This is an example of the Motion to Disqualify Trial Judge Keith Brace from my counter-claim against Costal Community Bank and their successor Centennial Bank. I have a real hard time understanding how Frank Baker, Esq. was a Board of Director for Coastal Community Bank at one time, remained as their general counsel and somehow managed to stay on as Counsel for Centennial Bank after the FDIC moved in and closed Coastal Community. Terry DuBose, Chairman of Coastal Community Bank has been closely associated with Frank Baker, Esq for a very long time.
This is an example of the Motion to Disqualify Trial Judge Keith Brace from my counter-claim against Costal Community Bank and their successor Centennial Bank. I have a real hard time understanding how Frank Baker, Esq. was a Board of Director for Coastal Community Bank at one time, remained as their general counsel and somehow managed to stay on as Counsel for Centennial Bank after the FDIC moved in and closed Coastal Community. Terry DuBose, Chairman of Coastal Community Bank has been closely associated with Frank Baker, Esq for a very long time.
This is an example of the Motion to Disqualify Trial Judge Keith Brace from my counter-claim against Costal Community Bank and their successor Centennial Bank. I have a real hard time understanding how Frank Baker, Esq. was a Board of Director for Coastal Community Bank at one time, remained as their general counsel and somehow managed to stay on as Counsel for Centennial Bank after the FDIC moved in and closed Coastal Community. Terry DuBose, Chairman of Coastal Community Bank has been closely associated with Frank Baker, Esq for a very long time.
JOH CARROLL, JODIE CARROLL, CHAMBERS STREET BUILDERS, IC., TAUTO TRUSS, IC., and DEPARTMET OF THE TREASURY ITERAL REVEUE SERVICE, et al
Defendants. ____________________________________
JOH CARROLL,
Counter-Plaintiff
vs.
COASTAL COMMUITY BAK and MIKE BYERS
Counter-Defendants.
____________________________________________/
COUTER-PLAITIFF JOH CARROLLS MOTIO FOR JUDICIAL DISQUALIFICATIO
COMES NOW the Counter-Plaintiff, John Carroll (Plaintiff), pursuant to Rule 2.330 (c) of Florida Rules of Judicial Administration, and files this, his Motion to Disqualify and as grounds therefore states: Background 1. On June 30, 2010, Chief Judge Terry D. Terrell signed Administrative Order 2010-32 creating Division W.
2 2. On July 1, 2010, this case was transferred to the Honorable Judge Brace. 3. Thereafter, on July 7, 2010, Coastal Community Bank filed their Motion for Summary Judgment. 4. Six weeks thereafter, on August 12, 2010, Frank Baker, Esq. communicated a Motion to Substitute Party to the Honorable Judge Green (Exhibit A). 5. Seven weeks after Judge Brace became the acting Judge in the case, Judge Green signed an Order Substituting Party from Coastal Community Bank to Centennial Bank (Exhibit B). 6. John Carroll made his Renewed Motion to Dismiss, Motion to Compel Discovery and Motion for in camera inspection of Mr. Bakers billing records, and filed same with the Clerk of Courts with copies to all parties of record and Judge Brace. (Exhibit B) 7. At some point thereafter, Mr. Baker purportedly filed an Amended Motion for Summary Judgment on behalf of Centennial Bank. On September 17, 2010, Mr. Baker prepared a Notice of Hearing setting that Amended Motion for Summary Judgment for hearing along with Carrolls three Motions. 8. Neither Coastal Community Bank nor Centennial Bank ever filed their Amended Motion for Summary Judgment with the Clerk, Judge Brace or any other parties to the case. 9. While there exists record evidence that would defeat any Motion for Summary Judgment filed by either bank, Carroll could not prepare a response to Centennials Amended Motion for Summary Judgment because it was never filed. 10. Prior to the hearing on Centennials Amended Motion for Summary
3 Judgment and Carrolls (3) Motions, Carroll filed a Memorandum in Opposition to the hearing on Centennials undisclosed Motion (Exhibit C). 11. At the October 14, 2010 hearing, Judge Brace was relying on the obsolete and moot August 19, 2010 Notice of Hearing delivered to him by Frank Baker. The parties were there to settle the matters set forth in the October 14, 2010 notice of hearing. Carroll objected to the classic bait and switch. (Exhibit D) 12. Carroll went out of his way during the abbreviated hearing to remind Judge Brace that his Motions concerned discovery violations on the part of Coastal and Centennial, fraud on the part of Coastal and Centennials Counsel, and a Motion to Dismiss Centennials complaint on straightforward grounds concerning Lack of Standing. Carroll brought attention to the fact that he intended to file a Memorandum in Opposition, but simply couldnt without Centennials Motion properly filed and served. 13. Despite the facts that: a) Centennial was never properly substituted as a party in the case; b) Neither Coastal nor Centennial filed their Amended Motion for Summary Judgment; c) Carroll filed his objection to hearing the defunct Coastals Motion; d) Judge Brace could have afforded Carroll a continuance to allow Carroll to serve his Memorandum in Opposition to Coastals Motion for Summary Judgment; e) and Carroll had reserved 45 minutes for Judge Brace to hear his (3) Motions; In just 8 minutes, Judge Brace went on to hear and grant Coastals Motion for Summary Judgment, immediately denied Carroll the right to hear his (3) properly noticed
4 Motions, and closed the hearing 37 minutes early. Current Events 14. On May 31, 2011 Centennial emailed a supplemental Motion for Summary Judgment, and simultaneously attempted to set that for hearing on June 16, 2011. 15. Carroll objected to a hearing on June 16, 2011, because it was sooner than 20 days from the date of service of Centennials new Motion for Summary Judgment, and therefore in violation of Florida Rule of Civil Procedure 1.510. Judge Braces judicial assistant told the parties that Judge Brace would not be the presiding Judge over the case after June 30, 2011, and therefore the hearing must be scheduled for June 16, 2011. 16. Carroll reminded Judge Braces Judicial Assistant that he had (3) outstanding Motions waiting to be heard. 17. Despite all of the forgoing, Judge Brace has scheduled Centennials Motion for Summary Judgment sooner than 20 days after service of the Motion, and again denied Carroll the opportunity to have his (3) fundamental Motions heard. 18. Carroll believes and understands that the Honorable A. Keith Brace strongly dislikes the Counter-Plaintiff. 19. Counter-Plaintiff fears that he will not receive any fair hearing, or ultimately trial, because of the specifically described prejudice or bias of the judge. 20. Finally, Rule of Judicial Administration 2.330 (i) permits (and may require) this Honorable Court to enter and order of disqualification on the Courts own initiative if the Court feels that it would violate a judicial cannon by continuing to preside
5 over the Carrolls case or if the court determines that an appearance of impropriety may exist based on the foregoing, not withstanding any other provision of Rule 2.330. 21. Wherefore the Counter-Plaintiff, John Carroll, respectfully requests that this Honorable Court enter an Order granting the Motion for Disqualification of Trial Judge, remove itself as the presiding judge over the case and order that the Counter- Plaintiffs case be randomly reassigned by the Clerk of Courts. Carroll cannot afford to be railroaded by Judge Brace and Frank Baker in this case which seeks to take Carrolls home.
I HEREBY CERTIFY that a copy of the foregoing was forwarded to Frank A. Baker, Esq., 4431 Lafayette Street, Marianna, FL. 32446, counsel for Coastal, and to Paul Alan Sprowls, Asst. U.S. Attorney, 111 North Adams Street, Tallahassee, FL 32301, counsel for the IRS, and to Mike Byers 12141 Panama City Beach, FL. 32407 by regular mail this 8th day of June, 2011.
6 CERTIFICATION UNDER OATH BY PARTY I HEREBY SWEAR that the facts contained herein are true and correct under penalty of perjury and are made in good faith this 8th day of June, 2011. _________________________________ John Carroll, Counter-Plaintiff
STATE OF FLORIDA } COUTY OF WALTO}
The foregoing instrument was acknowledged before me this 8th day of June, 2011 by the Counter-Plaintiff, John Carroll, under oath.
Personally Known _______ or
Produced the following type of identification____________________________
____________________________ Notary Public State of Florida
My Commission Expires:
7
8 EXHIBIT B Case Progress Dockets
CASE NUMBER FILE DATE CASE TYPE STATUS 662009CA001577CAXXXX [09001577CA] 08/07/2009 REAL PROP OR MORTGAGE FORECLOSURE PENDING [DEFENDANT=CARROLL, JOHN DEFENDANT=CARROLL, JODIE M. DEFENDANT=CJAMBERS STREET BUILDERS, INC. DEFENDANT=TAUNTON TRUSS, INC. DEFENDANT=DEPT OF THE TREASURY INTERNAL DEFENDANT=J.M.B. LLC DEFENDANT=UNITED STATES OF AMERICA DEFENDANT=FRANK'S CASH AND CARRY INC DEFENDANT=WATERSOUND BEACH COMMUNITY PLAINTIFF=CENTENNIAL BANK, AS SUCCESSOR ] [JUDGE=BRACE, AVERY KEITH] LAST DOCKET DATE=09/20/2010 JURY TRIAL=Yes [Court Events | Finance Info | Docket Info] ACTION DATE TEXT 09/20/2010 COVER LETTER; AZP 09/20/2010 NOTICE OF HEARING; AZP 09/16/2010 LETTER FROM MR. BAKER DATED 09/10/10; TP 09/16/2010 COPY FO COUNTER-PLAINTIFF JOHN CARROLL'S RENEWED SECOND 09/16/2010 MOTION TO COMPEL DISCOVERY FROM COASTAL COMMUNITY BANK; TP 09/16/2010 COPY OF COUNTER-PLAINTIFF JOHN CARROLL'S RENEWED MOTION TO 09/16/2010 COMPEL IN CAMERA INSPECTION OF ATTORNEY'S BILLING RECORDS; 09/16/2010 COPY OF DEFENDANT AND COUNTER-PLAINTIFF JOHN CARROLL'S 09/16/2010 RENEWED MOTION TO DISMISS COASTAL AND CENTENNIAL'S 09/16/2010 COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION; TP 09/13/2010 COVER LETTER FROM FRANK A BAKER FILED 09/13/2010 NOTICE OF HEARING CANCELLATION FILED 09/13/2010 DEFENDANT AND COUNTER-PLAINTIFF JOHN CARROLL'S MOTION FOR 09/13/2010 ALTERNATE HEARING DATE; LP 09/10/2010 COVER LETTER FROM JOHN CARROLL TO FRANK BAKER; LP 09/10/2010 COUNTER-PLAINTIFF JOHN CARROLL'S RENEWED SECOND MOTION TO 09/10/2010 COMPEL DISCOVERY FROM COASTAL COMMUNITY BANK; LP 09/10/2010 COUNTER-PLAINTIFF JOHN CARROLL'S RENEWED MOTION TO COMPEL 09/10/2010 IN CAMERA INSPECTION OF ATTORNEY'S BILLING RECORDS; LP 09/10/2010 DEFENDANT AND COUNTER-PLAINTIFF JOHN CARROLL'S RENEWED 09/10/2010 MOTION TO DISMISS COASTAL AND CENTENNIAL'S COMPLAINT FOR 09/10/2010 LACK OF SUBJECT MATTER JURISDICTION; LP 08/20/2010 LETTER TO THE CLERK DATED 08/19/10; TP 08/20/2010 NOTICE OF HEARING ON 09/16/10 @ 2:10 PM CT; TP 08/17/2010 COVER LETTER FROM FRANK BAKER TO JUDGE GREEN; MAC 08/17/2010 ORDER SUBSTITUTING PARTY; MDB 08/16/2010 LETTER TO CLERK DATED 08/13/2010;FP 08/16/2010 MOTION TO SUBSTITUTE PARTY;FP 07/07/2010 COVER LETTER; AZP 07/07/2010 PLAINTIFF'S MOITON FOR SUMMARY JUDGMENT; AZP 07/07/2010 AFFIDAVIT IN PROOF OF CLAIM; AZP 06/02/2010 ORDER VACATING CLERK'S DEFAULT; SH 06/02/2010 COUNTER PLAINTIFF'S RESPONSE TO COUNTER-DEFENDANT'S MOTION 06/02/2010 TO VACATE DEFAULT; AMS 05/27/2010 COUNTER PLAINTIFF'S RESPONSE TO COUNTER-DEFENDANT'S MOTION 05/27/2010 TO VACATE DEFAULT; SS 05/26/2010 LETTER RETURNED UNDELIVERED BY POST OFFICE FOR: MIKE BYERS; 05/26/2010 LP 05/24/2010 COVER LETTER FROM FRANK A. BAKER:KD
9 05/24/2010 PLAINTIFF'S MOTION TO VACATE IMPROVIDENT CLERKS DEFAULT:KD 05/21/2010 LETTER 05/21/2010 REPLY 05/21/2010 LETTER TO THE CLERK DATED 05/19/10; TP 05/21/2010 PLAINTIFF'S MOTION TO STRIKE AFFIRMATIVE DEFENSES; TP 05/21/2010 BANK'S SECOND MOTION TO STRIKE CARROLL'S RENEWED DEMAND FOR 05/21/2010 JURY TRIAL; TP 05/21/2010 BANK'S MOTION TO DISMISS AMENDED COUNTER-CLAIM; TP 05/20/2010 LETTER TO MS. ANDERSON FROM FRANK A. BAKER; AZP 05/18/2010 CLERK'S CERTIFICATE OF MAILING OF MOTION FOR DEFAULT/ 05/18/2010 DEFAULT TO COASTAL COMMUNITY BANK AND MIKE BYERS VW 05/17/2010 MOTION FOR DEFAULT/DEFAULT ENTERED AGAINST COASTAL 05/17/2010 COMMUNITY BANK AND MIKE BYERS VW 04/21/2010 DEFENDANT JOHN CARROLL'S FIRST AMENDED ANSWER, AFFIRMATIVE 04/21/2010 DEFENSES AND COUNTERCLAIM; SS 04/21/2010 DEFENDANT JODIE CARROLL'S FIRST AMENDED ANSWER AND 04/21/2010 AFFIRMATIVE DEFENSES; SS 04/20/2010 DEFENDANT JOHN CARROLL'S FIRST AMENDED ANSWER, AFFIRMATIVE 04/20/2010 DEFENSES AND COUNTERCLAIM; SS 04/20/2010 DEFENDANT JODIE CARROLL'S FIRST AMENDED ANSWER AND 04/20/2010 AFFIRMATIVE DEFENSES; SS 04/08/2010 ORDER REGARDING VARIOUS MOTIONS;DY 03/31/2010 DEFENDANT AND COUNTER-PLAINTIFF JOHN CARROLL'S MOTION TO 03/31/2010 DIMISS COASTAL'S COMPLAINT FOR LACK OF SUBJECT MATTER 03/31/2010 JURISDICTION; MAC 02/03/2010 MOTION FOR DEFAULT;TB 01/27/2010 NOTICE OF HEARING;DY 01/27/2010 COVER LETTER;DY 01/20/2010 NOTICE OF TAKING DEPOSTION DUCES TECUM STEVE COUNTS VW 01/15/2010 COVER LETTER;DY 01/15/2010 PLAINTIFF'S FIRST REQUEST FOR PRODUCTION TO DEFENDANTS CA 01/15/2010 RROLL;DY 01/15/2010 PLAINTIFF'S NOTICE OF SERVICE OF FIRST INTERROGATORIES TO 01/15/2010 DEFENDANTS CARROLL;DY 01/11/2010 COVER LETTER WITH ATTACHED DISK; JMK 01/11/2010 PLAINTIFF'S SUPPLEMENTAL RESPONSE TO DEFENDANTS' FIRST 01/11/2010 REQUEST FOR PRODUCTION AND REVISED PRIVILEGE LOG; JMK 01/07/2010 FAX COPY OF PLAINTIFF'S MOTION FOR ORDER GRANTING 01/07/2010 TELEPHONIC HEARING; TP 01/07/2010 ORDER GRANTING TELEPHONIC HEARING; TP 01/06/2010 64A. LETTER FROM PAMELA F. MURPHY DATED 1-4-10; SH 01/06/2010 AMENDED NOTICE OF HEARING (1-8-10 AT 10:15 AM); SH 01/06/2010 RETURN OF: NON-SERVICE FOR JMB, LLC; SH 01/06/2010 RETURN OF: NON-SERVICE FOR CHAMBERS STREET BUILDER, INC; SH 01/04/2010 ORDER GRANTING TELEPHONIC HEARING; MDB 12/31/2009 BYERS' MOTION FOR EXTENSION OF TIME;DY 12/31/2009 COVER LETTER; JMK 12/31/2009 NOTICE OF HEARING ON 1/8/10 @ 10:15 AM CT; JMK 12/31/2009 PLAINTIFF'S MOTION FOR ORDER GRANTING TELEPHONIC HEARING; JK 12/31/2009 COVER LETTER; JMK 12/31/2009 BANK'S MOTION TO DISMISS COUNTERCLAIM; JMK 12/31/2009 PLAINTIFF'S MOTION TO STRIKE AFFIRMATIVE DEFENSES; JMK 12/31/2009 BANK'S MOTION TO STRIKE CARROLL'S DEMAND FOR JURY TRIAL; JK 12/29/2009 COUNTER-PLAINTIFF JOHN CARROLL'S MOTION TO COMPEL IN
10 12/29/2009 CAMERA INSPECTION OF ATTORNEY'S BILLING RECORDS' DP 12/29/2009 AFFIDAVIT OF CORPORATE SERVICE ON: COASTAL COMMUNITY BANK; 12/29/2009 SS 12/28/2009 53A. PROOF OF SERVICE TO COASTAL COMMUNITY BANK AND MIKE 12/28/2009 BYERS ON 12/16/09; JMK 12/23/2009 MOTION FOR DEFAULT/DEFAULT ENTERED AGAINST WATERSOUND 12/23/2009 BEACH COMMUNITY ASSOCIATION INC VW 12/23/2009 MOTION FOR DEFAULT/DEFAULT ENTERED AGAINST FRANK'S CASH & 12/23/2009 CARRY, INC. VW 12/21/2009 51A. MOTION FOR DEFAULT/DEFAULT ENTERED; TP 12/21/2009 51B. COVER LETTER; JMK 12/16/2009 COVER LETTER; KDA 12/16/2009 ALIAS SUMMONS ISSUED FOR: CHAMBERS STREET BUILDERS; KDA 12/16/2009 ALIAS SUMMONS ISSUED FOR: JMB LLC; KDA 12/11/2009 SUMMONS ISSUED TO MIKE BYERS;DP 12/11/2009 SUMMONS ISSUED TO COASTAL COMMUNITY BANK; SS 12/08/2009 DEFENDANT AND COUNTER-PLAINTIFF JOHN CARROLL'S FIRST 12/08/2009 MOTION TO COMPEL DISCOVERY FROM COASTAL COMMUNITY BANK VW 12/04/2009 DEFENDANT JOHN CARROLL'S ANSWER, AFFIRMATIVE DEFENSES AND 12/04/2009 COUNTERCLAIM; SS 12/04/2009 DEFENDANT JODIE CARROLL'S ANSWER AND AFFIRMATIVE DEFENSES;SS 11/20/2009 LETTER TO CLERK FROM FRANK A BAKER ESQ; LP 11/20/2009 PLAINTIFF'S RESPONSE TO DEFENDANTS' FIRST REQUEST FOR 11/20/2009 PRODUCTION; LP 11/17/2009 PROOF OF SERVICE TO FRANK'S CASE & CARRY INC;DY 11/17/2009 PROOF OF SERVICE TO WATERSOUND BEACH COMMUNITY ASSOC.;DY 11/17/2009 PROOF OF NONSERVICE ON JMB LLC;DY 11/16/2009 ANSWER; TP 11/16/2009 LETTER TO THE CLERK DATED 11/13/09; TP 11/12/2009 FAX COPY OF LETTER TO JUDGE GREEN FROM FRANK A. BAKER, 11/12/2009 ESQ. DATED 11-04-09; SH 11/12/2009 LETTER TO JUDGE GREEN FROM FRANK A BAKER, ESQ. DATED 11/12/2009 11-3-09; SH 11/12/2009 ORDER DENYING MOTIONS TO DISMISS; SH 11/05/2009 FIRST AMENDED COMPLAINT;RS 11/05/2009 SUMMONS ISSUED TO J.M. B. LLC;RS 11/05/2009 SUMMONS ISSUED TO WATERSOUND BEACH COMMUNITY ASSOCIATION;RS 11/05/2009 SUMMONS ISSUED TO FRANKS CASH & CARRY INC.;RS 11/05/2009 AMENDED NOTICE OF LIS PENDENS;RS 10/27/2009 ORDER GRANTING TELEPHONIC HEARING;RS 10/26/2009 PLAINTIFF'S MOTION FOR ORDER GRANTING TELEPHONIC HEARING;RS 10/26/2009 NOTICE OF HEARING ON:11/03/09 AT 3:00PM;RS 10/19/2009 DEFENDANT JOHN CARROLL'S MOTION TO DISMISS FOR FAILURE TO 10/19/2009 STATE A CAUSE OF ACTION; LP 10/19/2009 DEFENDANT JODIE CARROLL'S MOTION TO DISMISS FOR FAILURE TO 10/19/2009 STATE A CAUSE OF ACTION; LP 10/19/2009 DEFENDANT JOHN CARROLL'S MOTION TO STAY PROCEEDINGS; LP 10/19/2009 DEFENDANT JODIE CARROLL'S MOTION TO STAY PROCEEDINGS; LP 10/19/2009 DEFENDANT'S (JOHN CARROLL) REQUEST FOR PRODUCTION OF 10/19/2009 DOCUMENTS TO PLAINTIFF; LP 10/19/2009 DEFENDANT'S (JODIE CARROLL) REQUEST FOR PRODUCTION OF 10/19/2009 DOCUMENTS TO PLAINTIFF; LP 10/19/2009 ANSWER BY UNITIED STATES OF AMERICA;RS
11 10/09/2009 ACCEPTANCE OF SERVICE OF PROCESS FOR JOHN CARROLL;RS 09/14/2009 MOTION FOR DEFAULT/DEFAULT ENTERED AGAINST TAUNTON TRUSS, 09/14/2009 INC.; JMK 09/02/2009 RETURN OF:SERVICE FOR U.S. TREASURY SERVED 8/21/09;RS 08/27/2009 SUMMONS ISSUED TO JOHN CARROLL; PO 08/27/2009 SUMMONS ISSUED TO JODIE M CARROLL; PO 08/27/2009 RETURN OF SHERIFF'S SERVICE ON: TAUNTON TRUSS; TP 08/26/2009 NOTICE OF FILING:RETURN RECEIPOT FOR CERTIFIED MAIL;RS 08/19/2009 PROOF OF NONSERVICE ON JOHN CARROLL;DY 08/19/2009 PROOF OF NONSERVICE ON JODIE CARROLL;DY 08/19/2009 PROOF OF NONSERVICE ON CHAMBERS STREET BUILDERS;DY 08/07/2009 CIVIL COVER SHEET; PO 08/07/2009 COMPLAINT; PO 08/07/2009 NOTICE OF LIS PENDENS RECORDED; PO 08/07/2009 SUMMONS ISSUED TO JOHN CARROLL; PO 08/07/2009 SUMMONS ISSUED TO JODIE M CARROLL; PO 08/07/2009 SUMMONS ISSUED TO CHAMBERS STREET BUILDERS; PO 08/07/2009 SUMMONS ISSUED TO TAUNTON TRUSS, INC; PO 08/07/2009 SUMMONS ISSUED TO THE US DEPT OF THE TREASURY; PO
1 EXHIBIT C I THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT I AD FOR WALTO COUTY, FLORIDA CIVIL DIVISIO
CETEIAL BAK,
Plaintiff, Case o.: 09CA001577 vs.
JOH CARROLL, JODIE CARROLL, CHAMBERS STREET BUILDERS, IC., TAUTO TRUSS, IC., and DEPARTMET OF THE TREASURY ITERAL REVEUE SERVICE, et al
Defendants. ____________________________________
JOH CARROLL,
Counter-Plaintiff
vs.
COASTAL COMMUITY BAK and MIKE BYERS
Counter-Defendants.
____________________________________________/
DEFEDAT and COUTER-PLAITIFF JOH CARROLLS REEWED MOTIO TO DISMISS COASTAL and CETEIALS COMPLAIT FOR LACK OF SUBJECT MATTER JURISDICTIO
Defendant and Counter-Plaintiff John Carroll (Carroll), pursuant to Florida Rule of Civil Procedure 1.140(b)(1) and 1.140(h)(2) moves for an Order Dismissing Coastal Community Banks (Coastal) and Centennial Banks (Centennial) Complaint for lack of subject matter jurisdiction and shows: 1. This Court lacks subject matter jurisdiction to proceed. Subject matter
2 jurisdiction has not been established in Coastals First Amended Complaint. The jurisdictional question can be raised at any time and can never be time-barred, Florida Rule of Civil Procedure 1.140(h)(2). 2. The First Amended Complaint fails to describe the Status of Plaintiff insomuch as no specific facts have been alleged which determine whether or not Coastal or Centennial are a Corporation, LLC, LLP, etc. and if so, whether or not Coastal or Centennial is currently authorized to do business in the State of Florida. Argument and Citations 3. Parties cannot stipulate to jurisdiction over subject matter where none exists Cunningham v. Standard Guar. Ins. Co., 630 So 2d 179 (Fla 1994) In re D.N.H.W., 955 So 2d 1236 (Fla 2d DCA 2007); and subject-matter jurisdiction may not be conferred on court by consent of parties MCR Funding v. CMG Funding Corp., 771 So 2d 32, 35 (Fla 4th DCA 2000) 4. This Court has dismissed similar claims with the right to Amend the Complaint in HSBC Bank USA, etc. v Boone, Walton County 08 CA 557 and Lasalle Bank, etc. v. Schumacher, et al, Walton County 09 CA 247.
WHEREFORE, Carroll requests that the court enter an Order Dismissing Plaintiffs First Amended Complaint without Prejudice; and granting such other or further relief as is appropriate.
3
I HEREBY CERTIFY that a copy of the foregoing was forwarded to Frank A. Baker, Esq., 4431 Lafayette Street, Marianna, FL. 32446, counsel for Coastal, and to Paul Alan Sprowls, Asst. U.S. Attorney, 111 North Adams Street, Tallahassee, FL 32301, counsel for the IRS, and to Mike Byers 12141 Panama City Beach, FL. 32407 by regular mail this 10th day of September, 2010.
1 EXHIBIT C I THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT I AD FOR WALTO COUTY, FLORIDA CIVIL DIVISIO
COASTAL COMMUITY BAK,
Plaintiff, Case o.: 09CA001577 vs.
JOH CARROLL, JODIE CARROLL, CHAMBERS STREET BUILDERS, IC., TAUTO TRUSS, IC., and DEPARTMET OF THE TREASURY ITERAL REVEUE SERVICE, et al
Defendants. ____________________________________
JOH CARROLL,
Counter-Plaintiff
vs.
COASTAL COMMUITY BAK and MIKE BYERS
Counter-Defendants.
____________________________________________/
DEFEDAT and COUTER-PLAITIFF JOH CARROLLS MEMORADUM I OPPOSITIO TO COASTAL COMMUITY BAKS MOTIO FOR SUMMARY JUDGMET
Defendant and Counter-Plaintiff John Carroll (Carroll), pursuant to Florida Rule of Civil Procedure 1.510(C) moves for an Order Denying Coastal Community Banks (Coastal) Motion for Summary Judgment for the following reasons and shows: 1. On June 30, 2010, Chief Judge Terry D. Terrell signed Administrative Order 2010-32 creating Division W.
2 2. On July 1, 2010, this case was transferred to the Honorable Judge Brace. 3. Thereafter, on July 7, 2010, Coastal Community Bank filed their first Motion for Summary Judgment. 4. Six weeks thereafter, on August 12, 2010, Frank Baker, Esq. communicated a Motion to Substitute Party to the Honorable Judge Green (Exhibit A). 5. Seven weeks after Judge Brace became the acting Judge in the case, Judge Green signed an Order Substituting Party from Coastal Community Bank to Centennial Bank (Exhibit B). 6. At some point, Frank Baker, Esq. set a hearing on Coastal Community Banks Motion for Summary Judgment. Thereafter, that hearing was cancelled. 7. John Carroll made his Motion to Dismiss, Motion to Compel Discovery and Motion for in camera inspection of Mr. Bakers billing records and filed same with the Clerk of Courts with copies to all parties of record and Judge Brace. 8. At some point thereafter, Mr. Baker purportedly filed an Amended Motion for Summary Judgment. On September 17 2010, Mr. Baker prepared a Notice of Hearing setting that Amended Motion for Summary Judgment for hearing along with Carrolls three Motions. 9. Neither Coastal Community Bank nor Centennial Bank have filed their alleged Amended Motion for Summary Judgment with the Clerk and as of this day, October 14, 2010, Carroll has not received any copy of said Amended Motion. 10. Florida Rule of Civil Procedure 1.510 parts (a) and (c) are clear on the timelines for the preparation, issuance, service and response to Motions for Summary Judgment. There is no way that Carroll can oblige this Court or Mr. Baker with the
3 required responses as Carroll is being squeezed by the dates mandated by Rule 1.510 (c). Neither Carroll nor the Clerk has received their copies of the Amended Motion for Summary Judgment. 11. Carroll certainly cannot prepare a response to a Motion which is presently undisclosed and the hearing commences in just 1 hour. 12. Suffice it to say that Carroll is the victim of fraud in this underlying action and intends to prove same at the trial, but Carroll cannot prepare his Memo in Response to a Motion for Summary Judgment he hasnt seen.
WHEREFORE, Carroll requests that the court enter an Order Denying Coastal Community Banks Motion for Summary Judgment; and granting such other or further relief as is appropriate.
I HEREBY CERTIFY that a copy of the foregoing was forwarded to Frank A. Baker, Esq., 4431 Lafayette Street, Marianna, FL. 32446, counsel for Coastal, and to Paul Alan Sprowls, Asst. U.S. Attorney, 111 North Adams Street, Tallahassee, FL 32301, counsel for the IRS, and to Mike Byers 12141 Panama City Beach, FL. 32407 by regular mail this 14th day of October, 2010.
CASE NUMBER FILE DATE CASE TYPE STATUS 662009CA001577CAXXXX [09001577CA] 08/07/2009 REAL PROP OR MORTGAGE FORECLOSURE PENDING [DEFENDANT=CARROLL, JOHN DEFENDANT=CARROLL, JODIE M. DEFENDANT=CJAMBERS STREET BUILDERS, INC. DEFENDANT=TAUNTON TRUSS, INC. DEFENDANT=DEPT OF THE TREASURY INTERNAL DEFENDANT=J.M.B. LLC DEFENDANT=UNITED STATES OF AMERICA DEFENDANT=FRANK'S CASH AND CARRY INC DEFENDANT=WATERSOUND BEACH COMMUNITY PLAINTIFF=CENTENNIAL BANK, AS SUCCESSOR ] [JUDGE=BRACE, AVERY KEITH] LAST DOCKET DATE=09/20/2010 JURY TRIAL=Yes [Court Events | Finance Info | Docket Info] ACTION DATE TEXT 09/20/2010 COVER LETTER; AZP 09/20/2010 NOTICE OF HEARING; AZP 09/16/2010 LETTER FROM MR. BAKER DATED 09/10/10; TP 09/16/2010 COPY FO COUNTER-PLAINTIFF JOHN CARROLL'S RENEWED SECOND 09/16/2010 MOTION TO COMPEL DISCOVERY FROM COASTAL COMMUNITY BANK; TP 09/16/2010 COPY OF COUNTER-PLAINTIFF JOHN CARROLL'S RENEWED MOTION TO 09/16/2010 COMPEL IN CAMERA INSPECTION OF ATTORNEY'S BILLING RECORDS; 09/16/2010 COPY OF DEFENDANT AND COUNTER-PLAINTIFF JOHN CARROLL'S 09/16/2010 RENEWED MOTION TO DISMISS COASTAL AND CENTENNIAL'S 09/16/2010 COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION; TP 09/13/2010 COVER LETTER FROM FRANK A BAKER FILED 09/13/2010 NOTICE OF HEARING CANCELLATION FILED 09/13/2010 DEFENDANT AND COUNTER-PLAINTIFF JOHN CARROLL'S MOTION FOR 09/13/2010 ALTERNATE HEARING DATE; LP 09/10/2010 COVER LETTER FROM JOHN CARROLL TO FRANK BAKER; LP 09/10/2010 COUNTER-PLAINTIFF JOHN CARROLL'S RENEWED SECOND MOTION TO 09/10/2010 COMPEL DISCOVERY FROM COASTAL COMMUNITY BANK; LP 09/10/2010 COUNTER-PLAINTIFF JOHN CARROLL'S RENEWED MOTION TO COMPEL 09/10/2010 IN CAMERA INSPECTION OF ATTORNEY'S BILLING RECORDS; LP 09/10/2010 DEFENDANT AND COUNTER-PLAINTIFF JOHN CARROLL'S RENEWED 09/10/2010 MOTION TO DISMISS COASTAL AND CENTENNIAL'S COMPLAINT FOR 09/10/2010 LACK OF SUBJECT MATTER JURISDICTION; LP 08/20/2010 LETTER TO THE CLERK DATED 08/19/10; TP 08/20/2010 NOTICE OF HEARING ON 09/16/10 @ 2:10 PM CT; TP 08/17/2010 COVER LETTER FROM FRANK BAKER TO JUDGE GREEN; MAC 08/17/2010 ORDER SUBSTITUTING PARTY; MDB 08/16/2010 LETTER TO CLERK DATED 08/13/2010;FP 08/16/2010 MOTION TO SUBSTITUTE PARTY;FP 07/07/2010 COVER LETTER; AZP 07/07/2010 PLAINTIFF'S MOITON FOR SUMMARY JUDGMENT; AZP 07/07/2010 AFFIDAVIT IN PROOF OF CLAIM; AZP 06/02/2010 ORDER VACATING CLERK'S DEFAULT; SH 06/02/2010 COUNTER PLAINTIFF'S RESPONSE TO COUNTER-DEFENDANT'S MOTION 06/02/2010 TO VACATE DEFAULT; AMS 05/27/2010 COUNTER PLAINTIFF'S RESPONSE TO COUNTER-DEFENDANT'S MOTION 05/27/2010 TO VACATE DEFAULT; SS 05/26/2010 LETTER RETURNED UNDELIVERED BY POST OFFICE FOR: MIKE BYERS; 05/26/2010 LP 05/24/2010 COVER LETTER FROM FRANK A. BAKER:KD
6 05/24/2010 PLAINTIFF'S MOTION TO VACATE IMPROVIDENT CLERKS DEFAULT:KD 05/21/2010 LETTER 05/21/2010 REPLY 05/21/2010 LETTER TO THE CLERK DATED 05/19/10; TP 05/21/2010 PLAINTIFF'S MOTION TO STRIKE AFFIRMATIVE DEFENSES; TP 05/21/2010 BANK'S SECOND MOTION TO STRIKE CARROLL'S RENEWED DEMAND FOR 05/21/2010 JURY TRIAL; TP 05/21/2010 BANK'S MOTION TO DISMISS AMENDED COUNTER-CLAIM; TP 05/20/2010 LETTER TO MS. ANDERSON FROM FRANK A. BAKER; AZP 05/18/2010 CLERK'S CERTIFICATE OF MAILING OF MOTION FOR DEFAULT/ 05/18/2010 DEFAULT TO COASTAL COMMUNITY BANK AND MIKE BYERS VW 05/17/2010 MOTION FOR DEFAULT/DEFAULT ENTERED AGAINST COASTAL 05/17/2010 COMMUNITY BANK AND MIKE BYERS VW 04/21/2010 DEFENDANT JOHN CARROLL'S FIRST AMENDED ANSWER, AFFIRMATIVE 04/21/2010 DEFENSES AND COUNTERCLAIM; SS 04/21/2010 DEFENDANT JODIE CARROLL'S FIRST AMENDED ANSWER AND 04/21/2010 AFFIRMATIVE DEFENSES; SS 04/20/2010 DEFENDANT JOHN CARROLL'S FIRST AMENDED ANSWER, AFFIRMATIVE 04/20/2010 DEFENSES AND COUNTERCLAIM; SS 04/20/2010 DEFENDANT JODIE CARROLL'S FIRST AMENDED ANSWER AND 04/20/2010 AFFIRMATIVE DEFENSES; SS 04/08/2010 ORDER REGARDING VARIOUS MOTIONS;DY 03/31/2010 DEFENDANT AND COUNTER-PLAINTIFF JOHN CARROLL'S MOTION TO 03/31/2010 DIMISS COASTAL'S COMPLAINT FOR LACK OF SUBJECT MATTER 03/31/2010 JURISDICTION; MAC 02/03/2010 MOTION FOR DEFAULT;TB 01/27/2010 NOTICE OF HEARING;DY 01/27/2010 COVER LETTER;DY 01/20/2010 NOTICE OF TAKING DEPOSTION DUCES TECUM STEVE COUNTS VW 01/15/2010 COVER LETTER;DY 01/15/2010 PLAINTIFF'S FIRST REQUEST FOR PRODUCTION TO DEFENDANTS CA 01/15/2010 RROLL;DY 01/15/2010 PLAINTIFF'S NOTICE OF SERVICE OF FIRST INTERROGATORIES TO 01/15/2010 DEFENDANTS CARROLL;DY 01/11/2010 COVER LETTER WITH ATTACHED DISK; JMK 01/11/2010 PLAINTIFF'S SUPPLEMENTAL RESPONSE TO DEFENDANTS' FIRST 01/11/2010 REQUEST FOR PRODUCTION AND REVISED PRIVILEGE LOG; JMK 01/07/2010 FAX COPY OF PLAINTIFF'S MOTION FOR ORDER GRANTING 01/07/2010 TELEPHONIC HEARING; TP 01/07/2010 ORDER GRANTING TELEPHONIC HEARING; TP 01/06/2010 64A. LETTER FROM PAMELA F. MURPHY DATED 1-4-10; SH 01/06/2010 AMENDED NOTICE OF HEARING (1-8-10 AT 10:15 AM); SH 01/06/2010 RETURN OF: NON-SERVICE FOR JMB, LLC; SH 01/06/2010 RETURN OF: NON-SERVICE FOR CHAMBERS STREET BUILDER, INC; SH 01/04/2010 ORDER GRANTING TELEPHONIC HEARING; MDB 12/31/2009 BYERS' MOTION FOR EXTENSION OF TIME;DY 12/31/2009 COVER LETTER; JMK 12/31/2009 NOTICE OF HEARING ON 1/8/10 @ 10:15 AM CT; JMK 12/31/2009 PLAINTIFF'S MOTION FOR ORDER GRANTING TELEPHONIC HEARING; JK 12/31/2009 COVER LETTER; JMK 12/31/2009 BANK'S MOTION TO DISMISS COUNTERCLAIM; JMK 12/31/2009 PLAINTIFF'S MOTION TO STRIKE AFFIRMATIVE DEFENSES; JMK 12/31/2009 BANK'S MOTION TO STRIKE CARROLL'S DEMAND FOR JURY TRIAL; JK 12/29/2009 COUNTER-PLAINTIFF JOHN CARROLL'S MOTION TO COMPEL IN
7 12/29/2009 CAMERA INSPECTION OF ATTORNEY'S BILLING RECORDS' DP 12/29/2009 AFFIDAVIT OF CORPORATE SERVICE ON: COASTAL COMMUNITY BANK; 12/29/2009 SS 12/28/2009 53A. PROOF OF SERVICE TO COASTAL COMMUNITY BANK AND MIKE 12/28/2009 BYERS ON 12/16/09; JMK 12/23/2009 MOTION FOR DEFAULT/DEFAULT ENTERED AGAINST WATERSOUND 12/23/2009 BEACH COMMUNITY ASSOCIATION INC VW 12/23/2009 MOTION FOR DEFAULT/DEFAULT ENTERED AGAINST FRANK'S CASH & 12/23/2009 CARRY, INC. VW 12/21/2009 51A. MOTION FOR DEFAULT/DEFAULT ENTERED; TP 12/21/2009 51B. COVER LETTER; JMK 12/16/2009 COVER LETTER; KDA 12/16/2009 ALIAS SUMMONS ISSUED FOR: CHAMBERS STREET BUILDERS; KDA 12/16/2009 ALIAS SUMMONS ISSUED FOR: JMB LLC; KDA 12/11/2009 SUMMONS ISSUED TO MIKE BYERS;DP 12/11/2009 SUMMONS ISSUED TO COASTAL COMMUNITY BANK; SS 12/08/2009 DEFENDANT AND COUNTER-PLAINTIFF JOHN CARROLL'S FIRST 12/08/2009 MOTION TO COMPEL DISCOVERY FROM COASTAL COMMUNITY BANK VW 12/04/2009 DEFENDANT JOHN CARROLL'S ANSWER, AFFIRMATIVE DEFENSES AND 12/04/2009 COUNTERCLAIM; SS 12/04/2009 DEFENDANT JODIE CARROLL'S ANSWER AND AFFIRMATIVE DEFENSES;SS 11/20/2009 LETTER TO CLERK FROM FRANK A BAKER ESQ; LP 11/20/2009 PLAINTIFF'S RESPONSE TO DEFENDANTS' FIRST REQUEST FOR 11/20/2009 PRODUCTION; LP 11/17/2009 PROOF OF SERVICE TO FRANK'S CASE & CARRY INC;DY 11/17/2009 PROOF OF SERVICE TO WATERSOUND BEACH COMMUNITY ASSOC.;DY 11/17/2009 PROOF OF NONSERVICE ON JMB LLC;DY 11/16/2009 ANSWER; TP 11/16/2009 LETTER TO THE CLERK DATED 11/13/09; TP 11/12/2009 FAX COPY OF LETTER TO JUDGE GREEN FROM FRANK A. BAKER, 11/12/2009 ESQ. DATED 11-04-09; SH 11/12/2009 LETTER TO JUDGE GREEN FROM FRANK A BAKER, ESQ. DATED 11/12/2009 11-3-09; SH 11/12/2009 ORDER DENYING MOTIONS TO DISMISS; SH 11/05/2009 FIRST AMENDED COMPLAINT;RS 11/05/2009 SUMMONS ISSUED TO J.M. B. LLC;RS 11/05/2009 SUMMONS ISSUED TO WATERSOUND BEACH COMMUNITY ASSOCIATION;RS 11/05/2009 SUMMONS ISSUED TO FRANKS CASH & CARRY INC.;RS 11/05/2009 AMENDED NOTICE OF LIS PENDENS;RS 10/27/2009 ORDER GRANTING TELEPHONIC HEARING;RS 10/26/2009 PLAINTIFF'S MOTION FOR ORDER GRANTING TELEPHONIC HEARING;RS 10/26/2009 NOTICE OF HEARING ON:11/03/09 AT 3:00PM;RS 10/19/2009 DEFENDANT JOHN CARROLL'S MOTION TO DISMISS FOR FAILURE TO 10/19/2009 STATE A CAUSE OF ACTION; LP 10/19/2009 DEFENDANT JODIE CARROLL'S MOTION TO DISMISS FOR FAILURE TO 10/19/2009 STATE A CAUSE OF ACTION; LP 10/19/2009 DEFENDANT JOHN CARROLL'S MOTION TO STAY PROCEEDINGS; LP 10/19/2009 DEFENDANT JODIE CARROLL'S MOTION TO STAY PROCEEDINGS; LP 10/19/2009 DEFENDANT'S (JOHN CARROLL) REQUEST FOR PRODUCTION OF 10/19/2009 DOCUMENTS TO PLAINTIFF; LP 10/19/2009 DEFENDANT'S (JODIE CARROLL) REQUEST FOR PRODUCTION OF 10/19/2009 DOCUMENTS TO PLAINTIFF; LP 10/19/2009 ANSWER BY UNITIED STATES OF AMERICA;RS
8 10/09/2009 ACCEPTANCE OF SERVICE OF PROCESS FOR JOHN CARROLL;RS 09/14/2009 MOTION FOR DEFAULT/DEFAULT ENTERED AGAINST TAUNTON TRUSS, 09/14/2009 INC.; JMK 09/02/2009 RETURN OF:SERVICE FOR U.S. TREASURY SERVED 8/21/09;RS 08/27/2009 SUMMONS ISSUED TO JOHN CARROLL; PO 08/27/2009 SUMMONS ISSUED TO JODIE M CARROLL; PO 08/27/2009 RETURN OF SHERIFF'S SERVICE ON: TAUNTON TRUSS; TP 08/26/2009 NOTICE OF FILING:RETURN RECEIPOT FOR CERTIFIED MAIL;RS 08/19/2009 PROOF OF NONSERVICE ON JOHN CARROLL;DY 08/19/2009 PROOF OF NONSERVICE ON JODIE CARROLL;DY 08/19/2009 PROOF OF NONSERVICE ON CHAMBERS STREET BUILDERS;DY 08/07/2009 CIVIL COVER SHEET; PO 08/07/2009 COMPLAINT; PO 08/07/2009 NOTICE OF LIS PENDENS RECORDED; PO 08/07/2009 SUMMONS ISSUED TO JOHN CARROLL; PO 08/07/2009 SUMMONS ISSUED TO JODIE M CARROLL; PO 08/07/2009 SUMMONS ISSUED TO CHAMBERS STREET BUILDERS; PO 08/07/2009 SUMMONS ISSUED TO TAUNTON TRUSS, INC; PO 08/07/2009 SUMMONS ISSUED TO THE US DEPT OF THE TREASURY; PO
EXHIBIT C I THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT I AD FOR WALTO COUTY, FLORIDA CIVIL DIVISIO
COASTAL COMMUITY BAK,
Plaintiff, Case o.: 09CA001577 vs.
JOH CARROLL, JODIE CARROLL, CHAMBERS STREET BUILDERS, IC., TAUTO TRUSS, IC., and DEPARTMET OF THE TREASURY ITERAL REVEUE SERVICE, et al
Defendants. ____________________________________
JOH CARROLL,
Counter-Plaintiff
vs.
COASTAL COMMUITY BAK and MIKE BYERS
Counter-Defendants.
____________________________________________/
COUTER-PLAITIFF JOH CARROLLS MOTIO TO COMPEL I CAMERA ISPECTIO OF ATTOREYS BILLIG RECORDS
Counter-Plaintiff, John Carroll (Carroll), pursuant to Florida Rule of Civil Procedure 1.380, respectfully moves for an Order directing Defendant Coastal Community Bank (Coastal) to deliver under seal to the Court no later than January 29, 2010, records pertaining to their legal bills, expenses and dates of payment in similar litigation to the litigation here for an in camera review by the Court. Grounds for this Motion are presented below:
1. In this case Coastal seeks $56,992.83 which it swears it has incurred and is obligated to pay its attorney, Frank A. Baker, Esq. as recovery of liquidated damages of 10% of the purported outstanding principal balance on a promissory note. 2. Coastal routinely complains that section 687.06, Florida Statutes (2008), plainly entitles them an attorneys fee amounting to ten percent of the remaining mortgage principal. Coastal assumes that this trial court lacks discretion to reject the contractual provision. 3. Carroll argues that Coastal uses this contractual provision in a matter that is against Florida Statute and Case Law by using it as a negotiation tactic and profit center for bank insiders. 4. Coastal has assured Carroll that Frank A. Baker, Esq.s fees are far less than the amount that they seek to collect in foreclosure actions, and that they only seek 10% of the principal amount because Florida Statute 687.06 automatically awards the payment to the lender. 5. Coastal has been awarded the enhanced attorneys fees provision twice in Walton County Circuit Court in as many years. The first case, Coastal v. Shakespeare, was settled by Summary Judgement, with a very modest case docket, in which Coastal was awarded $30,000.00 in Attorneys fees. The second case, Coastal v. Money, was settled by Default Final Judgement with a case docket absent any substantial filings, and Coastal was again awarded $30,000.00 in Attorneys fees. It is elementary that a Default Judgement and a Summary Judgement are very different and would cause at least some variation in actual attorneys fees.
6. Curiously, Coastal was awarded a Default Judgement in Coastal v. Edwards during the same time period, with a similar principal amount claimed due and Frank A. Baker, Esq. only billed $7,400.00 in Attorneys fees. 7. On November 17, 2009 the 1 st DCA struck down Coastals theory that they are automatically entitled to profit from a Defendants loss, stating, Under Florida law, a contract to pay attorneys fees is a contract for indemnity. Sarasota Publg Co. v. E.C. Palmer, 135 So. 521, 521 (Fla. 1931). Such provisions are meant to indemnify a party, such as the holder of a note and mortgage, for money spent to protect its interest. See Brett v. First atl Bank of Marianna, 120 So. 554 (Fla. 1929). Such a provision is not designed to allow the mortgagee [to] recover from the mortgagor for solicitors fees a sum in excess of the amount which the former has paid . . . to his solicitor. 8. If this case is not settled by the parties, an in camera review of these records by the Court may be decisive in the Courts resolution of this case and critical to Carrolls Appellate review. See, e.g., Times Publishing Co. v. City of St. Petersburg, 558 So. 2d 487 (Fla. 2d DCA 2002) (failure to make records inspected in camera by the trial court part of the record on appeal prevented review of the trial courts findings that the records were not relevant). 9. Coastal will undoubtedly object to Carrolls discovery request, as they have in the past, pursuant some theory of attorney client privilege and therefore, an in camera inspection of assertedly exempt records is generally the only way for a trial court to determine whether or not a claim of exemption applies. Garrison v. Bailey, 4 So. 3d, 683 684 (Florida 1 st DCA 2009) 10. Accordingly, on Carrolls behalf, the Court should direct Coastal to deliver to the Court, under seal, all attorney billing and payments received original documents in the following cases in which Coastal sought and was awarded attorneys fees of 10% of the outstanding principal balance to verify that Coastal actually paid Frank A. Baker, Esq. the amount awarded:
Walton County Circuit Case 07CA676 Walton County Circuit Case 08CA1956
Bay County Circuit Case 08CA1070 Bay County Circuit Case 07CA4151 Bay County Circuit Case 07CA1331 Bay County Circuit Case 07CA174
Wherefore, Carroll respectfully requests that this Court grant this Motion and direct Coastal to deliver, under seal, to the Court the records no later than January 29, 2010 so the Court may inspect, analyze and review the records in camera to verify Carrolls claims and enter the Courts findings as evidence.
I HEREBY CERTIFY that a copy of the foregoing was forwarded to Frank A. Baker, Esq., 4431 Lafayette Street, Marianna, FL. 32446, counsel for Coastal, and to Paul Alan Sprowls, Asst. U.S. Attorney, 111 North Adams Street, Tallahassee, FL 32301, counsel for the IRS, and to Taunton Truss, Inc., in care of Abigail J. Taunton, 702 N. Highway 71, Wewahitchka, FL 32465, and to Franks Cash & Carry, Inc. in care of Frank M. Schissler 619 Pitts Bayshore, Freeport, FL 32439, and to Gary Shipman, Esq. at 1414 County Highway 283 South, Suite B, Santa Rosa Beach, FL 32459, counsel for WaterSound by regular mail this 24 th day of December, 2009.
Respectfully submitted, ___________________________ John Carroll Box 613524 WaterSound, FL 32461 Phone (850) 231-5616 Fax (850) 622-5618 IN THE CIRCUIT COURT OF THE FIRST 1UDICIAL CIRCUIT IN AND FOR WALTON COUNTY, FLORIDA CIVIL DIVISION
COASTAL COMMUNITY BANK,
Plaintiff, Case No.: 09CA001577 vs.
1OHN CARROLL, 1ODIE CARROLL, CHAMBERS STREET BUILDERS, INC., TAUNTON TRUSS, INC., and DEPARTMENT OF THE TREASURY INTERNAL REVENUE SERVICE, et al
Defendants.
1OHN CARROLL,
Counter-Plaintiff
vs.
COASTAL COMMUNITY BANK and MIKE BYERS
Counter-Defendants.
/
DEFENDANT and COUNTER-PLAINTIFF 1OHN CARROLL`S MOTION FOR REHEARING
COMES NOW COUNTER PLAINTIFF, pursuant Florida Rules oI Civil Procedure
1.530 and states: 1. On October 14, 2010 the Court heard PlaintiII`s Motion Ior Summary Judgment over the objection oI John Carroll who was not served with Centennial`s Motion Ior Summary Judgment (nor was the Court served with Centennials Motion). 2. Counsel Ior Centennial decided during the hearing to Iorgo Centennial`s Motion Ior Summary Judgment and ride on Coastal`s Motion Ior Summary Judgment instead. 3. Carroll knew, and knows, that Coastal`s Motion Ior Summary Judgment could not issue because oI unresolved material issues to be resolved at trial, but Carroll also knew that he was not required to provide a Memorandum in Opposition to Coastal`s Motion, because Coastal was closed by the FDIC long beIore the hearing on the Motion Ior Summary Judgment. 4. Carroll intended to Iile a Memorandum in Opposition to Centennial`s Motion Ior Summary Judgment, as soon as it was Iiled, but Centennial never Iiled their Motion, despite the Iact that he Notice oI Hearing said they had. 5. Even this Honorable Court had no idea prior to the hearing that the parties would not be arguing Centennial`s Motion. 6. The simple Iact oI the matter is, the loan that Centennial now argues to Ioreclose was modiIied and replaced by a new loan, with a new balance, new terms, construction Iinancing and new account number. (Exhibit A) 7. It is elementary that Centennial cannot Ioreclose on a loan that is extinct and has been replaced by a new loan. WHEREFORE, Carroll requests: A) RelieI Irom the Order granting the partial Iinal summary judgment. B) A belated re-hearing on the Motion Ior Partial Final Summary Judgment so that this Court can hear Irom the Counter PlaintiII and the Internal Revenue Service on the terms and conditions oI the true loan in place. C) All Iurther relieI deemed appropriate by this Court. CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy oI the Ioregoing was Iorwarded to Frank A. Baker, Esq., 4431 LaIayette Street, Marianna, FL. 32446, counsel Ior Coastal, and to Paul Alan Sprowls, Asst. U.S. Attorney, 111 North Adams Street, Tallahassee, FL 32301, counsel Ior the IRS, and to Taunton Truss, Inc., in care oI Abigail J. Taunton, 702 N. Highway 71, Wewahitchka, FL 32465, and to Franks Cash & Carry, Inc. in care oI FrankM. Schissler 619 Pitts Bayshore, Freeport, FL 32439, and to Gary Shipman, Esq. at 1414 County Highway 283 South, Suite B, Santa Rosa Beach, FL 32459, counsel Ior WaterSound by regular mail this 31st day oI January, 2011 and by original service oI process on Mike Byers.
BBBBBBBBBBBBBBBBBBBBBBBBBBBBB John P. Carroll Box 613524 WaterSound, FL 32461 Tel: (850)231-5616 Fax: (850)622-5618 CCB-Carroll000069
Victor Bayron v. Correctional Officer Trudeau and Correctional Counselor G. Petrushun, Individually and in Their Official Capacities, 702 F.2d 43, 2d Cir. (1983)