COURT OF APPEALS OF VIRGINIA Present: Judges Willis, Bray and Clements Argued at Alex andria, Virginia

DEBRA PATTERSON MEMORANDUM OPINION * BY v. Record No. 1232-00-4 JU DGE JEAN HARR ISON CLEMENTS MARCH 20, 2001 FAUQUIER COUNTY DEPARTMENT OF SOCIAL SERVICES

FROM THE CIRCUIT COUR T OF FAUQUIER COUNTY William Shore Ro bertson, Judge Robin C. Gulick (Rob in C. Gulick , P.C., on brief), for appellant. Julia S. Savage (Wal ker, Jones, Lawrence, Duggan & Savage, on brief), for appellee.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Debra Patterso n appealed the terminat ion of her residual parental rights to he r son by the juvenile and domestic relations district court. Prior to a trial de novo , the circ uit court entered a final or der dismissing the appeal and remandin g the case to the juvenile and dome stic relations district court. More than twenty-one days afte r entry of that orde r, the circuit court entered an order de nying Patterson's motion to enter a nunc pro tunc order and to reinstat e the case to the co urt's active docket, ruling that, absent a showing of fraud, it no longer had jurisdiction over the case. This appeal followed. Pattersoncontends the trial co urt erred (1) in ruli ng that, without a showing of fraud, it was with out jurisdiction to enter a nunc pro tunc order more than tw enty-one days after a final orde r and (2) in failing to correct an obvious cler ical error purs uant to Code § 8.01-428(B). We agree and reve rse and remand for the reasons that follow. As the parties are fu lly conversant with the record in this case and because this memorandum opinion carr ies no precedential value, this opinion recites only those fa cts necess ary to a disposition of this appeal. "[W]e review the trial court's statutory interp retations and le gal conclusions de novo ." Timbers v. Commonwealth , 28 Va. App. 187, 193, 503 S.E.2d 233, 236 (1998). Patterson asse rts that entry of an order nunc pro tunc denying the Depart ment's motion to dismis s the appeal more than twenty-one days after the final or der was entered was permissible under Code § 8.01-428(B ) or pursuant to the court's inhe rent power to amend clerical erro rs to correct the obvious cler ical error in this case. The Department of Social Services argu es that, because the trial court lo st jurisdiction of the case unde r 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 rein state the case on the court's docket . Moreover, the Department continues, Code § 8.01-428(B) and the court's inherent power to amend cleric al errors do not ap ply here because no clerical error was comm itted 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 su bject to be modified, vaca ted, or suspende d for twenty-one days after the date of entry, an d no longer." Here, the order entered August 6, 1999, correc tly recited the trial court's ruli ngs from the May 18, 1999 hearing. It dismissed the appeal of the decision of th e juvenile and do mestic relations court and remand ed the case back to that court. By its terms the order was a fina l order. It was not modified, va cated, or suspended by the tria l court within twenty -one days after its entry. "Neither the filing of post-trial or post-judgment mo tions, nor the court's taking such motions under co nsideration, nor the pendency of such motion s on the twenty-first day after final judgment is su fficient to toll or extend the ru nning of the period prescribed by Rule 1:1 . . . . The running of time under [Rule 1: 1] may be interrupted only by the entr y, within the 21-day period after final judg ment, of an or der suspending or vacating th e final order." Davis v. Mullins , 251 Va. 141, 148-49, 46 6 S.E.2d 90, 94 (1996) (omission and alte ration in orig inal) (quoting School Bd. of Lynchburg v. Caudill Rowlett Scott, Inc. , 237 Va. 550, 556, 379 S.E.2d 319, 32 3 (1989) (citat ions omitted)). Accordingly, the order became final on Augu st 27, 1999. Under Rule 1:1, the tr ial court was di vested of juri sdiction after that date. Thereafter , no action could be taken by the court to - 3 -alter or vacate that order "unless on e of the limite d 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 tria l court to correct at any time '[c]lerical mistakes in all judgments or other parts of the record and errors therein arising fr om oversight or from an inadvert ent omission.'" Id. (alteration in original) (quo ting Code § 8. 01-428(B)). Furthermore, "[a]lthoug h divested of jurisdiction, a 'trial court has the inherent power, independent of stat utory author ity, to correct errors in the record so as to cause its acts and proceedings to be set forth co rrectly.'" 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). Th is power may be exercised at any time to amend th e record, based on any competent ev idence, "'when the justice and tr uth of the case require it.'" Netzer v. Reynolds , 231 Va. 444, 449, 345 S.E.2d 291, 29 4 (1986) (quoting Council v. Commonwealth , 198 Va. 288, 292, 94 S.E.2d 245, 248 (1956)). However, as the Su preme Court noted in Council , "the power to amend should not be co nfounded with the power to cr eate. While the power is inherent in the court, it is restricted to placing upon the record eviden ce of judicial action which has actually been taken, and pr esupposes acti on taken at the pr oper time." 198 Va. at 292, 94 S.E.2d at 248 (citat ion omitted). Similarly, the - 4 -statutory power gr anted by Code § 8.01-428 is to be narrowly construed and applied. McEwen Lumber Co. v. Lipscomb Bros. Lumber Co. , 234 Va. 243, 24 7, 360 S.E.2d 84 5, 848 (1987). To permit a trial cour t, either under the statute or by it s inherent power, to consider at any time what judg ment it mi ght 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 an d would do great harm to the certainty and stability that the finality of ju dgments brings. Davis , 251 Va. at 150, 466 S.E.2d at 94. Thus, an order entered nunc pro tunc cannot crea te a fiction to antedate the actual occurrence of an act or event or to represent in the record an event or action th at 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 co rrecting mistakes of th e clerk or other court officials, see id. , and "placing upon th e record evidence of judicial action whic h has already be en taken, bu t was earlier omitted or misstate d 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 ruli ng that was not made before the final or der was en tered. Id. at 494-95, 47 1 S.E.2d at 779. We al so noted in Decker that Code § 8.01 -428(B) "'has no application to errors in the reasoning an d conclusion s of the - 5 -court about contes ted matter s.'" Id. at 495, 471 S.E.2d at 779 (quoting Safety Motor Transit Corp. v. Cunningham , 161 Va. 356, 364, 171 S.E. 432, 43 5 (1933)). Si milarly, a correction that would require reac quisition by the trial court of jurisdiction over the underlying su bject matter is barred by Rule 1:1. Myers , 26 Va. App. at 548, 49 6 S.E.2d at 82. "The trial judge may modify its orders only 'in th e rare situation where the evidence clearly supports the conclusion that an error cove red by Code § 8.01-428(B) has been made.'" Decker , 22 Va. App. at 495, 471 S.E.2d at 77 9 (quoting Dorn v. Dorn , 222 Va. 288, 29 2, 279 S.E.2d 393, 395 (1981)). It is clear from th e uncontroverted record before us that the omitted judicial action that Patt erson sought to have placed on the record nunc pro tunc occurred before the final order was entered. The tr ial court ruled on July 20, 1999, at the rehearing on the Department 's motion to di smiss the appeal, that the motion to dismiss was denied and that the case was continue d on the court's docket to its originally set date of October 29 , 1999, for a trial de novo on the merits. Howeve r, those ru lings 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 or der reflecting those ru lings. Ir onically, though, shortly af ter the July 20, 1999 re hearing, an endorsed order reflecti ng the court's ruli ngs from the firs t hearing on the motion to dismis s was submitted by counsel for the stated purpose - 6 -of completing the file . The trial ju dge, noting it was fully endorsed, entere d that order pro forma on August 6, 1999. Twenty-one days later, the or der was final. Unaware that the ap peal had been dism issed and the case remanded to the lower court by a final or der, Patterson and the Department continued their trial prep arations. On October 7, 1999, Patterson le arned from the Department that the appeal had been dismissed and subs equently filed her moti on for entry of an order nunc pro tunc . Plainly, the court' s rulings on July 20 , 1999 constituted appropriate ju dicial action ta ken at the proper time, while the trial court had ju risdiction. There being satisfactory evidence of the actual and time ly action by the tria l court and of that action's inadvertent om ission from the reco rd because no order reflecting that action was entered, the question th en becomes whether the failur e to enter a timely orde r because coun sel failed to prepare and su bmit the order is a "cle rical error" within the meaning of the ru le allowing a nunc pro tunc entry. The resolution of th is question is contro lled, we believe, by Harris v. Commonwealth , 222 Va. 205, 279 S.E.2d 395 (1981), the facts of which are analogou s to this case.

In Harris , the juvenile defendant wa s charged with rape and abduction. Foll owing the juvenile and domestic re lations district court's denial of the Commonwe alth's motion to transfer jurisdiction to the circuit court, the Commonwealth sought removal - 7 -of the case to the circuit court un der Code § 16.1-269(E). Pursuant to that statut e, the papers in the ca se were forwarded to the circuit court for a decision regardin g the certif ication of the juvenile. The tr ial judge render ed a decision by letter thirteen days th ereafter, on September 18 , 1979, ruling that the defendant should be certified. He instructed th e Commonwealth's attorney to prep are 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 Marc h 5, 1980, another tr ial judge di scovered that no order cert ifying the juvenile defend ant had been entered. The judge declar ed a mistrial and rema nded the case to the juvenile and domestic relations distri ct court. Tw o 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, certifyi ng the defendant fo r trial as an ad ult and the other setting aside the order of remand. Harris argued on appeal that the trial court never acquired jurisdiction because the order au thorizing certif ication was not entered within the mand atory 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 Co urt disagreed. It found that "appropriate judicial action was ac tually taken at the pr oper time" and held that the failure to en ter a timely order wa s 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 attorn eys. Here, th e failure to enter a timely order was due to attorney error. . . . Manifest ly, the none ntry of a timely order was caused by the pr osecutor's failure to foll ow directions. Id. at 210, 279 S.E.2d at 398-99 (citation omitted). Likewise, the failure to enter a time ly order was due to attorney error in the present case. We find, theref ore, that the failure to enter a timely order in this case was clerical error. As a result of that cl erical error, the reco rd does not fully or accurately set forth th e appropriate ru lings of the trial court, as the justice and tr uth of the case requ ire. The evidence clearly suppor ts the conclusion that the cleric al error may and should be correcte d so as to caus e the trial court' s rulings to be set forth correctl y in the record. Accordingly, we hold that the trial court erred in failing to enter an order nunc pro tunc denying the Depart ment's motion to dismiss the appeal and vacating the order of remand. The order appealed from is reve rsed, and the ca se is remanded for entry of

- 9 -the appropriate nunc pro tunc order and for further proc eedings consistent with this opinion. Reversed and remanded.

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