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ELECTRONICALLY FILED
9/8/2023 12:43 PM
50-CV-2023-900194.00
CIRCUIT COURT OF
MARSHALL COUNTY, ALABAMA
ANGIE JOHNSON, CLERK
IN THE CIRCUIT COURT OF MARSHALL COUNTY, ALABAMA
SOUTH SAUTY CREEK RESORT, INC. )
an Alabama Corporation, )
CLAUDE “ERIC” CRABTREE, AND )
HWAOK KO CRABTREE, individually ) CV-2023-900194.00
)
Plaintiffs, )
)
vs. )
)
GERALD KENNETH CARTER, JR., and )
CINDY CARTER, and FIRST )
SOUTHERN STATE BANK, an Alabama )
Banking Corporation )
)
Defendants. )
______________________________________________________________________________
DEFENDANTS’ MOTION FOR PRELIMINARY INJUNCTION
______________________________________________________________________________
1. This matter involves access to real estate owned by the Defendants Gerald and
Cindy Carter. The Plaintiffs do not want the Carters to use, access, or develop the real property the
Carters purchased; therefore, the Plaintiffs brought this lawsuit to prevent the Carters from
enjoying their real property.
2. This dispute already has a contentious backstory with threats of violence against
the Carters relating to accessing their property. Criminal actions relating to those threats by a party
related to the Plaintiffs are currently pending in the Circuit Court of Marshall County.
3. Over this past Labor Day weekend, the Carters went to visit their property only to
find their access drive to their property coming off of a recorded easement – which the Plaintiff
South Sauty Creek Resort, Inc., previously granted – was blocked by triple-strand barbed wire,
Posted signs, No Trespassing signs, and Caution tape. It is believed that one or more of the
Plaintiffs placed the blockade. A photograph of the blockade is contained hereinbelow.
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4. Pursuant to Rule 65 of the Alabama Rules of Civil Procedure, the Carters
respectfully request this Court enter an Order preliminary enjoining the Plaintiffs from restricting,
impeding, denying, or otherwise preventing the Carters and/or their invitees or permittees from
accessing the Carters’ property in any way, shape, form, or manner.
5. “[T]he grant of, or refusal to grant, a preliminary injunction rests largely in the
discretion of the trial court and that court's latitude in this area is considerable; if no abuse of that
discretion is shown, its action will not be disturbed on appeal.” Teleprompter of Mobile, Inc. v.
Bayou Cable TV, 428 So.2d 17, 19 (Ala.1983).
6. A party seeking a preliminary injunction has the burden of demonstrating “(1) that
without the injunction the [party] would suffer immediate and irreparable injury; (2) that the
[party] has no adequate remedy at law; (3) that the [party] has at least a reasonable chance of
success on the ultimate merits of his case; and (4) that the hardship imposed on the [other party]
by the injunction would not unreasonably outweigh the benefit accruing to the [party seeking the
injunction].” See Perley v. Tapscan, Inc., 646 So. 2d 585, 587 (Ala. 1994).
7. Without the issuance of an injunction enjoining the Plaintiffs from restricting the
Carters’ access to their property, (1) the Carters will suffer immediate and irreparable injury by
being divested of their use and enjoyment of their real property for which they paid valuable
consideration, (2) the Carters cannot be adequately compensated at law as there is no monetary
remedy available to them, (3) the Carters have a deeded easement allowing them to access their
property, and therefore, they have a substantial likelihood of prevailing in this litigation, (4) the
hardship of the Carters being prevented from accessing their property greatly outweighs any claims
the Plaintiffs have relating to access since the Plaintiffs are asking the Court to determine what
rights they have to begin with, and (5) allowing the Carters to continue accessing their property
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maintains the status quo that has been in place since the Carters’ predecessor in title first acquired
an easement over 35 years ago in February of 1988.
8. As referenced, the Carters’ predecessor in title first acquired an easement to access
the property on February 2, 1988. This easement was signed by the then President of South Sauty
Creek Resort, Inc., and was recorded at Book 851, Page 442. See Exhibit 1 attached hereto.
9. Said easement was reaffirmed in the Quitclaim/Heirship Deed dated May 5, 2022,
and recorded at Book 6799, Page 293, to the Carters’ predecessors in title which stated on its face
that the deed was subject to “easements or rights of way.” One of the grantors in said deed was
Gloria J. Cooper, the President of South Sauty Creek Resort, Inc. See Exhibit 2 attached hereto.
10. Said easement was reaffirmed in the Statutory Deed dated September 12, 2022, and
recorded at Book 6860, Page 48, to the Carters’ predecessors in title wherein the legal description
attached to the deed contains a survey and legal description of the property and the easement. Said
survey and legal were prepared by Jerry L. Dowdy, PLS # 18979, on June 28, 2022. See Exhibit 3
attached hereto.
11. Likewise, the easement is again confirmed in the Carters’ vesting deed dated Apil
19, 2023, and recorded at Book 6958, Page 254. See Exhibit 4 attached hereto.
12. The Carters also had the land surveyed on June 16, 2023, by William R. Short, PLS
# 26019, and said survey also confirmed the easement. See Exhibit 5 attached hereto.
13. “[T]the purpose of temporary and preliminary injunctive relief is to maintain the
status quo pending the resolution of the action on its merits.” Irwin v. Jefferson County Personnel
Board, 263 So.3d 698, 702-703 (Ala. 2018), citing Jacobs Broad. Grp., Inc. v. Jeff Beck Broad.
Grp., LLC, 160 So.3d 345, 349 n. 3 (Ala. Civ. App. 2014). The status quo for the last 35 years has
been the owners of the Carter property accessing their property using the easement across parts of
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the Plaintiffs’ land.
14. In Ex parte Folsom, 42 So.3d 732, 738-739 (2009), the Supreme Court of
Alabama held that “[a]n easement is property,” and permanently depriving the holder of an
easement is “[s]uch an obstruction to a property right [that] is “clearly an injury or harm for
which money damages are inadequate.”
15. The Plaintiffs placement of barbed-wire fencing, Caution tape, No Trespassing
signs, and Posted signs seeks to permanently deprive the Carters of their deeded and long
recognized property rights – property rights which were originally deeded to the Carters
predecessors in title by the Plaintiffs themselves.
WHEREFORE, the above premises considered, the Defendants Gerald and Cindy Carter
pray that this Honorable Court enjoin the Plaintiffs from restricting the Carters or their invitees or
permittees access to their property in any way, shape or form, and further require the Plaintiffs to
immediately remove any impediment block the Carters’ access to their property. The Carters
further pray that this Court provide such other relief as may be necessary or that the Carters may
be entitled to.
Respectfully submitted,
/s/ Thomas J. Skinner, IV
Thomas J. Skinner, IV
Attorney for Defendants Gerald and Cindy Carter
Law Offices of Thomas J. Skinner, IV, LLC
1 Independence Plaza Suite 415
Birmingham, Alabama 35209
/s/ Tom Whatley
Thomas M. Whatley
Attorney for Defendants Gerald and Cindy Carter
Whatley Law
P.O. Box 841
Auburn, Alabama 36831
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CERTIFICATE OF SERVICE
I hereby certify that on this 8th day of September, 2023, I electronically filed the foregoing
with the Clerk of the Court using the Alafile system and will serve notice to the parties by serving
a copy of the same Alafile and/or U. S. Mail, postage prepaid, and properly addressed to the
following:
George M. Barnett
431 Gunter Avenue
Guntersville, Alabama 35976
Gerald Raymond Paulk
Paulk Law Firm
231 S. Market Street
Scottsboro, Alabama 35768
/s/ Thomas J. Skinner, IV
OF COUNSEL
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EXHIBIT 1
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EXHIBIT 2
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EXHIBIT 3
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EXHIBIT 4
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EXHIBIT 5
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