STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Clint E. Cothern and Joan L. Cothern,
 

Defendants Below, Petitioners FILED
 

August 28, 2015 

vs) No. 14-1056 (Summers County 10-C-14) RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA Curtis R. Jones,
 

Plaintiff Below, Respondent
 

MEMORANDUM DECISION 

Petitioners Clint E. Cothern and Joan L. Cothern, by counsel John H. Bryan, appeal the 

August 29, 2014, order of the Circuit Court of Summers County rendering a verdict in favor of 

respondent and rescinding the deed at issue following a bench trial.1 Respondent Curtis R. Jones, 

by counsel E. Kent Hellems, filed a response brief and asserted a cross-assignment of error 

requesting damages.2 

This Court has considered the parties’ briefs and the record on appeal. The facts and legal 

arguments are adequately presented, and the decisional process would not be significantly aided 

by oral argument. Upon consideration of the standard of review, the briefs, and the record 

presented, this Court finds no substantial question of law and no prejudicial error. For these 

reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 

of the Rules of Appellate Procedure. However, as fully explained herein, the circuit court erred 

in failing to address the issues raised in respondent’s cross-assignment of error. Therefore, we 

remand this matter to the Circuit Court of Summers County for proceedings consistent with this 

memorandum decision. 

Facts and Procedural History 

Petitioner Clint E. Cothern saw a real estate advertisement for a tract of land in Jumping 

Branch, West Virginia in a local newspaper, which was listed for sale by real estate broker 

Howard Vest. Petitioner contacted the real estate company and viewed the property with Mike 

Cales, an employee of that company. Mr. Cales pointed out what he believed were the borders of 

the property, indicating that he was 90% sure that he showed petitioner the correct borders. Mr. 

Cales also provided petitioner a topographical map representing the same borders of the property 

that he showed petitioner. On October 27, 2005, Mr. and Mrs. Cothern purchased the property 

from Naomi Crawford for $35,000. Shortly thereafter, petitioners executed a timber contract 

1 We note that petitioners’ counsel reported to this Court that Petitioner Joan L. Cothern 

passed away during the pendency of the circuit court action. 

2 Petitioners did not submit a reply or a response to respondent’s cross-assignment of 

error. 

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with Mullican Lumber Company (“Mullican”) to sell the timber on the land. In that contract, 

petitioners warrantied that they owned the land being timbered and agreed to defend the 

company from any claims regarding property boundaries or ownership disputes. After entering 

into that contract, petitioners engaged in discussions with respondent to sell the property to him. 

At that time, respondent owned a tract of land adjacent to petitioners’ land in Greenville, West 

Virginia. Petitioners and respondent worked out a deal wherein respondent sold petitioners his 

land in Greenville and petitioners sold respondent the land in Jumping Branch. 

On October 12, 2007, petitioners executed a deed conveying the property in Jumping 

Branch to respondent for $27,600. Respondent was aware that the property was subject to the 

timber contract with Mullican. Thereafter, Mullican began timbering the property. During those 

operations, J.A. Maxwell contested Mullican’s right to timber the land, arguing that the land 

being timbered was his.3 Mullican alerted petitioners of the situation and halted timbering 

operations. Petitioners contacted a survey company to survey the property.4 The survey company 

issued its report, finding that the description of the property changed in 1976 from “[b]eginning 

at the lime stone cliff . . .” (“the limestone cliff description”) to “[b]eginning on the south side of 

the Little Bluestone . . .” (“the little bluestone description”). From 1981 through the present, 

petitioners’ chain of title contained only the little bluestone description. The survey company 

found that that the land described in the little bluestone description was not physically located in 

the area that Mr. Cothern visited and walked with Mr. Cales and was not the area represented on 

the topographical map. The company also determined that the little bluestone description 

described two separate pieces of land and that other individuals possessed superior title to both 

of those pieces of land. Finally, the company found that the limestone cliff description described 

a piece of land located in the area that Mr. Cothern thought he had purchased, but it did not 

include the entire area and was only 8.38 acres.5 The remaining area included in that description, 

including that being timbered, was owned by Mr. Maxwell. Following the issuance of that report, 

Mullican permanently halted timbering operations. Petitioners then reached settlements with 

Mullican and Mr. Maxwell. 

The circuit court found in its “Order – Rendering Verdict Pursuant to Bench Trial” that 

during that time, respondent was not made aware of the issues surrounding the title to the 

property. When respondent noticed that timbering operations had stopped, he began calling 

Mullican. A Mullican employee informed respondent that according to a survey, respondent did 

not possess title to the land being timbered. Respondent visited petitioners who revealed the 

contents of the survey, including the information that respondent did not own the land described 

in the metes and bounds description of the deed. Respondent filed the subject action alleging that 

petitioners breached the covenant of general warranty contained in the most recent deed. As part 

3 The record contains very little information about Mr. Maxwell, but it appears that he 

owns a portion of the property at issue. 

4 Petitioners had a title search performed prior to closing on the property, but this was the 

first survey any of the parties to this action requested. 

5 The parties originally believed that petitioners conveyed approximately twenty-five 

acres to respondent. 

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of that claim, respondent argued that petitioners failed to convey marketable title to the land 

respondent thought he was purchasing and that petitioners failed to defend respondent’s title to 

the property when they settled with Mr. Maxwell and Mullican. 

Following a bench trial, the circuit court entered its order, finding that respondent does 

not possess superior title to the land described in the little bluestone description. However, 

petitioners contended that the little bluestone description should be disregarded, asking that the 

circuit court find that the land described in the limestone cliff description in the 1976 deed was 

conveyed to respondent. As such, petitioners claim that respondent was conveyed 8.38 acres of 

land and that there was no breach of warranty since land was conveyed, only less land than was 

described. Petitioners argued below that no one has challenged respondent’s title to the 8.38 

acres and that respondent had not been ousted from that property. 

The circuit court specifically found that the deed between the parties to this action is 

unambiguous, as it explicitly states that it is the parties’ intent to convey the little bluestone 

description and contains no reference to the limestone cliff description. However, the court also 

found that the undisputed evidence adduced at trial showed that the little bluestone description 

was not what the parties intended to convey. “Because it is clear that the language of the deed 

does not describe the area of land that the parties thought was being conveyed, the [circuit court 

found] the inclusion of the little bluestone description to be a mutual mistake of material fact.” 

The court noted that the parties essentially argued that the deed should be reformed, but the court 

found that the deed should be rescinded. In doing so, the circuit court found that respondent was 

entitled to the amount he paid for the land - $27,600. The court also ordered that the deed be 

removed from the records of the County Clerk of Summers County. Because the circuit court 

rescinded the deed, it found that it did not need to reach the issue of the breach of the covenant of 

warranty. 

Discussion 

“‘In reviewing challenges to the findings and conclusions of the circuit 

court made after a bench trial, a two-pronged deferential standard of review is 

applied. The final order and the ultimate disposition are reviewed under an abuse 

of discretion standard, and the circuit court's underlying factual findings are 

reviewed under a clearly erroneous standard. Questions of law are subject to a de 

novo review.’ Syllabus Point 1, Public Citizen, Inc. v. First Nat. Bank in 

Fairmont, 198 W.Va. 329, 480 S.E.2d 538 (1996).” Syl. Pt. 1, State v. Mechling, 

219 W.Va. 366, 633 S.E.2d 311 (2006). 

Syl. Pt. 1, State v. Knotts, 233 W.Va. 665, 760 S.E.2d 479 (2014). 

On appeal, petitioners assert two assignments of error and respondent asserts a single 

cross-assignment of error. Petitioners first argue that there was no violation of the general 

warranty deed. However, in the circuit court’s August 29, 2014, order, it stated that because it 

rescinded the deed, it no longer needed to reach the issue of whether the covenant of warranty 

was breached. Therefore, petitioners’ appeal hinges on their second assignment of error – 

whether the circuit court erred in failing to reform the deed where undisputed evidence showed 

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that neither party relied upon the incorrect formal description in the deed and where the correct 

description was available, supported by expert testimony, easily discovered in the chain of title, 

and unclaimed by any third party. Petitioners argue that the only relief at equity is reformation of 

the deed because respondent sued petitioner for the breach of the covenant of general warranty 

deed. They assert that the parties relied on verbal representations of the sellers and a 

topographical map provided by the sellers rather than the formal description of the property 

contained in the deed. Petitioners contend that, if anything, equity requires correcting the formal 

description of the deed. 

Petitioners further argue that they will be unfairly prejudiced by rescission of the deed, as 

they are also innocent purchasers. They argue that respondent failed to request equitable relief in 

his complaint, so he pursued only monetary damages but was awarded equitable relief. 

Petitioners also assert that respondent failed to prove his claim at law, as the evidence did not 

support his claim of constructive ouster from his property in violation of the general warranty 

contained in the deed. Therefore, they claim they were entitled to a verdict in their favor. 

“Since rescission or cancellation of a deed is an equitable remedy, failure of 

consideration need not be the only basis on which relief may be granted. Other grounds, such as 

hardship, undue influence or fraud, may be available.” Syl. Pt. 1, Laurie v. Thomas, 170 W.Va. 

276, 294 S.E.2d 78 (1982). In addition to the monetary damages requested by respondent in his 

complaint filed before the circuit court, respondent requested “any further general relief [the 

circuit court] deems just and proper.” Petitioners do not cite any law that requires respondent to 

specifically request rescission of the deed in order for the circuit court to order the same. 

Petitioners argue that reformation of the deed would have been more proper than 

rescission of the deed. We previously found as follows: 

A court of equity has power and jurisdiction to decree the reformation of a 

deed executed through a mutual mistake of the parties as to what is intended 

therein, or through a mistake of a scrivener in failing to make the agreement 

express the mutual intention of the parties, where such reformation is sought as 

between the parties, or the successor of either, who, at the date he acquired an 

interest in the property affected by such deed, had notice of the grounds on which 

reformation is sought. 

Syl. Pt. 1, Johnston v. Terry, 128 W.Va. 94, 36 S.E.2d 489 (1945). Based on the evidence before 

it, the circuit court concluded that the parties intended to convey a much larger tract than the 8.38 

acres mapped by petitioners’ surveyors. We have found that “[i]t has long been established in 

this jurisdiction that equity has jurisdiction to grant rescission of agreements affecting interests in 

land on the ground of mutual mistake as to a material existing fact.” Boyd v. Pancake Realty Co., 

131 W.Va. 150, 157, 46 S.E.2d 633, 637 (1948). 

In its order, the circuit court detailed the reasons it could not reform the deed to the true 

intent of the parties, including that it was not completely satisfied that superior title to the 

limestone cliff description could be conveyed to respondent. Based upon our review of the 

circuit court’s order, we cannot find that the factual findings set forth therein are clearly 

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erroneous. Further, we find that the circuit court did not abuse its discretion in reaching its 

ultimate conclusions as to rescission of the deed. 

Respondent asserts a cross-assignment of error, pursuant to Rule 10(f) of the West 

Virginia Rules of Appellate Procedure, arguing that the circuit court erred in failing to award the 

stipulated damages for closing expenses, interest, and real estate taxes, in addition to the $27,600 

awarded in its August 29, 2014. In his complaint filed before the circuit court, respondent stated 

that he borrowed $15,500 from First Century Bank, N.A., for which he was required to pay 

interest and expenses. He also stated that he incurred closing costs in the amount of $621 with 

regard to the purchase of the subject property. Therefore, he requested an award of closing fees, 

costs, and expenses incurred, in addition to interest and expenses he incurred in the finance of the 

purchase price. Further, he requested the recovery of costs and expenses incurred for paying the 

real estate taxes on the subject property. 

This Court has held that “[w]here an agreement is rescinded, the general rule is, that it 

must be rescinded entirely, and the parties be placed as near as may be in statu quo.” Syl. Pt. 1, 

Worthington v. Collins’s Adm’r, 39 W.Va. 406, 19 S.E. 527 (1894). Further, “[w]here the 

rescission is made on account of the vendor’s fault, the general rule is, that the vendee is entitled 

to have the purchase-money paid by him, with its interest returned; . . .” Syl. Pt. 2, in part, id. 

Rule 10(d) of the West Virginia Rules of Appellate Procedure states that if a respondent’s brief 

fails to respond to an assignment of error, the Court will assume that the respondent agrees with 

the petitioner’s view of the issue. In this instance, because the issue is a cross-assignment of 

error, petitioners are in the role of the respondents as to this issue. However, petitioners failed to 

submit a reply or otherwise respond to this cross-assignment of error. 

The circuit court’s order is silent as to respondent’s claim for these additional damages. 

Therefore, we remand this matter on this limited issue and direct the circuit court to consider 

respondent’s claims set forth in the cross-assignment of error and enter an appropriate order. 

For the foregoing reasons, we affirm the August 29, 2014, order of the circuit court and 

remand for proceedings consistent with this memorandum decision. 

Affirmed, and remanded with directions. 

ISSUED: August 28, 2015 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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