ROBERTS

v.

PNC BANK

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.

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 Appellee, PNC Bank, N.A., served a section 57.105(1) safe harbor notice demanding that defense be withdrawn; Appellants refused to do so.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

As far as setting the date by which Appellants and their counsel should have withdrawn the unsupportable, frivolous defense, the trial court looked to the record.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

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:

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.

AFFIRMED.

ORFINGER and EVANDER, JJ., concur.