Rissell v. Marchelos, No. 19-10607

• Citation: 976 F.3d 1233
• Decision Date: 25 September 2020
• Docket Number: No. 19-10607, No. 20-11357, No. 19-10608
• Parties: J.J. RISSELL, ALLENTOWN, PA TRUST, Plaintiff-Appellant, v. Spiro MARCHELOS, Defendant-Appellee. J.J. Rissell, Allentown, PA Trust, Plaintiff-Appellant, v. Soneet Kapila, Defendant-Appellee. John A. Moffa, as Trustee of The J.J. Rissell, Allentown, PA Trust, Plaintiff-Appellant, v. Soneet R. Kapila, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

976 F.3d 1233

J.J. RISSELL, ALLENTOWN, PA TRUST, Plaintiff-Appellant,

v.Spiro MARCHELOS, Defendant-Appellee.

J.J. Rissell, Allentown, PA Trust, Plaintiff-Appellant,

v.Soneet Kapila, Defendant-Appellee.

John A. Moffa, as Trustee of The J.J. Rissell, Allentown, PA Trust, Plaintiff-Appellant,

v.Soneet R. Kapila, Defendant-Appellee.

No. 19-10607

No. 19-10608

No. 20-11357

United States Court of Appeals, Eleventh Circuit.

September 25, 2020

Stephen C. Breuer, John A. Moffa, Moffa & Breuer, PLLC, Fort Lauderdale, FL, for Plaintiff-Appellant J.J. Rissell, Allentown PA, Trust (Docket nos. 19-10607 & 19-10608).

Chad P. Pugatch, George Leo Zinkler, III, Rice Pugatch Robinson Storfer & Cohen, PLLC, Fort Lauderdale, FL, for Defendant-Appellee Soneet Kapila (Docket nos. 19-10607 & 19-10608).

Stephen C. Breuer, John A. Moffa, Moffa & Breuer, PLLC, Fort Lauderdale, FL, Kevin Christopher Gleason, Florida Bankruptcy Group, LLC, Hollywood, FL, for Plaintiff-Appellant John A. Moffa (Docket no. 20-11357).

Thomas R. Lehman, Levine Kellogg Lehman Schneider Grossman, LLP, Miami, FL, Chad P. Pugatch, Rice Pugatch Robinson Storfer & Cohen, PLLC, Fort Lauderdale, FL, for Defendant-Appellee Soneet R. Kapila (Docket no. 20-11357).

Thomas R. Lehman, Robin J. Rubens, Levine Kellogg Lehman Schneider Grossman, LLP, Miami, FL, William Calnan, The Tarich Law Firm, PA, Hollywood, FL, Glenn Jerrold Waldman, Gunster Yoakley & Stewart, PA, Fort Lauderdale, FL, for Defendant-Appellee Spiro Marchelos (Docket no. 20-11357).

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 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, 83 S.Ct. 227, 9 L.Ed.2d 222 (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 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...