Nunc pro tunc . . . Not so much

Last July, former Wake County district court judge Kristin Ruth pled guilty to willfully failing to discharge the duties of her office, a misdemeanor offense, for her role in signing ex parte orders prepared by a defense attorney that, among other things, ordered that certain conviction dates in DWI cases be entered “nunc pro tunc” to earlier dates.  The case attracted a lot of attention in the Triangle and was the subject of several news reports, including this News and Observer story contrasting the widespread use of nunc pro tunc orders with the limited circumstances in which the appellate courts have authorized their use.  The story quoted two appellate court opinions as well as my colleagues, Michael Crowell and Jim Drennan, for the proposition that nunc pro tunc orders are authorized to correct errors—not to backdate actions that were not earlier taken in a given case.

A recent court of appeals case, Whitworth v. Whitworth, No. COA12-24 (Sept. 4, 2012), again emphasizes the limited circumstances in which entry of an order nunc pro tunc is permissible.  Because Whitworth is a civil case arising from an equitable distribution action, it might have escaped the attention of the criminal law bar.  Given, however, that the doctrine of nunc pro tunc has the same application in civil and criminal cases, I thought Whitworth might bear mentioning in this criminal law forum.

The Whitworth litigation began with a complaint filed by Marie Whitworth seeking equitable distribution following her separation from her husband, Leon, and alleging that part of her martial property was a substantial interest in a family business, Window World, Inc.  An attorney for the company sought to intervene in the civil action, arguing that “resolution of the equitable distribution action between Marie and Leon would directly affect the day-to-day operation of the company to the point that the business would be impaired.” After holding a hearing on the motion to intervene, the district court judge announced on August 14, 2007, that she would allow the company to intervene if the attorney for Window World, Jay Vannoy, would prepare an order. Vannoy agreed to do so. However, he had submitted no such order by the time final judgment on the parties’ claims was entered on January 24, 2008. In the meantime, Marie and Leon Whitworth, pursuant to a consent order in the equitable distribution action, sold Window World to their son, Todd Whitworth.

Todd Whitworth died in February 2010.  In June 2010, Marie filed an action against his estate and Window World in superior court, claiming, among other things, breach of fiduciary duty, fraud, and breach of contract. Leon also filed a claim against Todd’s estate. Vannoy accepted service for the estate.

On August 12, 2010 (more than two years after final judgment was entered in the equitable distribution case), the district court entered an order allowing Window World’s motion to intervene nunc pro tunc to August 14, 2007.  The order, drafted by Vannoy, contained findings and conclusions more detailed than those stated by the court in its general ruling three years before. The apparent purpose of obtaining an order in the closed equitable distribution case was to allow Todd’s estate and Window World to “assert[] the defenses of res judicata and collateral estoppel  based on the  consent order . . . Those defenses relied upon Window World’s having been a party to the district court action.” Vannoy testified that he had handed the proposed order to intervene to the trial judge for signature in a regular session of district court without having first provided a copy to Marie or Leon’s counsel. Vannoy likewise failed to provide Marie or Leon with a copy of the order after it was signed.

Marie moved to set aside the August 12, 2010, intervention order pursuant to Rule 60 of the Rules of Civil Procedure.  One of the bases for Marie’s motion was that the nunc pro tunc order did not merely correct an error in the record. The trial court denied Marie’s motion.  Marie appealed, and the court of appeals reversed.

The appellate court noted that the Latin phrase nunc pro tunc, translated as “now for then,” signifies that “a thing is now done which should have been done on the specified date.” Slip op. at 12 (internal citations omitted).  The court explained that “before a court order or judgment may be ordered nunc pro tunc to take effect on a certain prior date, there must first be an order or judgment actually decreed or signed on that prior date.” The court further noted that a decreed or signed order or judgment “not entered due to accident, mistake, or neglect of the clerk,” may be appropriately entered at a later date nunc pro tunc to the date when it was decreed or signed—provided that no prejudice has arisen.

Because the trial court’s oral ruling on the motion to intervene in 2007 did not precisely set out its findings, the basis for granting the motion, or the scope of the intervention, matters that it apparently expected to be fleshed out in a written order, the appellate court determined that the non-specific oral ruling was insufficient to support the entry three years later of a detailed written order nunc pro tunc.  The 2010 order did not correct the record to reflect a prior ruling made but defectively recorded.  Nor did it recite court actions previously taken but not properly or adequately recorded.  Instead the written order “essentially created an order with findings of fact and conclusions of law that had not previously existed,” in derogation of the well-established rule that a “nunc pro tunc entry may not be used to accomplish something which ought to have been done but was not done.” Slip op. at 16 (internal citations omitted).

Many of the nunc pro tunc orders sought in criminal cases, like the order in Whitworth, are orders that inaccurately reflect a present action as having been taken in the past.  Such orders are sought after in cases involving convictions for offenses such as impaired driving or driving while license revoked—offenses  that result in the revocation of a person’s license—in order to shorten or even eliminate altogether the ensuing revocation period.  Those kinds of orders weren’t on solid footing before Whitworth. The court’s recent jurisprudence further emphasizes the shakiness of the grounds for this sort of relief.

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