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. e du/thir dc ir c uit_1997/238Filed October 3, 1997

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 97

- 7023

EDWIN ORTIZ;

SANTIAGO CAMACHO (Intervenor in D.C.)

v.

SYLVIA DODGE,

Appellant

On Appeal from the Appellate Division of the

District Court of the Virgin Islands

Division of St. Croix

(D.C. Civil Action No. 93

- cv

- 00234)

Argued April 9, 1997

BEFORE: BECKER, ROTH and WEIS,

Circuit Judges

(Opinion Filed October 3, 1997)

Bethany J. Vazzana, Esq. (Argued)

Law Offices of Wilfredo A. Geigel

P.O. Box 25749, Gallows Bay

Christiansted, St. Croix

United States Virgin Islands 00824

Attorney for Appellee

Lolita d'Jones

de Paiewonsky, Esq. (Argued)

Commerce Plac e, Suite 104

1142 King Street, Christiansted

United States Virgin Islands 00820

Attorney for Appellant

OPINION OF THE COURT

ROTH, Circuit Judge:

In this case, we are asked to review a decision of the

Appellate Division of the District Court of the Virgin

Islands, reversing in part an order of the Virgin IslandsTerritorial Court and remanding for further proceedings.

The appellate division's decision involves complicated

questions about the scope and application of t he Virgin

Islands homestead exemption and the procedures available

for undoing a confirmation order of a judgment sale. See 5

V.I.C. S 478, 489. We will not address the merits of this

appeal, however, because we do not believe the decision,

which rema nded the case to the territorial court for further

proceedings on the merits, qualifies as a "final decision"

within the meaning of 48 U.S.C. S 1613a(c).

I. FACTS

In 1989, Sylvia Dodge, the appellant in this case, lost an

action brought by Edwin O rtiz to collect a debt. Ortiz

obtained a judgment in territorial court against Dodge for

the amount of $4,982.91, plus interests and costs.

Ortiz did not succeed in two attempts to collect on the

judgment. A territorial marshal then issued a writ,

a ttaching Dodge's property at 122 Estate Ruby, St. Croix.

The marshal eventually conducted an execution sale, and

the property was purchased by Santiago Camacho, the

intervenor appellee in this case, for a bid of $9,300. The

territorial court entered an order confirming the sale of

Dodge's property on September 24, 1991. Dodge apparently

2

did not receive a copy of Camacho's motion to confirm the

judgment sale.

Nearly one year later, Dodge filed a motion wit h the

territorial court to annul the Confirmation Order and set

aside the sale on the grounds that she had been improperly

denied a homestead exemption prior to the sale of her

property and that she had been given improper notice of

the motion to ente r a confirmation order of that sale. See 5

V.I.C. S 478.1 The territorial court agreed with Dodge,

vacated the confirmation order, and set aside the sale.

Camacho appealed to Appellate Division of the District

Court of the Virgin Islands. See 48 U.S. C. S 1613a. On

appeal, Camacho argued that (1) Dodge had failed t o

provide appropriate notice to the marshals that her

property qualified for the homestead exemption; (2) even if

Dodge was entitled to the homestead exemption, it

protected, at most, o nly her equity in the property, which

was less than the amount paid out by Camacho; and

(3) Dodge failed to meet the standards of Rule 60(b) of the

Federal Rules of Civil Procedure in bringing her motion to

annul the confirmation and vacate the sale an dconfirmation order.

The appellate division affirmed the territorial court's

decision to annul the Confirmation Order, but it did so

pursuant to Rule 60(b) of the Federal Rules of Civil

Procedure,2 rather than pursuant to 5 V.I.C. S 489, which

se ts forth the circumstances under Virgin Islands law for

confirmation of a judgment sale.3 See Camacho v. Dodge,

947 F.Supp. 886, 894 (D. Virgin Islands 1996).

_________________________________________________________________

1. 5 V.I.C. S 478(a) prov ides in pertinent part: "The homestead of any

family, or the proceeds thereof, shall be exempt from judicial sale for

the

satisfaction of any liability hereafter contracted or for the satisfaction

of

any judgment hereafter obtained on such debt. . . . I t shall not exceed

thirty thousand dollars in value . . .."

2. Under Rule 60(b) of the Federal Rules of Civil Procedure, a court may

relieve a party from a final judgment or order under certain

circumstances, such as "mistake, inadvertence, surprise, or excusable

neglect" or "any other reason justifying relief from the operation of the

judgment."

3. Section 489 provides in pertinent part: "The plaintiff in the writ of

execution shall be entitled, on motion therefor, to have an order

confirming the sale, unless the judgment debtor, or his representative in

case of his death, files with the clerk his objections thereto within five

days after the return thereof." 5 V.I.C. S 489.

3

Although the appellate d ivision affirmed the territorial

court's annulment of the Confirmation Order, it did not

uphold the territorial court's decision to set aside the

judgment sale. According to the appellate division, the fact

that Dodge had properly invoked her homestead exemption

under Virgin Islands law did not resolve the question of

whether the sale should be set aside. See Camacho, 947

F.Supp. at 893. The appellate division therefore remanded

the case to the territorial court to give Dodge "the

opportunity to ha ve the extent of her entitlement to the

homestead exemption determined by the trial court . . ..

The court's ruling on the remanded homestead issue will

determine whether or not the entire execution sale must be

set aside." Id.

Dodge's attorney now appeals the appellate division's

reversal of the territorial court's decision to set aside the

judgment sale.4

_________________________________________________________________4. We refer to Dodge's attorney because Ms. Dodge is no longer alive.

Al though, the appellate division directed Dodge's attorney to substitute

a party for Sylvia Dodge, pursuant to Rule 43(a) of the Federal Rules of

Appellate Procedure, no later than June 25, 1996, the record reflects

that Dodge's attorney failed to accompl ish this task. On June 26, 1996,

Dodge's attorney, Lolita d'Jones de Paiewonsky, filed a response,

suggesting that the trustee of Ms. Dodge's bankruptcy estate (Dodge had

formerly filed for bankruptcy in the United States Bankruptcy Court for

the Virgi n Islands), John Ellis, would continue as a party to the

proceedings. Ellis, however, later signed an affidavit in which he stated

that he had never been asked to act as a substitute party in these

proceedings and would refuse to do so if asked.

Paie wonsky also stated in her Response to the appellate division that

Dodge's heir, Keith Dodge, would be returning to the Virgin Islands and

would be seeking counsel to probate his mother's estate, which

presumably included the exempt portion of her homest ead property.

Paiewonsky did not submit any further evidence, however, that Keith

Dodge had in fact initiated probate proceedings.

At oral argument, we questioned Dodge's attorney about her failure to

effect a proper substitution, in accordance with Federal Rule of Appellate

Procedure Rule 43(a). Dodge's attorney replied in writing that Dodge's

agent, Bassilia Chase, would continue in Dodge's place and would be

handling "any probate proceeding as would be necessary." To date, we

have not received any copy of any probate proceeding commenced with

the territorial court.

4

II. DISCUSSION

A. Final Decision

We need not address the merits of Dodge's appeal

because we lack appellate jurisdiction over this case. Under

28 U.S.C. S 1291 and 48 U.S.C. S 1613a(c), our jurisdiction

is limited to "final decisions" from the District Court of the

Virgin Islands.5 See In re A.M., 34 F.3d 153, 155 (3d Cir.

1994). A final order is one that "ends the litigation on t he

merits and leaves nothing for the court to do but execute

the judgment." Catlin v. United States, 324 U.S. 229, 233,

65 S.Ct. 631, 633 (1945). See also Coopers & Lybrand v.

Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 2457 (1978);

Bryant v. Sylvester , 57 F.3d 308, 311 (3d Cir. 1995).

Neither of the parties has addressed whether the decision

of the appellate division of the district court constitutes a

final decision within the meaning of S 1291 or S 1613a.

Because we are a court of limited juris diction, however, we

must resolve this threshold issue sua sponte. See FW/PBS,Inc. v. Dallas, 493 U.S. 215, 230, 110 S.Ct. 596, 607

- 08

(1990). We cannot treat a non

- final order as immediately

appealable simply because we think it might be erroneous

a nd might wish to expedite resolution of the case. See

Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 378,

101 S.Ct. 669, 675 (1981).

_________________________________________________________________

Camacho contends that we should dismiss this appeal on the ground

that Dodge's attorney failed to substitute a proper party to continue the

appeal. Although we are inclined to agree, we will not address the merits

of this argument since we find that we lack jurisdiction to review the

appellate d ivision's decision.

5. 48 U.S.C. S 1613a(c) states: "The United Court of Appeals for the Third

Circuit shall have jurisdiction of appeals from allfinal decisions of the

district court on appeal from the courts established by local law."

Appellate j urisdiction is also defined at 28 U.S.C. S 1291, which

provides: "The courts of appeals . . . shall have jurisdiction of appeals

from all final decisions of the district courts of the United States . . .

and

the District Court of the Virgin Islands, exc ept where direct review may

be had in the Supreme Court."

5

This case presents a complicated jurisdictional question

because the case has already received "appellate" review

from the district court. In this juri sdictional scheme of a

court of appeals reviewing the decision of a territorial

district court, acting in its appellate capacity, the Ninth

Circuit has elected to treat the court of appeals' position as

analogous to that of the Supreme Court when a par ty

petitions for certiorari from a judgment of the highest court

of a state. See e.g. Guam v. Kingsbury, 649 F.2d 740, 742

(9th Cir. 1981) (comparing appellate review of decisions of

district court of Guam to Supreme Court's review of

judgments of hig hest state court); Guam v. Quinata, 704

F.2d 1085, 1086 (9th Cir. 1984) (noting imperfectfit of

analogy). In In re Alison, 837 F.2d 619, 622 (3d Cir. 1988),

however, we rejected this analogy as inconsistent with the

language and spirit of S 1613a(c), t he statute governing

appeals from the Territorial Court and the District Court of

the Virgin Islands, and we refused to accept an

"interlocutory appeal" of a reversal of a Rule 12(b)(6)

dismissal. See In re Alison, 837 F.2d at 622 (rejecting

argument that Court of Appeals is functional equivalent of

Supreme Court under Virgin Islands judicial scheme).

Subsequently, with regard to the question of finality, we

have treated appeals from the Appellate Division of the

District Court of the Virgin Island s no differently thanappeals taken from any other federal district court. See e.g.

Government of Virgin Islands v. Blake, 1997 WL 371031, *2

(3d Cir. 1997); In re A.M., 34 F.3d at 155.

In this case, the appellate division affirmed the territorial

c ourt's determination that Sylvia Dodge had triggered her

homestead exemption under Virgin Islands law and that

she was entitled to have the Confirmation Order annulled,

but the court remanded the case to the territorial court to

determine the exact ext ent of Dodge's exemption. In a

footnote, the appellate division explained:

Without getting into the details of the statute and

procedure for claiming premises as a homestead

entitled to the exemption, we note that the homestead

"shall not exceed thirty thousand dollars in value." 5

V.I.C. S 478(a). We further point out that Dodge had

claimed in her bankruptcy filings that the property had

6

a value of $50,000 although this claim was not

contemporaneous with the judicial sale.

Camacho, 947 F.Supp. at 893 n.12. We infer from this

statement that the appellate division remanded the case to

the territorial court to allow it to hear evidence regarding

the value of Dodge's equitable interest in her homestead,

since the value of Dodge's home had not been made a part

of the record.6 The appellate division's decision cannot,

therefore, be described as a "final decision." The

proceedings in this case are ongoing, and the merits

-- whether Dodge is entitled to have the court set aside her

judgment sale

-- have not yet been conclusively

determined. As the appellate division explained, "The

[territorial] court's ruling on the remanded homestead issue

wi ll determine whether or not the entire execution sale must

be set aside." Camacho, 947 F.Supp. at 893 (emphasis

added). The operative word in this sentence is "will."

Clearly, the appellate division did not "finally resolve" the

question whether the ex ecution sale should be set aside.

Moreover, by remanding this case, the appellate division

handed to the territorial court the onerous task of

determining the value of Sylvia Dodge's exemption. Since

the territorial court's role is hardly ministerial , we cannot

_________________________________________________________________

6. We also assume that the appellate division had accepted Camacho's

argument, set forth in his brief on appeal, that the homestead exemption

protected only the homeowner's equitable interest from judicial sale.

Although the territorial court has not addressed this issue, most stateshave treated their homestead exemption as protecting only the debtor's

equitable interest in the property. "[E]very modern [court] decision

. . . adopts the view that the homestead amount is part of the homeowner's

equity and not part of the value subject to the mortgage." Mercier v.

Partlow, 546 A.2d 787, 789 (Vt. 1988) (citing cases).

The record reflects that Dodge had two mortgages on her home,

amounting to $40,000 without interest. Although Dodge had listed her

property at $50,000 in her bankruptcy filings, that claim was not made

at the time of the judicial sale. Since the value of Dodge's home at the

time of the judgment sale wa s unknown, we think it quite reasonable

that the appellate division would remand the issue to the territorial

court

to determine: (1) the value of Dodge's property, and (2) the difference,

if

any, between the value of the unencumbered portion of the pro perty and

the proceeds left over for Ms. Dodge after Ortiz's debt was satisfied.

7

characterize the appellate division's decision as "final." See

Martin v. Brown, 63 F.3d 1252, 1259 (3d Cir. 1995) (order

general ly not final "until it is reduced to a determinate

amount"); Isidor Paiewonsky Associates, Inc. v. Sharp

Properties, Inc., 998 F.2d 145, 150 (3d Cir. 1993) (final

judgment is "one which disposes of the whole subject, gives

all the relief that was conte mplated, provides with

reasonable completeness for giving effect to the judgment

and leaves nothing to be done in the cause save to

superintend, ministerially, the execution of the decree")

(citation omitted).

Because the appellate division's decisi on is not final, we

cannot consider any of the issues raised on appeal unless

they fall within the collateral order doctrine. See Cohen v.

Beneficial Indus. Loan Co., 337 U.S. 541, 69 S.Ct. 1221

(1949). Under that doctrine, an appellate court may revie w

a non

- final order if the order conclusively and finally

resolves a disputed question, raises an important issue

distinct from the merits of the case, and is effectively

unreviewable on appeal from final judgment. See Christy v.

Horn, 115 F.3d 201, 2 03 (3d Cir. 1997); In re Ford Motor

Co., 110 F.3d 954, 958 (3d Cir. 1997).

To determine whether the collateral order doctrine

applies, we must examine the grounds for Dodge's appeal.

She objects to two aspects of the appellate division's

decision. F irst, she contends that it was improper to affirm

the territorial court's annulment of the confirmation on the

basis of Rule 60(b), as opposed to 5 V.I.C. S 489.7 Second,

Dodge challenges the decision as erroneous because it

vacates the territorial cou rt's set aside of the judgment sale.Neither of these results falls within the collateral order

exception to the final judgment rule. First, the appellate

division did not conclusively resolve the issue whether the

judgment sale of Dodge's property sho uld be set aside. To

_________________________________________________________________

7. Since regardless whether the appellate division chose to affirm the

territorial court's annulment of the confirmation under Rule 60(b) or

under 5 V.I.C. S 489, the court would have had to remand the case to

the territorial court to determine the value of Dodge's exemption under

5 V.I.C. S 478, we question how Dodge has been prejudiced by the

holding that Rule 60(b), not 5 V.I.C. S 489, provides the grounds for

annulling the Confirmation Order.

8

the contrary, the appellate division deliberately left this

issue open by remanding the case to the territorial court to

determine the monetary value, if any, of Dodge's exem ption.

See Camacho, 947 F.Supp. at 893.

Second, both of the issues raised by Dodge's appeal

-- the decision not to vacate the judgment sale and the

affirmance of the territorial court's annulment of the

Confirmation Order on alternative grounds

-- a re clearly

intertwined with the merits of this case. This case thus

differs from those situations in which the parties have

appealed a separable issue, not related to the merits, such

as a jurisdictional or procedural question.8 See e.g. Christy,

115 F.3d at 206 (district court's stay of habeas petition

unrelated to merits of prisoner's claim for relief); In re Ford,

110 F.3d at 958 (privilege and work product issues

unrelated to merits of case).

Finally, we fail to see why Dodge cannot wait to a ttack

the appellate division's decision until after the territorial

court has decided the value of her exemption. Indeed, given

the complex nature of the merits of this case, we think we

would be in a better position to judge the merits of Dodge's

app eal if the value (or lack thereof) of Dodge's exemption

were part of the record. In sum, this case demonstrates the

reason why the final decision rule exists in thefirst place:

it preserves judicial efficiency by preventing piecemeal

appeals on issues that are better reviewed in the context of

a final judgment. See Bethel v. McAllister Bros., Inc., 81

F.3d 376, 381 (3d Cir. 1996) (final judgment rule premised

on policy against piecemeal appeals), citing Carr v. American

Red Cross, 17 F.3d 671, 678 ( 3d Cir. 1994), and Praxis

Properties, Inc. v. Colonial Savings Bank, 947 F.2d 49, 54

n.5 (3d Cir. 1991).

The appellate division's decision is neither final nor_________________________________________________________________

8. Because we do not find the issues raised by Dodge's appeal to be

sufficiently separate from the merits of the case, we do not consider

whether they would meet the "importance test" under the collateral order

doctrine. See Christy, 115 F.3d at 205.

9

collaterally final. We therefore lack appellate jurisdiction

over this appeal.9

B. Substitution of Parties

Although we dismiss this appeal for lack of appellate

jurisdiction, we nevertheless take this opportunity to

express ou r concern that Dodge's attorney has failed to

substitute a proper party for Ms. Dodge following her death.

Sylvia Dodge's death was first noticed on the record by the

appellate division on May 7, 1996, when it ordered Dodge's

attorney to inform the cou rt of Dodge's status, and if

necessary, to request substitution of an appropriate party

no later than June 25, 1996, pursuant to Rule 43(a) of the

Federal Rules of Appellate Procedure.10 Dodge's attorney did

not obey this order.11 Instead, she unsucce ssfully attempted

_________________________________________________________________

9. Camacho also contends in his brief that the appellate division

committed error by affirming the territorial court's annulment of the

Confirmation Order. Whereas Do dge claims that the appellate division

reached the right result (at least as regards upholding the territorial

court's annulment of the Confirmation Order) for the wrong reasons,

Camacho contends that the appellate division reached the wrong result,

pe riod. However, because Camacho failed to file a cross

- appeal, we need

not consider his argument. "As a general rule a party aggrieved by a

decision of the district court must file an appeal in order to receive

relief

from the decision." United States v. Tabor Court Realty Corp., 943 F.2d

335, 342 (3d Cir. 1991).

10. Rule 43(a) provides in pertinent part: "If a party dies after a notice

of

appeal is filed or while a proceeding is otherwise pending in the court of

appeals, the personal representative of the deceased party may be

substituted as a party on motion filed by the representative . . . . If

the

deceased party has no representative, any party may suggest the death

on the record and proceedings shall then be had as the court of appeals

may direct. . . . If a party entitled to appeal shall die before filing a

notice

of appeal, the notice of appeal may be filed by that party's personal

representative, or if there is not personal representative by that party'sattorney of record within the t ime prescribed by these rules. After the

notice of appeal is filed substitution shall be effected in the court

appeals

in accordance with this subdivision."

The Federal Rules of Appellate Procedure have been adopted by the

Appellate Division of the D istrict Court of the Virgin Islands. See Rule

76.1 of the Local Rules of Civil Procedure ("LRCi").

11. Dodge's attorney contends that the appellate division never "ordered"

her to file for substitution. We disagree. The Appellate Division's

10

to substitute John Ellis, the trustee of Dodge's bankruptcy

estate. In the alternative, Dodge's attorney argued that

substitution was not necessary under federal Bankruptcy

Rule 1016, which allows a liquidation case un der Chapter

7 of the Bankruptcy Code to continue despite the death of

a debtor. We think it is quite clear that the Bankruptcy

Rules have no bearing on the question of whether this court

or the appellate division may exercise jurisdiction over this

ca se.

Despite this earlier order, however, the appellate division

apparently overlooked its own directive when it filed its

decision in November, 1996. The court did, however, state

its expectation that the territorial court would ensure that

Dodge's attorney substitute a proper representative. See

Camacho, 947 F.Supp. at 893 n.12. Nevertheless, when we

heard this appeal, proper substitution still had not taken

place. After oral argument, Dodge's attorney wrote us a

letter, stating that Bassilia Ch ase, Dodge's agent, had

initiated probate proceedings before the territorial court and

should be substituted as a party to this appeal. To date, we

have not received any certification or other document

confirming this information.

Regardless of whet her Dodge's attorney has failed to

comply with Rule 43(a), we think it is quite clear that, at

some point, the failure to substitute a proper party for a

deceased appellant moots the case. Under Article III, our

jurisdiction, and that of the courts bel ow, is limited to

cases and controversies. We fail to see how any live case or

controversy can exist when a deceased appellant has not

been replaced with a legal representative. We decline,

however, to address this issue until we are certain that

subs titution has not occurred. Because we are already

dismissing this appeal for lack of appellate jurisdiction, we

will save this issue for the Territorial Court to resolve. We

will assume for now that Ms. Chase is a properly

_____________________________ ____________________________________Amended Order expressly states that "counsel for appellee shall inform

this Court of appellee's status, and if necessary, request appropriate

relief pursuant to Fed.R.App.P. 43(a) no later than June 25, 1996." We

interpret this statement to be an order, not an invitation, to substitute

a proper party for Ms. Dodge.

11

substituted party. See Bennett v. Tucker, 827 F.2d 63, 68

(7th Cir. 1987) (temporarily substituting deced ent's

daughter as plaintiff in Section 1983 action, pending state

probate court's appointment of her as executor of her

mother's estate). If, it should occur, however, Ms. Chase is

not eventually appointed as legal representative of Sylvia

Dodge's est ate, the territorial court will have to take

appropriate action to resolve this issue.

III. CONCLUSION

Because we lack jurisdiction to review the appellate

division's non

- final decision, we will dismiss Dodge's

appeal. Accordingly, we will remand this case to the district

court for remand to the territorial court for further

proceedings consistent with this opinion.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

12