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57.105(1) safe harbor notice demanding that defense be withdrawn; Appellants refused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
2 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.
3 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.
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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
2 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.
3 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.