PRESENT: All the Justices
WESTGATE AT WILLIAMSBURG CONDOMINIUM
ASSOCIATION, INC., ET AL.
OPINION BY
v. Record No. 050388 JUSTICE G. STEVEN AGEE
November 4, 2005
PHILIP RICHARDSON CO., INC., ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG
AND JAMES CITY COUNTY
Samuel T. Powell, III, Judge
Westgate at Williamsburg Condominium Association, Inc.
("the Association") appeals from the judgment of the Circuit
Court of the City of Williamsburg and James City County which
held that the inclusion of a parcel of real estate within a
property description submitted pursuant to a recorded
Declaration of Condominium ("the Condominium Declaration") was a
scrivener's error subject to unilateral amendment by the
condominium declarant under Code § 55-79.71(F). For the reasons
set forth below, we will reverse the judgment of the trial
court.
I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW
On August 19, 1997, Kotarides Builders/Developers, Inc.
("Kotarides, Inc.") entered into a contract to purchase an
11.913 acre parcel ("the property") from Philip Richardson Co.,
Inc. ("Richardson") in the City of Williamsburg ("the City").
The property was not subdivided, but consisted of two contiguous
tracts with different zoning classifications. A nearly 11-acre
1
tract was zoned residential ("residential parcel"), and a .978
acre tract ("Parcel 1A") was zoned commercial. Kotarides, Inc.
intended to develop a residential condominium development,
Westgate at Williamsburg ("Westgate"), on the residential
parcel.
The evidence at trial established that Richardson intended
to keep Parcel 1A to facilitate a hotel it owned on adjoining
property. However, neither Richardson nor Kotarides, Inc.
wanted to delay the closing while a subdivision application was
submitted and processed by the City to formally subdivide the
property into the residential parcel and Parcel 1A. Therefore,
Richardson intentionally conveyed the entire property to 752,
LLC ("the LLC"),1 the assignee of Kotarides, Inc., which was
fully cognizant that the property acquired consisted of both the
residential parcel and Parcel 1A.
Pete Alex Kotarides, project manager for the development,
testified that Kotarides, Inc. and Richardson had always agreed
that Parcel 1A "needed to end up back with . . . Richardson." To
that end, the parties agreed that Kotarides, Inc. would lease
1
Kotarides, Inc. formed 752, LLC solely for the purpose of
purchasing the residential property and developing Westgate.
752, LLC was the successor in interest to Kotarides, Inc.'s
interest in the property. Pete Alex Kotarides was the project
manager in charge of Westgate for 752, LLC and designated by the
LLC to act for it.
2
that parcel back to Richardson, and the purchase agreement gave
Richardson a six-year option to reacquire Parcel 1A.2
Prior to closing, Kotarides, Inc. hired AES Consulting
Engineers ("AES") to prepare site plans for the development of
Westgate. The site plans described Parcel 1A as the "Lease
Parcel," and showed no part of the condominium project actually
being built on Parcel 1A. After closing in March 1998, the LLC
directed AES to prepare a metes and bounds property description
and plat of the condominium property for purposes of the
Condominium Declaration. Although the site plans described
Parcel 1A as a "Lease Parcel," AES included the entire property
the LLC acquired from Richardson, Parcel 1A and the residential
parcel, in both the metes and bounds description and the plat of
the condominium property.
George T. Wilson, Jr., a land surveyor for AES, testified
that the LLC never instructed AES to include or exclude Parcel
1A as part of the metes and bounds description or the plat. He
testified that the LLC asked AES to prepare a property
description and plat for the property owned by the LLC. AES
2
This arrangement allowed the parties to complete the sale
without waiting for the property to be subdivided. The parties
later shortened the option to 30 days from the date of the sale,
but Kotarides, Inc.'s successor in interest, 752, LLC, agreed to
the sale in May 2002 even though that option period had expired.
3
sent the draft documents to Mr. Kotarides and Elizabeth L.
White, the LLC's attorney, for review.
Mr. Kotarides testified that he reviewed the plat and
concluded "that the lease parcel was not included." He did not
review the metes and bounds description. Ms. White reviewed
both drafts and suggested a number of changes, none of which
questioned the accuracy of including Parcel 1A in the plat or
metes and bounds description. Mr. Kotarides admitted that he
"didn't look at [the drafts] carefully enough."3
By Declaration of Condominium under Code § 55-79.54, dated
May 28, 1999, and recorded June 3, 1999, the LLC created "a
condominium regime by submitting the real estate in Exhibit A-1"
attached to the Declaration to the applicable provisions of the
Condominium Act, Code § 55-79.39, et seq. Exhibit A-1 was the
metes and bounds description of the property which included both
the residential parcel and Parcel 1A. Exhibit A-2, a plat of
survey prepared by AES, was also attached to the Declaration
which identified Exhibit A-2 as "showing the location and
dimensions of the real estate comprising the Condominium
. . . ."
3
The LLC also used the AES plat and metes and bounds
description to prepare a marketing brochure and a public
offering statement, both of which indicated Parcel 1A was part
of the condominium property. Mr. Kotarides testified that he
reviewed the brochure and the statement before they were printed
and did not point out any mistakes.
4
The LLC also established the Association, and its members
controlled the Association's Board of Directors. On June 14,
1999, the LLC sold the first unit of Westgate.
In January 2001, Richardson notified the LLC of its intent
to repurchase Parcel 1A. Mr. Kotarides then learned that Parcel
1A had been included in the Westgate condominium property when
he began to draw up the documents to complete the transfer of
that parcel to Richardson. To facilitate the transfer to
Richardson, the LLC recorded a Correction Amendment to the
Condominium Declaration on March 16, 2001, which stated that
"the legal description and the plat for Phase One erroneously
included .978 acres of land that was never intended to be
subjected to the Condominium." The Correction Amendment recited
that "§ 55-79.71(F) of the Act allows the Declarant to
unilaterally correct any scrivener's error in the condominium
instrument" as the basis for the LLC's action. On May 1, 2002,
the LLC conveyed Parcel 1A to Richardson and executed a
reciprocal deed of easement and maintenance agreement between
the LLC, the Association, and Richardson.4 That afternoon, the
LLC transferred control of the Association to the unit owners.
4
The reciprocal deed obligated the Association to maintain
the access road on Parcel 1A. Mr. Kotarides' father, Alex Pete
Kotarides, signed it as Manager of the LLC and as the Vice
President of the Association.
5
On November 20, 2002, the Association, representing the
unit owners, filed a bill of complaint to quiet title against
the LLC and Richardson, alleging the attempt to remove Parcel 1A
from the condominium property by unilateral action in the
Correction Amendment was unlawful. The Association asked the
trial court to declare the Correction Amendment, the deed
transferring Parcel 1A to Richardson, and the reciprocal deed of
easement and maintenance agreement "null, void, and of no
effect." The Association also requested attorneys' fees under
Code § 55-79.53(A).5 By final decree dated November 22, 2004,
incorporating a letter opinion of August 11, 2004, the trial
court entered judgment for the LLC and Richardson and awarded
the LLC attorneys’ fees of $51,264.71. In so doing the trial
court agreed with the LLC and Richardson that a scrivener's
error had occurred. The trial court made these findings in its
letter opinion:
5
Richardson filed an answer to the Association's bill of
complaint and cross-bills against the LLC and Kotarides, Inc.
The LLC filed a demurrer, answer and affirmative defenses to the
Association's bill of complaint, a demurrer and answer to
Richardson's cross-bill. Kotarides, Inc. demurred to
Richardson's cross-bill. The trial court overruled both the
LLC's demurrer to the Association's bill of complaint and the
LLC's and Kotarides, Inc.'s demurrers to Richardson's cross-
bill. Thereupon, Kotarides, Inc. filed an answer and
affirmative defenses to Richardson's cross-bill. The trial
court dismissed Richardson's cross-bills as moot upon entering
the final judgment. The cross-bills are not the subject of this
appeal.
6
The Court finds that Richardson sold a parcel of
land to Kotarides, which consisted of 11.913 acres.
The parcel contained two zoning designations, a .978
acre parcel was zoned B-2 and the balance zoned RM-2.
That Richardson did not intend to convey the .978 acre
parcel to Kotarides, but rather intended to use the
.978 acre parcel for a parking lot for his planned
expansion of his hotel, which is adjacent to the .978
acre parcel. Richardson did convey the entire parcel
to Kotarides to expedite Kotarides' plan to develop
condominiums on the property zoned RM-2. That
Kotarides granted Richardson an option to purchase the
.978-acre parcel back for a nominal amount. That
Kotarides (now 752 LLC) had land development plans
created for the condominium project, which included a
description of the entire parcel purchased from
Richardson, including the .978-acre parcel zoned B-2.
That 752 LLC subjected the entire parcel to the
condominium declaration. That the plat which
describes the parcel to be subjected to the
condominium project is detailed and difficult to
follow. That 752 LLC did not intend to subject the
.978-acre parcel to the condominium regime. The Court
finds based upon the facts set forth that the .978
acre parcel was included in the condominium
declaration by error.
The Court further finds that error of including
the .978-acre parcel in the condominium description
was contrary to the intent of 752 LLC. The error was
not in the creation of the plat by the surveyor, but
rather its[] use in the description of the property to
be subjected to the condominium declaration. The
error was in making the [Declaration] contrary to the
intent of 752 LLC.
The Association makes four assignments of error to the
judgment of the trial court. The Association contends the
trial court erred in (1) finding that the inclusion of
Parcel 1A in the Condominium Declaration property
description and plat was a scrivener's error, (2)
disregarding the property ownership interest of the unit
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owners, (3) treating the Condominium Declaration as a deed
and concluding that the association and unit owners were
one and the same, and (4) awarding attorneys' fees to the
LLC.
We agree with the Association that the trial court
erred in holding that the inclusion of Parcel 1A in the
Condominium Declaration property description was a
scrivener's error under Code § 55-79.71(F).
II. ANALYSIS
A. The Standard of Review
The LLC and Richardson assert that our standard of review
in this case is that of "plain error." "When the chancellor
hears evidence ore tenus, his decree is entitled to the same
weight as a jury verdict, and [the Court is] bound by the
chancellor's findings of fact unless they are plainly wrong or
without evidence to support them." Hoffman Family, L.L.C. v.
Mill Two Associates P'ship, 259 Va. 685, 696, 529 S.E.2d 318,
325 (2000). They contend that whether a scrivener's error
occurred is solely a question of fact, citing Marsteller v.
Warden, 115 Va. 353, 79 S.E. 332 (1913). In their view, the
chancellor's findings of fact as to what occurred concerning
Parcel 1A results in a finding of a scrivener's error as a
conclusion only of fact. We disagree.
8
While the trial court's findings of actual factual
occurrences such as that Parcel 1A was included in the
property description and plat contrary to the intent of the
LLC and Richardson, is entitled to deference, the ultimate
conclusion whether that mistake is a scrivener's error
under Code § 55-79.71(F) is a question of law. We review
questions of law de novo, including those situations where
there is a mixed question of law and fact. See Barter
Found., Inc. v. Widener, 267 Va. 80, 90, 592 S.E.2d 56, 61
(2004) (We review the trial court’s "application of the law
de novo, while giving deference to [its] factual
findings."). Our decision in Marsteller did not establish
a rule that the question of a scrivener's error is solely
an issue of fact. That case dealt with the parol evidence
rule and made only a passing reference to whether a
scrivener had in fact omitted a provision from a contract
by inadvertence. Marsteller, 115 Va. at 356, 79 S.E. at
333.
B. Scrivener's Error
A condominium is created when a declarant records a
condominium instrument. Code § 55-79.45. A declaration of
condominium must include, among other things, a legal
description by metes and bounds of the land submitted to the
condominium regime and a plat showing the location and dimension
9
of submitted lands. Code §§ 55-79.54(a), -79.58(A). "If there
is no unit owner other than the declarant, the declarant may
unilaterally amend the condominium instruments," but if "there
is any unit owner other than the declarant, the condominium
instruments shall be amended only by agreement of unit owners"
as set forth in Code § 55-79.71(A),(B). The declarant may,
however, "unilaterally execute and record a corrective amendment
or supplement to the condominium instruments to correct . . . a
scrivener's error," among other things. Code § 55-79.71(F).
The LLC argues on appeal that the inclusion of Parcel 1A in
the property description and plats incorporated in the
condominium instruments was a scrivener's error and thus, it was
entitled to amend the Condominium Declaration to correct that
error. The Association differentiates between a scrivener's
error and other mistakes, contending that Code § 55-79.71(F),
allowing declarants to unilaterally correct scriveners' errors,
does not apply because the record reflects no cognizable
scrivener's error.
The correction of a scrivener's error is a court-
sanctioned action reforming a contract or other document. We
note, however, that a court's role in "correcting" documents is
limited. The rule is well-settled that a court is not permitted
to rewrite a document or add terms not included by the parties.
See, e.g., Bentley Funding Group, L.L.C. v. SK&R Group, L.L.C.,
10
269 Va. 315, 330, 609 S.E.2d 49, 56 (2005) (court cannot alter
the provisions of or add to the plain language of a contract);
Jackson v. Fidelity & Deposit Co., 269 Va. 303, 310, 608 S.E.2d
901, 904 (2005) (court determines the intent of the testator
from the plain language of the will and cannot add words to the
will). A scrivener's error presents an exception to this
general rule, because as the United States Court of Appeals for
the Seventh Circuit has observed, scrivener's errors "are
difficult to prevent, and . . . no useful social purpose is
served by enforcing . . . mistaken term[s]." S.T.S. Transport
Service, Inc. v. Volvo White Truck Corp., 766 F.2d 1089, 1093
(7th Cir. 1985). Thus, a change to a document because of a
scrivener's error presents a significant exception to a well-
established rule, so we must construe that term narrowly. See,
e.g., Davis v. Mullins, 251 Va. 141, 149, 466 S.E.2d 90, 94
(1996) (A court's authority to correct a clerical error under
Code § 8.01-428(B) should be narrowly construed and applied.).
Although we have not previously had occasion to examine
what constitutes a scrivener’s error under Code § 55-79.71(F),
we have examined the term and related terms in other contexts.
For example, "clerical mistakes" under Code § 8.01-428(B) may be
scrivener's errors. Wellmore Coal Corp. v. Harman Mining Corp.,
264 Va. 279, 283, 568 S.E.2d 671, 673 (2002).
11
In Wellmore Coal, we adopted the language of the Court of
Appeals of Virginia, noting that scrivener's errors are those
which are "demonstrably contradicted by all other documents."
Id. (citing Zhou v. Zhou, 38 Va. App. 126, 133, 562 S.E.2d 336,
339 (2002)). Examples of such errors include
a typographical mistake made by a court reporter in
transcribing a trial transcript, counsel's failure to
prepare an order for entry by the trial court, and a
misstatement on the record by the trial court
regarding the length of incarceration a defendant was
ordered to serve.
Zhou, 38 Va. App. at 133-34, 562 S.E.2d at 339 (citations
omitted).
Our description of scriveners' errors in Wellmore Coal
parallels that of the Illinois Court of Appeals, which defined
such errors as those evidenced in the writing that can be proven
without parol evidence. Estate of Blakely v. Federal Kemper Life
Assurance Co., 640 N.E.2d 961, 966 (Ill. Ct. App. 1994).
Scrivener's errors tend to occur singularly; they are not
"continuous, ongoing, and repeated." Id. The scrivener's error
in our recent decision in State Farm Mutual Auto. Ins. Co. v.
Remley, 270 Va. 209, 221, 618 S.E.2d 316, 322 (2005), fits this
description. In Remley, we found that a default judgment
against the defendant tortfeasor which listed him as both the
plaintiff and the defendant was a scrivener's error as "[a]
review of the default judgment order . . . compels the reader to
12
conclude" which of the parties was the plaintiff. Id. See also
State v. Rosario, 680 A.2d 237, 239-41 (Conn. 1996) (date of
events specified in search warrant affidavit were scrivener's
errors where the date of the affiant's signature and a police
case file number clearly indicated that the operative facts
occurred in the current rather than a prior year); Dunton v.
Tanigoshi, 190 P. 467 (Cal. Ct. App. 1920) (notice of hearing
which listed the wrong weekday was sufficient because it
contained the correct date).
In Morgan v. Russrand Triangle Assocs., Inc., 270 Va.
21, 26, 613 S.E.2d 589, 591 (2005), we reversed the trial
court's judgment that its entry of a final order was a
scrivener's error because it actually intended to grant a
party's motion to reconsider instead. We noted that
[c]haracterizing the signing of the order by the
trial judge, and by counsel for both parties, as
an "oversight" or an "inadvertent error" is
inconsistent with the affirmative acts of the
trial court and counsel. Not only were all
signatories aware that they were signing an order
disposing of the merits of the case consistent
with the trial court's previous opinion letter,
all signatories are charged with the knowledge
that an order is entered when signed by the trial
judge.
Id. Similarly, in Wellmore Coal, 264 Va. at 283, 568
S.E.2d at 673, we held that an attorney’s failure to timely
sign a document before submitting it to the Court did not
13
constitute a clerical error, which, in that context, was
synonymous with a scrivener's error.
In M'Mahon v. Spangler, 25 Va. (4 Rand.) 51, 51-52
(1826), a buyer of real estate alleged he agreed to
purchase a certain number of acres at a certain price, and
that the contract which conveyed to him the seller's
"right, title, interest and claim" in a tract of land in
gross, without further specificity, was a scrivener's
error. Relying on the contract drafter's testimony that
"he first made a rough draft of the contract, altering it
to suit the views of the parties: that then he wrote it
over fair, and read it to them distinctly more than once:
that they seemed perfectly satisfied, and executed it[,]"
this Court held that despite the buyer's attested
intention, there was no error by the scrivener in preparing
the contract. Id. at 57.
The complaint in M'Mahon is very similar to that made
here, and the resolution of that case is instructive. As
in M'Mahon, a rough draft of the condominium transfer
documents including the plat and metes and bounds
description was made and tendered to the LLC, whose
representative, Mr. Kotarides, and attorney, Ms. White,
examined it. Suggestions for corrections were made by them
to AES and adopted as changes before a final version was
14
submitted for review, executed and recorded. None of those
suggested changes involved removing Parcel 1A from the
property submitted to the condominium regime for Westgate.
The preparation, review, revision and adoption of the
Westgate real estate documents were analogous to those in
M'Mahon: the drafter "made a rough draft . . . , altering
it to suit the views of the parties: . . . wrote it over
fair, . . . that they seemed perfectly satisfied, and
executed it." 25 Va. at 57.
In light of the forgoing, we cannot agree with the trial
court's determination that a scrivener's error occurred in this
case. The alleged error was neither typographical nor clerical.
There was no finding that AES, the scrivener, had transposed a
call in the metes and bounds description, recited an erroneous
deed book reference or similar error commonly recognized as a
scrivener's error. Instead, the trial court specifically found
that there was no drafting error, but instead, based its
judgment only on the LLC's intent that Parcel 1A should not have
been included in the condominium property.
The Court further finds that error of including
the .978-acre parcel in the condominium description
was contrary to the intent of 752 LLC. The error was
not in the creation of the plat by the surveyor, but
rather its[] use in the description of the property to
be subjected to the condominium declaration. The
error was in making the [Declaration] contrary to the
intent of 752 LLC.
15
(Emphasis added).
The trial court's factual finding, to which we accord
deference, is that the transaction failed to accurately
express the intent of the LLC as declarant of the
Condominium Declaration. However, that finding of a
factual occurrence does not support a conclusion of law
that the occurrence was a scrivener's error cognizable
under Code § 55-79.71(F). The trial court found no error
in AES' preparation of the real estate descriptions
attached to the Condominium Declaration. "The error was
not in the creation of the plat by the surveyor." Further,
there was no finding that the scrivener was directed to
exclude Parcel 1A, but nonetheless erroneously wrote it
into the property description.
Like the real estate contract in M'Mahon, which was
submitted, revised with the parties' changes, reviewed
again and executed, the fact that a party's intent was not
fully reflected cannot be attributed to an error of the
scrivener. Instead, the error lies with the party's
inattention to the detail before him. Mr. Kotarides,
himself, admitted: "[He] didn't look at [the property
description and plat] carefully enough."
The inclusion of Parcel 1A in the condominium was not
an inadvertent, singular mistake, easily understood with
16
reference to the remainder of the Condominium Declaration.
Rather, all the documents describing the property submitted
to the condominium regime showed Parcel 1A as part of that
property. Further, the mistake was borne out in successive
documents. The marketing brochures and the public offering
statement contained the same information, went through the
same review process and were also approved by Mr.
Kotarides.
The error in this case was not that of the scrivener's
transcription of the real estate description, but in the
review process of the parties. Construing the term
narrowly, as we must, we find there was no error by the
scrivener, AES, in the transcription of the document.
Accordingly, there was no scrivener's error under Code
§ 55-79.71(F), which permitted the LLC to record the
Correction Amendment. The trial court thus erred in
concluding otherwise and awarding judgment for the LLC and
Richardson.
C. Attorneys' Fees
Failure to comply with the Condominium Act entitles a
prevailing party to attorneys' fees under Code § 55-
79.53(A) which the trial court awarded against the
Association. However, since the trial court erred in
granting judgment to the LLC and Richardson, those parties
17
are not prevailing parties entitled to the statutory award.
The Association, not the LLC or Richardson, is the
prevailing party "entitled to recover reasonable attorneys'
fees and costs expended in the matter" under Code § 55-
79.53(A). See, e.g., Chase v. DaimlerChrysler Corp., 266
Va. 544, 548-49, 587 S.E.2d 521, 523 (2003) (equating
"prevailing party" with "successful party"). Accordingly,
the trial court's award of attorneys' fees against the
Association cannot stand.
IV. CONCLUSION
The inclusion of Parcel 1A in the property description and
plat of the Condominium Declaration was not a scrivener's error.
Therefore, the LLC was not entitled to remove that parcel from
the condominium unilaterally by the Correction Amendment under
Code § 55-79.71(F). Further, because the trial court erred in
granting judgment to the LLC and Richardson, those parties are
not entitled to attorneys' fees under Code § 55-79.53(A).6 We
will therefore reverse the judgment of the trial court and
remand this case for further proceedings consistent with this
opinion.
Reversed and remanded.
6
As we reverse the trial court's judgment under the first
assignment of error, we do not address the Association's second
and third assignments of error.
18