Present: All the Justices
AUBREY F. MORGAN
v. Record No. 042122 OPINION BY JUSTICE ELIZABETH B. LACY
June 9, 2005
RUSSRAND TRIANGLE ASSOCIATES, L.L.C.
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
Frederick H. Creekmore, Judge
In this case, the trial court entered an order nunc pro
tunc more than 21 days after the entry of a final order,
explaining that the entry of the final order was "inadvertent"
and therefore a clerical error capable of correction pursuant
to Code § 8.01-428(B). We conclude that Code § 8.01-428(B)
did not authorize the trial court to enter its nunc pro tunc
order because entry of the final order was not a clerical
error and the nunc pro tunc order did not correct the record
to reflect the actual acts of the trial court.
Facts
Russrand Triangle Associates, L.L.C. (Russrand) and
Aubrey F. Morgan (Morgan) own adjoining properties in the City
of Chesapeake. Russrand filed an amended bill of complaint
seeking a declaratory judgment that Morgan was encroaching on
Russrand's land, an injunction requiring Morgan to remove the
encroachments, damages for trespass, and to quiet title. In
his answer, Morgan argued that he was not encroaching on
Russrand's property because he had obtained rights to the
property by adverse possession. The case was referred to a
commissioner in chancery, who issued a report finding Morgan
had proved adverse possession of all the land at issue except
for a portion of the property north of a fence line (the
disputed property).
Morgan filed exceptions to the commissioner's report
asserting that he had proved his adverse possession claim
regarding the disputed property. On February 6, 2003, the
trial court issued a letter opinion sustaining Morgan's
exceptions and asking that Morgan's counsel prepare an order
to reflect the trial court's holding. Russrand filed a motion
for reconsideration of the letter opinion.
The trial court heard arguments on Russrand's motion on
February 4, 2004. At the outset of the hearing, Morgan's
counsel submitted the order memorializing the trial court's
February 6, 2003 letter opinion and which provided "nothing
further remains to be done in this action [and] it is hereby
ORDERED . . . that this action be placed . . . among the
closed files of this Court." Counsel for both parties signed
the order; the judge initialed each page and signed the order;
and the clerk's office docketed the order that day. At the
conclusion of the hearing, the trial court orally granted
Russrand's motion for reconsideration, but no order was
2
entered within 21 days modifying, vacating, or suspending the
February 4, 2004 order.
On March 18, 2004, the trial court issued a second
opinion letter finding that Morgan did not prove adverse
possession of the disputed property. Russrand's counsel was
asked to prepare, circulate, and submit an order reflecting
this holding and confirming the commissioner's report in full.
Morgan filed an objection to the court's entry of any further
orders in the case, arguing that, under Rule 1:1, the trial
court no longer had jurisdiction of the case because the
February 4, 2004 order was a final order and more than 21 days
had elapsed since its entry.
Following a hearing on Morgan's objection, the trial
court issued a letter opinion stating
[t]he court finds that a clerical error occurred on
February 4, 2004 when the court inadvertently entered a
Final Decree holding that the Defendant had obtained
title by adverse possession and stating that nothing
further remained to be done in the action. Rather, it
was the intention of the court to grant Plaintiff's
Motion for Reconsideration on February 4, 2004 and to
have the case remain open until such time as the court
could reevaluate the adverse possession issue and draft
an opinion letter.
The trial court concluded that because the entry of the
February 4, 2004 order was a clerical error, Code § 8.01-
428(B) allowed the court to enter an order nunc pro tunc to
correct the mistake. On June 25, 2004, the trial court
3
entered an order "nunc pro tunc" granting Russrand's motion
for reconsideration of the February 6, 2003 opinion letter and
vacating its February 4, 2004 order. The June 25 order also
confirmed the commissioner's report in its entirety. We
awarded Morgan an appeal.
Discussion
Rule 1:1 provides that a final judgment may be modified,
vacated, or suspended for a period of 21 days after the date
of entry "and no longer." "[T]he provisions of Rule 1:1 are
mandatory in order to assure the certainty and stability that
the finality of judgment brings." Super Fresh Food Markets of
Virginia, Inc. v. Ruffin, 263 Va. 555, 563, 561 S.E.2d 734,
739 (2002). There are, however, legislative exceptions to
this rule of finality.
In this case, the trial court relied on the exception
contained in subsection (B) of Code § 8.01-428 to validate its
June 25, 2004 order. Subsection (B) provides in relevant
part:
Clerical mistakes in all judgments or other parts of
the record and errors therein arising from oversight
or from an inadvertent omission may be corrected by
the court at any time on its own initiative or upon
the motion of any party and after such notice, as
the court may order.
We have held that the power to correct the record under this
section is limited to those situations when the record clearly
4
supports such corrections. School Bd. of Lynchburg v. Caudill
Rowlett Scott, Inc., 237 Va. 550, 555, 379 S.E.2d 319, 322
(1989). The issues before us then are whether the court's
"inadvertent" entry of the February 4, 2004 order qualifies as
a clerical error and whether the record supports the
correction made by the trial court.
We have had the opportunity to consider "clerical
mistakes" under Code § 8.01-428(B) in a number of cases and
have consistently held that the statutory authority of this
Code section should be narrowly construed and applied. See,
e.g., Davis v. Mullins, 251 Va. 141, 149, 466 S.E.2d 90, 94
(1996). In Wellmore Coal Corp. v. Harman Mining Corp., 264
Va. 279, 568 S.E.2d 671 (2002), we reviewed circumstances that
qualify as "clerical mistakes" under Code § 8.01-428(B).
"Scrivener's or similar errors in the record, which are
demonstrably contradicted by all other documents, are
clerical mistakes." Zhou v. Zhou, 38 Va. App. 126, 133,
562 S.E.2d 336, 339 (2002). Such errors cause the court's
record to fail to "speak the truth." Id. (citing School
Bd. of the City of Lynchburg v. Caudill Rowlett Scott,
Inc., 237 Va. 550, 555, 379 S.E.2d 319, 322 (1989)).
Examples of clerical errors include a typographical error
made by a court reporter while transcribing a court
proceeding, Lamb v. Commonwealth, 222 Va. 161, 165, 279
S.E.2d 389, 392 (1981), or an unintended error in the
drafting of a divorce decree, Dorn v. Dorn, 222 Va. 288,
291, 279 S.E.2d 393, 394 (1981).
Wellmore Coal Corp., 264 Va. at 283, 568 S.E.2d at 673.
In this case, there were no scriveners' or other errors
in the February 4, 2004 order; it accurately reflected the
5
trial court's February 6, 2003 letter opinion. The "clerical
error . . . arising from oversight or . . . an inadvertent
omission," according to the trial court, was the entry of the
order. Characterizing 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. Rule 1:1.
Moreover, the record does not support the trial court's
correction of this "clerical error." The record shows that on
February 4, 2004 the trial court entered a final order
resolving the case on its merits and orally granted Russrand's
motion for reconsideration of the February 2003 opinion
letter. The record shows that no motion to set aside, vacate,
or suspend the February 4, 2004 order was made during the
hearing or at any other time. The court's oral ruling
granting Russrand's motion to reconsider did not modify,
vacate or suspend the written final order. Berean Law Group,
P.C. v. Cox, 259 Va. 622, 627, 528 S.E.2d 108, 111 (2000).
Therefore, the trial court's nunc pro tunc order of June 25,
6
2004 vacating the February 2004 order did not conform the
record to reflect what actually took place in the trial court.
Conclusion
Rule 1:1 applied to the final order entered February 4,
2004. That order was not suspended, modified or vacated
within 21 days of its entry. Entry of the order was not a
clerical error as contemplated by Code § 8.01-428(B), and the
trial court's nunc pro tunc order of June 25, 2004 did not
conform the record to reflect the actual sequence of events.
Therefore, Code § 8.01-428(B) does not apply. The trial court
had no jurisdiction to enter the June 25, 2004 order, and that
order is of no force and effect.* Accordingly, we will reverse
the judgment of the trial court and enter final judgment
reinstating the February 4, 2004 order.
Reversed and final judgment.
*
In light of this holding, we need not address Morgan's
second assignment of error.
7