702 F.2d 380 (2nd Cir. 1983), 131, Martin-Trigona v. Shiff

Docket Nº:131, Docket 82-2145.
Citation:702 F.2d 380
Party Name:Anthony R. MARTIN-TRIGONA, Petitioner-Appellee, v. Alan SHIFF, Respondent-Appellant.
Case Date:March 09, 1983
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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702 F.2d 380 (2nd Cir. 1983)

Anthony R. MARTIN-TRIGONA, Petitioner-Appellee,


Alan SHIFF, Respondent-Appellant.

No. 131, Docket 82-2145.

United States Court of Appeals, Second Circuit

March 9, 1983

Argued Nov. 15, 1982.

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Irving H. Perlmutter, New Haven, Conn. (Ullman, Perlmutter & Sklaver, New Haven, Conn., of counsel), for Daniel Meister, Trustee of New Haven Radio, Inc.

Richard Coan, Coan, Lewendon & Royston, New Haven, Conn., on brief, for Richard Belford, Trustee of Anthony R. Martin-Trigona.

Anthony R. Martin-Trigona, pro se.

Before VAN GRAAFEILAND, MESKILL and PRATT, Circuit Judges.

MESKILL, Circuit Judge:

On January 15, 1982, Judge Shiff of the United States Bankruptcy Court for the District of Connecticut found Anthony Martin-Trigona in civil contempt. Judge Shiff ordered Martin-Trigona committed to the custody of the United States Attorney General when he refused during the bankruptcy proceedings to answer questions relating to the administration of his bankrupt estate and the bankrupt estate of a corporation he owned. In re Martin-Trigona, 16 B.R. 792 (Bkrtcy.D.Conn.1982). On January 29, Martin-Trigona petitioned the district court for a writ of habeas corpus alleging that the bankruptcy court lacked the power to imprison him for civil contempt. District Judge Daly granted habeas corpus relief and ordered Martin-Trigona released from custody. Martin-Trigona v. Shiff, 19 B.R. 1001 (D.C.Conn.1982). The trustees in bankruptcy brought this appeal.

Because we hold that the district court improvidently granted habeas corpus relief, we do not reach the merits of petitioner's claim. Ordinarily, one cannot, by a petition for a writ of habeas corpus, obtain review of an order that is appealable either in state or federal court. Because Martin-Trigona failed to seek leave to appeal the order adjudging him in civil contempt, it was error for the district court to grant habeas corpus relief. Accordingly, we vacate the judgment below and remand with instructions to dismiss the petition and to take such further action as the district court deems appropriate on any certified matters.

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Anthony Martin-Trigona is no stranger to the federal courts. His tour through the court system is marked by a persistent refusal to cooperate with court orders and purposeful efforts to delay and jaundice court proceedings. His distinctive brand of pro se advocacy has reached this Court after a barrage of procedural and jurisdictional challenges which have frustrated the courts below and have caused these bankruptcy proceedings to advance at a snail's pace, with little progress made toward settling creditors' claims during the past two and one-half years. 1

On September 10, 1980, Martin-Trigona, as owner and president of New Haven Radio, Inc. (corporate estate), filed a petition for reorganization of the company pursuant to 11 U.S.C. Sec. 1101 et seq. (Supp. III 1979) in the United States Bankruptcy Court for the Southern District of New York. On or about December 2, 1980, Martin-Trigona's personal estate also came under the bankruptcy court's jurisdiction. In January 1981 his two bankruptcy cases were ordered transferred to the United States Bankruptcy Court for the District of Connecticut where they were placed on the docket of Bankruptcy Judge Shiff. Martin-Trigona appealed the transfer order to the United States District Court for the Southern District of New York. He filed the notice of appeal without applying for a stay of the transfer order or seeking leave to appeal. 2

Administration of the two estates commenced in Connecticut. The trustees applied pursuant to Bankruptcy Rule 205(a) for an order to conduct an examination of Martin-Trigona. 3 When Martin-Trigona appeared pro se before the bankruptcy court on January 15, 1982, 4 he announced his resolve not to participate in the examination because, in his opinion, the bankruptcy court lacked jurisdiction over the cases while his appeal of the transfer order was pending in the Southern District of New York. Martin-Trigona "invited" the court to find him in civil contempt so that he could have his conduct certified to the district court pursuant to Bankruptcy Rule 920(a)(4) 5 where he planned to air his challenge

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to the jurisdiction of the bankruptcy court. Judge Shiff ordered Martin-Trigona to answer the trustees' questions, and when he refused, the court found him in civil contempt and committed him to the custody of the attorney general. Judge Shiff reasoned that section 241(a) of the Bankruptcy Reform Act of 1978 (Reform Act), Pub.L. No. 95-598, 92 Stat. 2549, 2668, was intended by Congress to confer on bankruptcy judges the power to sanction civil contempt by fine or imprisonment, see 28 U.S.C. Sec. 1481 (Supp. IV 1980), and that any limits on the bankruptcy judge's contempt powers under Bankruptcy Rule 920(a) were inapplicable to the extent inconsistent with the Reform Act. See Reform Act Sec. 405(d), 92 Stat. 2685.

On January 29, 1982, Martin-Trigona filed a petition for a writ of habeas corpus in the United States District Court for the District of Connecticut. 6 28 U.S.C. Sec. 2241 (1976). Oddly, the petition named Bankruptcy Judge Shiff as defendant. On March 31, 1982, District Judge Daly ordered the trustees, as the real parties-in-interest, and Judge Shiff, through the United States Attorney, to respond and show cause why a writ of habeas corpus should not issue. The trustees responded on April 2, 1982. The United States Attorney's Office responded the same day, but declined to argue the merits of the habeas corpus petition. 7

Without hearing oral argument, Judge Daly filed a memorandum of decision on April 19, 1982, concluding that the bankruptcy court was not empowered to order a recalcitrant witness imprisoned for civil contempt. 8 Martin-Trigona v. Shiff, 19

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B.R. 1001, 1003 (Dist.Ct.Conn.1982). Judgment was entered the following day granting habeas corpus relief and ordering Martin-Trigona released from custody.

Notice of appeal from the judgment was filed on April 22, 1982. The trustees of the corporate and personal estates are on the brief in this appeal. In addition to their contention that the bankruptcy judge was empowered under the Reform Act to incarcerate Martin-Trigona for civil contempt, the trustees also complain that the district court erred in granting habeas corpus relief without a hearing and without providing the trustees an opportunity to present opposing claims of law. Martin-Trigona has since filed several motions to dismiss this appeal. Those motions are considered first.


  1. Appeal, Jurisdiction and Justiciability

    Martin-Trigona argues first that Judge Daly's decision is not a final judgment and therefore is not appealable at this time. Additionally, he asserts that no lawful appeal has been taken from the district court's

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    order releasing him from custody. Finally, he maintains that this controversy is now moot. Each of these contentions is premised on what Martin-Trigona aptly characterizes as the "tortured procedural history" of this "bizarre case." Martin-Trigona neglects to mention his responsibility for the peculiarities of this appeal. We consider herein only those arguments imbued with some arguable merit.

    Martin-Trigona contends that the decision of Judge Daly is not a final judgment for purposes of appealability. He asserts that subsequent actions taken by the district court in connection with this case support his view. 9 This argument is meritless. An order granting habeas corpus relief is final and subject to appellate review. 28 U.S.C. Sec. 2253 (1976); see Craig v. Hecht, 263 U.S. 255, 276-77, 44 S.Ct. 103, 106-107, 68 L.Ed. 293 (1923).

    Martin-Trigona next argues that a proper appeal was never taken from Judge Daly's order. This claim is also groundless. Notice of appeal from the judgment granting Martin-Trigona's petition for a writ of habeas corpus was filed on April 22, 1982. The notice was filed on behalf of the named defendant, Bankruptcy Judge Shiff, and was signed by "Irving H. Perlmutter/Attorney for the Defendant." Mr. Perlmutter is the attorney for the trustee of the corporate estate. Martin-Trigona argues that Attorney Perlmutter is not Judge Shiff's attorney, that he filed the appeal without Judge Shiff's consent, and that as a consequence, no lawful appeal has been filed. We disagree. Although the trustees were not named parties in the district court, they did participate in those proceedings. In fact, the district court ordered both trustees, "being the real parities [sic] in interest," to respond to Martin-Trigona's application for habeas corpus relief. 10 Record at Doc. 16. Cf. Beery v. Turner, 680 F.2d 705, 713 (10th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 449, 74 L.Ed.2d 604 (1982) (district court did not err in designating the trustee in bankruptcy to act as plaintiff in hearing to determine the bankrupt's status).

    "The general rule is that one who was not a party of record before the trial court may not appeal that court's judgment." Washoe Tribe v. Greenley, 674 F.2d 816, 818 (9th Cir.1982). But there are situations where a nonparty is allowed to appeal if the trial court's judgment has affected the nonparty's interest. West v. Radio-Keith-Orpheum Corp., 70 F.2d 621, 623-24 (2d Cir.1934).

    This Circuit's decision in West is on point. There a corporate receiver petitioned the district court for an order approving modifications made to a corporate obligation. An unsecured creditor of the corporation who received notice of the petition appeared in the district court to object to the proposed order. After several hearings, the district court granted the order. The disgruntled creditor appealed even though he was not a...

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