Constitution Bank v. Tubbs

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Precedential or Non-Precedential: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