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. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.

 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 
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. 

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 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 

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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 

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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 

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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 

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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 

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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. 

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 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 

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the appropriate nunc pro tunc order and for further proceedings 

consistent with this opinion. 

 Reversed and remanded. 

 

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