I� THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT

I� A�D FOR WALTO� COU�TY, FLORIDA

CIVIL DIVISIO�

COASTAL COMMU�ITY BA�K,

Plaintiff, Case �o.: 09CA001577

vs.

JOH� CARROLL, JODIE CARROLL,

CHAMBERS STREET BUILDERS, I�C.,

TAU�TO� TRUSS, I�C., and DEPARTME�T

OF THE TREASURY I�TER�AL REVE�UE

SERVICE, et al

Defendants.

____________________________________

JOH� CARROLL,

Counter-Plaintiff

vs.

COASTAL COMMU�ITY BA�K and

MIKE BYERS

Counter-Defendants.

____________________________________________/

COU�TER-PLAI�TIFF JOH� CARROLL’S RE�EWED MOTIO� TO

COMPEL I� CAMERA I�SPECTIO� OF ATTOR�EY’S BILLI�G 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 September

24, 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’s pleadings seek $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 attorney’s 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 and Counter-Defendant Byers have 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 attorney’s 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 Attorney’s 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 Attorney’s fees. It is elementary that a Default

Judgement and a Summary Judgement are very different and would cause at least some

variation in actual attorney’s 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 Attorney’s fees.

7. On November 17, 2009 the 1st DCA struck down Baker and Coastal’s

theory that they are automatically entitled to profit from a Defendant’s loss, stating,

“Under Florida law, a “contract to pay attorney’s fees is a contract

for indemnity.” Sarasota Publ’g 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 �at’l Bank of Marianna, 120 So. 554 (Fla. 1929). Such

a provision is not designed to allow the “mortgagee [to] recover from the

mortgagor for solicitor’s 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 Court’s resolution of this case and critical to

Carroll’s 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 court’s findings that the

records were not relevant).

9. Coastal has resisted and will undoubtedly object to Carroll’s discovery

request, as they have in the past, pursuant some theory of attorney client privilege and

therefore, “an in camera inspection of asserted 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 1st DCA 2009)

10. During the hearing held January 8, 2010 at 10:15 a.m. on Carroll’s Motion

to Compel production, Mr. Baker and Coastal retreated from their position that they are

entitled to the attorney’s fees sought. On record Mr. Baker informed Judge Green that he

and Coastal will not be seeking the attorneys fees referenced in their complaint. Despite

this record admission, Mr. Baker and his clients have moved for Summary Judgment

seeking to collect these same attorneys’ fees.

11. At trial, Counter-Plaintiff Carroll will show that Coastal and Baker have

engaged in an unlawful coven whereby Baker seeks from Carroll, and has obtained

against others, judgment for attorneys fees which are improper. Accordingly, on

Carroll’s behalf, the Court should direct Coastal to deliver to the Court, under seal, all

attorneys billing records and records of payments received in the following cases in

which Coastal sought and was awarded attorney’s 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 Baker and Coastal to deliver all of the records referenced herein, under seal, to the Court no later than September 24, 2010 so the Court may inspect, analyze and review the records in camera to verify Carroll’s claims and enter the Court’s 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 Centennial, and to Paul Alan Sprowls, Asst. U.S. Attorney, 111 North Adams Street, Tallahassee, FL 32301, counsel for the IRS by regular mail this 10th day of September, 2010.

Respectfully submitted, ___________________________

John Carroll Box 613524 WaterSound, FL 32461 Phone (850) 231-5616 Fax (850) 622-5618