Debra Patterson v. Fauquier County DSS ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Clements
Argued at Alexandria, Virginia
DEBRA PATTERSON
MEMORANDUM OPINION * BY
v. Record No. 1232-00-4 JUDGE JEAN HARRISON CLEMENTS
MARCH 20, 2001
FAUQUIER COUNTY DEPARTMENT OF
SOCIAL SERVICES
FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
William Shore Robertson, Judge
Robin C. Gulick (Robin C. Gulick, P.C., on
brief), for appellant.
Julia S. Savage (Walker, Jones, Lawrence,
Duggan & Savage, on brief), for appellee.
Debra Patterson appealed the termination of her residual
parental rights to her son by the juvenile and domestic relations
district court. Prior to a trial de novo, the circuit court
entered a final order dismissing the appeal and remanding the case
to the juvenile and domestic relations district court. More than
twenty-one days after entry of that order, the circuit court
entered an order denying Patterson's motion to enter a nunc pro
tunc order and to reinstate the case to the court's active docket,
ruling that, absent a showing of fraud, it no longer had
jurisdiction over the case. This appeal followed. Patterson
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
contends the trial court erred (1) in ruling that, without a
showing of fraud, it was without jurisdiction to enter a nunc pro
tunc order more than twenty-one days after a final order and (2)
in failing to correct an obvious clerical error pursuant to Code
§ 8.01-428(B). We agree and reverse and remand for the reasons
that follow.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, this opinion recites only those facts necessary to a
disposition of this appeal. "[W]e review the trial court's
statutory interpretations and legal conclusions de novo." Timbers
v. Commonwealth, 28 Va. App. 187, 193, 503 S.E.2d 233, 236 (1998).
Patterson asserts that entry of an order nunc pro tunc
denying the Department's motion to dismiss the appeal more than
twenty-one days after the final order was entered was permissible
under Code § 8.01-428(B) or pursuant to the court's inherent power
to amend clerical errors to correct the obvious clerical error in
this case. The Department of Social Services argues that, because
the trial court lost jurisdiction of the case under Rule 1:1 once
twenty-one days had passed after entry of the final order, the
court was without jurisdiction to enter an order nunc pro tunc or
otherwise reinstate the case on the court's docket. Moreover, the
Department continues, Code § 8.01-428(B) and the court's inherent
power to amend clerical errors do not apply here because no
clerical error was committed in this case.
- 2 -
Rule 1:1 provides, in pertinent part, that "[a]ll final
judgments, orders, and decrees, irrespective of terms of court,
shall remain under the control of the trial court and subject to
be modified, vacated, or suspended for twenty-one days after the
date of entry, and no longer."
Here, the order entered August 6, 1999, correctly recited the
trial court's rulings from the May 18, 1999 hearing. It dismissed
the appeal of the decision of the juvenile and domestic relations
court and remanded the case back to that court. By its terms the
order was a final order. It was not modified, vacated, or
suspended by the trial court within twenty-one days after its
entry.
"Neither the filing of post-trial or
post-judgment motions, nor the court's taking
such motions under consideration, nor the
pendency of such motions on the twenty-first
day after final judgment is sufficient to
toll or extend the running of the period
prescribed by Rule 1:1 . . . . The running
of time under [Rule 1:1] may be interrupted
only by the entry, within the 21-day period
after final judgment, of an order suspending
or vacating the final order."
Davis v. Mullins, 251 Va. 141, 148-49, 466 S.E.2d 90, 94 (1996)
(omission and alteration in original) (quoting School Bd. of
Lynchburg v. Caudill Rowlett Scott, Inc., 237 Va. 550, 556, 379
S.E.2d 319, 323 (1989) (citations omitted)).
Accordingly, the order became final on August 27, 1999.
Under Rule 1:1, the trial court was divested of jurisdiction after
that date. Thereafter, no action could be taken by the court to
- 3 -
alter or vacate that order "unless one of the limited exceptions
to the preclusive effect of Rule 1:1 applies." Id. at 149, 466
S.E.2d at 94.
"One such exception is provided by Code § 8.01-428(B) which
permits the trial court to correct at any time '[c]lerical
mistakes in all judgments or other parts of the record and errors
therein arising from oversight or from an inadvertent omission.'"
Id. (alteration in original) (quoting Code § 8.01-428(B)).
Furthermore, "[a]lthough divested of jurisdiction, a 'trial court
has the inherent power, independent of statutory authority, to
correct errors in the record so as to cause its acts and
proceedings to be set forth correctly.'" Myers v. Commonwealth,
26 Va. App. 544, 547, 496 S.E.2d 80, 82 (1998) (quoting Davis, 251
Va. at 149, 466 S.E.2d at 94). This power may be exercised at any
time to amend the record, based on any competent evidence, "'when
the justice and truth of the case require it.'" Netzer v.
Reynolds, 231 Va. 444, 449, 345 S.E.2d 291, 294 (1986) (quoting
Council v. Commonwealth, 198 Va. 288, 292, 94 S.E.2d 245, 248
(1956)).
However, as the Supreme Court noted in Council, "the power to
amend should not be confounded with the power to create. While
the power is inherent in the court, it is restricted to placing
upon the record evidence of judicial action which has actually
been taken, and presupposes action taken at the proper time." 198
Va. at 292, 94 S.E.2d at 248 (citation omitted). Similarly, the
- 4 -
statutory power granted by Code § 8.01-428 is to be narrowly
construed and applied. McEwen Lumber Co. v. Lipscomb Bros. Lumber
Co., 234 Va. 243, 247, 360 S.E.2d 845, 848 (1987).
To permit a trial court, either under the
statute or by its inherent power, to consider
at any time what judgment it might have
rendered while it still retained jurisdiction
over a case and then to enter that judgment
nunc pro tunc would render meaningless the
mandate of Rule 1:1 and would do great harm
to the certainty and stability that the
finality of judgments brings.
Davis, 251 Va. at 150, 466 S.E.2d at 94.
Thus, an order entered nunc pro tunc cannot create a fiction
to antedate the actual occurrence of an act or event or to
represent in the record an event or action that never occurred or
existed. Council, 198 Va. at 293, 94 S.E.2d at 248. Rather, the
power of the trial court to amend by nunc pro tunc order is
restricted to correcting mistakes of the clerk or other court
officials, see id., and "placing upon the record evidence of
judicial action which has already been taken, but was earlier
omitted or misstated in the record," Holley v. City of Newport
News, 6 Va. App. 567, 568, 370 S.E.2d 320, 321 (1988).
We held, for example, in Decker v. Decker, 22 Va. App. 486,
471 S.E.2d 775 (1996), that a correction may not be used after an
order has become final to reflect a ruling that was not made
before the final order was entered. Id. at 494-95, 471 S.E.2d at
779. We also noted in Decker that Code § 8.01-428(B) "'has no
application to errors in the reasoning and conclusions of the
- 5 -
court about contested matters.'" Id. at 495, 471 S.E.2d at 779
(quoting Safety Motor Transit Corp. v. Cunningham, 161 Va. 356,
364, 171 S.E. 432, 435 (1933)). Similarly, a correction that
would require reacquisition by the trial court of jurisdiction
over the underlying subject matter is barred by Rule 1:1. Myers,
26 Va. App. at 548, 496 S.E.2d at 82. "The trial judge may modify
its orders only 'in the rare situation where the evidence clearly
supports the conclusion that an error covered by Code
§ 8.01-428(B) has been made.'" Decker, 22 Va. App. at 495, 471
S.E.2d at 779 (quoting Dorn v. Dorn, 222 Va. 288, 292, 279 S.E.2d
393, 395 (1981)).
It is clear from the uncontroverted record before us that the
omitted judicial action that Patterson sought to have placed on
the record nunc pro tunc occurred before the final order was
entered. The trial court ruled on July 20, 1999, at the rehearing
on the Department's motion to dismiss the appeal, that the motion
to dismiss was denied and that the case was continued on the
court's docket to its originally set date of October 29, 1999, for
a trial de novo on the merits. However, those rulings were
inadvertently omitted from the record when, despite the court's
instruction to do so, Patterson's counsel failed to prepare and
submit for entry an order reflecting those rulings. Ironically,
though, shortly after the July 20, 1999 rehearing, an endorsed
order reflecting the court's rulings from the first hearing on the
motion to dismiss was submitted by counsel for the stated purpose
- 6 -
of completing the file. The trial judge, noting it was fully
endorsed, entered that order pro forma on August 6, 1999.
Twenty-one days later, the order was final.
Unaware that the appeal had been dismissed and the case
remanded to the lower court by a final order, Patterson and the
Department continued their trial preparations. On October 7,
1999, Patterson learned from the Department that the appeal had
been dismissed and subsequently filed her motion for entry of an
order nunc pro tunc.
Plainly, the court's rulings on July 20, 1999 constituted
appropriate judicial action taken at the proper time, while the
trial court had jurisdiction. There being satisfactory evidence
of the actual and timely action by the trial court and of that
action's inadvertent omission from the record because no order
reflecting that action was entered, the question then becomes
whether the failure to enter a timely order because counsel failed
to prepare and submit the order is a "clerical error" within the
meaning of the rule allowing a nunc pro tunc entry. The
resolution of this question is controlled, we believe, by Harris
v. Commonwealth, 222 Va. 205, 279 S.E.2d 395 (1981), the facts of
which are analogous to this case.
In Harris, the juvenile defendant was charged with rape and
abduction. Following the juvenile and domestic relations district
court's denial of the Commonwealth's motion to transfer
jurisdiction to the circuit court, the Commonwealth sought removal
- 7 -
of the case to the circuit court under Code § 16.1-269(E).
Pursuant to that statute, the papers in the case were forwarded to
the circuit court for a decision regarding the certification of
the juvenile. The trial judge rendered a decision by letter
thirteen days thereafter, on September 18, 1979, ruling that the
defendant should be certified. He instructed the Commonwealth's
attorney to prepare an order. No order was presented or entered
within twenty-one days after receipt of the case in the trial
court as required by Code § 16.1-269(E).
At trial, on March 5, 1980, another trial judge discovered
that no order certifying the juvenile defendant had been entered.
The judge declared a mistrial and remanded the case to the
juvenile and domestic relations district court. Two days later
the Commonwealth filed a motion for an order nunc pro tunc to
memorialize the first trial judge's ruling granting a transfer of
the case to the circuit court. On March 13, 1980, the trial court
entered two orders, one, entered nunc pro tunc to September 18,
1979, certifying the defendant for trial as an adult and the other
setting aside the order of remand.
Harris argued on appeal that the trial court never acquired
jurisdiction because the order authorizing certification was not
entered within the mandatory twenty-one-day period. He contended
that a nunc pro tunc order was being used to show what the court
should have done, rather than what was actually done.
- 8 -
The Supreme Court disagreed. It found that "appropriate
judicial action was actually taken at the proper time" and held
that the failure to enter a timely order was clerical error. Id.
at 210, 279 S.E.2d at 398. As the Court noted:
The clerical mistakes which may be corrected
under the court's inherent power encompass
errors made by other officers of the court
including attorneys. Here, the failure to
enter a timely order was due to attorney
error. . . . Manifestly, the nonentry of a
timely order was caused by the prosecutor's
failure to follow directions.
Id. at 210, 279 S.E.2d at 398-99 (citation omitted).
Likewise, the failure to enter a timely order was due to
attorney error in the present case. We find, therefore, that the
failure to enter a timely order in this case was clerical error.
As a result of that clerical error, the record does not fully or
accurately set forth the appropriate rulings of the trial court,
as the justice and truth of the case require. The evidence
clearly supports the conclusion that the clerical error may and
should be corrected so as to cause the trial court's rulings to be
set forth correctly in the record.
Accordingly, we hold that the trial court erred in failing to
enter an order nunc pro tunc denying the Department's motion to
dismiss the appeal and vacating the order of remand. The order
appealed from is reversed, and the case is remanded for entry of
- 9 -
the appropriate nunc pro tunc order and for further proceedings
consistent with this opinion.
Reversed and remanded.
- 10 -