DOCUMENT 57

ELECTRONICALLY FILED
8/14/2023 1:38 PM
38-CV-2023-900317.00
CIRCUIT COURT OF
HOUSTON COUNTY, ALABAMA
CARLA H. WOODALL, CLERK
IN THE CIRCUIT COURT OF HOUSTON COUNTY, ALABAMA

GREATER BEULAH MISSIONARY )

BAPTIST CHURCH, )
)
Plaintiff, ) CASE NO. : CV-2023-900317
)
v. )
)
DARRYL S. ROBERTS, )
)
Defendant. )

MOTION TO DISSOLVE TEMPORARY RESTRAINING ORDER

COMES NOW the Defendant, by and through his undersigned counsel of record, and

respectfully moves this Honorable Court for its Order dissolving the temporary restraining order

(“TRO”) issued by this Court’s Order on August 9, 2023 for failure to comply with Rule 65(b),

Ala. R. Civ. P. As grounds therefore, the undersigned would show unto the Court as follows:

Rule 65(b) of the Alabama Rules of Civil Procedure outlines the procedural requirements

for a temporary restraining order. TRO procedure is unique in that it allows a party to obtain

temporary injunctive relief from the court without notice to or the appearance of the opposing

party. However, there are strict limits: Rule 65(b) provides that a TRO may be granted without

notice only if:

(1) It clearly appears from specific facts shown by affidavit or by the verified complaint

that immediate and irreparable injury, loss, or damage will result to the applicant

before the adverse party can be heard in opposition, and

(2) The applicant’s attorney certifies to the court in writing the efforts, if any, which have

been made to give the notice and the reasons supporting the claim that notice should

not be required.
 DOCUMENT 57

“Rule 65(b) … does not permit an ex parte TRO without a certification in writing to the

trial court showing the efforts, if any, made to give notice to the adversary, accompanied by

reasons supporting [the] claim that notice should not be required. The plain language of this rule

assumes that notice is prima facie required…” International Molders & Allied Workers Union,

AFL-CIO-CLCv. AlicevilleVeneers Division, Buchanan Lumber Birmingham, 348 So. 2d 1385,

1390 (Ala.1977) (emphasis in original) (internal citations omitted).

As the United States Supreme Court observed in Granny Goose Foods, Inc. v. Board of

Teamsters & Auto Truck Drivers, 415 U.S. 423, 438-39 (1974): “The stringent

restrictions imposed by [Rule 65(b), Fed. R. Civ. P.,] on the availability of ex parte

temporary restraining orders reflect the fact that our entire jurisprudence runs counter to

the notion of court action taken before reasonable notice and an opportunity to be heard

has been granted both sides of a dispute.”

International Molders, supra.

Here, Plaintiffs have failed to comply with either requirement of Rule 65(b). First, neither

the Petition nor the attached affidavit demonstrate by specific facts how “immediate and

irreparable” harm will result before Defendant Roberts can be heard on the issue. Instead, the

Petition merely contains a barebones recitation of the element:

(Document 2, “Petition” at p. 2).

Alabama courts have denied injunctions where plaintiffs claim irreparable injuries and

lack of legal remedies using “unsupported conjecture” rather than competent evidence.

Teleprompter of Mobile, Inc. v. Bayou Cable TV, 428 So. 2d 17, 20 (Ala. 1983) (denying
 DOCUMENT 57

injunction where movant made no showing of a specific injury; “there is no testimony in the

record to indicate that [the activity movant sought to enjoin] cost it any customers, damaged its

reputation, or in anywise caused a loss of business”).

“Irreparable injury” has been construed by the courts to mean those that cannot be

adequately compensated for by damages at law. Benetton Services Corp. v. Benedot, Inc., 551

So. 2d 295, 299 (Ala. 1989). Absent from Plaintiffs’ Petition is any explanation as to how such

injury would occur prior to a hearing.

Likewise, Plaintiffs’ Petition does not contain any certification regarding efforts to give

notice of the request for a TRO to Pastor Roberts. Pastor Roberts did not learn of the TRO

request until he was served with the lawsuit, despite being at the church office nearly every day

since the purported July 10 firing. Thus, it is reasonable to conclude that no such efforts were

made, in violation of the plain requirements of the Rule.

Issuance should be denied if the party seeking a TRO fails to strictly follow these Rule

65(b) requirements. See Ex parte Hutson, 2016 WL 483384, at *4 (Ala. Ct. App. 2016).

Plaintiffs failed to strictly comply with said requirements. Therefore, the temporary restraining

order (“TRO”) issued by this Court’s Order on August 9, 2023 is due to be dissolved.

WHEREFORE, above premises considered, Defendant respectfully prays this Honorable

Court will enter its Order dissolving the temporary restraining order (“TRO”) issued by this

Court’s Order on August 9, 2023.

Respectfully submitted on this 14th day of August, 2023.

/s/ Benjamin A. Irwin

Benjamin A. Irwin (IRW003)
Calvin J. Whaley (WHA018)
Attorneys for Defendant
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OF COUNSEL:
CHERRY & IRWIN, P.C.
163 West Main Street
Dothan, Alabama 36301
Tel: 334-793-1000
ben@cherryirwin.com
cal@cherryirwin.com

CERTIFICATE OF SERVICE

I hereby certify that I have on this the 14th day of August, 2023, served a copy of the
foregoing filing upon the following by electronic notice and/or mailing the same by United
States Mail properly addressed and first class postage prepaid:

M. Hampton Baxley
Attorney for Plaintiff
Ramsey, Baxley, & McDougle
P.O. Drawer 1486
Dothan, AL 36302

/s/ Benjamin A. Irwin

OF COUNSEL