                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-13-1995

Constitution Bank v Tubbs
Precedential or Non-Precedential:

Docket 93-1295




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"Constitution Bank v Tubbs" (1995). 1995 Decisions. Paper 266.
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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT



                  No. 93-1295, 94-1411, 94-1489


                        CONSTITUTION BANK

                               v.

              STEVEN R. TUBBS, ELLIOTT A. WEINBERG
                    AND WEINBERG TUBBS & CO.,

                                Appellants in No. 93-1295,

                                Steven R. Tubbs,
                                Appellant in 94-1489

                                Elliott A. Weinberg,
                                Appellant in No. 94-1411



         On Appeal from the United States District Court
            for the Eastern District of Pennsylvania
                  (D.C. Civil Action 91-06988)



                                    Argued on December 5, 1994

          Before: STAPLETON, ROTH and LEWIS, Circuit Judges

                (Opinion Filed October 13, 1995)




John M. Elliott, Esq.
Mark A. Kearney, Esq. (Argued)
Peter A. Lennon, Esq.
Mark J. Conway, Esq.
Elliott, Reihner, Siedzikowski, North & Egan, P.C.
Union Meeting Corporate Center V
P.O. Box 3010
925 Harvest Drive
Blue Bell, PA 19422



                                                                 1
Walter R. Milbourne
Saul, Ewing, Remick & Saul
3800 Centre Square West
Philadelphia, PA 19102
          Attorneys for Appellee

Fred W. Mattlin, Esq.
Gregg W. McClosky, Esq. (Argued)
Mattlin & McClosky
2300 Glades Road
Suite 400 East
Boca Raton, FL 33431
           Attorneys for Appellants, Weinberg,
           Weinberg, Tubbs & Co. and Tubbs

Richard H. Martin, Esq. (Argued)
Astor, Weiss, Kaplan & Rosenblum
The Bellevue, Sixth Floor
Broad Street at Walnut
Philadelphia, PA 19102
          Attorney for Appellant Weinberg



                       OPINION OF THE COURT



ROTH, Circuit Judge:

               I.   INTRODUCTION


          These consolidated appeals present a confusing mosaic

of bankruptcy petitions, motions for relief from the automatic

stay, and nunc pro tunc rulings.   We must piece together what

effect the rulings on relief have had as judgments were entered,

as retroactive relief was granted, and as appeals were filed. The

appeals all arise from an action for fraud and fraudulent

conveyance brought by Constitution Bank ("ConBank") against

defendants, Elliott A. Weinberg ("Weinberg"), Steven R. Tubbs


                                                                   2
("Tubbs"), and Weinberg Tubbs & Co. ("WTC").     In Appeal No. 93-

1295, all three defendants have appealed the district court's

order of February 26, 1993, which entered judgment against WTC

for compensatory damages and against Weinberg and Tubbs for

punitive damages.     In Appeal No. 94-1411, Weinberg has appealed

the district court's order of March 24, 1994, which modified its

February 26 judgment order by holding Weinberg and Tubbs to be

jointly and severally liable with WTC for ConBank's compensatory

damages, and in Appeal No. 94-1489, Tubbs has also appealed the

district court's March 24 order.
                II.    BACKGROUND AND PROCEDURAL HISTORY

          On September 2, 1987, Grossman Weinberg and Associates,

P.A. ("GWA"), a professional accounting corporation, borrowed

$27,450 from ConBank in order to purchase computer and office

equipment.   GWA executed a promissory note in favor of ConBank

for $27,450.   The officers and directors of GWA, professional

accountants Weinberg, Tubbs, Steven B. Grossman, William A.

Cadmus and Doreen A. Gentile, personally guaranteed the loan.
These guarantees provided that the accountants:
          intending to be legally bound,
          unconditionally, absolutely and irrevocably
          guarantee(s) and become(s) surety to Bank for
          the prompt payment of all sums now or
          hereafter due to Bank from Borrower . . ..

                            *      *      *

               The Obligation of Guarantor hereunder
          shall continue in full force and effect until
          thirty (30) days after Bank shall have
          actually received written notice of
          Guarantor's intention to terminate this
          Guaranty sent by certified or registered



                                                                     3
          mail, return receipt requested. This
          Guaranty shall nevertheless continue in
          effect and Guarantor shall remain liable for
          any Obligation which was incurred by Borrower
          prior to such date of termination, and which
          is the result of any renewal, extension, or
          modification of any such Obligation . . ..

App. A-1055-591 (emphasis added).   In support of their personal

guarantees, each of the accountants submitted a financial

statement to ConBank.

          GWA then obtained a line of credit with ConBank and

over the next two years borrowed an additional $250,000.    During

the course of their dealing, GWA was represented to ConBank as

being a single accounting firm with offices in both New Jersey

and Florida.   In actuality, however, GWA's two "offices" were

separate corporations having the same name and, for the most

part, the same officers and directors.2

          In July 1990, unbeknownst to ConBank, defendants

Weinberg and Tubbs resigned from GWA and formed WTC, a competing

1
  Appendix references from Appeals No. 93-1295 and 94-1489 will
be referred to as "App. A- ; appendix references from Appeal No.
94-1411 will be referred to as "App. B- ".
2
   In their brief in Appeal No. 93-1295, defendants state that:
"[e]ach of the shareholders [Tubbs, Weinberg, Grossman, Cadmus
and Gentile] were directors in each corporations[, and] . . .
each shareholder was an officer in each corporation but held
different offices." Moreover, Weinberg testified that as of
October 1989 the New Jersey and Florida GWA corporations had
"maintained for the most part common officers, directors and
shareholders and have operated co-existing practices involving
accounting and other related services rendered by CPAs,
accountants and other support staff." App. A-190-92. Tubbs also
testified as to the overlap of shareholders between the two
corporations, stating that from 1987 to July of 1990, the
shareholders common to both the New Jersey and Florida GWA
corporations were Grossman, Cadmus, Tubbs and Weinberg (because
Gentile was not a CPA she held only an equity interest), but that
Bartnick was a shareholder in the Florida GWA corporation only.
App. A-258.

                                                                     4
accounting firm.     At the same time, Weinberg and Tubbs

transferred roughly $1 million in assets from GWA to WTC.

                  Sometime between October 1990 and March 1991, GWA

defaulted on its loans.     In June 1991, the Court of Common Pleas

for Philadelphia County entered judgment in favor of ConBank and

against defendants Weinberg and Tubbs on their personal

guarantees.

             On November 8, 1991, ConBank filed an action in the

United States District Court for the Eastern District of

Pennsylvania, seeking to recover compensatory and punitive

damages caused by defendants' allegedly fraudulent conduct in

guaranteeing $277,450 in loans for GWA and then conveying away

assets so that ConBank would be unable to collect from GWA.3       In

March 1992, the court held a bifurcated jury trial on the

defendants' liability for fraud and fraudulent conveyance.     The

jury returned a bifurcated verdict in favor of ConBank as to

liability only.     On March 13, 1992, the district court entered

judgment on liability against the defendants.

             Shortly thereafter, on March 31, 1992, the district

court dismissed ConBank's complaint with prejudice on the basis

of a purported settlement agreement between the parties.     When

the settlement fell through, ConBank sought to vacate the

dismissal.    On August 6, 1992, the court entered an order denying

ConBank's motion to vacate, without prejudice to renew, but


3
  Although ConBank had also named GWA-New Jersey, GWA-Florida,
Cadmus, Gentile and William A. Cadmus & Company as defendants in
its complaint, those defendants were dismissed prior to trial.

                                                                        5
permitting ConBank to show cause why the court should not give

full force and effect to the judgment ConBank had obtained in the

Court of Common Pleas in June 1991.     After a hearing, the court,

on November 30, 1992, vacated its prior dismissal order and

directed that the case be reassigned to another judge for trial

on the issue of damages.

            On January 27, 1993, a new judge empaneled two juries

to hear the case -- one to decide damages only and the other to

decide both liability and damages in the event that the first

judgment of liability obtained on March 12, 1992, would be

reversed.     On February 3, both juries returned verdicts in favor

of ConBank and against the defendants.    The court then molded the

verdict of the second jury (the one that decided both liability

and damages) as follows:
          In favor of the plaintiff and against Elliott
          Weinberg for punitive damages in the amount
          of $48,000, and in favor of Elliott Weinberg
          and against plaintiff, as to compensatory
          damages; in favor of plaintiff, and against
          Steven Tubbs for punitive damages in the
          amount of $72,000, and in favor of Steven
          Tubbs [and] against plaintiff for
          compensatory damages; and in favor of
          plaintiff and against Weinberg Tubbs and Co.,
          PA in the amount of $355,075, plus reasonable
          attorney's fees and costs [-- w]hich sum will
          be further molded after a hearing on February
          26, 1993.

App. B-155.    No judgment order was entered at that time.

            On February 26, the district court held the hearing to

impose counsel fees.    In the meantime, on February 16, Tubbs had

filed a Chapter 11 bankruptcy petition in the Southern District

of Florida.    Notice of his bankruptcy was filed in the district



                                                                      6
court on February 19.   On February 26, approximately one and a

half hours before the district court hearing, Weinberg filed a

Chapter 7 bankruptcy petition in the Southern District of

Florida.

           At the February 26 hearing, defense counsel contended

that the court did not have the ability to enter judgment without

a grant of relief from the automatic stay pursuant to 11 U.S.C.

§362(a).   The district court disagreed, holding that judgment had

been entered on February 3, when the court first molded the

jury's verdict, and that the formal entry of judgment did not

violate the automatic stay.

           After determining the proper award of attorney's fees

and costs to be $282,962.22, the court entered judgment nunc pro

tunc to February 3, 1993, when the jury's verdict was originally

molded by the court.    The February 26 order awarded ConBank

$48,000 in "punitive damages only" against Weinberg, $72,000 in

"punitive damages only" against Tubbs, and $355,075 in

compensatory damages plus $282,962.22 for attorney's fees and

costs against WTC.   App. A-980-81.   Although the court signed the

judgment on February 26, it was not entered until March 1.

           On March 16, 1993, WTC filed a Chapter 11 bankruptcy

petition in the Southern District of Florida.

           On March 29, defendants Weinberg, Tubbs, and WTC filed

a notice of appeal from the February 26 judgment order (Appeal

No. 93-1295).   In that appeal, defendants asserted that the

district court erred (1) by denying their Rule 50(a) motion for

judgment as a matter of law because there was no evidence of the


                                                                    7
essential elements of fraud, there was insufficient evidence to

support the jury's finding of fraud, and there was insufficient

evidence to support the jury's award of punitive damages against

Weinberg and Tubbs; (2) by failing to acknowledge the preclusive

effect of the state court judgement against Weinberg and Tubbs;

and (3) by improperly charging the jury.   On May 17, 1993, this

Court entered an order staying Appeal No. 93-1295, pending either

the termination of the bankruptcy proceedings or an order from

the bankruptcy court lifting the automatic stay with regard to

the appeal.

          ConBank filed a motion for relief from the automatic

stay in Weinberg's bankruptcy action in order to pursue a motion

to clarify the district court's February 26, 1993, judgment order

regarding Weinberg's liability for compensatory damages.   After

oral argument, the bankruptcy court on December 29, 1993, granted

ConBank's motion for relief from stay.4

4
  At the same time, the bankruptcy court found that the award of
punitive damages against Weinberg was non-dischargeable in
bankruptcy. ConBank also urged the bankruptcy court to hold that
the jury's findings that Weinberg committed fraud required the
bankruptcy court to hold that the amount that Weinberg owed under
his guaranty agreement (pursuant to the Pennsylvania state court
judgment) was obtained by fraud and was therefore also non-
dischargeable in bankruptcy. The court, however, declined to
hold that any debt based upon the Pennsylvania state court breach
of contract action (for breach of Weinberg's guaranty agreement
to ConBank) was dischargeable in bankruptcy. It did so without
prejudice, however, "pending a final decision in the United
States District Court for the Eastern District of Pennsylvania .
. . address[ing] the lack of any compensatory damages awarded
against Defendant Weinberg." App. A-997. Noting that "the jury
specifically found all the elements of fraud and specifically
found conduct justifying an award of punitive damages," a finding
the court deemed to be "inconsistent" with the jury's failure to
award compensatory damages against Weinberg, the bankruptcy court

                                                                   8
           As a result of the grant of relief from stay, on

January 27, 1994, ConBank filed a motion in the district court

for clarification of the February 26 order, seeking to have that

order amended to reflect that Weinberg, Tubbs, and WTC were

jointly and severally liable for the compensatory damages awarded

by the jury.   The district court held oral argument on ConBank's

motion, and on March 24, 1994, the court granted it, altering its

original judgment order to impose joint and several liability on

Weinberg, Tubbs, and WTC for ConBank's compensatory damages.

           The district court amended its order with respect to

Tubbs, even though Tubbs did not receive notice or an opportunity

to be heard at the March 11 argument on ConBank's motion to

clarify.   Moreover, the court acted against Tubbs at the

suggestion of ConBank's counsel, even though ConBank's counsel

had earlier assured Tubbs that ConBank would not seek

compensatory damages against him by its motion to clarify the

judgment with respect to Weinberg.   The district court held that

the modification of the award was necessary to further the

interests of justice because the jury's answers to

interrogatories had established that the fraud by Weinberg and

Tubbs had caused ConBank to suffer the compensatory damages.




granted ConBank relief from stay to seek clarification of the
lack of compensatory damages against Weinberg. App. B-371.
Thus, presumably if the district court determined that Weinberg
was liable for compensatory damages, the bankruptcy court would
find the amount owed on his guaranty agreement to be non-
dischargeable.


                                                                    9
           Weinberg and Tubbs both appealed the district court's

order of March 24, 1994.   On April 6, Weinberg filed Appeal No.

94-1411 and, on April 25, Tubbs filed Appeal No. 94-1489.

           On April 24, 1994, ConBank went back to the Florida

bankruptcy court seeking relief from the automatic stay with

respect to defendant Weinberg in order to pursue the present

appeals.   On April 27, the Weinberg bankruptcy court granted

ConBank's motion, nunc pro tunc, to provide retroactive relief

from stay to cover Weinberg's pursuit of appeals in Nos. 93-1295

and 94-1411.

           On June 6, 1994, Tubbs filed a motion to consolidate

all three appeals.   Defendants Weinberg and WTC made similar

motions.   Also on June 6, Tubbs filed a motion in this Court to

terminate the stay of Appeal No. 93-1295.   Tubbs informed us that

he had a pending motion before the Florida bankruptcy court for

relief from the automatic stay in order to pursue Appeal No. 93-

1295.   On July 15, 1994, the bankruptcy court granted Tubbs

relief from the stay, stating that Tubbs "is free to proceed in

the United States Court of Appeals for the Third Circuit, in case

No. 93-1295."   The bankruptcy court did not, however, grant Tubbs

any relief from the stay in Appeal No. 94-1489.

           On August 1, 1994, we entered an order for the appeals

to proceed because "the automatic stay" had been lifted.    We also

granted defendants' motions to consolidate the appeals.

           For purposes of resolving the present appeals, we

assume that all of defendants' bankruptcies are still pending.




                                                                   10
                 III.   DISCUSSION
                        THE AUTOMATIC STAY



           Before addressing the merits of defendants' appeals, we

must examine the effect of the automatic stays which arose at the

filing of each defendant's bankruptcy petition, pursuant to 11

U.S.C. § 362.5    When interpreting and applying the legal precepts

underlying the bankruptcy court's automatic stay, we apply

plenary review.    Maritime Elec. Co. v. United Jersey Bank, 959

F.2d 1194, 1203 (3d Cir. 1991).     Because the granting of relief

or the failure to request relief from the automatic stay,

triggered by defendants' bankruptcies, present questions about

our jurisdiction to consider aspects of these appeals, we note

that we have "inherent power and a continuing obligation to



5
    Section 362 provides in part:

           Automatic Stay.
           (a) Except as provided in subsection (b) of
           this section, a petition filed under section
           301, 302, or 303 of this title . . . 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). Subsection (b) enumerates specific
exceptions to the automatic stay rule - none of which apply here.

                                                                     11
determine [our] own jurisdiction."   Id. at 1198 (citations

omitted).

            The purpose of the automatic stay is twofold:    (1) to

protect the debtor, by stopping all collection efforts,

harassment, and foreclosure actions, thereby giving the debtor a

respite from creditors and a chance "to attempt a repayment or

reorganization plan or simply be relieved of the financial

pressures that drove him into bankruptcy;" and (2) to protect

"creditors by preventing particular creditors from acting

unilaterally in self-interest to obtain payment from a debtor to

the detriment of other creditors."   Maritime, 959 F.2d at 1204.

            The stay is "automatic" because it is triggered    upon

the filing of a bankruptcy petition regardless of whether the

other parties to the stayed proceeding are aware that a petition

has been filed.    The automatic stay cannot be waived.     Relief

from the stay can be granted only by the bankruptcy court having

jurisdiction over a debtor's case.   Id.   A party in interest may

obtain relief from stay, pursuant to § 362(d)(1), by requesting

the relief from the bankruptcy court and, after notice and a

hearing, showing cause.    11 U.S.C. § 362(d)(1).

            The automatic stay is of broad scope, directing that

"[a]ll judicial actions against a debtor seeking recovery on a

claim that were or could have been brought before commencement of

a bankruptcy case, are automatically stayed."   Maritime, 959 F.2d
at 1203, 1206.    Thus, "[o]nce triggered by a debtor's bankruptcy

petition, the automatic stay suspends any non-bankruptcy court's

authority to continue judicial proceedings then pending against


                                                                      12
the debtor."   Id. at 1206.      Unless relief from the stay is

granted, the stay continues until the bankruptcy case is

dismissed or closed, or discharge is granted or denied.       11

U.S.C. § 362(c).     Once a stay is in effect, without relief from

the bankruptcy court, "the parties themselves [can]not validly

undertake any judicial action material to the . . . claim

against" the debtor.    Id. at 1207.     This includes the filing of

motions, which are void ab initio, unless the bankruptcy court

later grants retroactive relief.6      Id. at 1207, n.13.

          There is no question that the present appeals arise

from an action originally brought by ConBank against the three

debtor defendants.    This is the type of action that triggered the

automatic stay provision of section 362 when each defendant filed

a petition for bankruptcy.       At that time the automatic stay arose

and suspended the competence of the district court and of the

parties to continue with the proceedings against that defendant.

As a consequence, we must consider whether the appeals have been

affected by the automatic stays, thereby depriving us of the

authority to proceed.       We address the appeals in turn.
                       A.    STEVEN TUBBS

                            1.    Appeal No. 93-1295
6
  Generally, judicial actions and proceedings against the debtor
are void ab initio absent relief from the stay. Id. We have,
however, recognized that section 362(d), which requires the
bankruptcy court to grant relief from the stay under certain
circumstances and permits such relief to be applied
retroactively, would allow the bankruptcy court to grant
annulment of a stay, thereby making acts in violation of the stay
voidable, rather than void ab initio. See In re Siciliano, 13
F.3d 748, 750-51 (3d Cir. 1994).



                                                                       13
           On February 16, 1993, defendant Tubbs triggered the

automatic stay by filing a petition for bankruptcy.   Because the

automatic stay was effective as soon as the petition was filed,

the district court was without authority to act against Tubbs at

the February 26 hearing or to issue its judgment order against

him.   However, despite Tubbs' contention that no action could be

taken against him because of the automatic stay, the court

entered judgment against Tubbs on punitive damages and in favor

of Tubbs on compensatory damages nunc pro tunc to February 3,

1993, the date of the jury verdict.   The February 26 judgment was

docketed on March 1, 1993.7   Tubbs and his co-defendants filed

Appeal No. 93-1295 on March 29, 1993.   Because the stay of

proceedings against Tubbs was effective automatically when his

bankruptcy petition was filed, the district court was without

authority to act against Tubbs at the February 26 hearing or to

effectively enter a judgment order against him.

          The district court's issuing of its February 26

judgment order nunc pro tunc to February 3, a date prior to the

triggering of the automatic stay, was, therefore, of no effect.

Several courts have applied the void ab initio rule to nullify
judgments entered after a stay has been triggered, even when the

only action left for the court was to enter the judgment.     See,

e.g., In re Capitol-York Constr. Corp., 43 B.R. 52 (Bankr.

S.D.N.Y. 1984); Great Southwest Fire Ins. Co. v. Triple "I" Ins.

7
  Under Federal Rule of Civil Procedure 58, a judgment is not
effective until it is set forth on a separate document and
entered in accordance with Rule 79(a), which requires docketing
of the judgment.


                                                                     14
Servs., 727 P.2d 336 (Ariz. 1986) (en banc); Chapliski v.

Churchill Coal Corp., 503 A.2d 1 (Pa. Super. 1985).

          Although not controlling, the Chapliski case is on

point.   In Chapliski, plaintiff and defendant entered into a

stipulation on June 18, 1981, requiring defendant to pay

plaintiff a specified sum of money.    On June 29, defendant filed

a petition for bankruptcy, thereby triggering the automatic stay.

Defendant failed to notify either plaintiff or the court of his

bankruptcy petition.   On July, 7, the court entered a judgment

order, incorporating the stipulation, against defendant.        In that

order, the court specified that the judgment was entered nunc pro

tunc to June 29, before defendant's petition for bankruptcy had

been filed.   On those facts, the Pennsylvania Superior Court

found that the plain meaning of § 362(a) compelled it to hold

that the automatic stay barred the lower court on July 7 from

entering the retroactive order.     Id. at 2.

          The present case is similar to Chapliski.        We agree

with the Pennsylvania court's reasoning.        As we recognized in

Maritime, 959 F.2d at 1206, once in effect, the automatic stay

"suspends any non-bankruptcy court's authority to continue

judicial proceedings" against the debtor.        The district court's

entry of judgment against Tubbs amounts to a continuation of

judicial proceedings against him.     Since the very act of entering

the February 26 order was in violation of the stay, the fact that

the order itself specified that it was to be effective nunc pro
tunc could not save it.   Thus, we conclude that the district




                                                                        15
court could not enter an order against Tubbs after the stay had

taken effect and the judgment was void ab initio.

             On July 15, 1994, the bankruptcy court granted Tubbs'

motion for relief from the stay in order to pursue Appeal No. 93-

1295.     However, the bankruptcy court has never granted relief

from the stay in the district court, either prospective or

retroactive,     so that the February 26 judgment could be entered

against Tubbs. For this reason, there is nothing from which to

appeal because no valid judgment order has yet been entered

against Tubbs in the district court.
                           2.   Appeal No. 94-1489

             Tubbs filed Appeal No. 94-1489 for review of the

district court's clarification order of March 24, 1994.      However,

as with the February 26 order, no relief from the stay has been

granted in the district court to permit entry of the March 24

judgment against Tubbs.     Moreover, although the Florida

bankruptcy court granted Tubbs relief from the stay to pursue

Appeal No. 93-1295, no mention is made in the relief order of

Appeal No. 94-1489.     Tubbs' appeal in No. 94-1489 is void ab

initio.




                                                                     16
                      B.   ELLIOTT WEINBERG

                           1.   Appeal No. 93-1295

          On February 26, 1993, Weinberg filed a petition for

bankruptcy, thereby triggering the automatic stay.       One hour and

a half later, the district court began its hearing to mold the

jury's verdict.     For the reasons discussed above with respect to

Tubbs, the district court's entry of its February 26 judgment as

nunc pro tunc to February 3 does not alter our conclusion that

the act of entering the judgment was in violation of the

automatic stay against Weinberg.

          The bankruptcy court's first grant of relief from the

stay in the Weinberg bankruptcy occurred on December 29, 1993,

when the court granted relief so that ConBank could clarify the

district court's February 26, 1993, judgment order.       This grant

of relief to consider the February 26 order lifted the stay as to

that order insofar as it applied to Weinberg.        In the March 24,

1994, clarifying order, the district court entered both the

February 26 order and its clarification for the first time

against Weinberg.

          In its second grant of relief from stay on April 27,

1994, the bankruptcy court granted relief, nunc pro tunc, "to

allow . . . Weinberg to prosecute the appeal that has been filed

before the Third Circuit . . . of the trial court's underlying .

. . February 26, 1993" judgment.      Accordingly, Weinberg's Appeal

No. 93-1295 would be properly before this Court for review of the

February 26 judgment order, except for one problem.       In view of

the fact that the Febru____26 order could not be entered against


                                                                        17
Tubbs, it is not a final order and is not appealable.     See

Maritime, 959 F.2d at 1208.      Nor has there been a Fed. R. Civ. P.

Rule 54(b) certification in this case to permit us to hear

Weinberg's appeal.

           For these reasons, not only do we not have Tubbs'

appeal before us, but we cannot consider the issues raised by

Weinberg on the merits of the February 26 order.     We do not have

appellate jurisdiction because there is no final order.     This is

true, as we noted in Maritime, even though this jurisdictional

problem was not briefed by the parties.      Id.
                          2.    Appeal No. 94-1411

           The Florida bankruptcy court's order of April 24, 1994,

also granted retroactive relief from the stay to permit the

filing of the Appeal No. 94-1411, seeking review of the March 24,

1994, order.   However, as with Appeal No. 93-1295, we do not have

jurisdiction because the March 24 order is void ab initio as to

Tubbs and is for that reason not a final order and not

appealable.
                     C.   WTC

           On March 16, 1993, WTC triggered the automatic stay

provision of § 362(a) by filing its petition for bankruptcy.

Because WTC's bankruptcy action is still pending, the stay

remains in effect unless the bankruptcy court has granted relief

from it.   No party has submitted any evidence that the bankruptcy

court has granted such relief in order to permit WTC to pursue

its present appeal (No. 93-1295), or for any other reason.




                                                                   18
Therefore, even if we did not jurisdiction to hear the Tubbs and

Weinberg appeals, we could not hear WTC's.
                IV.   CONCLUSION

           The moral of this story is that one accomplishes little

in obtaining relief from the automatic stay to appeal a judgment

if that judgment was not a final one because of failure to lift

the automatic stay in order to enter the judgment against all

parties.   We will, for the reasons stated above, dismiss these

appeals for lack of appellate jurisdiction.




                                                                  19
