APPEALS: TIMELINESS: BANKRUPTCY: PREEMPTION: THE DEADLINE TO FILE A NOTICE OF APPEAL WAS STAYED BY THE APPELLANT’S PETITION FOR BANKRUPTCY

AmMed Surgical Equipment, LLC v. Professional Medical Billing Specialists, LLC, ___ So. 3d ___, 40 Fla. L. Weekly D352 (Fla. 2d DCA February 6, 2015)

Although the defendant filed a notice of appeal 70 days after rendition of a preliminary injunction against it, the court held that the appeal was timely under the unique circumstances of this case. Under Fla. R. App. P. 9.130(a)(3)(B), the preliminary injunction was an appealable nonfinal order, and appellate jurisdiction could be invoked by filing a notice within thirty days of rendition. Before the thirty day period elapsed, the defendant filed a petition under Chapter 11 of the Bankruptcy Code, and the defendant’s notice of appeal was filed on the day that the bankruptcy court lifted the bankruptcy stay for the limited purpose of enabling the defendant to file the notice. 11 U.S.C. § 362(a)(1) provides that the “filing of a petition in bankruptcy operated as a stay . . . of . . . the commencement or continuation . . . of any action or proceeding against the debtor . . . .” 11 U.S.C. § 108 provides that an unexpired deadline under non-Bankruptcy law does not elapse until the end (including any suspensions) of the period “for commencing or continuing a civil action in a court other than a bankruptcy court on a claim against the debtor” or thirty days after expiration of the stay under §362, whichever occurs later. The court held that “the filing of a notice of appeal should be considered the ‘continuation of a judicial . . . proceeding against’ the appellant” and that 11 U.S.C. §§ 362(a) and 108(c) preempt Fla. R. App. P. 9.130(b). The defendant’s notice of appeal was timely because it was filed “within thirty days of the order lifting the bankruptcy stay.”

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