, to ascertain from the description, aided by extrinsic

evidence, what property it is intended to convey.” Syl. pt. 1, Jones v. Gibson, 118 W.Va.

66, 188 S.E.773 (1936).



              3.     “Where reference is made in a deed, containing only a general

description of land, to another deed, which contains a description by metes and bounds, for

the purpose of describing the land intended to be conveyed, it has the same effect as if such

particular description in the deed referred to were incorporated in the deed in which the

reference is made.” Syl. pt. 2, Thomas v. Young, 93 W.Va. 555, 117 S.E. 909 (1923).
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

                                              1
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.


                                               2
              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




       1
         James D. Cook and Jerry Lee Cook executed quitclaim deeds conveying all rights
they may have had in the two tracts to Gene Cook. They subsequently filed pro se answers
in the action endorsing Gene Cook’s prayer for relief and alleging that Gene Cook, rather
than Chichester and Lambson, had all right, title and interest in the land.

                                              3
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:




       2
        James D. Cook and Jerry Lee Cook also filed affidavits stating that, at the family
reunion, their father George P. Cook said that he no longer wished to own real property in
West Virginia and wanted to transfer his interest in the property to one of his children.
According to those affidavits, Gene Cook indicated, at that time, that he would be willing to
receive the property. An additional affidavit was signed by P. Don Cook, a nephew of
George P. Cook. That affidavit stated that, following the family reunion, P. Don Cook dealt
exclusively with Gene Cook as the owner of the 1/5 interest previously owned by George P.
Cook.

                                              4
                     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


                                               5
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.




       3
         In November 2011, Elizabeth Chichester, a resident of Florida, was appointed as the
personal representative of the Estate of George P. Cook. The appointment was through the
Probate Division of the Circuit Court of Hernando County, Florida. An order was entered
in Florida admitting George P. Cook’s Will and Codicil to probate. It is our understanding
that Gene Cook later challenged his sister’s appointment as personal representative.

                                             6
              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


         4
         Chichester and Lambson filed a declaratory judgment action against Gene Cook and
Toney’s Fork Land, LLC, in the United States District Court for the Middle District of
Florida, seeking to set aside Gene Cook’s conveyance of the property to himself. That action
has been stayed pending the outcome of the litigation in West Virginia.

                                              7
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 equally,” because he was concerned about the import of the May

1996 power of attorney.



              Gene Cook filed a motion for summary judgment. The motion alleged that the

defect identifying Tract 1 in the 1997 deed, by which Gene Cook conveyed the two tracts to

himself, was mere surplusage resulting from a clerical error and that the deed should be

reformed to confirm the conveyance.



              Following a hearing, the circuit court entered an order on March 19, 2013,

granting summary judgment in favor of Gene Cook.



              The circuit court rejected Chichester and Lambson’s assertion that Gene Cook

committed fraud with regard to the 2008 corrective deed. The circuit court found that, even

though Gene Cook executed the corrective deed with reference to the power of attorney and

signed the deed as the executor of George P. Cook’s Estate, Chichester and Lambson failed

to establish that they had relied on the corrective deed for any purpose. Therefore, the circuit

court concluded that an essential element of an action for fraud had not been shown. See syl.

                                               8
pt. 5, in part, Kidd v. Mull, 215 W.Va. 151, 595 S.E.2d 308 (2004) (The plaintiff’s reliance

on a material and false act of the defendant is an essential element in an action for fraud.).



              Moreover, the circuit court upheld the validity of the original 1997 deed. The

court found that the mistaken identifying reference to Tract 1 in the 1997 deed should be

rejected as surplusage. Stated differently, the 1997 deed sufficiently established that the

property to be conveyed was the same 1/5 interest George P. Cook inherited from his father,

G. W. Cook. Thus, the circuit court ruled that the 1997 deed would be reformed to reflect

the correct identifying reference to Tract 1.



              The circuit court further found that since the power of attorney expressly

authorized Gene Cook to convey the property to himself, and that there was corroborating

evidence of George P. Cook’s intent to permit such a transfer, there was no breach of any

fiduciary duty by Gene Cook as George P. Cook’s power of attorney. In addition, the circuit

court found the evidence insufficient concerning whether the power of attorney had been

forged or altered. The court stated that Elizabeth Chichester’s assertions in that regard were

self-serving and that she had offered no expert handwriting analysis to show that the initials

on the power of attorney submitted in evidence were not those of George P. Cook.



              Chichester and Lambson filed a motion to clarify whether the summary

judgment disposed of the entire action, including their counterclaim. On August 12, 2013,

                                                9
the circuit court entered a final order confirming that the counterclaim did not survive the

summary judgment. The circuit court dismissed the action with prejudice, and this appeal

followed.



                                  III. Standards of Review

              Pursuant to Rule 56 of the West Virginia Rules of Civil Procedure, summary

judgment is proper where the record demonstrates “that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of law.” As a

result of that plain language, the guidelines for considering a motion for summary judgment

are well settled. Syllabus point 3 of Aetna Cas. & Sur. Co. v. Fed. Ins. Co. of N. Y., 148

W.Va. 160, 133 S.E.2d 770 (1963), holds: “A motion for summary judgment should be

granted only when it is clear that there is no genuine issue of fact to be tried and inquiry

concerning the facts is not desirable to clarify the application of the law.” Accord syl. pt. 1,

Coleman Estate v. R.M. Logging, Inc., 222 W.Va. 357, 664 S.E.2d 698 (2008). Moreover,

this Court has observed that, in reviewing an order granting a motion for summary judgment,

any permissible inferences from the underlying facts must be drawn in the light most

favorable to the party opposing the motion. See Mueller v. Am. Elec. Power Energy Serv.,

214 W.Va. 390, 393, 589 S.E.2d 532, 535 (2003).



              Finally, in syllabus point 1 of Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755

(1994), this Court stated that a circuit court’s entry of summary judgment “is reviewed de

                                              10
novo.” Accord Grant Thornton, LLP v. Kutak Rock, LLP, 228 W.Va. 226, 233, 719 S.E.2d

394, 401 (2011).



                                       IV. Discussion

              In granting summary judgment in favor of Gene Cook, the circuit court

addressed (1) the validity of the corrective deed, (2) the original deed made August 28, 1997,

and (3) the underlying power of attorney by which George P. Cook named his son,

respondent Gene Cook, as his attorney-in-fact.



                              A. The 2008 Corrective Deed

              Although the circuit court rejected a challenge to the corrective deed because

Chichester and Lambson failed to establish fraud, the corrective deed was void for the

reasons stated by Chichester and Lambson in their answer: “[T]he Grantor of the Power of

Attorney was deceased and therefore the Power of Attorney no longer existed. In addition,

[Gene Cook] was not and never has been the Executor of the Estate of George P. Cook.”



              The record appendix confirms that Gene Cook was never appointed to be the

executor of George P. Cook’s Estate.



              Furthermore, George P. Cook died in 1999, approximately nine years prior to

Gene Cook’s 2008 execution of the corrective deed as George P. Cook’s attorney-in-fact.

                                             11
West Virginia and Florida have statutory provisions stating that a power of attorney

terminates when the principal, or grantor of the power, dies. See W.Va. Code, 39B-1-

110(a)(1) [2012], and Fla. Stat. Ann. § 709.2109 [2011]. Specifically, W.Va. Code, 39B-1-

110(a)(1) [2012], of the West Virginia Uniform Power of Attorney Act provides that a power

of attorney terminates when the principal dies. See also In re Richard P., 227 W.Va. 285,

293, 708 S.E.2d 479, 487 (2010) (An ordinary power of attorney terminates upon the death

of the principal.). As counsel for Chichester and Lambson stated succinctly at the hearing

on the motion for summary judgment: “You cannot be both a power of attorney for your

principal and an executor for your principal.”



              This Court is therefore of the opinion that the 2008 corrective deed was void

ab initio and of no moment in the reformation of the August 28, 1997, deed by which Gene

Cook conveyed the property to himself.



                               B. The Original 1997 Deed

              The circuit court also considered the validity of the original 1997 deed. The

1997 deed mistakenly identified Tract 1 by referring to an unrelated 1929 deed, rather than

the 1910 deed set forth in the Will of G. W. Cook. Rejecting the mistake as surplusage, the

circuit court found that the 1997 deed sufficiently established that the property Gene Cook

conveyed to himself was the same 1/5 interest George P. Cook inherited through the Will of

G. W. Cook.

                                            12
              The identification of Tract 1 by referring to an unrelated 1929 deed is not

surplusage. However, the defective reference identifying Tract 1 is deprived of significance

by the following language included in the 1997 deed:

             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.5

(Emphasis added).



              The language in the Will of G. W. Cook, which was attached to the 1997 deed,

included the acreage and a correct deed reference for Tract 1. The Will was attached to the

deed when it was recorded in the Office of the Clerk of the County Commission. The

accuracy of the descriptions in G. W. Cook’s Will have not been challenged and constitute

a proper identification for the tracts conveyed.6 See Southern v. Sine, 95 W.Va. 634, 638,

123 S.E. 436, 437 (1924) (A reference in two deeds to a Will for a “more particular

description” of the land sold was a factor in determining whether the conveyances were in

gross or by the acre.). See also McQueen v. Ahbe, 99 W.Va. 650, 655, 130 S.E. 261, 263


       5
        The appendix record to this Court contained an incomplete copy of the 1997 deed.
None of the parties saw fit to include the entire deed, which had attached the Will of G.W.
Cook. However, the Clerk of this Court obtained a complete copy of the 1997 deed for our
review. See West Virginia Rules of Appellate Procedure, Rule 6 [2010].
       6
        See Vol. 2, G. P. Smith, Jr., Harrison on Wills and Administration for Virginia and
West Virginia, § 305 (3rd ed. 1986) (discussing the sufficiency of descriptions of real property
in Wills).

                                              13
(1925) (A description can be determined by the deed “or other writing.”). As syllabus point

1 of Jones v. Gibson, 118 W.Va. 66, 188 S.E. 773 (1936), holds: “A deed will not be

declared void for uncertainty if it is possible, by any reasonable rules of construction, to

ascertain from the description, aided by extrinsic evidence, what property it is intended to

convey.” Accord Consol. Coal Co. v. Mineral Coal Co., 147 W.Va. 130, 143, 126 S.E.2d

194, 202 (1962). Further assistance in this area of the law is found in Thomas v. Young, 93

W.Va. 555, 117 S.E. 909 (1923), syllabus point 2 of which states:

                     Where reference is made in a deed, containing only a
              general description of land, to another deed, which contains a
              description by metes and bounds, for the purpose of describing
              the land intended to be conveyed, it has the same effect as if
              such particular description in the deed referred to were
              incorporated in the deed in which the reference is made.


See also, J. W. Fisher, II, The Scope of Title Examination in West Virginia: Can Reasonable

Minds Differ?, 98 W.Va. L. Rev. 449, 485 (1996); and J. W. Fisher, II, The Scope of Title

Examinations in West Virginia Revisited, 111 W.Va. L. Rev. 641, 674 (2009) (when the

description or identification in a deed includes key or foundation words, such as a reference

to the source of title, certainty in the description of the land to be conveyed may be attained

with the aid of evidence outside the deed).



              Accordingly, the circuit court correctly determined that Tract 1 was adequately

identified in the 1997 deed. The circuit court was correct in finding the deed was not invalid



                                              14
or void because of a defective description or identification of the property conveyed. The

identity of Tract 1 was made clear by the Will attached to the 1997 deed.




                               C. The Power of Attorney

              Gene Cook deeded the property to himself as power of attorney for his father,

George P. Cook. The 1997 deed expressly stated that the conveyance was made pursuant to

the 1996 power of attorney. Thus, the propriety of the 1997 conveyance is dependent upon

the authenticity of the power of attorney which purportedly allowed Gene Cook to convey

the property to himself.



              It is uncontested that the May 1996 two-page power of attorney was prepared

by a law firm in Florida and that Elizabeth Chichester, an employee of the firm, typed the

power for her father, George P. Cook, to sign. It is further uncontested that George P. Cook

signed the power of attorney and named Gene Cook as his attorney-in-fact. George P.

Cook’s signature on the second page of the document was notarized by Chichester.

However, Chichester and Lambert contend that the power of attorney, thus signed, did not

include a paragraph on the first page allowing Gene Cook to convey the property to himself.

Moreover, they contend that the initials on page one of the power submitted by Gene Cook

are not those of George P. Cook.

                                            15
              The circuit court rejected those contentions as self-serving and noted

specifically that no expert handwriting analysis had been presented to show that the initials

were not those of George P. Cook. This Court is of the opinion, however, that summary

judgment was not warranted on the basis of the lack of a handwriting expert. Rule 701 of

the West Virginia Rules of Evidence states:

                      If the witness is not testifying as an expert, his or her
              testimony in the form of opinions or inferences is limited to
              those opinions or inferences which are (a) rationally based on
              the perception of the witness, and (b) helpful to a clear
              understanding of the witness’ testimony or the determination
              of a fact in issue.



See Vol. 2, F. D. Cleckley, Handbook on Evidence for West Virginia Lawyers, ch. 7, §

701.02[4] (5th ed. 2012) (discussing Rule 701 and stating that “[o]ne who is familiar with a

certain individual’s handwriting may express an opinion as to the authenticity of a

signature.”). See also W.Va. R. Evid. 901(b)(2) (Nonexpert opinion as to the genuineness

of handwriting, based on familiarity not acquired for purposes of litigation, is a proper means

of authentication or identification.). Thus, in Poole v. Beller, 104 W.Va. 547, 140 S.E. 534

(1927), this Court held that a stepdaughter who had knowledge of her step mother’s

handwriting was competent to testify as to the genuineness of the step mother’s signature to

a disputed writing.7



       7
        See generally, E. L. Kellett, Annotation, Competency of Interested Witness to Testify
to Signature or Handwriting of Deceased, 13 A.L.R.3d 404 (1967).

                                              16
              In her affidavit in opposition to summary judgment, Elizabeth Chichester stated

that she and her father, George P. Cook, lived in Hernando County, Florida, and that she was

his care-giver during the latter part of his life. In addition, she indicated that the power of

attorney given to respondent Gene Cook related solely to the West Virginia property and that

she was George P. Cook’s attorney-in-fact under a separate power of attorney, primarily

relating to health-care issues. The affidavit stated further:

                      I have examined the Power of Attorney that is attached
              to [Gene Cook’s] Motion for Summary Judgment and page
              one of that Power of Attorney [allowing Gene Cook to convey
              the property to himself] is not the one I prepared nor is it the
              first page initialed by my father at the time of his signing. *
              * * I am personally familiar with my father’s signature and
              his signature using initials only; and, the initials on page one
              of the above referenced Power of Attorney are not my
              father’s.



              Thus, in opposing summary judgment, Chichester and Lambson relied upon

Chichester’s personal knowledge of their father’s handwriting (initials). Our law is clear that

one who is familiar with an individual’s handwriting may be allowed to express an opinion

as to the authenticity of the individual’s signature.8 Our law does not require that a party


       8
        Syllabus point 2 of State v. Nichols, 208 W.Va. 432, 541 S.E.2d 310 (1999),
modified on other grounds, State v. McCraine, 214 W.Va. 188, 588 S.E.2d 177 (2003),
states:

              In order for a lay witness to give opinion testimony pursuant to Rule
                                                                             (continued...)

                                              17
have a handwriting expert when a lay opinion is admissible under Rule 701 of the Rules of

Evidence. Moreover, Chichester and Lambson asserted that the power of attorney had been

altered by the insertion of a paragraph authorizing Gene Cook to deed the two Wyoming

County tracts to himself.



              In syllabus point 3 of Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994),

this Court confirmed: “The circuit court’s function at the summary judgment stage is not to

weigh the evidence and determine the truth of the matter, but is to determine whether there

is a genuine issue for trial.” In the current matter, there is a question of material fact

concerning the authenticity of the power of attorney by which Gene Cook conveyed the

property to himself. Consequently, the entry of summary judgment was reversible error. In

so ruling, we note that, in reinstating Chichester and Lambson’s claims based on forgery and

alteration of the power of attorney, their claims of breach of fiduciary duty, fraud and

wrongful interference with testamentary expectancy are also reinstated for further litigation

in the proceedings below.



                    D. The Deposition of Lawyer Charles Dollison


       8
        (...continued)
       701 of the West Virginia Rules of Evidence (1) the witness must have personal
       knowledge or perception of the facts from which the opinion is to be derived;
       (2) there must be a rational connection between the opinion and the facts upon
       which it is based; and (3) the opinion must be helpful in understanding the
       testimony or determining a fact in issue.

                                             18
              Finally, Chichester and Lambson assert that the circuit court committed error

in granting Toney’s Fork Land, LLC’s, motion to quash the notice of deposition of its former

corporate lawyer, Charles Dollison. Dollison did not prepare the 1996 power of attorney,

and he did not prepare either the 1997 deed or the 2008 corrective deed. He prepared the

2008 mining lease and deed conveying the surface to Toney’s Fork Land, LLC.



       As stated, we have held that the 2008 corrective deed is invalid and is no longer an

issue. Consequently, any knowledge Dollison may have surrounding the drafting and

execution of the corrective deed is irrelevant. We cannot perceive that his deposition about

the 2008 deed will lead to the discovery of admissible evidence. See W.Va. R. Civ. P.

26(b)(1) (Parties may obtain discovery of information “reasonably calculated to lead to the

discovery of admissible evidence.”). Furthermore, there is no allegation that Dollison has

any knowledge of the execution of the 1996 power of attorney or the execution of the

original 1997 deed ostensibly transferring an interest in the two tracts to Gene Cook.

Therefore, the circuit court was correct in not allowing the deposition of lawyer Dollison.



                                      V. Conclusion




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              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.9



                                                                  Reversed and Remanded.




       9
         Three additional issues were raised during the proceedings before the circuit court.
First, Gene Cook alleged in the amended complaint that he acquired title to the Wyoming
County tracts on the basis of adverse possession. Second, Chichester and Lambson filed a
motion in limine pursuant to W.Va. Code, 57-3-1 [1937] (the Dead Man’s Statute), to prohibit
the examination of any party or interested person concerning any personal transaction or
communication between such witness and the deceased, George P. Cook. In regard to that
issue, we note that the Dead Man’s Statute was invalidated by this Court in State Farm Fire
& Cas. Co. v. Prinz, 231 W.Va. 96, 743 S.E.2d 907 (2013). Third, Chichester and Lambson
sought to prohibit any evidence of the sale of the property, unless there was shown a contract,
note or memorandum therefor signed by George P. Cook – as required by W.Va. Code, 36-1-
3 [1923] (the Statute of Frauds).

       Those three issues, however, were not pursued in the briefs filed before this Court
and, consequently, will not be addressed in this Opinion. Syllabus point 6 of Addair, Adm’r
v. Bryant, 168 W.Va. 306, 284 S.E.2d 374 (1981), holds: “Assignments of error that are not
argued in the briefs on appeal may be deemed by this Court to be waived.” Covington v.
Smith, 213 W.Va. 309, 317 n. 8, 582 S.E.2d 756, 764 n. 8 (2003). See also syl. pt. 5, in part,
Morgan v. Price, 151 W.Va. 158, 150 S.E.2d 897 (1966) (indicating that a party complaining
of error must carry the burden of showing the error).

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