Anthony T. Barrios v. Regions Bank

Case: 13-14822 Date Filed: 07/21/2014 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-14822
Non-Argument Calendar
________________________
D.C. Docket No. 5:13-cv-00029-ACC-PRL
ANTHONY T. BARRIOS,
Individually,
Plaintiff - Appellant,
versus
REGIONS BANK,
d.b.a. Regions Mortgage,
Defendant - Appellee,
ANY AND ALL UNKNOWN PARTIES,
claiming by, through under and against the herein named individual who are
not known to be dead or alive, whether said unknown parties may claim an
interest as spouses, heirs, devisees, grantees or other claimants, et al.,
Defendants.
Case: 13-14822 Date Filed: 07/21/2014 Page: 2 of 4
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(July 21, 2014)
Before ROSENBAUM, ANDERSON and COX, Circuit Judges.
PER CURIAM:
The Plaintiff Anthony Barrios challenges on appeal the district court’s order
granting Region Bank’s motion for sanctions. 1 Barrios filed this diversity case
asserting a quiet title action under Florida law. Throughout the litigation, the
district court repeatedly observed that the allegations presented in the complaint
were frivolous and that Barrios’s counsel’s performance fell “woefully below the
level of practice expected before this or any Court.” (R. 31 at 3; R. 36 at 1–2; R.
40 at 2; R. 46 at 3; R. 52 at 2.) Despite these observations, Barrios continued to
litigate the case. At one point in the litigation, the district court found that
Barrios’s counsel asserted an unfounded “serious medical emergency” in order to
justify an emergency motion for extension of time. (R. 52 at 10–11.)
As a result of these events, Regions Bank filed a motion for sanctions under
Fed. R. Civ. P. 11. (R. 47.) Barrios did not file a response to the motion. The
1
Although not entirely clear, some parts of Barrios’s brief seem to challenge the district
court’s order dismissing the action. However, Barrios’s notice of appeal only appeals from the
“[o]rder adopting and confirming the Report and Recommendations approving sanctions in favor
of Defendants Regions Bank.” And, Barrios has appealed the district court’s judgment
dismissing the action in a separate appeal: Barrios v. Regions Bank, 11th Cir. No. 13-13100.
2
Case: 13-14822 Date Filed: 07/21/2014 Page: 3 of 4
district court referred the motion to a magistrate judge. (R. 50.) The magistrate
judge issued a report and recommendation recounting in detail the history of the
litigation. (R. 52.) The report and recommendation concluded that sanctions were
appropriate, but reduced the requested amount from $25,803.44 to $14,892.62.
(Id.) After receiving no objections, the district court adopted the report and
recommendation and directed the clerk to enter a $14,892.62 judgment jointly
against Barrios and his attorney. 2 (R. 55.)
We review a district court’s order of sanctions under Rule 11 for an abuse of
discretion. Kaplan v. DaimlerChrysler, A.G., 331 F.3d 1251, 1255 (11th Cir.
2003).
On appeal, Barrios contends that sanctions were improper because his claim
was not frivolous and because sanctions were procedurally improper under Florida
state law. However, Barrios has waived these arguments by failing to present them
in response to the motion for sanctions. To preserve an argument for appeal, the
argument must have been raised at the trial court if the party had an opportunity to
do so. Iraola & CIA, SA v. Kimberly-Clark Corp., 325 F.3d 1274, 1284–85
(“Failure to raise an issue, objection or theory of relief in the first instance to the
trial court generally is fatal. It is the general rule, of course, that a federal appellate
2
Barrios did file one document between the filing of the magistrate judge’s report and
recommendation and the district court’s order adopting the report and recommendation. The
district court ordered this document stricken. Barrios does not contend that the district court
erred by striking this document.
3
Case: 13-14822 Date Filed: 07/21/2014 Page: 4 of 4
court does not consider an issue not passed upon below.” (quotations omitted)).
Accordingly, the district court did not abuse its discretion by granting Regions
Bank’s motion for sanctions.
AFFIRMED.
4