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


                                          IN THE DISTRICT COURT OF APPEAL

                                          OF FLORIDA

                                          SECOND DISTRICT



PHILIP D. HEWETT,                )
                                 )
           Appellant,            )
                                 )
v.                               )                  Case No. 2D15-1074
                                 )
WELLS FARGO BANK, N. A.,         )
AS TRUSTEE,                      )
                                 )
           Appellee.             )
                                 )
________________________________ )

Opinion filed June 1, 2016.

Appeal from the Circuit Court for
Lee County; Franklin Baker, Senior
Judge.

Philip D. Hewett, pro se.

Jason Joseph, Gladstone
Law Group, P. A.,
Boca Raton, for Appellee Wells Fargo
Bank as Trustee.

John R. Chiles and Nicholas S. Agnello,
Burr & Forman, LLP,
Fort Lauderdale, for Appellee
Wells Fargo Bank as Trustee.
LUCAS, Judge.

              Wells Fargo has filed a motion to dismiss this appeal of a final judgment of

foreclosure, arguing that the homeowner, Philip Hewett, failed to invoke our court's

jurisdiction with a properly filed notice of appeal. Specifically, Wells Fargo contends that

the only notice of appeal Mr. Hewett ever filed, although admittedly timely, was

nevertheless void by virtue of his then-pending bankruptcy petition, which Mr. Hewett

had filed seven days before filing his notice of appeal. Although deciding Wells Fargo's

motion potentially implicates a number of problematic issues, it is our court's precedent

that leads us to conclude that the motion is well taken.

              We begin with the procedural context that brings this case before us,

which we would note at the outset is a posture perhaps not uncommon in foreclosure

litigation. The circuit court's final judgment of foreclosure of Mr. Hewett's home was

rendered on February 27, 2015, when the order denying Mr. Hewett's motion for

rehearing and new trial was filed with the clerk of the circuit court. See Fla. R. App. P.

9.020(i)(1). On March 2, 2015, Mr. Hewett filed a petition for bankruptcy in the United

States Bankruptcy Court for the Middle District of Florida. Then on March 9 Mr. Hewett

filed with the clerk of the Lee County circuit court a notice of appeal challenging the

foreclosure judgment. Without argument, were it not for the filing of his bankruptcy

petition, Mr. Hewett's notice would have been timely filed to invoke our jurisdiction. See

Fla. R. App. P. 9.110(b).

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

bankruptcy




                                            -2-
              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 AmMed Surgical Equipment, LLC v. Professional

Medical Billing Specialists, LLC, we concluded that "the filing of a notice of appeal in

state court should be considered the 'continuation . . . of a judicial . . . proceeding

against' the appellant" that would be prohibited by the automatic stay. 162 So. 3d 209,

211 (Fla. 2d DCA 2015) (quoting 11 U.S.C. § 362(a)(1)). We further observed that the

filing of a bankruptcy petition by a debtor "prevented AmMed Surgical from filing a

notice of appeal" within the thirty-day deadline of rule 9.110(b). Id. at 212.

              These two principles we announced in AmMed—that a notice of appeal is

a continuation of a judicial proceeding, and that the Bankruptcy Code prohibits the filing

of such a notice during an automatic stay—comport with the broader (and broadly held)

view that the filing of a notice of appeal during the pendency of a bankruptcy stay

should be deemed void as a violation of the automatic stay. See Ellis v. Consol. Diesel

Elec. Corp., 894 F.2d 371, 372 (10th Cir. 1990) ("It is well established that any action

taken in violation of the stay is void and without effect." (citing Kalb v. Feuerstein, 308

U.S. 433, 438 (1940) (construing a stay provision found in a previous version of the

Bankruptcy Code))); accord Bronson v. U.S., 46 F.3d 1573, 1577 (Fed. Cir. 1995) ("A

majority of the circuits have held that actions taken in violation of the automatic stay are

void."); Onaka v. Onaka, 146 P.3d 89, 95 (Haw. 2006) ("Actions that are void have no

legal effect. Applying that definition, the situation wherein two notices of appeal have


                                             -3-
been filed without legal effect is the functional equivalent of the situation wherein no

notice of appeal has been filed." (citation omitted)); In re Cty. Treasurer & Ex Officio Cty.

Collector of Cook Cty., 719 N.E.2d 143, 150-51 (Ill. App. Ct. 1999) ("Because

Cambridge's motion to reconsider and its notice of appeal were filed in violation of the

[automatic] stay, they were void."); Burrhus v. M & S Mach. & Supply Co., 897 S.W.2d

871, 873 (Tex. App. 1995) ("[W]e hold that all actions relating to judicial proceedings

taken while the stay is in effect are void. The prosecution of an appeal is a judicial

proceeding."). Consistent with AmMed, we agree with these holdings.1 Therefore,

since the only notice of appeal Mr. Hewett ever filed was a nullity, we are without

jurisdiction to consider his appeal.

              We are not without some reservations about this conclusion. That the

Bankruptcy Code stays the continuation of a judicial proceeding in state court, including

the filing of a notice of appeal, once a bankruptcy petition has been filed is relatively




              1
                To hold otherwise—that is, to construe the notice of appeal as merely
voidable, or something which effectuates a kind of "placeholder" status for an appellant
while its appeal is stayed pending bankruptcy—raises difficult conceptual problems.
Such a construction would effectively condone a continuation of a state court
proceeding that section 362(a)(1) of the Bankruptcy Code plainly prohibits. It would, in
essence, give some effect to a filing that cannot have effect. The "exception" articulated
by some federal circuit courts, that an automatic stay could be deemed voidable
because a bankruptcy court is empowered to retroactively annul an automatic stay,
while an interesting point of contention, has no application here. See In re Siciliano, 13
F.3d 748, 751 (3d Cir. 1994) (noting that 11 U.S.C. § 362(d) affords bankruptcy courts
power to grant relief, including "annulling" a previously entered automatic stay). Simply
put, our state's courts do not enjoy a concomitant power to annul an automatic stay in
bankruptcy. We also note, not incidentally, that Mr. Hewett failed to avail himself either
of this retroactive remedy or of his ability to move the bankruptcy court to lift the stay
before he filed his notice of appeal. See 11 U.S.C. § 362(d); cf. also Constitution Bank
v. Tubbs, 68 F.3d 685, 694 (3d Cir. 1995) ("No party has submitted any evidence that
the bankruptcy court has granted such relief in order to permit [appellant] to pursue its
present appeal . . . .").


                                            -4-
clear. That such a filing would be void necessarily flows from this interpretation of the

Bankruptcy Code. However, the Bankruptcy Code may not, in itself, resolve the very

pragmatic concern of how to then measure the jurisdictional deadlines set forth in our

rules of appellate procedure once an automatic stay ceases.

              To be sure, the Bankruptcy Code provides extended, substitute deadlines

for "continuing a civil action" after an automatic stay has expired or been terminated.

See 11 U.S.C. § 108(c).2 Were we in a position to simply engraft that section of the

federal Bankruptcy Code into our State's rules of appellate procedure, then the

dismissal of Mr. Hewett's appeal, and what appellants in Mr. Hewett's circumstance

ought to do to invoke our court's jurisdiction after their bankruptcy cases have

concluded, could be easily resolved.3 But we do not have that power. See Fla. Const.



              2
                  This statutory subsection provides:

              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
                 Interestingly, the Supreme Court of Hawaii appears to have adopted this
very approach by promulgating an appellate rule consistent with 11 U.S.C. 108(c)(2).
See Haw. R. App. P. 54(a). We recognize that in AmMed, 162 So. 3d at 212, we held
that a notice of appeal filed seventy days after an order's rendition could confer
jurisdiction in our court because the notice's timely filing had been prohibited by a
bankruptcy automatic stay, which was later lifted. We find that portion of the holding in


                                              -5-
art. V, § 2(a) ("The supreme court shall adopt rules for the practice and procedure in all

courts including the time for seeking appellate review . . . ."); Jenne v. Maranto, 825 So.

2d 409, 414 (Fla. 4th DCA 2002) ("But we are not the supreme court and lack the power

to make jurisdictional changes in the Rules of Appellate Procedure."). And it is not

entirely clear whether Congress has that power either.

              Although Congress may exercise plenary power under the Constitution to

"establish . . . uniform Laws on the subject of Bankruptcies throughout the United

States," art. I, § 8, cl. 4, U.S. Const.; see also Kalb v. Feuerstein, 308 U.S. 433, 439

(1940) ("The Constitution grants Congress exclusive power to regulate bankruptcy and

under this power Congress can limit that jurisdiction which courts, State or Federal, can

exercise over the person and property of a debtor who duly invokes the bankruptcy

law."), the reach of that power might not extend so far as to alter state judicial

procedures within state court proceedings:

              Without any doubt it rests with each state to prescribe the
              jurisdiction of its appellate courts, the mode and time of
              invoking that jurisdiction, and the rules of practice to be
              applied in its exercise; and the state law and practice in this
              regard are no less applicable when Federal rights are in
              controversy than when the case turns entirely upon
              questions of local or general law.

John v. Paullin, 231 U.S. 583, 585 (1913); see also Sun Oil Co. v. Wortman, 486 U.S.

717, 728 (1988) ("[M]atters generally treated as procedural under conflicts law [are] . . .

generally regarded as within the forum State's legislative jurisdiction."); Suesz v. Med-1

Sols., LLC, 757 F.3d 636, 651 (7th Cir. 2014) (Sykes, J., concurring) (noting that "[i]t's

an open question whether Congress has the power to prescribe procedural rules for


AmMed distinguishable because, unlike the appellant in AmMed, Mr. Hewett never filed
a notice of appeal following the discharge of his bankruptcy.


                                            -6-
state-law claims in state court") (emphasis omitted), cert. denied, 135 S. Ct. 756 (2014);

Anthony J. Bellia Jr., Federal Regulation of State Court Procedures, 110 Yale L.J. 947,

980 (2001) (arguing under conflict-of-laws principles that states remain sovereign over

their courts' procedures: "If a state court enforces federal law in the same manner as it

would the law of another state or a foreign government, it follows that a state has

exclusive control over court 'procedure' even as against the federal government.").

Thus, the kind of pragmatic question our dismissal of this appeal could raise—whether

or to what extent 11 U.S.C. § 108(c) may, of its own force, affect the procedural filing

deadline of rule 9.110(b) following the expiration or termination of an automatic stay—

appears to be one that has never been squarely decided by any federal court. Suesz,

757 F.3d at 651; see also Jinks v. Richland Cty., S.C., 538 U.S. 456, 464 (2003)

(holding that statute of limitations tolling period under 28 U.S.C. § 1367(d) was a proper

exercise of congressional power within a state court proceeding, but observing that "if

the substance-procedure dichotomy posited by respondent is valid—the tolling of

limitations periods falls on the 'substantive' side of the line. To sustain § 1367(d) in this

case, we need not (and do not) hold that Congress has unlimited power to regulate

practice and procedure in state courts.").

              So we are left with an appellate rule that does not speak about bankruptcy

and a bankruptcy statute that may not be able to speak to our appellate rules. While we

recognize this potential conundrum, we cannot attempt to resolve it. See, e.g., State v.

Turner, 224 So. 2d 290, 291 (Fla. 1969) (reaffirming that "[c]ourts are not to consider a

question of constitutionality which has not been raised by the pleadings . . . ."); Allen v.

State, 873 So. 2d 576, 579 (Fla. 2d DCA 2004) ("However, this issue is presently not




                                             -7-
before us and we therefore do not address it at this time."); Anheuser-Busch Cos. v.

Staples, 125 So. 3d 309, 312 (Fla. 1st DCA 2013) (noting that appellate courts are "not

at liberty to address issues that were not raised by the parties."). In light of these

concerns, though, we would commend this issue for the Appellate Court Rules

Committee's consideration of whether a new or amended rule of appellate procedure

would be appropriate to incorporate the tolling provisions of 11 U.S.C. § 108(c) or

another period that explicitly addresses the effect of an automatic stay in bankruptcy on

the filing of a notice of appeal.

              Motion to dismiss granted; appeal dismissed.



NORTHCUTT and KELLY, JJ., Concur.




                                            -8-
