WM Capital Partners 53, LLC v. Barreras, Inc. ( 2020 )

United States Court of Appeals
For the First Circuit
No. 19-1364
WM CAPITAL PARTNERS 53, LLC,
Plaintiff, Appellee,
v.
BARRERAS, INC.,
Defendant, Appellant,
GABLES TOWERS, INC.,
Defendant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, U.S. District Judge]
Before
Lipez, Thompson, and Barron,
Circuit Judges.
Lizabel M. Negrón-Vargas, with whom Edgardo L. Rivera Rivera
and The Rivera Group were on brief, for appellant.
Juan C. Salichs-Pou, with whom Salichs Pou & Associates, PSC
and Ramón L. Ramos-Aponte were on brief, for appellee.
September 22, 2020
LIPEZ, Circuit Judge. Plaintiff-appellee WM Capital
Partners 53, LLC ("WM Capital") filed this diversity action seeking
a declaratory judgment specifying its property rights in a
commercial complex in San Juan, Puerto Rico. The district court
granted WM Capital's motion for summary judgment, denied a cross-
motion for summary judgment filed by defendant-appellant Barreras,
Inc., directed WM Capital to "submit a proposed declaration for
the Court's consideration," and instructed the Clerk of Court to
"enter judgment as to all defendants."1 WM Capital Partners 53,
LLC v. Barreras Inc., 373 F. Supp. 3d 350, 354 (D.P.R. 2019).
Pursuant to that instruction, the Clerk of Court issued an order
captioned "JUDGMENT"2 the day after the Opinion issued -- and
before WM Capital submitted its proposed declaration. The Judgment
stated that, "pursuant to the Court's Opinion and Order,
. . . [j]udgment is HEREBY ENTERED as to all defendants in favor
of plaintiff." The same day, Barreras filed a notice of appeal.
WM Capital subsequently submitted its proposed declaration, and
Barreras filed objections to it. However, the district court
1The other defendant in this case, Gables Towers, Inc., never
filed an answer to the complaint, see WM Capital, 373 F. Supp. 3d.
at 354 n.1, and is not a party to this appeal.
2We refer to the district court's summary judgment opinion
and order as the "Opinion" and the separate order, captioned
"JUDGMENT," as the "Judgment" for clarity.
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declined to take further action and stayed the proceedings pending
the outcome of this appeal.
Because we conclude that the district court never issued
a "final decision," see 28 U.S.C. § 1291, we dismiss Barreras's
appeal for lack of appellate jurisdiction.
I.
We briefly summarize the factual background and recite
the procedural history relevant to our analysis. This appeal
arises from a dispute over the parties' property interests in two
office towers in San Juan, known as the Citi Towers Complex ("the
Towers"), and the parcel of land on which they stand. There is no
dispute that the parcel is owned by Barreras. In 1960, Barreras's
predecessor leased out the parcel for a renewable period of up to
99 years to the First National City Bank of New York. The lease
required the tenant to "promptly . . . demolish[], reconstruct[],
remodel[], or rebuil[d], at the Tenant's cost" the existing
structures on the land and spend at least one million dollars on
the construction project. The lease further specified that the
tenant would own the new building for the period of the lease, but
that, when the lease was terminated, the landlord would "become
the owner, without liability to the [t]enant, and without
obligation to reimburse the [t]enant, of all improvements,
buildings and structures[,] which the [t]enant[] may have made in
the leased premises."
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Consistent with the lease's requirement, the Towers were
built on the leased land, as reflected in a recording in 1988 in
the Puerto Rico Property Registry. In 2005, Gables Towers, Inc.
("Gables") purchased the Towers for $24 million, and Gables was
also reassigned the lease for the parcel on which they stand.3 To
finance the purchase, Gables received in 2005 a loan from R-G
Premier Bank of Puerto Rico for $21.6 million, secured by a
mortgage on the Towers.4 In 2006, Gables entered a second loan
agreement with R-G Premier Bank for $25.6 million to refinance the
first loan, to pay an existing line of credit, and to cover
additional costs. Accordingly, Gables executed an additional
mortgage note in the amount of $4 million and its 2005 mortgage
was amended and extended to secure the additional debt.5
Subsequently, Scotiabank replaced R-G Premier Bank as the creditor
in the loan agreements with Gables.
In 2012, Scotiabank, WM Capital's predecessor, initiated
a collection and foreclosure proceeding against Gables, asserting
3In assigning the lease to Gables, the prior lessee (and,
thus, prior owner of the Towers) also "delivered possession" of
two mortgage notes for $4.4 million that were executed in 1998 and
that are secured by a mortgage on the leasehold.
4In addition to creating a mortgage on the Towers, Gables
also "pledge[d], assign[ed,] and grant[ed] to the [lender] a
security interest" in the two mortgage notes executed in 1998.
5As with the 2005 loan, Gables again pledged a security
interest in the 1998 mortgage notes. In 2009, Gables executed a
restructuring amendment to the 2006 mortgage.
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that Gables had failed to comply with the terms of the loan
agreement and demanding, among other relief, that the Towers be
sold at public auction. Shortly thereafter, in 2013, Gables failed
to pay more than $800,000 in property taxes, which was its
responsibility under the terms of the lease, and Barreras initiated
eviction proceedings in a Commonwealth court, the Court of First
Instance, San Juan Part ("CFI"). The eviction proceedings
transpired simultaneously with the foreclosure proceeding.
Ultimately, Gables and Barreras submitted the eviction dispute to
arbitration. Invoking Puerto Rico law, Scotiabank sought to
intervene in the arbitration proceedings on the ground that, as
Gables's mortgagee, it had a statutory right to be subrogated into
the position of lessee. The arbitrator denied that request in
October 2015 because the original lease agreement, which included
the arbitration provision, was between only Gables and Barreras.6
Scotiabank did not appeal the arbitrator's denial of its petition
for intervention.
6 Scotiabank also sought to intervene in the eviction
proceedings in the CFI before Barreras and Gables submitted that
dispute to arbitration. The CFI denied that request in February
2014, and the Puerto Rico Court of Appeals denied a request for
reconsideration. However, both of these intervention rulings
against Scotiabank were later vacated by that court when it
concluded that the lease required the parties to arbitrate their
dispute and that the arbitrator was entitled to decide the
intervention issue.
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In 2016, the arbitrator issued an arbitration award and
order, concluding that Gables had breached the lease agreement
with Barreras; that Barreras terminated the lease agreement on
October 16, 2013; and that "Barreras has the right to receive full
ownership" of the Towers, pursuant to the terms of the lease
agreement. Accordingly, the arbitrator ordered Gables's eviction
from the Towers and directed "[b]oth parties . . . to carry out
the relevant procedures in the Registry of Property to transfer
the ownership of the [Towers] in favor of Barreras."
WM Capital, having succeeded Scotiabank as the creditor
while the arbitration proceedings were ongoing (and also having
been denied the opportunity to participate), filed this action in
January 2017 seeking a declaratory judgment, pursuant to the
Declaratory Judgment Act ("the DJA" or "the Act"), 28 U.S.C. §§
2201-2202, and Rule 57, see Fed. R. Civ. P. 57.7 Specifically, WM
Capital sought a declaration stating its rights as the holder of
a mortgage on a leasehold interest under Puerto Rico law, see P.R.
Laws Ann. tit. 30, § 6086(7) -- the same statutory right Scotiabank
7 At the time WM Capital filed its request in the district
court for a declaratory judgment, the arbitration award was under
review in the CFI. In March 2017, Barreras moved to dismiss WM
Capital's petition as premature because the arbitration
proceedings between Barreras and Gables had not concluded. In
December 2017, the CFI confirmed the arbitration award. In both
the district court and in this appeal, WM Capital has asserted
that it did not appeal the confirmed arbitration award because, as
a non-party to the arbitration, it had no right to appeal and the
award was not binding on it.
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unsuccessfully asserted as a basis for intervening in the earlier
CFI and arbitration proceedings. That statutory provision (the
"subrogation clause") states that "[a] registered leasehold
interest" is "mortgageable" so "long as the lessee is authorized
to sell, assign, sublet or mortgage his/her right." Id. It
further states that "the mortgage title holder may be subrogated
to the place and grade [of the lessee] as a transferee, either by
agreement between the interested parties or by decision of a court"
if the lease is terminated "due to causes attributable to the will
of the lessee." Id.
In its motion for summary judgment, WM Capital sought a
declaration stating that it has been subrogated as the lessee in
Gables's lease agreement with Barreras and is therefore "entitled
to all the rights and interest in and to the Deed of Lease for the
remainder of the term thereof." Among those rights, WM Capital
contends, is ownership of the Towers for the remainder of the lease
-- a result directly at odds with the arbitration award in the
eviction dispute between Gables and Barreras, which awarded
ownership of the Towers to Barreras. Barreras cross-moved for
summary judgment. As noted above, the district court granted WM
Capital's motion. WM Capital, 373 F. Supp. 3d at 354. In its
Opinion, the district court concluded that the arbitration award
did not "extinguish[]" WM Capital's mortgages on the leasehold and
the Towers, despite a statement in the arbitration award indicating
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that the parties should take the necessary steps "to convey to
Barreras the title over the [Towers], free of liens and
encumbrances."8 Id. at 363-64 (emphasis omitted). The district
court further concluded that, as the holder of a valid mortgage on
the leasehold, WM Capital was entitled to be subrogated for Gables
as the lessee.9 Id. at 365.
8 The certified English translation of the award includes
three versions of the order to the parties and, thus, directs
Gables and Barreras to take certain steps to convey ownership of
the Towers to Barreras in three separate places within the award.
Only one of those statements, however, indicates that the Towers
should be conveyed to Barreras "free of liens and encumbrances."
The other two statements omit this consequential language. On the
second page of the arbitration award (a document that was prepared
by the arbitrator in Spanish), the arbitrator directed "[b]oth
parties . . . to carry out the relevant procedures in the Registry
of Property to transfer the ownership of the [Towers] in favor of
Barreras." Additionally, in a page-long English translation of
the award (without the accompanying findings of fact and
conclusions of law) that the arbitrator prepared "for the benefit
of the case manager in charge of this matter in the American
Arbitration Association," nearly identical language is used. In
its Opinion granting summary judgment in favor of WM Capital, the
district court pointed to several aspects of the outlier page
"suggesting that [it] was not intended to be included in the final
version of the award." WM Capital, 373 F. Supp. 3d at 364.
Accordingly, the district court concluded that it "would be remiss
to accept Barreras's invitation to explicitly interpret this
outlier page as fully and validly extinguishing the rights of a
non-signatory non-party to the arbitration proceeding," meaning WM
Capital. Id.
9 The district court relied on the following facts to conclude
that WM Capital was entitled to be subrogated:
(1) the Deed of Lease was properly recorded;
(2) it entitled the lessee to assign and sub-
lease its right; (3) Gables was the most-
recent lessee; (4) plaintiff, as holder of
Gables'[s] mortgage[,] has a security on the
recorded lease; and (5) the lease was
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Accordingly, the district court directed WM Capital to
submit a proposed declaration. Id. at 367. Then, the day after
the Opinion was issued, the Clerk of Court entered the Judgment in
favor of WM Capital without a statement of the parties' rights.
That same day, Barreras filed its notice of appeal without waiting
for WM Capital to file its proposed declaration -- which WM Capital
did approximately one month later. The district court declined to
take further action pending resolution of this appeal "[i]n order
to promote efficiency in the proceedings and to preserve judicial
economy."
II.
We have jurisdiction only from appeals of "final
decisions" of federal district courts. See 28 U.S.C. § 1291.
Thus, when there is a question about the finality of the decision
below, we must address the issue even if, as in this case, the
parties do not raise it themselves. See Gonzalez v. Thaler, 565
U.S. 134, 141 (2012) ("When a requirement goes to subject-matter
jurisdiction, courts are obligated to consider sua sponte issues
that the parties have disclaimed or have not presented."); Liberty
Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 740-42 (1976) (assessing
cancelled for causes controlled by the will of
the lessee, namely, Gables's nonpayment of the
property taxes.
WM Capital, 373 F. Supp. 3d at 365 (second alteration in original)
(internal citation and quotation marks omitted).
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sua sponte appealability of purported declaratory judgment at
issue and ultimately vacating the judgment of the court of appeals
with instructions to dismiss appeal for lack of jurisdiction); see
also Ashcroft v. Iqbal, 556 U.S. 662, 671-72 (2009) (treating the
question of whether the district court issued a "'final decision'
within the meaning of § 1291" as one of "subject-matter
jurisdiction"). This appeal suffers from a fatal defect related
to these principles of finality.
If a district court chooses to exercise its power
pursuant to the DJA,10 a decision granting summary judgment for a
party without an accompanying order declaring the specific rights
of the parties will not constitute a "final decision" in
declaratory judgment actions. See Am. Interinsurance Exch. v.
Occidental Fire & Cas. Co., 835 F.2d 157, 158-59 (7th Cir. 1987)
(dismissing appeal for lack of jurisdiction because district court
had issued a decision granting summary judgment and an order on
the form prescribed for judgments in civil cases but had not issued
10 The text of the DJA states that,
[i]n a case of actual controversy within its
jurisdiction, . . . any court of the United
States . . . may declare the rights and other
legal relations of any interested party
seeking such declaration, whether or not
further relief is or could be sought.
28 U.S.C. § 2201(a) (emphasis added). Thus, as is evident from
the text, courts may choose whether to exercise their jurisdiction
in declaratory judgment actions.
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a "declaratory judgment or other specification of the relief to
which [the prevailing parties] were entitled by virtue of the grant
of their motions"). As the Seventh Circuit has observed, "[t]he
district judge must select the language of the declaratory judgment
and issue the order," Foremost Sales Promotions, Inc. v. Director,
ATF, 812 F.2d 1044, 1045 (7th Cir. 1987) (per curiam), and
"[d]rafting the necessary declaratory judgment . . . require[s]
some care," Am. Interinsurance Exch., 835 F.2d at 159.
Here, WM Capital sought declaratory relief, specifically
requesting a judgment
a) Declaring that upon the termination of the
Ground Lease of August 29, 1960 by Barreras,
as per the determinations made in the
arbitration award issued on September 28, 2016
. . . , WM Capital[] has subrogated Gables[]
as Barreras's tenant per the terms of the
Ground Lease, in conformity with [the
subrogation clause]. Therefore, WM Capital[]
is entitled to all the rights and interest in
and to the Ground Lease for the remainder of
the term thereof, including 1) the right to
sublease and/or reassign[] said deed of lease;
2) and ownership of [the Towers] and the right
to sell said property, pursuant to the terms
of Ground Lease.
b) Declaring that said subrogation would be
permanent until the expiration of the term of
the Ground Lease, or provisional, if the
arbitration award issued on September 28, 2016
is ever revoked in favor of Gables[], in which
case, WM Capital[] or any successor would
continue the pending foreclosure proceedings
against Gable[s] before the Court of First
Instance, San Juan Part.
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c) Declaring that Barreras and Gables[] must
refrain from any action to deprive WM
Capital[] of its rights as recognized by [the
subrogation clause].
d) Granting all other relief that is proper.
In the Opinion granting WM Capital's motion for summary
judgment and denying Barreras's cross-motion, the district court
concluded that the subrogation clause "permits [WM Capital], as
mortgagee, to subrogate [its] place and stead as assignee . . . by
decision of a competent court." WM Capital, 373 F. Supp. 3d at
365 (alteration and omission in original) (internal quotation
marks omitted). However, neither the Opinion nor the Judgment
addressed whether subrogation entitled WM Capital to the specific
rights it sought in its complaint, reiterated in its motion for
summary judgment, and set forth explicitly in its proposed
declaratory judgment. Rather, the district court deferred
delineating the rights that flowed from its grant of summary
judgment to WM Capital, as evidenced by its instruction to WM
Capital to "submit a proposed declaration for the Court's
consideration." Id. at 354, 367. That is, the district court did
not accompany its Opinion with the necessary order carefully
specifying the parties' rights, and it never acted upon the
proposed declaratory judgment that it directed WM Capital to file.
To be sure, some actions in the district court -- namely
the district court's instruction to the "Clerk of Court [to] enter
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judgment as to all defendants in favor of plaintiff" in the
Opinion, id. at 354, and the Clerk's issuance of a separate order
the next day titled "JUDGMENT" -- ordinarily would signify that a
final judgment had been reached. However, the court's instruction
and nomenclature do not transform the Opinion and Judgment into a
final, appealable decision. See, e.g., GeoSouthern Energy Corp.
v. Chesapeake Operating, Inc., 241 F.3d 388, 391-92 (5th Cir. 2001)
(dismissing appeal for lack of appellate jurisdiction after
determining that an order captioned "Amended Final Judgment" that
concluded with "THIS IS A FINAL JUDGMENT" was not a final
judgment).
The parties' appellate briefs and the flurry of motions
filed in the district court after the notice of appeal demonstrate
why the precise specification of the parties' rights is essential,
both for appellate review and for the understanding of the parties
about the status of their competing claims. Here, for instance,
Barreras argues that the district court erred by concluding that
the arbitration award between Gables and Barreras, in which the
arbitrator did not allow WM Capital to intervene, did not have a
preclusive effect on this litigation. It is difficult, however,
to determine the relationship between the district court's grant
of summary judgment and that arbitration award without a precise
specification of the rights that flow from the district court's
decision.
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Moreover, it is apparent that the parties do not
understand their rights in the Towers and the leasehold even after
the district court's grant of summary judgment. After the issuance
of the district court's Opinion, WM Capital filed a petition to
the Commonwealth Registrar of Property seeking, among other
things, that the Registrar record WM Capital as "vested with fee
simple title over [the Towers]," which, in turn, prompted Barreras
to file an "emergency motion for court order" in the district court
asserting that there was no final decision establishing WM Capital
was entitled to that remedy. WM Capital, for its part, sought an
order from the district court directing Barreras to withdraw a
writ of execution -- which directed the Registry to record Barreras
as the owner of the leased land and the Towers "free of liens and
encumbrances" -- from the Property Registry. The race of the
parties to use their respective judgments (for WM Capital, the
district court's grant of summary judgment; for Barreras, the CFI's
affirmation of the arbitration award) at the Property Registry
underscores why a precise delineation of the parties' rights is
essential. If the district court had entered a declaratory
judgment as it contemplated, WM Capital would not have to assert
its own interpretation of the grant of summary judgment in the
Registry of Property.
At bottom, it is apparent from the district court's own
Opinion that its decision did not "end[] the litigation on the
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merits and leave[] nothing for the court to do but execute the
judgment," our general standard for assessing whether a decision
is "final." Catlin v. United States, 324 U.S. 229, 233 (1945);
see also Am. Interinsurance Exch., 835 F.2d at 158 (citing district
court's instruction to the parties to file a proposed declaration
as evidence that its grant of summary judgment and accompanying
"judgment" without specification of the parties' rights were not
final). The district court had not yet ruled on all the relief WM
Capital sought -- and not because it declined to exercise its power
pursuant to the DJA. Rather, the district court clearly
demonstrated its intent to take further action by directing WM
Capital to file a proposed declaration. Consistent with that
intent, the parties continued to submit filings to the district
court, and the court's decision to hold those motions in abeyance
pending disposition of this appeal underscores that it did not
view the Opinion and Judgment from which Barreras appeals as a
final declaratory judgment.
We recognize that the district court may have thought
Barreras's notice of appeal divested it of jurisdiction and thus
precluded it from ruling on WM Capital's proposed declaration.
See Donahue v. Fed. Nat'l Mortg. Ass'n, 971 F.3d 1, ___ (1st Cir.
2020) ("[G]enerally, '[t]he filing of a notice of appeal is an
event of jurisdictional significance -- it confers jurisdiction on
the court of appeals and divests the district court of its control
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over those aspects of the case involved in the appeal.'" (second
alteration in original) (emphasis omitted) (quoting Griggs v.
Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982))). It is
debatable whether Barreras's notice did, in fact, divest the court
of jurisdiction, given that "no divestiture . . . occurs 'if the
notice of appeal is defective in some substantial and easily
discernible way (if, for example, it is based on an unappealable
order).'" Id. (quoting United States v. Brooks, 145 F.3d 446, 456
(1st Cir. 1998)). However, we need not resolve that debate. The
relevant inquiry here is whether there is a final decision, not
whether the district court could have entered one despite the
notice of appeal. As we have explained, the district court never
entered a final decision. Without a final declaratory judgment,
we lack appellate jurisdiction. The appeal is therefore dismissed.
So ordered.
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