NOTE ON LYLE v. EKLEBERRY (1968)
(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.”
