Alabama law holds that the opposing party in an injunction hearing must receive notice sufficient to allow for written responses and to take witness testimony. The Shulers were "served" via an unconstitutional traffic stop at the North Shelby County Library on Sept. 29 and an injunction hearing was the next day on Sept. 30. The notice of barely 24 hours violates Alabama law found in the Alabama Supreme Court case styled Southern Homes, AL v. Bermuda Lakes, LLC 57 So. 3d 100 (Ala., 2010).
"The seeking of a preliminary injunction is a serious matter under Alabama law and the opposing party is entitled to present written material and call witnesses to oppose it," Roger Shuler said. "The Southern Homes, AL case does not specify the amount of time required, but it does require enough to time to give written responses and take witness testimony and that means it probably anticipates two to three weeks of notice maybe more. The fact that we barely got 24 hours notice is a clear violation of Alabama law. And Judge Claude Neilson went ahead with the hearing and has granted an injunction that is unlawful on that ground and other grounds also."
We reported on this issue in a post dated Oct. 10 and included the following information about the Southern Homes, AL case:
Southern Homes argues, among other things, that it received insufficient notice under Rule 65(a)(1), Ala. R. Civ. P., of the hearing on Bermuda's motion for a preliminary injunction, in violation of Southern Homes' due-process rights. We agree. . . .In the present case, it is undisputed that Southern Homes had less than two hours' notice of the hearing on Bermuda's motion for a preliminary injunction and that Southern Homes' counsel participated in the hearing only by telephone. Southern Homes was not able to submit written arguments in opposition to the motion or to submit evidence to support its arguments. Also, under the circumstances, Southern Homes could not call any witnesses. . . .Southern Homes had to be given notice of a hearing in which it was given a fair opportunity to oppose the motion for the preliminary injunction and to prepare for such opposition. Southern Homes simply was not given such notice. Therefore, under these circumstances, we conclude that Southern Homes did not have a fair opportunity to oppose the motion for a preliminary injunction, and, thus, the circuit court exceeded its discretion in issuing the preliminary injunction.
"I've been incarcerated unlawfully for 11 weeks now and the procedural and legal errors in this case are momentous and numerous," Shuler said. "But one of the most glaring deficiencies was that we were given no opportunity to response to this preliminary injunction. Initially I challenged the unlawful service which was the right thing to do because that is the first order of business in any lawsuit. If service is not done correctly, the court has no jurisdiction and there is no case. My Motion to Quash Service motion should have been granted, but it was denied and I was incarcerated and arrested on Oct. 23 before I ever received the order on that. Had I not been arrested, I would have immediately challenged that order and also challenged the lack of notice which should have kept us from having to face an injunction in this case.
What this means is that the preliminary injunction where we did not receive notice is unlawful, the permanent injunction therefore is unlawful, the contempt of court is unlawful and my incarceration therefore is not based in any law whatsoever. And it's just a gross violation of due process rights which is found in the fourteenth amendment of the U.S. Constitution."
