Filed: Sep. 25, 2020
Latest Update: Sep. 25, 2020
Summary: Case: 19-10608 Date Filed: 09/25/2020 Page: 1 of 5 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 19-10607 _ D.C. Docket No. 0:18-cv-61422-BB Bkcy. No. 0:17-bkc-22819-RBR J.J. RISSELL, ALLENTOWN, PA TRUST, Plaintiff-Appellant, versus SPIRO MARCHELOS, Defendant-Appellee. _ No. 19-10608 _ D.C. Docket No. 0:18-cv-61927-BB Bkcy. No. 0:17-bkc-22819-RBR J.J. RISSELL, ALLENTOWN, PA TRUST, Plaintiff-Appellant, versus SONEET KAPILA, Case: 19-10608 Date Filed: 09/25/2020
Summary: Case: 19-10608 Date Filed: 09/25/2020 Page: 1 of 5 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 19-10607 _ D.C. Docket No. 0:18-cv-61422-BB Bkcy. No. 0:17-bkc-22819-RBR J.J. RISSELL, ALLENTOWN, PA TRUST, Plaintiff-Appellant, versus SPIRO MARCHELOS, Defendant-Appellee. _ No. 19-10608 _ D.C. Docket No. 0:18-cv-61927-BB Bkcy. No. 0:17-bkc-22819-RBR J.J. RISSELL, ALLENTOWN, PA TRUST, Plaintiff-Appellant, versus SONEET KAPILA, Case: 19-10608 Date Filed: 09/25/2020 P..
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Case: 19-10608 Date Filed: 09/25/2020 Page: 1 of 5
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-10607
________________________
D.C. Docket No. 0:18-cv-61422-BB
Bkcy. No. 0:17-bkc-22819-RBR
J.J. RISSELL, ALLENTOWN, PA TRUST,
Plaintiff-Appellant,
versus
SPIRO MARCHELOS,
Defendant-Appellee.
________________________
No. 19-10608
________________________
D.C. Docket No. 0:18-cv-61927-BB
Bkcy. No. 0:17-bkc-22819-RBR
J.J. RISSELL, ALLENTOWN, PA TRUST,
Plaintiff-Appellant,
versus
SONEET KAPILA,
Case: 19-10608 Date Filed: 09/25/2020 Page: 2 of 5
Defendant-Appellee.
________________________
No. 20-11357
________________________
D.C. Docket No. 0:18-cv-61945-RAR
Bkcy. No. 0:17-bkc-22819-RBR
JOHN A. MOFFA, as Trustee of The J.J. Rissell, Allentown, PA Trust,
Plaintiff-Appellant,
versus
SONEET R. KAPILA,
Defendant-Appellee.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_______________________
(September 25, 2020)
Before WILLIAM PRYOR, Chief Judge, TJOFLAT and HULL, Circuit Judges.
WILLIAM PRYOR, Chief Judge:
In all three of these bankruptcy appeals, Stephen Breuer of Moffa & Breuer,
PLLC, filed the notice of appeal and purports to represent the J.J. Rissell Trust. But
the bankruptcy court disqualified attorney John Moffa and the Moffa & Breuer
firm from representing the Trust. Because the Trust was a 50 percent shareholder
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of the debtor created to ensure that Moffa & Breuer would collect its legal fees, the
bankruptcy court concluded that Moffa & Breuer’s representation of a shareholder
in which it had a business interest conflicted with its simultaneous representation
of the debtor. Moffa & Breuer repeatedly ignored the bankruptcy court’s
disqualification order. In fact, John Moffa, purportedly pro se in his capacity as
trustee of the Trust and as an attorney for related entities, went so far as to file a
competing plan of reorganization in the bankruptcy court that would have released
the debtor’s claims against his firm and made him president of the reorganized
debtor. But Moffa & Breuer remains disqualified. None of the notices of appeal in
these three appeals was filed by an authorized representative of the Trust, and each
is a nullity. Because the notices of appeal are invalid, we dismiss these appeals.
To be sure, the Supreme Court has said that an appeal should not be
dismissed based on the “mere technicalit[y]” of a defective notice. Foman v. Davis,
371 U.S. 178, 181 (1962). And to that end, this Court has recognized that “in some
circumstances [a defective notice of appeal] may be adequate when the party’s
intent to appeal is ‘objectively clear’ from all of the circumstances.” Holloman v.
Mail-Well Corp.,
443 F.3d 832, 844 (11th Cir. 2006) (quoting Fed. R. App. P. 3(c)
advisory committee’s note to 1993 amendment). Despite the clear requirements of
Federal Rule of Appellate Procedure 3(c), we have excused defective notices of
appeal that failed to designate expressly the district court order appealed, see KH
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Outdoor, LLC v. City of Trussville, 465 F.3d 1256, 1260 (11th Cir. 2006), or to
specify the parties taking the appeal, see PlayNation Play Sys., Inc. v. Velex Corp.,
939 F.3d 1205, 1210–11 (11th Cir. 2019), when the appellant’s intent to appeal
was clear from context.
But the deficiency here cannot be excused because it is not objectively clear
that the Trust intended to appeal. A trust, like a corporation, “is an artificial entity
that can act only through agents, cannot appear pro se, and must be represented by
counsel.” Palazzo v. Gulf Oil Corp., 764 F.2d 1381, 1385 (11th Cir. 1985). And
the decision whether to pursue a civil appeal belongs exclusively to the client. See
Soliman v. Ebasco Servs. Inc.,
822 F.2d 320, 323 (2d Cir. 1987); Restatement
(Third) of the Law Governing Lawyers § 22(1) (2000). There has been no
indication of an intent to appeal from any qualified agent of the Trust, only from
disqualified attorneys with Moffa & Breuer.
Stephen Breuer’s decision to file a notice of appeal purportedly on behalf of
the Trust is not evidence that the Trust intended to appeal, because Breuer was
disqualified from representing the Trust. Nor are trustee John Moffa’s pro se
filings in the bankruptcy court evidence that the Trust intended to appeal, because
John Moffa was also disqualified. By virtue of his disqualification from
representing the Trust as a lawyer, John Moffa stands in the same position as a
nonlawyer trustee. And a nonlawyer trustee has no authority to represent a trust in
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court. A “trustee represents the interests of others and would therefore be engaged
in the unauthorized practice of law” if allowed to appear pro se as a nonlawyer.
EHQF Tr. v. S & A Capital Partners, Inc., 947 So. 2d 606, 606 (Fla. Dist. Ct. App.
2007); see also Knoefler v. United Bank of Bismarck,
20 F.3d 347, 348 (8th Cir.
1994) (“A nonlawyer, such as these purported ‘trustee(s) pro se’ has no right to
represent another entity . . . in a court of the United States.” (citing C.E. Pope
Equity Tr. v. United States,
818 F.2d 696, 697–98 (9th Cir. 1987))). John Moffa
had no authority to act pro se in the bankruptcy court, so his filings do not suggest
that the Trust intended to appeal.
There is no justification for excusing these defective notices of appeal
because the circumstances do not make it clear that the Trust intended to appeal.
When an appeal is taken on behalf of an artificial entity by someone without legal
authority to do so, the appeal should be dismissed. See United States v. El-Mezain,
664 F.3d 467, 578 (5th Cir. 2011);
Knoefler, 20 F.3d at 347–48.
So we DISMISS the appeals.
5
