DEFENDANTS’ BRIEF IN SUPPORT OF EMERGENCY MOTION TO DISSOLVE TEMPORARY RESTRAINING ORDER – PAGE 1 CAUSE NO. DC-12-04834 CHRISTOPHER BRYAN FEARS, Plaintiff, vs. SHEFFIELD KADANE, AS CITY COUNSILMAN FOR DISTRICT 9 OF CITY OF DALLAS, MARY BRINEGAR, AS PRESIDENT AND CEO OF DALLAS ARBORETUM AND BOTANICAL SOCIETY, INC. AND PAUL DYER, AS DIRECTOR OF DALLAS PARK AND RECREATION DEPARTMENT, Defendants. § § § § § § § § § § § § § § § § IN THE DISTRICT COURT 192 nd JUDICIAL DISTRICT DALLAS COUNTY, TEXAS DEFENDANTS’ BRIEF IN SUPPORT OF EMERGENCY MOTION TO DISSOLVE TEMPORARY RESTRAINING ORDER To the Honorable Judge of Said Court: Now come Sheffield Kadane, as Councilman for District 9 of the City of Dallas (the “City”) and Paul Dyer, as Director of the City of Dallas Parks and Recreation Department (“the City Defendants”) and Mary Brinegar, as president of the Dallas Arboretum and Botanical Society, Inc. (the “Arboretum Defendant”) and file this Brief in Support of Emergency Motion to Dissolve Temporary Restraining Order (the “Motion”). I. INTRODUCTION On May 1, 2012, Plaintiff filed his Application and Affidavit for Temporary Restraining Order and Temporary Injunction against the City Defendants and the Arboretum Defendant (the “Application”). On that same date, the Court issued a temporary restraining order against the City Defendants and the Arboretum Defendant (the “TRO”). The TRO was improperly granted and should be dissolved. Plaintiff cannot meet his burden to show he is entitled to injunctive
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DEFENDANTS’ BRIEF IN SUPPORT OF EMERGENCY MOTION TO DISSOLVE TEMPORARY RESTRAINING ORDER – PAGE 1
CAUSE NO. DC-12-04834
CHRISTOPHER BRYAN FEARS, Plaintiff, vs. SHEFFIELD KADANE, AS CITY COUNSILMAN FOR DISTRICT 9 OF CITY OF DALLAS, MARY BRINEGAR, AS PRESIDENT AND CEO OF DALLAS ARBORETUM AND BOTANICAL SOCIETY, INC. AND PAUL DYER, AS DIRECTOR OF DALLAS PARK AND RECREATION DEPARTMENT, Defendants.
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IN THE DISTRICT COURT 192nd JUDICIAL DISTRICT DALLAS COUNTY, TEXAS
DEFENDANTS’ BRIEF IN SUPPORT OF EMERGENCY MOTION TO DISSOLVE
TEMPORARY RESTRAINING ORDER To the Honorable Judge of Said Court:
Now come Sheffield Kadane, as Councilman for District 9 of the City of Dallas (the
“City”) and Paul Dyer, as Director of the City of Dallas Parks and Recreation Department (“the
City Defendants”) and Mary Brinegar, as president of the Dallas Arboretum and Botanical
Society, Inc. (the “Arboretum Defendant”) and file this Brief in Support of Emergency Motion to
Dissolve Temporary Restraining Order (the “Motion”).
I. INTRODUCTION
On May 1, 2012, Plaintiff filed his Application and Affidavit for Temporary Restraining
Order and Temporary Injunction against the City Defendants and the Arboretum Defendant (the
“Application”). On that same date, the Court issued a temporary restraining order against the
City Defendants and the Arboretum Defendant (the “TRO”). The TRO was improperly granted
and should be dissolved. Plaintiff cannot meet his burden to show he is entitled to injunctive
DEFENDANTS’ BRIEF IN SUPPORT OF EMERGENCY MOTION TO DISSOLVE TEMPORARY RESTRAINING ORDER – PAGE 2
relief. In particular, Plaintiff’s Application fails to allege a specific cause of action against
Defendants or to allege facts sufficient to support any viable cause of action, and particularly to
support injunctive relief. Additionally, the failure to plead a specific cause of action makes it
impossible for Plaintiff to establish that the Court has subject matter jurisdiction, that sovereign
immunity has been waived, or that Plaintiff has standing. Even assuming that Plaintiff has
alleged a viable cause of action against Defendants, he failed to comply with Local Rules in
obtaining the TRO. Also, the pleadings and purported evidence do not support the grant of a
TRO, and the order itself is void.
II. FACTUAL BACKGROUND
The City is the owner of property known as White Rock Lake Park which was formed as
a park in 1929. The area known as Winfrey Point has been part of the Park since it was formed.
In the 1930’s the area around Winfrey Point was a camp for Civilian Conservation Corp. During
a portion of World War II, the area was used by the military including use as a camp for
prisoners of war. After the war, the area was used for housing by Southern Methodist University
students. In the 1950’s, baseball fields were constructed and have remained there to the present.
See Excerpt of Tour of White Rock Lake Park attached to the Affidavit of Charles Estee (the
“Estee Aff.”), which is attached hereto as Exhibit “C.” In the past, the City regularly mowed the
area, approximately twice a month. Because of budgetary constraints the City stopped regularly
mowing the area and instead mowed only once a year. In 2011 the City added another baseball
field and parking. See Affidavit of James Page (the “Page Aff.”) p. 1, which is attached hereto as
Exhibit “A.”
Early this year, the Arboretum approached the City about using the area for temporary
potential overflow parking for its major events. Due to the temporary loss of use of some of its
DEFENDANTS’ BRIEF IN SUPPORT OF EMERGENCY MOTION TO DISSOLVE TEMPORARY RESTRAINING ORDER – PAGE 3
parking due to construction, and the possible loss of certain overflow parking, the Arboretum
wanted to ensure emergency overflow parking could be available. Therefore the City agreed that
the Arboretum could have access to those certain areas of Winfrey Point and the Arboretum
agreed to also make those parking areas available for other events. Any net revenues resulting
from the operation of those lots will be given to the City to be used for improvement to White
Rock Lake Park. This parking is part of proper and valid use by the City of its parks and other
public facilities, will make the area safer for everyone because people will not be parking on the
road and other areas not designed to accommodate them, and is to the benefit of greater Dallas.
On April 5, 2012, after public notice, the Park Board at a public hearing voted to enter
into an agreement with the Arboretum to use the area for parking. Exhibit “A” Page Aff. p. 2.
The agreement does not call for the construction of parking structures or lots. Instead, it involves
the delineation, mowing, and providing access to allow vehicles to park on certain mowed areas.
See Affidavit of John T. Armstrong (the “Armstrong Aff.”) ¶¶ 2-3, which is attached hereto as
Exhibit “B.”
III. THE TRO SHOULD BE DISSOLVED BECAUSE PLAINTIFF FAILED TO MEET HIS BURDEN
An applicant seeking a temporary injunctive relief must plead and prove three specific
elements: (1) a cause of action against the defendant; (2) a probable right to the relief sought; and
(3) a probable, imminent, and irreparable injury in the interim. See Butnaru v. Ford Motor Co.,
84 S.W.3d 198, 204 (Tex.2002). Plaintiff has failed to meet his burden on each element.
A. No cause of action is stated against the Defendants.
Although the Application alleges certain “grounds” and “reasons” why Plaintiff will
allegedly suffer immediate and irreparable injury, the Application does not purport to state any
specific cause of action against any of Defendants. (Application at ¶4) An injunction is an
DEFENDANTS’ BRIEF IN SUPPORT OF EMERGENCY MOTION TO DISSOLVE TEMPORARY RESTRAINING ORDER – PAGE 7
the officer acted without legal authority or failed to perform a purely ministerial act. City of El
Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009).
Paragraph 4(f)
Plaintiff makes the conclusory allegation that the use is in violation of Section 88.008 of
the Texas Parks and Wildlife Code and an injunction is proper under Section 88.012 of the same
code. Plaintiff states that these provisions make it illegal to remove native and endangered
wildlife from public land. Apart from failing to allege any facts, or submit any evidence, to
support the claim, Plaintiff has misstated the statute.
Section 88.008 relates to the taking of plants for commercial sale. It states:
(a) Except as otherwise provided by this chapter, no person may take for commercial sale, possess for commercial sale, or sell all or part of an endangered, threatened, or protected plant from public land.
(b) No contract or common carrier may transport or receive for shipment all or part of an endangered, threatened, or protected native plant taken from public land.
(c) No person may take for commercial sale, possess for commercial sale, transport for commercial sale, or sell all or part of an endangered, threatened, or protected plant from private land unless the person possesses a permit issued under Section 88.0081 of this code and each plant is tagged as provided by Section 88.0081 of this code.
(d) No person may hire or pay another person to take for commercial sale, possess for commercial sale, transport for commercial sale, or sell all or part of an endangered, threatened, or protected plant from private land unless both persons possess a permit issued under Section 88.0081 of this code.
Tex. Parks & Wildlife Code, § 88.008. On its face, the statute has no application to the claims
asserted by Plaintiff.
As for Section 88.012, it states:
A state or local governmental agency that violates or threatens to violate a provision of this chapter is subject to a civil suit for injunctive relief. The suit shall be brought in the name of the State of Texas.
DEFENDANTS’ BRIEF IN SUPPORT OF EMERGENCY MOTION TO DISSOLVE TEMPORARY RESTRAINING ORDER – PAGE 19
City Defendants claim all immunities from suit and from liability therefore to which they are
entitled under the law. The Court lacks jurisdiction.
IX. CONCLUSION AND PRAYER
WHEREFORE, Defendants request that their Emergency Motion to Dissolve Temporary
Restraining Order be granted, or in the alternative, the bond for the temporary restraining order
be increased, and grant the Defendants such other relief as is just.
DEFENDANTS’ BRIEF IN SUPPORT OF EMERGENCY MOTION TO DISSOLVE TEMPORARY RESTRAINING ORDER – PAGE 20
Respectfully submitted,
OFFICE OF THE CITY ATTORNEY CITY OF DALLAS, TEXAS By__/s/ Charles Estee_______________________ CHARLES ESTEE Assistant City Attorney State Bar of Texas No. 06673600 7BN Dallas City Hall 1500 Marilla Street Dallas, Texas 75201 Telephone – 214/670-3519 Telecopier – 214/670-0622
COUNSEL FOR DEFENDANTS SHEFFIELD KADANE, AS CITY COUNCILMAN FOR DISTRICT 9 OF CITY OF DALLAS AND PAUL DYER, AS DIRECTOR OF DALLAS PARK AND RECREATION DEPARTMENT AND CITY OF DALLAS
HALLETT & PERRIN, P.C. /s/ Edward P. Perrin, Jr. Edward P. Perrin, Jr. State Bar No. 15796700 Molly B. Cowan State Bar No. 24025312 Meghan E. Cook State Bar No. 24064125 1445 Ross Avenue, Suite 2400 Dallas, Texas 75202 Telephone: (214) 953-0053 Facsimile: (214) 922-4142 COUNSEL FOR DEFENDANT, MARY BRINEGAR, AS PRESIDENT AND CEO OF DALLAS ARBORETUM AND BOTANICAL SOCIETY AND DALLAS ARBORETUM AND BOTANICAL SOCIETY
DEFENDANTS’ BRIEF IN SUPPORT OF EMERGENCY MOTION TO DISSOLVE TEMPORARY RESTRAINING ORDER – PAGE 21
CERTIFICATE OF SERVICE
This is to certify that on the 3rd day of May, 2012, a true and correct copy of the foregoing document was served upon all counsel of record as indicated below: Robert D. Cohen, Esq. Cohen & Zwerner, LLP 2100 North Record, Suite 450 Dallas, Texas 75202 [email protected] Attorneys for Plaintiff, Christopher Bryan Fears
[ ] U.S. Mail [ ] Hand Delivery [ ] Overnight Delivery [ ] Certified [ ] Fax [x] Electronic Mail
Hailey A. Hobren, Esq. Fears Nachawati, PLLC 4925 Greenville Avenue, Suite 715 Dallas, Texas 75206 [email protected] Attorneys for Plaintiff, Christopher Bryan Fears
[ ] U.S. Mail [ ] Hand Delivery [ ] Overnight Delivery [ ] Certified [ ] Fax [x] Electronic Mail