1

The Honorable Diana E. Murphy, then Chief United States

District Judge for the District of Minnesota, now United States

Circuit Judge for the Eighth Circuit Court of Appeals.

 2The Honorable Gregory F. Kishel, United States Bankruptcy

Judge for the District of Minnesota.

____________

No. 94-3189

____________

John A. Cochrane, *

*

Appellant, *

*

v. *

*

Vaquero Investments; Tudor * Appeal from the United States

Oaks Condominium; * District Court for the

* District of Minnesota

Appellees. ** Trustee, Brian F. Leonard, ** Intervenor. *

____________

 Submitted: October 16, 1995

 Filed: February 6, 1996 ____________

Before McMILLIAN, BRIGHT and LOKEN, Circuit Judges. ____________

McMILLIAN, Circuit Judge.

John A. Cochrane (debtor) appeals from an order of the United

States District Court1 for the District of Minnesota, affirming an

order of the bankruptcy court2 sustaining objections filed by

creditors to an exemption claimed by debtor for a condominium he

owns in Naples, Florida. Cochrane v. Vaquero Investments, Inc.,

Civ. No. 4-94-221 (D. Minn. Aug. 4, 1994), aff'g, Bky.
 3

11 U.S.C. § 522(b)(2)(B) provides:

(b) Notwithstanding section 541 of this title, an

individual debtor may exempt from property of the estate

the property listed in either paragraph (1) or, in the

alternative, paragraph (2) of this subsection. . . .

Such property is --

. . . .

[(2)](B) any interest in property in which

the debtor had, immediately before the

commencement of the case, an interest as a

tenant by the entirety or joint tenant to the

extent that such interest as a tenant by the

entirety or joint tenant is exempt from

process under applicable nonbankruptcy law.

 4Article X, Section 4(a), of the Florida Constitution provides

in pertinent part:

There shall be exempt from forced sale under process of

any court, and no judgment, decree or execution shall be

a lien thereon, . . . the following property owned by a

natural person:

(1) a homestead, . . . if located within a

municipality, to the extent of one-half

acre of contiguous land, upon which the

exemption shall be limited to the

residence of the owner or his

family . . . .

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No. 3-93-2056 (Bankr. D. Minn. Jan. 28, 1994) (Order Sustaining

Objection to Debtor's Claim of Homestead Exemption). For reversal,

debtor argues that the bankruptcy court erred in holding that the

condominium is not exempt from debtor's estate under 11 U.S.C.

§ 522(b)(2)(B)3 because it was not his "homestead," within the

meaning of Article X, Section 4(a), of the Florida Constitution,4

at the time he filed his bankruptcy petition. Debtor further

argues that the bankruptcy court abused its discretion in excluding

certain evidence at the hearing on the homestead issue and in

imposing a final deadline for amending his Schedule C. For the
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reasons discussed below, we dismiss the appeal for lack of

jurisdiction.

Procedural history

On December 12, 1992, debtor, an attorney who maintains a law

office in St. Paul, Minnesota, filed a voluntary petition for

relief under Chapter 11 of the Bankruptcy Code in the United States

Bankruptcy Court for the Middle District of Florida. His

Schedule C claimed an exemption for, among other things, a

condominium which he and his wife built in Naples, Florida, in the

late 1980s. The condominium is presently valued at approximately

$350,000. Debtor claimed this exemption under 11 U.S.C.

§ 522(b)(2)(B) and Article X, Section 4(a) of the Florida

Constitution. Creditors objected on grounds that the condominium

was not debtor's homestead within the meaning of the Florida

constitutional homestead provision, as interpreted by the Florida

state courts.

On February 18, 1993, the Florida bankruptcy court ordered a

change of venue and transferred the case to the bankruptcy court

for the District of Minnesota. On November 18, 1993, a hearing was

held in the Minnesota bankruptcy court on the homestead exemption

issue and other related matters. Upon review of the evidence, the

bankruptcy court sustained the creditors' objection to debtor's

homestead exemption claim. In re Cochrane, Bky. No. 3-93-2056

(Bankr. D. Minn. Jan. 28, 1994) (Order Sustaining Objection to

Debtor's Claim of Homestead Exemption). The bankruptcy court found

that debtor neither occupied the condominium as his bona fide home

nor manifested a bona fide present intent to occupy the condominium

as his home, at the time he filed for bankruptcy. Id. at 16, 20.

The bankruptcy court also found, based upon the evidence, that

debtor continued to use a residence in St. Paul as his true home,

despite the fact that a few years earlier he had transferred his

legal interest in the St. Paul house to his wife. Id. at 18.
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Thus, the bankruptcy court held that the condominium was not

debtor's "homestead" within the meaning of Article X, Section 4(a)

of the Florida Constitution on the date the bankruptcy case was

originally filed. Id. at 21. In another order issued on the same

day, the bankruptcy court addressed debtor's eleventh-hour

assertion -- as an alternative basis for exempting the condominium

from the bankruptcy estate under § 522(b)(2)(B) -- that he held his

interest in the condominium as a tenant by the entirety under

Florida law. In re Cochrane, Bky. No. 3-93-2056 (Bankr. D. Minn.

Jan. 28, 1994) (Order Re: Status of Debtor's Claims of Exemption,

and Objections Thereto). On this issue, the bankruptcy court noted

that debtor had offered no evidence to demonstrate the existence of

a tenancy by the entirety, nor had he even alleged the existence of

the requisite elements. Id. at 4-7. The bankruptcy court then

permitted debtor an opportunity to amend his Schedule C to clarify

his claim of tenancy by the entirety and to submit, on or before

February 18, 1994, a final list of all such claimed exemptions.

Id. at 8. The bankruptcy court also issued a third order on

January 28, 1994, addressing claims of exemption made by debtor for

assets not in issue in the present appeal and barring debtor from

further amending his Schedule C after February 18, 1994. In re

Cochrane, Bky. No. 3-93-2056 (Bankr. D. Minn. Jan. 28, 1994) (Order

Sustaining Objections to Debtor's Claim of Exemptions). Debtor

appealed the three bankruptcy court orders of January 28, 1994, to

the district court, pursuant to 28 U.S.C. § 158(a). The district

court affirmed the bankruptcy court's orders. Cochrane v. Vaquero

Investments, Inc., Civ. No. 4-94-221 (D. Minn. Aug. 4, 1994)

(order). Debtor then filed the present appeal to this court,

pursuant to 28 U.S.C. § 158(d). 

In the meantime, on February 15, 1994, the bankruptcy court

converted the bankruptcy case to a case under Chapter 7 for cause,

based upon findings that debtor had breached his fiduciary duty and

caused unreasonable delay. Shortly thereafter, the trustee was
 5

Since the trustee was appointed, the creditors have allowed

the trustee to represent their interests in opposing debtor's

exemption claims. 

-5-

appointed.5 Debtor filed an amended Schedule C within the

February 18, 1994, submission deadline. His amended Schedule C

asserted that, at the time he filed for bankruptcy, he held the

condominium (among other assets) as a tenant by the entirety with

his wife, which, he argued was a basis for a § 522(b)(2)(B)

exemption under Florida law. The trustee objected. On April 18,

1994, the bankruptcy court held a hearing on the amended Schedule C

and the trustee's objections thereto, and took the matter under

advisement. On January 30, 1995, the bankruptcy court entered an

order sustaining the trustee's objection with respect to the

condominium. In re Cochrane, Bky. No. 3-93-2056 (Bankr. D. Minn.

Jan. 30, 1995) (Order Sustaining Objections to Debtor's Claim of

Exemption in Certain Florida Real Estate). The bankruptcy court

held that debtor's interest in the condominium was not exempt,

immune, or excluded from debtor's bankruptcy estate under the

Florida law of tenancy by the entirety and that debtor's interest

in the condominium was an asset of the estate which the trustee

could proceed to administer. Id. at 18-19. Debtor appealed the

bankruptcy court's January 30, 1995, order to the district court,

where that appeal is currently pending. As a consequence, the

litigation over the exempt status of the condominium has been

bifurcated: the issues raised by debtor's homestead exemption claim

are now before this court on appeal from the district court while

the issues raised by debtor's tenancy by the entirety exemption

claim remain pending before the district court. 

Jurisdiction under 28 U.S.C. § 158(d)

 

 At oral argument, on October 16, 1995, we questioned counsel

regarding the basis for our jurisdiction under 28 U.S.C. § 158(d)

and invited counsel to submit supplemental memoranda stating their
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positions on the jurisdictional issue. The trustee submitted a

memorandum to the court on December 15, 1995, urging dismissal of

the appeal for lack of jurisdiction.

In bankruptcy cases, jurisdiction in the district courts and

in the courts of appeals is governed by 28 U.S.C. § 158.

Subsection (a), addressing the district court's appellate

jurisdiction, provides: 

 (a) The district courts of the United States shall

have jurisdiction to hear appeals[:]

 (1) from final judgments, orders, and

decrees;

 (2) from interlocutory orders and decrees

issued under section 1121(d) of title 11

increasing or reducing the time periods

referred to in section 1121 of such title;

and

 (3) with leave of the court, from other

interlocutory orders and decrees;

and, with leave of the court, from interlocutory orders

and decrees, of bankruptcy judges entered in cases and

proceedings referred to the bankruptcy judges under

section 157 of this title. An appeal under this

subsection shall be taken only to the district court for

the judicial district in which the bankruptcy judge is

serving. 

Our jurisdiction to hear bankruptcy appeals from the district

courts is, however, more limited. Subsection (d) of § 158 provides

"[t]he courts of appeals shall have jurisdiction of appeals from

all final decisions, judgments, orders, and decrees entered under

subsections (a) and (b) of this section." (Emphasis added.)

In interpreting § 158(d), this court has explained that

[t]he factors used in deciding the finality of a

bankruptcy order are the extent to which (1) the order
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leaves the bankruptcy court nothing to do but execute

the order; (2) delay in obtaining review would prevent

the aggrieved party from obtaining effective relief; and

(3) a later reversal on that issue would require

recommencement of the entire proceeding. 

In re Apex Oil Co., 884 F.2d 343, 347 (8th Cir. 1989) (cited in In

re Huebner, 986 F.2d 1222, 1223 (8th Cir.), cert. denied, 114

S. Ct. 272 (1993)). In Heubner, this court considered the finality

requirement of § 158(d) in the context of orders granting or

denying exemptions and noted that, although such orders are

technically interlocutory, "[n]early every circuit to consider the

question has held that an order granting or denying an exemption is

final for purposes of § 158(d) or its predecessor statute." 986

F.2d at 1223. However, this court also observed that "[f]inality

for bankruptcy purposes is a complex subject" and "the test for

finality under § 158(d) must take into account the peculiar needs

of the bankruptcy process." Id. While in many cases, as in

Huebner, the peculiar needs of the bankruptcy process dictates that

it is both prudent and necessary to treat a bankruptcy court's

exemption decision as final, such is not the case here for the

simple reason that the orders of the bankruptcy court presently on

appeal do not conclusively resolve the issue of whether the

property in question is or is not exempt from debtor's bankruptcy

estate. Cf. Lewis v. United States Farmers Home Admin., 992 F.2d

767, 773 (8th Cir. 1993) ("[t]his court has held bankruptcy

decisions which resolve singular disputes in isolated, separate

adversary proceedings affecting only one aspect of the bankruptcy

estate to be final"). The bankruptcy court's order of January 30,

1995, rejecting debtor's tenancy by the entirety argument, is still

pending before the district court. Therefore, it cannot be said

that the orders of January 28, 1994, leave the bankruptcy court

nothing to do but execute them; that delay in obtaining review

would prevent debtor from obtaining effective relief; or that a

later reversal on the homestead exemption issue would require

recommencement of the entire proceeding. To the contrary, an
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affirmance of the January 28, 1994, order holding that the

condominium does not qualify for the homestead exemption would have

no practical consequences unless and until there is a final

decision on the tenancy by the entirety exemption issue as well. 

In sum, neither judicial economy nor our statutory authority

under § 158(d) permits the piecemeal litigation that will result if

we prematurely consider the issues raised in this appeal.

Therefore, we hold that we lack jurisdiction under 28 U.S.C.

§ 158(d) to decide the present appeal, and we dismiss it without

prejudice to debtor's right to refile his appeal from the district

court's August 4, 1994, order in a timely manner upon a final

decision by the district court concerning the exempt status of the

condominium.

A true copy.

Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.