               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED

                                          IN THE DISTRICT COURT OF APPEAL

                                          OF FLORIDA

                                          SECOND DISTRICT


AmMED SURGICAL EQUIPMENT,                 )
LLC, a Florida limited liability company, )
                                          )
                 Appellant,               )
                                          )
v.                                        )         Case No. 2D14-4968
                                          )
PROFESSIONAL MEDICAL BILLING )
SPECIALISTS, LLC, a New Jersey            )
limited liability company; and            )
BARRY M. SNYDER,                          )
                                          )
                 Appellees.               )
________________________________ )

Opinion filed February 6, 2015.

Appeal pursuant to Fla. R. App. P.
9.130 from the Circuit Court for
Hillsborough County; Paul L. Huey,
Judge.

Stuart Jay Levine and Heather A.
DeGrave of Walters, Levine,
Klingensmith and Thomison, Tampa,
for Appellant.

Eric R. Pellenbarg, Phelps Dunbar
LLP, Tampa; Abraham M. Shakefeh,
Tampa; and Joshua A. Law, Law Legal
Group, P.A., Tampa, for Appellees.
                    ORDER DISCHARGING ORDER TO SHOW CAUSE


WALLACE, Judge.

                 In this case, we consider an unusual circumstance under which we find

that this court has jurisdiction to review an order for which the notice of appeal was filed

more than thirty days after rendition. This appeal apparently suffers from two potential,

and seemingly competing, infirmities: it was filed on the seventieth day following

rendition of the order challenged, and it was filed after the appellant, AmMed Surgical

Equipment, LLC (AmMed Surgical), had filed a petition under Chapter 11 of the

Bankruptcy Code. Upon receipt of the notice of appeal, we issued an order directing

AmMed Surgical to show cause why the appeal should not be dismissed as untimely.

After reviewing AmMed Surgical's response to this court's order to show cause and the

applicable provisions of the Bankruptcy Code, we discharge the order to show cause so

that the appeal may proceed once the bankruptcy stay is fully lifted.

                 Professional Medical Billing Specialists, LLC (Professional Medical

Billing), filed an action in the circuit court against AmMed Surgical. A preliminary

injunction in favor of Professional Medical Billing and against AmMed Surgical was

rendered on August 12, 2014. On August 22, before the thirty-day deadline for filing the

notice of appeal, AmMed filed a Chapter 11 petition in the United States Bankruptcy

Court for the Middle District of Florida. On October 21, AmMed Surgical obtained an

order from the bankruptcy court lifting the bankruptcy stay for the limited purpose of

allowing AmMed Surgical to file a notice of appeal of the adverse preliminary injunction

order. Later that day, AmMed Surgical filed its notice of appeal with the clerk of the

circuit court.



                                             -2-
               In accordance with Florida Rule of Appellate Procedure 9.130(a)(3)(B), the

preliminary injunction is an appealable nonfinal order. Rule 9.130(b) provides further

that the jurisdiction of the appellate court over certain categories of nonfinal orders

issued by a trial court is "invoked by filing a notice . . . with the clerk of the lower tribunal

within 30 days of rendition of the order to be reviewed." In this case, AmMed Surgical

filed the notice of appeal on the seventieth day following rendition, a circumstance that

would ordinarily leave this court without jurisdiction to entertain the appeal.

               However, the Bankruptcy Code provides that a filing of a petition in

bankruptcy

               operates as a stay, applicable to all entities, of—
               (1) the commencement or continuation, including the
                   issuance or employment of process, of a judicial,
                   administrative, or other action or proceeding against the
                   debtor that was or could have been commenced before
                   the commencement of the case under this title, or to
                   recover a claim against the debtor that arose before the
                   commencement of the case under this title . . . .

11 U.S.C. § 362(a)(1) (2012). In addition, section 108 of the Bankruptcy Code contains

this tolling provision:

               (c) Except as provided in section 524 of this title, if
               applicable nonbankruptcy law, an order entered in a
               nonbankruptcy proceeding, or an agreement fixes a period
               for commencing or continuing a civil action in a court other
               than a bankruptcy court on a claim against the debtor, . . .
               and such period has not expired before the date of the filing
               of the petition, then such period does not expire until the
               later of—
               (1) the end of such period, including any suspension of such
                   period occurring on or after the commencement of the
                   case; or
               (2) 30 days after notice of the termination or expiration of the
                   stay under section 362 . . . of this title, . . . with respect to
                   such claim.


                                               -3-
              We conclude that the filing of a notice of appeal in state court should be

considered the "continuation . . . of a judicial . . . proceeding against" the appellant.1

11 U.S.C. § 362(a)(1). More significantly, we conclude that under the Supremacy

Clause of the United States Constitution,2 rule 9.130(b) must yield to the provisions of

the Bankruptcy Code just cited. "It is a familiar and well-established principle that the

Supremacy Clause invalidates state laws that 'interfere with, or are contrary to,' federal

law." Hillsborough Cnty., Fla. v. Automated Med. Labs., Inc., 471 U.S. 707, 712-13

(1985) (citation omitted) (quoting Gibbons v. Ogden, 9 Wheat. 1, 211, 6 L. Ed. 23 (1824)

(Marshall, C.J.)). Furthermore,

              [e]ven where Congress has not completely displaced state
              regulation in a specific area, state law is nullified to the
              extent that it actually conflicts with federal law. Such a
              conflict arises when "compliance with both federal and state
              regulations is a physical impossibility," Florida Lime &
              Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143
              (1963) . . . .

Id. at 713.

              "Deciding whether a state statute is in conflict with a federal statute and

hence invalid under the Supremacy Clause is essentially a two-step process of first

ascertaining the construction of the two statutes and then determining the constitutional

question whether they are in conflict." Perez v. Campbell, 402 U.S. 637, 644 (1971).



              1
               Although it was the defendant/debtor that filed the notice of appeal, the
appeal is considered to be the continuation of a proceeding "against the debtor," under
11 U.S.C. § 362(a)(1). See, e.g., Crowe Grp., Inc. v. Garner, 691 So. 2d 1089, 1089
(Fla. 2d DCA 1993); Ingersoll-Rand Fin. Corp. v. Miller Mining Co., 817 F.2d 1424, 1426
(9th Cir. 1987),
              2
                  U.S. Const. art. VI, cl. 2.



                                                -4-
The construction of rule 9.130(b) is quite straightforward. The thirty-day deadline is

jurisdictional; an appeal filed after the deadline must be dismissed. See, e.g., Cassell v.

Erquiaga, 28 So. 3d 143, 143-44 (Fla. 1st DCA 2010).3

               Federal case law construing the relevant provisions of the Bankruptcy

Code, while not voluminous, also seems clear. A notice of appeal filed in a federal

appellate court following the filing of a bankruptcy petition is ineffective to confer

jurisdiction on the court. See Parker v. Bain, 68 F.3d 1131, 1138 (9th Cir. 1995)

("[Appellant] filed his Notice of Appeal . . . six days after the filing of his petition in

bankruptcy gave rise to the automatic stay. Because any act taken in violation of the

automatic stay is void, the Notice of Appeal is ineffective to the extent it purports to

confer jurisdiction on this Court . . . ." (citation omitted)); Crowe Grp., Inc. v. Garner, 691

So. 2d 1089, 1089 (Fla. 2d DCA 1993) (holding that the automatic stay applies to the

debtor's appeal of an order entered in action brought against the debtor in the lower

court). The Eighth Circuit has ruled as follows with regard to Arkansas's notice-of-

appeal deadline:

               [W]e reject [creditor]'s reliance on Johnson v. First Nat'l Bank
               of Montevideo, Minn., 719 F.2d 270 (8th Cir. 1983), for the
               proposition that, although the appeal is stayed, the period to
               file the notice of appeal is not suspended by the automatic
               stay. . . . Since we believe that the filing of the notice of
               appeal in state court is one aspect of a continuation of a
               judicial "proceeding against a debtor," and thus stayed by
               § 362(a)(1), see, e.g., Parker v. Bain, 68 F.3d 1131, 1138
               (9th Cir. 1995), we also believe that it is encompassed within
               the plain meaning of § 108(c), and therefore that the

               3
                The same is true of rule 9.110(b), which also sets the notice-of-appeal
deadline for final orders at thirty days from rendition. See, e.g., First Nat'l Bank in Fort
Myers v. Fla. Unemployment Appeals Comm'n, 461 So. 2d 208, 208 (Fla. 1st DCA
1984) (holding that in the appeal of a final order, the "[f]ailure to file any notice within the
30-day period constitutes an irremediable jurisdictional defect").



                                               -5-
                 deadline to file the notice of appeal is extended by
                 § 108(c)(2) until at least thirty days after notice of the stay's
                 termination or expiration.

In re Hoffinger Indus., Inc., 329 F.3d 948, 953 (8th Cir. 2003) (citation omitted).

                 Because it appears that Florida's appellate rule and the Bankruptcy Code

are in conflict such that it would be a "physical impossibility," Automated Med. Labs.,

471 U.S. at 713, for an appellant to observe both of them and ensure that a state

appellate court gains jurisdiction over an appeal, we conclude that 11 U.S.C. §§ 362(a)

and 108(c) prevail over rule 9.130(b). As a result, the filing of the bankruptcy petition

within the notice-of-appeal period prevented AmMed Surgical from filing a notice of

appeal within thirty days of rendition of the challenged order but allowed AmMed

Surgical to file the notice within thirty days of the order lifting the bankruptcy stay. See

Hoffinger Indus., 329 F.3d at 952-54; In re Meredith, 337 B.R. 574, 576-77 (Bankr. E.D.

Va. 2005). Accordingly, this court has jurisdiction over AmMed Surgical's appeal.

                 Because the bankruptcy court's order authorized only the filing of a notice

of appeal at this stage, the stay of this appeal remains in effect until further order of the

bankruptcy court. See 11 U.S.C. § 362(a)(1). AmMed Surgical shall notify this court

promptly in the event the bankruptcy court lifts the stay to permit this appeal to proceed.

In addition, AmMed Surgical shall provide this court with a copy of the bankruptcy

court's order.

                 Order to show cause discharged.



ALTENBERND and BLACK, JJ., Concur.




                                                -6-
