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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 
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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 

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 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. 
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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 

 

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 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. 
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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 

. . . ." 

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 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. 
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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. 

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 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. 
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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: 

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 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 crossbill. 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. 
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 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. 
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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 
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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 courtsanctioned 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., 
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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 wellestablished 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). 
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 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 
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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 
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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 
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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.
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(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 
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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 
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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.