(Posted April 2, 2020) The Supreme Court of Virginia hands down a significant decision today in the context of foreclosure. The decision is Young-Allen v. Bank of America.

This appeal arises from a residential mortgage loan. The borrower fell in arrears; the bank appointed a substitute trustee who sent out the usual foreclosure notice.

A day later, the borrower wrote to the bank, asking for a reinstatement figure – that is, how much she had to pay to restore herself to the bank’s good graces. Her pleading asserted that the bank ignored her, and that she then told the substitute trustee that the bank had breached the terms of the loan by doing so.

A day before the scheduled foreclosure sale, she filed a declaratory-judgment suit – alleging breach of contract and seeking rescission of any future sale – and recorded a lis pendens memorandum. But the trustee conducted the sale anyway, knocking down the property to an investment company that saw equity in the property.

The bank then demurred to the suit, arguing that the complaint failed to allege that the borrower was damaged. The circuit court sustained that demurrer and allowed an amendment.

The borrower did amend, abandoning her original claims and seeking equitable rescission. The new pleading added a claim of breach of fiduciary duty against the substitute trustee, arguing that that entity had a duty to hold off foreclosing once it received word of a possible breach of contract by the bank.

This time both defendants demurred; the circuit court sustained those and dismissed the suit with prejudice. The Supreme Court granted a writ to review the matter.

The court today unanimously affirms. The ruling really comes down to a single holding: A borrower in this situation must affirmatively allege in her suit that she had the capacity to reinstate the loan. That is, she must allege that she had the funds – or at least the ability to raise the funds – to bring the loan current. If she doesn’t do that, she has failed to plead that she was damaged by the bank’s and trustee’s actions. Because this borrower didn’t assert that, the trial court was correct to dismiss the claims.

This, then, is a decision about pleading (as is so often the case with appeals of demurrer rulings). Today’s opinion continues what I see as a trend in the Supreme Court toward an ever narrower application of the notice-pleading rules that apply here in Virginia. Courts evaluating a demurrer must accept the facts as the plaintiff pleaded them. Traditionally, they must also accord plaintiffs the benefit of all reasonable inferences from those facts.

An expansive view of this process would likely conclude that the borrower’s pleading here would permit the reasonable inference that the actions she assails deprived her preemptively of a well-recognized property right: the equity of redemption. That’s the right of a borrower who’s in default “to recover property before a foreclosure sale by paying the principal, interest, and other costs that are due.” Black’s Law Dictionary (10th ed. 2014) at 657. Deprivation of a recognized property right ought to be cognizable, assuming you view the reasonable-inference process expansively.

Instead, the Supreme Court today adopts a narrow reading of the notice-pleading requirements. It holds that even invoking a recognized property right, the borrower must plead and eventually prove that she would have been able to raise the money to reinstate the loan, if only the bank had answered her e-mail with a reinstatement figure.

In this sense, this dirt-law opinion will cast ripples that spread far beyond the foreclosure-law pool. In my opinion, the reasonable-inference rule is in hospice care in Virginia. To be safe, careful pleaders must set out each element expressly, or risk a court’s declining to draw what the pleader might think is a reasonable inference.

Finally, lest you perceive that I’m rooting for the borrower here, please know that I’m well aware that many borrowers assert gotcha defenses in foreclosure litigation, thereby enabling them to remain for months or years in properties without paying their mortgages. I won’t defend that practice; you need to pay for what you want to keep, in the sense of making agreed mortgage payments.


*   *   *


The court also hands down a published order in a criminal appeal, McQuinn v. Commonwealth. There, a jury acquitted McQuinn of abduction and robbery, but convicted him on companion firearms charges. He argued unsuccessfully that the verdicts were inconsistent in the trial court and in the Court of Appeals.

Today the Supreme Court makes it unanimous. In doing so, the court sticks with prior rulings that prohibit looking behind the jury’s verdict to see whether that jury simply cut the defendant a break. The evidence in the case, as recited in today’s opinion, was certainly sufficient to convict McQuinn had the jury decided to do so. In such situations, an inconsistent verdict stands.


*   *   *


Finally, I’ll add a personal note. Today is an important day in the Emmert household: It’s the 108th anniversary of the birth of my paternal grandfather, Stan Emmert. He was an architect and engineer, two professions that I esteem highly.

Back in the day, members of three professions could be distinguished by the fact that they wore bow ties. The three were architecture, medicine, and law. My grandfather always wore bow ties, and in his honor, I’m wearing one today in lieu of my normal necktie. (Yes, I’m aware of the Governor’s current order within his administration to eschew neckties for the duration of the pandemic.)

I still possess the last letter I ever received from my grandfather, written a few months before his death in early 1987. I was a young lawyer then, still in my 20s. He offered this advice, which I reread this morning: “We [he and my grandmother] want you to be totally in command of yourself. We want you to be all that you want to be, as we know your sights are high. Success is not measured in dollars and cents; but rather, in happiness, self-dignity, pride, and accomplishment.” This is the manner of man from whom I am descended; this is the man I’m trying to live up to.

I’m sort-of named for my grandfather. He was Lorenzo Stanley Emmert. Before I was born, he learned that my parents were thinking of naming me after him, assuming I turned out to be a boy. (This was long before amniocenteses could identify a child’s gender months before birth.) He responded, “For God’s sake, don’t name him Lorenzo!”

My parents heeded this plea and Anglicized my first name to Lawrence. As for my middle name, well … my mother idolized the multitalented entertainer Steve Allen. So I’m named for my grandfather and a comedian. Explains some things, doesn’t it?






(Published March 31, 2020) Most of the opinion analyses that I publish here are about current appeals, usually posted on the same day the opinion hits the court’s website. Today we’ll take a look back at a key finality ruling from another era: Lyle v. Ekleberry, 209 Va. 349 (1968). Lyle is one of the seminal decisions from the Supreme Court of Virginia on the 21-day provision set out in Rule 1:1.

The short opinion mentions very little about the underlying facts of the case, because the holding arises entirely from procedural issues. A jury returned a wrongful-death verdict in favor of the plaintiff, the administrator of his late son’s estate. The circuit court entered judgment accordingly, and a week later denied a motion to set the verdict aside.

The defense lawyer wrote a letter to the judge two weeks later, asking for the opportunity to reargue his post-trial motions by citing additional authorities. The letter contained this passage: “I do not know if the final judgment order has been entered as of this writing. If the order has not been entered, I would appreciate your withholding entry of said order until such time as I could argue before you on our motion to set aside the verdict. If the order has already been entered, I would appreciate the court vacating the order if we are still within the twenty-one day period.”

The judge wrote back six days later — you’ll notice that we’re getting painfully close to 21 days after denial of the post-verdict motion — to say that if the plaintiff’s lawyer agreed, he’d hear additional argument. The judge eventually wrote a letter six weeks later saying that he wouldn’t disturb the verdict, and two weeks after that entered an order to that effect. The defendant noted and perfected an appeal within the applicable deadlines after the date of that order.

Fifty years of appellate hindsight tells us what happened next: The Supreme Court dismissed the appeal as untimely. The specific ruling in the appeal is that a letter to the judge, no matter how specific, doesn’t stop the 21-day clock; only entry of an order that suspends, modifies, or vacates the final order will suffice. The order signed by the judge a week after the verdict was a final, appealable judgment, and the trial court lost jurisdiction on the 22nd dawn after that.

In my briefs, whenever I have a 21-day issue I always cite Lyle. There are newer rulings that say essentially the same thing – notably decisions like Lynchburg School Board v. Caudill Rowlett Scott in 1989, Super Fresh v. Ruffin from 2002, or Johnson v. Woodard, an appeal that I argued in 2011 – but absent a specific reason to cite them, I let them pass and quote this 1968 opinion. To explain why, I’ll have to tell the backstory of Lyle v. Ekleberry, the story that doesn’t appear in the opinion.

*   *   *

In the spring of 1965, Karl Ekleberry was a first grader in the then-new City of Chesapeake, the same town where I grew up. He was a little on the thin side; his classmates regarded him as an easy-going kid with an occasionally goofy sense of humor. On the afternoon of Thursday, May 20, after he arrived home from school, his mother sent him on an errand; she needed something from Swanner’s Market, a small independent grocery store just three blocks from their home. As unthinkable as it may sound in today’s hyper-protective parental environment, she sent Karl off to the store alone. (To our younger generations: Yes, this was fairly common in those times.)

Karl arrived at the right place, but it was decidedly the wrong time. As he walked in front of the store, a young driver named Lyle, possessing only a learner’s permit, began to back the new family car out of a parking space. But he mistakenly shifted the automatic transmission into drive instead of reverse. The car lurched forward, slamming young Karl Ekleberry into a display outside the store’s entrance. He sustained significant injuries to the right side of his head. An ambulance crew soon arrived and took him to a hospital, but the medical staff were unable to save his life.

I’ve thought from time to time about the survivors of this tragedy. I’ve considered the incredible sadness of the young victim’s parents, who had to do the unthinkable: They purchased a cemetery plot for a child, and grimly attended a funeral. They had to enter their son’s bedroom after his death and clear away the prized possessions of boyhood — perhaps a baseball glove, a card collection, some toys — and his clothing, knowing that they’d never hear his laugh again. Time would likely dim their pain as they raised Karl’s four siblings over the years, but they could never forget his loss completely; nor would they wish to.

I’ve also wondered about the young man on the other side of the “v.” in the ensuing litigation. Mr. Lyle, who would be around 70 years old now, has had to live with the horror that, at the age of about 15, he inadvertently killed a little boy. How do you come to terms with that? How do you laugh again? Most of us have made comparable mistakes, but without the tragic consequences. For him, I earnestly hope that he found acceptance, even self-forgiveness. I hope he was able to forget.

 *   *   *

If you’ve read the Lyle opinion recently, you may recall that none of these details are set out in volume 209 of Virginia Reports. Indeed, the victim’s name doesn’t appear anywhere in the opinion; only in the caption. So where do these facts come from?

To answer that, I need to fill in one more detail from Karl Ekleberry’s childhood. His first-grade classroom at B. M. Williams Elementary School was equipped with tables that each accommodated two students. His teacher was one of those highly organized sorts that we’ve all met from time to time, so she arranged for her students to sit in alphabetical order. Now, who do you suppose sat next to a kid named Ekleberry?

This is the reason why I choose to cite this opinion whenever I can. It’s my way of preserving the memory of my long-ago classmate with the easy smile and the goofy sense of humor. After all, even after death, none of us are truly gone as long as there’s someone who remembers us.

*   *   *

Recently, on a chilly, drizzly morning, I went to the peaceful cemetery where Karl’s family had gathered so sadly, 55 springs ago. I found his grave marker and placed a stone on it — a Jewish tradition that I learned from my wife, a way of noting that someone who cared had come to visit. Two or three steps away, I saw the markers for his mother and father, who joined him in that quiet park in 1999 and 2001, respectively.

I lingered awhile. Before I left, I stood beside Karl’s gravesite and spoke to him: “I remember you.” And after a moment, “And I’ll write about you, so others will know you, too.”






(Posted March 30, 2020) If you have a writ-panel argument set for tomorrow, you received a notice from the court giving you a choice: Consent to argument by audio-conference, or waive argument. The court didn’t give you Option C, postponing the argument until social distancing is no longer necessary.

If you chose argument by telephone, you may be facing a new experience. I know that I am; tomorrow I’ll deliver the first appellate oral argument of my life without being able to see the justices. While that may feel odd, I suspect I’ll adapt once I get going.

Since I’m not exactly an old hand at remote argumentation, I asked a pal, who prefers to remain nameless, what hints I could pass along to you. Here are his suggestions:

  1. When you dial in, the court’s directions are that you mute your phone. Keep it muted until the court calls your case. If you don’t, the court will be able to hear you shuffling papers and clearing your throat while it’s trying to listen to someone else’s argument.
  2. When the court calls your case, remember to unmute your phone! If you begin speaking without doing that, the panel will hear dead air (assuming everyone else has properly muted). If that continues for long enough, the court may conclude that you aren’t on the call, and you’ll forfeit the argument. That doesn’t mean that you’ll lose the appeal, but you won’t get the advantage of being able to address the court’s questions. That’s the most important aspect of any oral argument.
  3. When you begin your argument, resist the temptation to shuffle papers on your desk. Those, too, interfere with the court’s ability to hear you.
  4. Slow down a little, and include brief pauses from time to time. This gives the court the opportunity to break in with questions – and you never want to miss those. When you appear in person, you often get visual clues that a justice is about to ask a question; this is all audio, so you won’t have that added guidance.
  5. Get a timer ready in your office. You have ten minutes to argue, and you won’t be able to see a yellow or red light in the courtroom when you’re sitting in your office. If your cell phone has a timer feature, preset it to start at ten minutes, and try to remember to start it when the court calls your case.

Here are a few additional items that you should keep in mind. First, if you or your adversary arranged for a court reporter to take down the argument, you’ll need to mention that to the court at the outset of your argument. Yes, you have to spend some of your precious ten minutes accommodating your adversary. Do it anyway, and be assured that the court will likely give you four or five extra seconds if you run out of time after having done that.

Second, be sure to introduce yourself. Do it even if the court calls your case in this way: “Next is Sara Smith v. Joseph Jones. Ms. Wilson, we’ll be happy to hear from you now.” Start your argument with, “Good afternoon; I’m Jane Wilson, and I represent …” Yes, they probably can figure out who you are, but this is a matter of courtesy. Do it.

Third, expect some moments where two or even three people are talking at the same time. That occasionally happens in the courtroom, but it’s more likely to happen here. Just know that, like the driver of the car entering a major highway from a minor road, you don’t have the right-of-way. You must yield. Listen to the question and then answer when the jurists stop speaking. If you get two questions at once, do your best to answer each of them in turn. (This advice holds true even during in-person arguments, but it’s even more crucial now.)

Now for some answers to, or perhaps ill-informed speculation on, your likely questions:

  • Will the justices all be together in the panel room for the argument, as they do when I appear in person? Maybe. But if they follow the example of That Other Supreme Court, the one across the Potomac, they may be dialing in just like you are. SCOTUSblog is reporting today that at last Friday’s conference at the high Court, only Chief Justice Roberts was present in the court building; the other justices dialed in, to comply with the CDCP’s social-distancing guidelines. Their Virginia counterparts may or may not do the same, but that shouldn’t affect the dynamic of the argument.
  • What if I’m not familiar enough with each justice’s voice, so I’m not sure which of them is asking the question? In theory, you could ask, “Which justice am I addressing?” before responding. But I think that’s bad form. The better approach is to go ahead and answer the question without worrying about who the “author” is. If you’re wondering what to call the person who asked you the question, remember that “your Honor” is always good form.
  • Will this slow down the rate at which the court rules on this batch of petitions? Again, maybe, but that’s likely a function of how much onsite staff there is in the Clerk’s Office. (I suspect that they’re operating with a somewhat reduced in-office staff.) You should expect that, as usual, the writ panels will confer that afternoon to decide which petitions to grant. After that, you can expect to get a result anywhere from 3-4 business days to 3-4 weeks later. In my experience, 1-2 weeks is the likeliest span, but that’s the case in normal times.
  • I want to listen to the Bad Guys’ argument. How can I do that? Here are the instructions from the Chief Staff Attorney’s Office on listening in: “We ask that co-counsel who are not arguing and clients listen to oral arguments by using the following links that are available at our webpage  Click on COVID-19 Appellate and Local Court Information, then select March 31, 2020 Writ Panels.  There, each panel is listed with links to the dockets and live-streaming audio feed.  It is best to listen through Chrome, Firefox or Microsoft Edge.” The only drawback of this approach is that, unlike in-person arguments, you can’t throw spitballs at your adversary while he’s at the lectern; but you’ll deal.
  • The notice that I received says I have to dial in half an hour before my designated argument hour. I’m the last case on the 2:00 docket, so I should be called just before 3:00. Will it be safe to dial in at about 2:30? No. No! No matter how far down the docket you are, you’re in the 2:00 batch. That means you need to dial in by 1:30. But that means I’ll be on an unendurable hold for maybe an hour and a half! Suffer. You’d be doing the same thing if you appeared in court in a “normal” writ session, and unlike that, you can go to the bathroom (do it quickly) once someone else’s argument starts. Plus, unlike the crowded panel rooms that accommodate only 14 persons in the gallery, you’ve got plenty of room in your home or office.

Here’s a suggestion: Dress for court. Yes, I mean it. This is audio-only, so the justices won’t know if you’re in your best suit or your pajamas. But you’ll feel the difference as a matter of professionalism, and that difference will reflect the formality of the occasion. Now, I’d probably prefer to be dressed in a pair of Levi’s and tennis shoes – I plan to be buried in Levi’s and tennis shoes – but I’ll wear a suit tomorrow. I may even ignore the Governor’s directive to his staff to eschew neckties, which (I never thought of this) harbor lots of germs. I’ll be dressed like a lawyer, even if no one in Richmond can tell.

I’ll conclude with a request to those of you who argue tomorrow. I’d be very grateful to receive a short e-mail from you afterward, describing your experience. There may be, indeed probably will be, angles that I’ve missed here. If so, I’d like to post a revised edition of this essay, for the benefit of future “tele-arguers.” You’ll be doing a public service.

For tomorrow and beyond, be ready, be persuasive, and be well.





(Posted March 26, 2020) We get one short opinion today from Ninth and Franklin, resolving a finality issue in a criminal appeal. The case is Akers v. Commonwealth.

Akers, having previously received a partially suspended sentence on drug charges, incurred new criminal convictions three years later. A circuit court judge determined to revoke the suspension and impose the remaining prison time on him. The court entered a sentencing order carrying that out.

Four months later, Akers moved the court to modify the sentence. He relied on Code §19.2-303, which provides a limited exception to the 21-day rule in Rule 1:1. That statute allows a trial court to modify a felony sentence at any time before the Department of Corrections takes custody of the prisoner. Akers was still in a local jail when he filed the motion.

The court scheduled a hearing for 2 ½ months later. Alas for Akers, the jail transferred him to the DoC a few days before that hearing date, so he was in prison when court convened. The trial court concluded that it accordingly was powerless to adjudicate the motion.

The Court of Appeals agreed, employing the plain language of the statute. Today the Supreme Court affirms. If Akers wanted to ensure continuing trial-court jurisdiction, he could have moved the circuit court to suspend the sentencing order, or to enter an order staying the transfer. Today’s opinion notes that if the court enters the latter kind of order, it’s the prisoner’s obligation to ensure that DoC knows about it. Presumably if the Department takes custody without knowing about such an order, the trial court still loses jurisdiction.




(Posted March 24, 2020) Here are some musings on matters that affect the appellate world, as we all struggle to find some semblance of normalcy in life.


CAV livestreams oral arguments

The Court of Appeals of Virginia has convened a panel today to consider one merits argument and several writ arguments. The court has decided to livestream those arguments, and presumably all such teleconference arguments going forward, so you can listen in on the proceedings. Here’s a link to the site.


Next week’s SCV writ panels

As I reported recently, the Supreme Court of Virginia has given petitioners a choice for the March 31 writ panels: accept a teleconference argument, or waive your argument. Counsel for those petitioners received a notice to that effect last week, and were given until today to notify the court of their choice.

For those lawyers who have chosen to argue remotely, there are precious few details for now. I believe that the court will likely send out a notice tomorrow, after it knows how many telecom arguments will be needed, giving everyone details. This will be a new experience for me; I have a writ argument next week, and I’ve chosen to argue it remotely. This will be the first time I’ve ever argued to the justices without being able to see their faces.


Fourth Circuit suspends argument requirement

The Fourth Circuit yesterday issued a standing order yesterday relating to its oral arguments, in light of the court’s cancellation of those arguments for March and April. By local rule, the court won’t issue a published opinion unless it has received oral argument. Yesterday’s order suspends that requirement, thus enabling the court, if it chooses to do so, to issue published opinions in some or all of those docketed appeals without argument.


Questions pend on appellate tolling

You’ll recall that the Supreme Court declared a judicial emergency on March 16 – can that have been only eight days ago? – by an order that governed proceedings in trial courts only. The order said nothing about proceedings in Virginia’s appellate courts. A few days later, the court posted an undated two-paragraph statement providing that the tolling applies to “filings related to appeals under Part 5 of the Rules of Court ….” It gives nonexclusive examples of the notice of appeal and of transcripts and written statements, both of which are filed in the trial-court clerk’s office. It then adds that it includes the filing of the petition for appeal, which goes to the appellate court. This is the first mention of a tolling provision for any filing in the appellate court.

I’ve received multiple queries from lawyers who wonder whether they have to file a brief in opposition that falls due in the next couple of weeks. My best answer is, “Probably not, but why take the chance? File it if you can.”

I begin with “probably not” because the statement says that the tolling applies to filings related to appeals, “including but not limited to” the list above. For most readers, that phrase clearly connotes a nonexclusive list. See A. Scalia and B. Garner, Reading Law: The Interpretation of Legal Texts (Thomson/West 2012) at 132-33. But as the cited book indicates, some courts limit the list anyway, and you don’t want to become a test case here.

I’ve sought guidance from the court on this, since plenty of people are worried. There’s no further word thus far, but the court may issue something soon if it gets enough inquiries like mine.


More questions on SoL tolling

Back to the judicial-emergency declaration: Does it toll statutes of limitations? The document doesn’t say so, and I believe that the best reading of its language is that it does not. Clerk’s offices around the Commonwealth are still accepting filings, and because the order suspends “proceedings in all circuit and district courts,” I don’t believe it applies to suits that haven’t been filed yet. If you have a looming deadline, go ahead and file it now; statutes of limitations are ruthless, and there’s no safe-harbor provision for missing one, even for good cause.


And in non-Coronavirus news …

You may have seen that the General Assembly adjourned sine die without filling the Court of Appeals seat vacated by Virginia’s newest U.S. District Judge, Rossie Alston. That means that the Governor gets to fill the position. The last time that happened, in 2015, was a fiasco that I’d prefer to forget. This time, I strongly suspect that the Governor will consult with legislative leaders before announcing his choice. His appointment lasts until 30 days after the next General Assembly session convenes.





(Posted March 19, 2020) Here’s an update on new filing procedures in the Court of Appeals of Virginia. According to Chief Deputy Clerk John Vollino, the court wants everything filed electronically and strongly prefers not to receive paper filings. The Clerk’s Office will enable VACES filing for all attorneys and pro se parties for all documents that otherwise would be filed in paper form. The web address for such filings is:

For persons using the VACES system, motions may be filed as “Other” along with the existing record number. For initial filings, such as a notice of appeal, call the document “Other” and use a record number of 0000-00. The clerk will process it from there, and will contact you to make arrangements for the filing fee. John says that he expects to be set up to accept credit-card payments by later today.

For pro se filings where litigants don’t have access to VACES, the court asks that everything be filed by e-mail. The address is Only if e-mail is unavailable, pro se litigants may mail the documents to the Clerk, or deposit them in a drop box just inside the courthouse, at the Eighth Street entrance.

If you need to contact the Clerk’s Office, be patient. They’re operating on a skeleton crew that’s juggling the court’s normal caseload in decidedly abnormal times.





(Posted March 18, 2020) Here’s the current state of affairs for the courts’ responses to the judicial emergency.


Fourth Circuit

The court has postponed arguments for this week and April 7; those will be calendared for argument at a later date. The court has issued this public advisory describing limited access to the building. You can still file documents, but you’ll do so either electronically only – the obligation to file a paper copy is suspended for now – or in the building’s lobby. If you’re in one of several enumerated high-risk categories, you can’t enter the building at all.


Supreme Court of Virginia

The SCV is, as far as I can tell, the lone court in Virginia that has yet to announce any policy changes, any restrictions, any modified procedures for its operations. The clerk’s office is open for official filings but the building is closed to the general public. The next scheduled convening of court is in 13 days, when three writ panels will consider sixty or so petitions for appeal. I expect an announcement of some kind before then, but I don’t know just when. UPDATE 4:30 p.m.: The court has notified attorneys scheduled to argue to writ panels on March 31 that they have a choice: argument by telephone, or waiving argument. The court has given each such advocate until March 24 to notify the Chief Staff Attorney. I’m relieved to see this news; the court emphatically is doing the right thing.


Court of Appeals of Virginia

The CAV issued an order today that details several changes, including a drop box for court filings, a liberal continuance policy, and the conversion of all oral arguments to teleconference through the end of June. As I type this on the afternoon of March 18, I don’t see a link to the order on the court’s website, but I expect to see that shortly. In the meantime, if you’d like a copy, contact me and I’ll forward it.


Trial courts

As I noted on Monday, Virginia state trial courts are now operating under the Supreme Court’s judicial-emergency declaration.

In federal courts, both the Eastern District and the Western District have published orders describing limitations on proceedings and public access.

You need to be aware of these trial-court procedures if you have to file something, such as a notice of appeal, in the lower court’s clerk’s office.