DOCUMENT 52

ELECTRONICALLY FILED
8/14/2023 1:33 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 INCREASE BOND

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

record, and respectfully requests that this Honorable Court amend its August 10, 2023 Order

requiring a $500.00 bond, so as to increase the bond requirement in this matter. As grounds

therefore, the undersigned would show unto the Court as follows:

BACKGROUND

Plaintiffs requested and received an ex parte temporary restraining order (“TRO”),

enjoining Pastor Darryl Roberts from the premises of Greater Beulah Baptist Church. The Court

has ordered Plaintiffs to post a $500.00 cash or surety bond as a condition of the TRO.

LEGAL STANDARD

As a general rule, a TRO or injunction will not issue unless the movant posts a security

bond pursuant to ARCP 65(c). Lightsey v. Kensington Mortg. & Fin. Corp., 315 So. 2d 431, 434

(Ala. 1975). The Alabama Supreme Court has held that the bond amount must be “appropriate”,

and reflect what the trial judge “deems proper.” Water Works & Sewer Bd. of City of

Birmingham v. Anderson, 530 So. 2d 193, 198 (Ala. 1988).

There are a number of opinions that articulate the policy and legal rationales for

determining the bond amount. See Miller v. Wood, 60 So. 2d 353, 354 (Ala. 1952) (injunction
 DOCUMENT 52

bond “is required as a protection against the abuse of this extraordinary process and to prevent

oppression by its use”); see also Sycamore Mgmt. Grp., Inc. v. Coosa Cable Co., 81 So. 3d 1224,

1237 (Ala. 2011) (Murdock, J., dissenting) (“The reason our rules require the posting of a bond

as a prerequisite to the issuance of a preliminary injunction is to insure not just against the risk

that the defendant has been wrongfully restrained, but to insure against the peculiar risk that is

attendant to the imposition of such a restraint without the benefit of the full measure of due

process normally available from a trial court.”).

The Alabama Supreme Court has also cautioned judges to “be careful to require an

adequate bond” when issuing preliminary injunctions. City of Birmingham v. Wilkinson, 194 So.

548, 555 (Ala. 1940) (emphasis added). In setting the amount of security for a preliminary

injunction,

“the trial court should err on the high side. An error in setting bond too high is not

serious, because the fee to post bond is usually a fraction of the amount of the bond and

because any recovery on the bond would have to be supported by proof of actual

damages. On the other hand, an error on the low side may produce irreparable injury,

because damages for an erroneous preliminary injunction may not exceed the amount of

the bond.”

13 Moore’s Federal Practice – Civil § 65.50 (2019) (emphasis added) (citing Mead Johnson &

Co. v. Abbott Labs., 201 F.3d 883, 888 (7th Cir.), opinion amended on denial of reh’g, 209 F.3d

1032 (7th Cir. 2000)). 1

1
The Alabama Rules of Civil Procedure (“ARCP”) were patterned after the Federal Rules of Civil Procedure, and
therefore, federal case law and commentary can serve as persuasive authority in interpreting the ARCP. Hilb, Rogal
& Hamilton Co. v. Beiersdoerfer, 989 So. 2d 1045, 1056 n.3 (Ala. 2007).
 DOCUMENT 52

ARGUMENT

Here, Plaintiffs’ bond should be significantly higher than $500.00. Damages for an

erroneous TRO in this case include significant legal fees and costs, for which Pastor Roberts is

responsible. He has already incurred considerable legal expenses, and we are not even halfway to

the hearing date. The Pastor will also be forced to subpoena numerous deacons, trustees, and

members of the church to rebut the Plaintiffs’ allegations.

Importantly, the Plaintiffs’ allegations create the prospect for irreparable financial harm

to the church. The bank relied on the validity of the recorded bylaws in refinancing the church’s

large loan, which was in default. (See Exhibit 1 – Affidavit of Pastor Roberts). Plaintiffs’

allegations of financial impropriety and invalid bylaws could plausibly result in the note being

called. As noted in the above-quoted commentary, the dangers of a too-low bond far outweigh

the corresponding dangers of an excessive bond.

Defendant requests that the Court set the bond at the current outstanding balance on the

church’s note with Friend Bank. This would ensure that Pastor Roberts is not left on the hook for

legal fees which he should not have incurred, as well as protect the church’s assets and continued

existence in the event the bank were to call the note. Defendant is currently unable to access

records verifying the current outstanding balance, but Plaintiffs can easily be ordered to file

proof of such balance when the bond is posted.

WHEREFORE, above premises considered, Defendant respectfully prays that this

Honorable Court will enter its Order requiring Plaintiffs to post a bond equal to the amount

which is currently outstanding on the church’s loan with Friend Bank.

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

 DOCUMENT 52

/s/ Benjamin A. Irwin

Benjamin A. Irwin (IRW003)
Calvin J. Whaley (WHA018)
Attorneys for Defendant

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