         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                  NOT FINAL UNTIL TIME EXPIRES TO
                                                  FILE MOTION FOR REHEARING AND
                                                  DISPOSITION THEREOF IF FILED


COURTNEY ROBERTS AND CAROL
ROBERTS,

              Appellants,

 v.                                                      Case No. 5D17-2840

PNC BANK, N.A.,

              Appellee.

________________________________/

Opinion filed October 19, 2018

Appeal from the Circuit Court
for Brevard County,
Lisa Davidson, Judge.

Michael Saracco, of Saracco Law, Cocoa,
for Appellants.

William L. Grimsley, N. Mark New, II, and
Kimberly Held Israel, of McGlinchey
Stafford, Jacksonville, for Appellee.


EDWARDS, J.

       Appellants, Courtney and Carol Roberts, appeal the trial court’s order imposing

sanctions against them (fifty percent) and their attorney (fifty percent) in accordance with

section 57.105, Florida Statutes (2015). Appellants and their attorney failed to preserve

the issue for appeal, as they entered into a stipulated final judgment which set forth the

entitlement to and amount of the sanctions that were imposed. See Pac. Nat’l Bank, N.A.
v. Home Tower Condo., Inc., 174 So. 3d 565, 567 (Fla. 4th DCA 2015). Additionally,

Appellants’ argument that the trial court erred by imposing sanctions against their attorney

is not properly before this court because the attorney did not individually appeal and failed

to include himself as an appellant. See Faddis v. City of Homestead, 157 So. 3d 447,

453 (Fla. 3d DCA 2015). We affirm the trial court’s well-written, detailed order imposing

sanctions, which is supported by competent, substantial evidence. We deny Appellants’

motion for appellate attorney’s fees and grant Appellee’s.         Additionally, Appellants’

counsel, Michael A. Saracco, is hereby ordered to show cause within ten days why this

court should not sanction him for making what appears to be a blatant, material

misrepresentation in his brief regarding the trial court’s findings on the sanctions motion.

       The trial court awarded the sanctions because Appellants and their counsel

persisted in asserting a defense that they knew or should have known was not supported

by facts or law. Specifically, Appellants attempted to defend against the underlying

mortgage foreclosure action by asserting that the debt represented by the note had been

paid and that the note had been assigned to the Courtney Roberts Trust. However, there

was no evidence to support that claim. Appellee, PNC Bank, N.A., served a section

57.105(1) safe harbor notice demanding that defense be withdrawn; Appellants refused

to do so. After the safe harbor time period expired, PNC filed its sanctions motion with

the court.

       The trial court held a post-trial hearing on PNC’s section 57.105(1) motion and

noted that Appellants and their counsel had repeatedly asserted the defense of

payment/assignment in the answer, discovery responses, deposition testimony, and in

several demands for dismissal of the foreclosure action. The trial court determined that




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Appellants’ defense was implausible, frivolous, and that their refusal to withdraw the

defense after receiving PNC’s safe harbor letter was unsupportable. Specifically, the trial

court found that Appellants’ defense was not supported by any documentary evidence

and that the testimony of Appellant Courtney Roberts was internally inconsistent and not

credible. The trial court also found that Appellants’ purported handwriting expert, Curt

Baggett, “lacked the credentials, experience, and qualifications to testify” regarding the

questioned assignment document. Additionally, the trial court noted that “Mr. Baggett has

a long history of being rejected as an expert by numerous courts in many jurisdictions”

and was referred to in at least one decision as a “charlatan.” The trial court remarked

that Mr. Baggett’s difficulties were easily discoverable with a simple internet or legal

database search and further noted that prior to trial, attorney Saracco was already “aware

of Mr. Baggett’s less than stellar credentials as a handwriting expert and the findings of

numerous courts that Mr. Baggett was not a competent expert.”

       As far as setting the date by which Appellants and their counsel should have

withdrawn the unsupportable, frivolous defense, the trial court looked to the record. The

trial court found that on October 26, 2015, PNC gave Appellants a copy of the report its

handwriting expert, Thomas Vastrick, prepared.1         That report expressed Vastrick’s

opinion that the purported assignment/indorsement document was not authentic, and was

entirely contrived, that the questioned document never existed as an original document,

and that the supposed handwritten entry of “Courtney Roberts Trust” was a cut and paste

job. After reciting this detailed history, the trial court included in its order granting the



       1In stark contrast to Mr. Baggett, the trial court found Mr. Vastrick to be well-
credentialed, well-trained, and credible in explaining his analysis and conclusions
regarding the phony document upon which Appellants and their attorney relied.


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sanctions motion its specific finding that “Mr. Saracco and his clients should have known

by October 26, 2015 that the Defendants’ endorsed note defense was not supported by

the material facts and contradicted by overwhelming evidence.” Accordingly, the trial

court found PNC was entitled to section 57.105 sanctions from October 26, 2015, forward

for having to litigate and defend against the “endorsed note” defense.

       The parties then entered into a stipulated final judgment that set forth the specific

amounts of attorney’s fees, costs, and interest to be awarded to PNC and against

Appellants and attorney Saracco as section 57.105 sanctions. As noted above, by

entering into this stipulated final judgment without reserving any right to appeal,

Appellants and attorney Saracco waived appellate review. Because attorney Saracco did

not individually appeal or include himself as an appellant, he waived any right to appellate

review of his fifty-percent share of the sanctions awarded to PNC.

       Finally, even if we ignore these waivers, the trial court’s order is supported by

competent, substantial evidence and sets forth very specific findings as to the

unsupported nature of the defense and a date by which Appellants and their counsel

knew the defense should have been withdrawn. Accordingly, we affirm the trial court’s

order, grant Appellee’s motion for appellate attorney’s fees, and deny Appellants’ motion.

       We must now address what appears to us to be a blatant, material

misrepresentation of the record by attorney Michael A. Saracco. On page seventeen of

Appellants’ amended initial brief, which he authored, attorney Saracco makes the

following statement:




                                             4
              The trial court failed to make a specific finding that Roberts or
              its counsel knew or should have known that Roberts claim
              was not supported by material facts.2

Contrary to this statement, on page eight of the sanctions order, the trial court explicitly

stated:

              After considering the above stated history of this case, the
              Court finds that Mr. Saracco and his clients should have
              known by October 26, 2015 that the Defendants’ endorsed
              note defense was not supported by the material facts and
              contradicted by overwhelming evidence.

On page nine of the sanctions order the trial court further stated, “The defense should

have been withdrawn upon the realization that it was not supportable and was, in fact,

frivolous.” On that same page, the trial court again specifically stated that the defense

was not supportable, was frivolous, and “that Mr. Saracco and his clients should have

known by October 26, 2015 that the defense of the ‘endorsed Note’ was not supported

by the material facts.”

       Appellants’ misstatement, set forth above, was quoted and described as being

“patently false” and “outrageous” in Appellee’s answer brief, which laid out the same

passages from the trial court’s order that we referenced. Attorney Saracco seemingly

passed on what most would have taken as an opportunity to set the record straight, as

he chose not to file a reply brief or otherwise correct that misstatement. Accordingly, we

order Michael A. Saracco to show cause in writing within ten days from the date this

opinion issues as to why this court should not sanction him for making what appears to

be a blatant, material misrepresentation in the brief that he filed with this court and for



       2 The same misstatement was previously set forth on page seventeen of
Appellants’ original initial brief, which was stricken for failure to comply with the Florida
Rules of Appellate Procedure.


                                             5
failing to correct the misrepresentation when it was clearly and forcefully brought to his

attention by opposing counsel.

      AFFIRMED.

ORFINGER and EVANDER, JJ., concur.




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