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 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 4

equitable remedy and does not constitute an independent cause of action. Brittingham v.

Ayala, 995 S.W.2d 199, 201 (Tex. App.—San Antonio 1999, pet. denied); Cooper v. Litton Loan

Servicing, 325 S.W.3d 766, 769 (Tex. App.—Dallas 2010, pet. denied). The party seeking an

injunction must assert a cause of action and prove a probable right of recovery based on such

cause of action. Brittingham, 995 S.W.2d at 201; Cooper, 325 S.W.3d at 769. If the party

seeking the injunction fails to allege a cause of action, the trial court lacks authority to issue an

injunction. Brittingham, 995 S.W.2d at 201.

Plaintiff has not specified any cause of action, much less any valid cause of action,

against Defendants, and the TRO should be dissolved.

Even if this were not the law, a cursory review of each of the “grounds” and “reasons”

listed by Plaintiff in the Application shows that no cause of action is asserted under any “reason”

or “grounds” listed, and none could constitute a viable cause of action against any of Defendants.

Each of the “grounds” set forth in Paragraph 4 of the Application is discussed below.

Paragraph 4(a)

Plaintiff makes the conclusory statement that the land at Winfrey Point has been damaged

by vehicular and foot traffic in excess of zoning, accepted city guidelines for maintenance of the

area, and practical considerations. No facts are alleged in support of this claim. To the extent

Plaintiff intends to state a claim for zoning violations, this alleged claim is addressed below in

connection with Paragraph 4(g)

Paragraph 4(b)

Plaintiff makes the conclusory statement that the “proposed change in the use of the land

will cause damage to the wildlife, which cannot be cured.” No facts are alleged in support of this

claim. There is no general cause of action under Texas law based upon an alleged damage to

DEFENDANTS’ BRIEF IN SUPPORT OF EMERGENCY MOTION TO DISSOLVE TEMPORARY RESTRAINING ORDER – PAGE 5

wildlife that cannot be cured. Plaintiff’s ability to allege claims under Section 88.008 of the

Texas Parks and Wildlife Code, the Endangered Species Act of 1973, or the Migratory Bird Act

of 1918 are addressed below.

Paragraph 4(c)

Plaintiff makes the conclusory statement that the “threat of harm to children in the area

caused by excessive foot and vehicular traffic cannot be mitigated.” No facts are alleged in

support of this claim. Moreover, no cause of action under Texas law is made or can be shown

based on this allegation. In addition, Plaintiff has not provided any facts to support his allegation

that children will be harmed by providing additional parking at Winfrey Point. Defendants

maintain that having adequate parking for individuals to enjoy White Rock Lake Park, the

baseball fields, and other amenities in the area will be safer for everyone because people will not

be parking on the roads and other areas that are not designed to accommodate large crowds.

Paragraph 4(d)

Plaintiff makes the conclusory statement that the “density of the use with its

accompanying noise and traffic will permanently alter the nature and character of the area.”

This allegation is not sufficient to support a particular cause of action. To the extent this

allegation is related to Plaintiff’s potential nuisance claim, it is addressed below.

Paragraph 4(e)

Plaintiff makes the conclusory statement that the proposed parking lot will be a nuisance.

No facts are alleged to support the claim. Plaintiff cannot bring a claim for nuisance because he

has failed to show that he has standing to bring this claim. Generally, private individuals are not

entitled to bring suit for a public nuisance because the State is the guardian of rights held by the

general public. See Garland Grain Co. v. D-C Home Owners Imprv. Ass’n, 393 S.W.2d 635,

DEFENDANTS’ BRIEF IN SUPPORT OF EMERGENCY MOTION TO DISSOLVE TEMPORARY RESTRAINING ORDER – PAGE 6

640 (Tex. App.—Tyler 1965, writ ref’d n.r.e.). A private individual may only bring suit for a

public nuisance when he suffers a substantial harm that is a different kind of harm from that

suffered by the general public, or when a specific statute grants him or her standing to pursue a

public nuisance suit. See McQueen v. Burkhart, 290 S.W.2d 577, 579 (Tex. App.—Austin 1956,

no writ); see also Jamail v. Stoneledge Condo. Owners Ass’n, 970 S.W.2d 673, 676 (Tex.

App.—Austin 1998, no pet.). Plaintiff has not demonstrated that the harm he will suffer from the

proposed use of Winfrey Point is substantial and different from the kind of harm to the general

public, or that he has statutory standing to pursue this claim. As such, Plaintiff is not entitled to

pursue a claim for public nuisance against Defendants. Moreover, a city's nuisance liability

arises only when sovereign immunity is clearly and unambiguously waived. City of Dallas v.

Jennings, 142 S.W.3d 310, 316 (Tex.2004). Plaintiff has not alleged a waiver. Because consent

is required to maintain a suit against a governmental entity, Plaintiff must plead a constitutional

or legislative waiver with facts that are necessary to establish a claim against Defendants and

invoke the Court’s subject-matter jurisdiction through a waiver of Defendants’

sovereign/governmental immunity. See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d

440, 446 (Tex. 1993) (holding that the plaintiff bears the burden of alleging facts that

affirmatively demonstrate that the trial court has subject-matter jurisdiction). The pleader has the

initial burden of alleging facts that affirmatively demonstrate the trial court’s jurisdiction to hear

the cause. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). A suit

to require a government officer to comply with a statutory or constitutional provision is not

prohibited by sovereign immunity; but to invoke jurisdiction under this ultra vires exception, the

plaintiff cannot complain about the officer’s exercise of discretion but instead must allege that

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 8

Tex. Parks & Wildlife Code, § 88.012. The statute does not give Plaintiff a private right to seek

injunctive relief, as that right is expressly limited to the State.

Paragraph 4(g)

Plaintiff alleges the proposed use is in violation of the City’s zoning regulations because

the area is zoned residential. The allegation is false if it seeks to imply that parks or parking are

not allowed by the zoning.

Plaintiff’s evidence suggests that the area is zoned R-10(a) which is a residential use.

The main uses allowed in the district include public parks, playgrounds, or golf courses. Dallas

City Code, § 51A-4.112(E)(2)(H). Accessory uses are permitted. Id., § 51A-4.112(E)(3). An

accessory use is a use customarily incidental to the main use. Id., § 51A-4.217. Off-street

parking is an accessory use. Id., § 51A-4.301(a)(1). The use is permitted and there is no

violation.

Furthermore, Plaintiff is not entitled to enforce zoning laws. In Couch v. Davis, No. 14-

94-01060-CV, 1996 WL 354739, *2 (Tex. App.-Houston [14 Dist.] June 27, 1996, no pet.) (not

designated for publication) the court held that the private individuals lacked standing to enforce a

city’s zoning ordinances short of a claim for nuisance (which Plaintiff here cannot show as

demonstrated above). Likewise in Lower Valley Residents Ass'n v. City of El Paso, 466 S.W.2d

436 (Tex. Civ. App.—El Paso 1971, no writ) the court held that a private corporation had no

standing to seek to mandamus a city to enforce its zoning laws. Plaintiff likewise lacks standing

to enforce the City’s ordinances.

Paragraph 4(h)

Plaintiff alleges that the use is illegal and in violation of Title 43, section 2.9 of the Texas

Administrative Code which requires a public hearing before a major change in the use of

DEFENDANTS’ BRIEF IN SUPPORT OF EMERGENCY MOTION TO DISSOLVE TEMPORARY RESTRAINING ORDER – PAGE 9

publically owned land. The provision concerns the taking or use of public land previously used

as a park or recreation area. The provision has no application because there is no taking and the

land is continued to be used as a park and recreational area. It will continue to be part of the

Park and will serve as temporary parking for the Park and the Arboretum, another park and

recreation area. The provision has no application to construction of park or recreational facilities

including parking lots.

Defendants note there was a public hearing before the Park Board prior to entering into

the contract. See Minutes of Park Board meeting attached to Exhibit “C,” Estee Aff. And once

again, Plaintiff lacks standing because the provision does not grant Plaintiff standing to enforce

it. See Persons v. City of Fort Worth, 790 S.W.2d 865, 870 (Tex. App.-Fort Worth 1990, no

pet.).

Paragraph 4(i)

Plaintiff makes the conclusory statement that the proposed use in some way violates the

Endangered Species Act of 1973 (the “ESA”). Any claim by Plaintiff under the ESA is without

merit because (1) this Court has no jurisdiction over such claim, (2) Plaintiff has not complied

with the mandatory notice provisions of the ESA, and (3) Plaintiff has wholly failed to allege,

much less demonstrate, that the ESA applies to the unspecified “wildlife” he claims is present at

Winfrey Point.

The ESA provides a mechanism for the protection of endangered and threatened species,

as defined by the Secretary of the Interior or the Secretary of Commerce (the “Secretary”). See

16 USC §§ 1531-1544. Primarily, even if Plaintiff could establish a violation of the ESA by

Defendants, he could not proceed with this suit because this Court lacks jurisdiction to hear

Plaintiff’s claims. The ESA provides that the federal district courts of the United States have the

DEFENDANTS’ BRIEF IN SUPPORT OF EMERGENCY MOTION TO DISSOLVE TEMPORARY RESTRAINING ORDER – PAGE 10

sole and exclusive jurisdiction to enforce civil penalties, criminal violations and citizen suits

brought for violations of the ESA. See 16 U.S.C. §§ 1540(c), (e)(2), (g)(1).

Additionally, in order to pursue an injunction under the ESA, Plaintiff must provide

written notice to the Secretary and must wait at least sixty days after notice to commence suit.

See 16 U.S.C. § 1540(g)(2)(A)(i). Plaintiff has not demonstrated or ever alleged that he provided

notice to the Secretary, or that sixty days has elapsed since this notice. Plaintiff’s alleged claim

for violations of the ESA is without merit because he failed to comply with the ESA’s mandatory

notice provisions.

Finally, Plaintiff has not alleged, in any manner, much less provided any evidence that

the “Blackland Prairie” or wildlife he contends is present at Winfrey Point is protected by the

ESA. The ESA protects various species of fish, wildlife and plants that have been designated as

endangered or threatened by the Secretary. See 16 U.S.C. §§ 1531-1533. The affidavits

provided by Plaintiff in support of the injunction state that the endangered species at Winfrey

Point is the “Blackland Prairie.” See Plaintiff’s Injunction, Exhibits “B,” “D,” “E,” and “F.”

However, nowhere in these affidavits is it alleged that the “Blackland Prairie” (or anything else,

including any animals) has been classified as required as an endangered or threatened species

under the ESA, nor provide any evidence of same. See id.

Paragraph 4(j)

Plaintiff alleges unspecified “violations” of the Migratory Bird Treaty Act of 1918

(“MBA”). Plaintiff cannot assert a claim under the MBA in this litigation because this Court has

no jurisdiction to over such claims, the MBA contains no private right of enforcement, and

Plaintiff has not demonstrated that the MBA applies to the actions allegedly occurring, or

unspecified “wildlife” allegedly present, at Winfrey Point.

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The MBA protects various migratory birds from hunting, sale or transport. See 16 U.S.C.

§§ 703-712. Even if Plaintiff had alleged, and presented evidence of a violation of the MBA by

Defendants, he could not proceed with this suit because this Court lacks jurisdiction to hear

Plaintiff’s claims. The MBA provides that the federal district courts of the United States have

sole and exclusive jurisdiction to enforce violations and penalties of the MBA. See 16 U.S.C.

§ 706. Additionally, the MBA does not provide a private right of enforcement, but rather

provides solely for enforcement of MBA violations by the Secretary of the Interior or its

employees. See id.

Finally, any claim by Plaintiff for violations of the MBA fail and provide no bases for an

injunction because his Application is totally devoid of any allegations (much less evidence) that

the MBA applies to Winfrey Point or the actions he alleges Defendants are undertaking at

Winfrey Point. The MBA specifically applies to migratory birds included in the terms of

international treaties between the United States and Great Britain, Mexico, Japan and the Union

of Soviet Socialist Republics. See 16 U.S.C. § 703(a). Plaintiff has not alleged nor provided any

evidence of the requisite “hunting, sale or transport” of any wildlife, or even that any species

protected by the MBA is present at Winfrey Point. Moreover, Plaintiff has not provided any

evidence that Defendants’ proposed use of the land at Winfrey Point could in any way constitute

a violation of the MBA, as the MBA protects only against the pursuit, hunting, killing,

possession, sale, purchase, transportation and/or baiting of migratory birds. See 16 U.S.C. §§

703(a), 704(b). For all these reasons, Plaintiff has not and cannot allege a viable cause of action

under the MBA.

DEFENDANTS’ BRIEF IN SUPPORT OF EMERGENCY MOTION TO DISSOLVE TEMPORARY RESTRAINING ORDER – PAGE 12

B. No likelihood of success on the merits.

To establish a probable right to the relief sought, Plaintiff has the burden to establish a

likelihood to succeed on the merits. However, as noted above, Plaintiff does not allege a cause

of action or seek final relief. Even if the Application could be construed as fashioning some

cause of action, the Application demonstrates that there is no likelihood of success on the merits.

As explained above, Plaintiff has not alleged a viable cause of action, and thus no right of

probably success on the merits. Apart from these issues, Plaintiff has failed to allege anything

other than conclusory allegations.

In addition, Plaintiff presents no allegations or evidence that the specific area contains

any native grasses or plants. Likewise, Plaintiff presents no allegations or evidence that the

specific area contains any endangered species, any migratory bird, or any particular wildlife. To

the contrary, Plaintiff’s allegations regarding Winfrey Point are inaccurate and/or misapprehend

the nature of the land.

Plaintiff has failed to meet his burden to establish a probable right to recovery.

C. No probable, imminent, and irreparable injury to Plaintiff.

Probable injury includes the elements of imminent harm, irreparable injury, and no

adequate remedy at law for damages. Surko Enter. Inc. v. Borg–Warner Acceptance Corp., 782

S.W.2d 223, 225 (Tex.App.—Houston [1st Dist.] 1989, no writ). The Application does not

allege any imminent or irreparable injury to Plaintiff. Rather his complaint is a perceived injury

to the City’s property. More importantly, there is no unique, special interest at stake. As

demonstrated by the Affidavit of Robert J. O’Kennon, there is no evidence of native species of

grass growing at Winfrey Point. Exhibit “E,” O’Kennon Aff. ¶8. The fifteen species of grasses

DEFENDANTS’ BRIEF IN SUPPORT OF EMERGENCY MOTION TO DISSOLVE TEMPORARY RESTRAINING ORDER – PAGE 13

present at Winfrey Point were all non-native grasses and included very invasive and aggressive

grasses that can choke out and destroy any natural or native grasses or flora in this area. Id.

Additionally, there is no immediacy. As previously stated, approximately a month ago,

the Park Board held a public hearing and voted to enter into the agreement to allow the area to be

used for parking. There is also no probable or irreparable injury. Plaintiff’s claimed “expert,”

Ms. Rader told the media that occasional use of the area for parking would probably not harm the

area. See the online article from the Advocate attached to the Exhibit “C,” the Estee Aff. The

Application does not provide any explanation why there is no adequate remedy at law. Plaintiff

has failed to meet his burden to establish a probable, imminent, and irreparable injury to himself.

IV. THE TRO SHOULD BE DISSOLVED BECAUSE THE INDIVIDUAL DEFENDANTS ARE NOT AND CANNOT BE LIABLE, ANY CLAIM IS BARRED BY

SOVEREIGN IMMUNITY, AND PLAINTIFF LACKS STANDING

A. Individual Capacity

Initially, Plaintiff has brought suit against individual Defendants rather than the City and

the Arboretum. From the pleadings it is unclear if he has sued them in their individual or official

capacity. If brought against them in their individual capacities, no possible claim is alleged.

Plaintiff acknowledges that the City owns the land at issue and has allegedly entered into an

agreement with the Arboretum. The Defendants in their individual capacity have not taken, will

not be taking, and could not be taking any action related to the land. As such, no proper claim

has been, nor can be, asserted against these individual Defendants.

B. Sovereign Immunity Bars Claims Against the City

If Plaintiff meant to name the City Defendants in their official capacity, then sovereign

immunity bars the action. Absent waiver by the legislature, sovereign immunity generally

deprives courts of subject-matter jurisdiction over suits against the State, its agencies, or officers

DEFENDANTS’ BRIEF IN SUPPORT OF EMERGENCY MOTION TO DISSOLVE TEMPORARY RESTRAINING ORDER – PAGE 14

or employees acting within their official capacity. See Heinrich, 284 S.W.3d at 369–76. A

plaintiff must plead a constitutional or legislative waiver with facts that make the waiver

applicable. Gen. Servs. Comm'n v. Little-Tex Insulation Co., 39 S.W.3d 591, 598 (Tex. 2001).

Plaintiff has not alleged any waiver and the allegations do not suggest any waiver. No

jurisdiction exists for injunctive relief.

While not alleged, Plaintiff may attempt to rely on the “ultra vires” exception to

sovereign immunity, which permits a plaintiff to sue a government official in his official

capacity, thereby binding the governmental entity, for prospective injunctive or declaratory relief

to restrain the official from violating statutory or constitutional provisions. See Heinrich, 284

S.W.3d at 372–73, 377. But to assert a valid ultra vires claim, the claimant “must not complain

of a government officer's exercise of discretion, but rather must allege, and ultimately prove, that

the officer acted without legal authority or failed to perform a purely ministerial act.” Id. at 372.

Otherwise, the suit, even if seeking only prospective declaratory or injunctive relief, implicates

sovereign immunity because it seeks to control state action. See id. The ulra vires exception

only allows relief to bring future acts into compliance with a statute. Id. at 376. Additionally,

the plaintiff has the initial burden of alleging facts that affirmatively demonstrate the district

court's subject-matter jurisdiction. See Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d

217, 226 (Tex. 2004). In the context of ultra vires claims, the plaintiff must allege facts that the

official acted without legal authority or failed to perform a ministerial act. Merely asserting legal

conclusions or labeling a defendant's actions as “ultra vires,” “illegal,” or “unconstitutional” does

not suffice to plead an ultra vires claim—what matters is whether the facts alleged constitute

actions beyond the governmental actor's statutory authority, properly construed. Texas Dep't of

Transp. v. Sunset Transp., Inc., 357 S.W.3d 691, 702 (Tex. App.-Austin 2011, no pet.).

DEFENDANTS’ BRIEF IN SUPPORT OF EMERGENCY MOTION TO DISSOLVE TEMPORARY RESTRAINING ORDER – PAGE 15

Again, Plaintiff has failed to allege facts or identify how any official acted without legal

authority or failed to perform a ministerial act. No jurisdiction exists for injunctive relief.

C. Plaintiff Lacks Standing

For any person to maintain a suit, it is necessary that he have standing to litigate the

matters in issue. See Precision Sheet Metal Mfg. Co. v. Yates, 794 S.W.2d 545, 551 (Tex. App.-

Dallas 1990, writ denied). Standing is a component of subject matter jurisdiction and cannot be

presumed and cannot be waived. Texas Ass'n of Business v. Texas Air Control, 852 S.W.2d 440,

443-44 (Tex. 1993). The sufficiency of a plaintiff's interest to maintain a lawsuit comes into

question when he intervenes in public affairs. Precision Sheet Metal Mfg. Co., 794 S.W.2d at

552; Tri County Citizens Rights Org. v. Johnson, 498 S.W.2d 227, 228-29 (Tex. Civ. App.-

Austin 1973, writ ref'd n.r.e.). When a plaintiff asserts a public right, and he fails to show the

matters in dispute affect him differently from other citizens, he does not have standing.

Precision Sheet Metal Mfg. Co., 794 S.W.2d at 552. To have standing, a plaintiff must have

some interest in the litigation peculiar to himself individually, not merely as a member of the

general public. Hunt v. Bass, 664 S.W.2d 323, 324 (Tex. 1984); Precision Sheet Metal Mfg. Co.,

794 S.W.2d at 551. A person seeking to enjoin the actions of a governmental body must plead

and prove that he has suffered “special injury,” i.e., he must allege and show how he has been

damaged or injured other than as a member of the general public. Persons v. City of Fort Worth,

790 S.W.2d 865, 868 (Tex. App.-Fort Worth 1990, no pet.)

Plaintiff has not alleged any special injury and has not alleged some interest peculiar to

himself. The Plaintiff’s affidavit states that he has “a personal interest in preserving the safety

and unique ecological nature of the area, a wildlife habitat, as a landowner and user of public

park.” Other than conclusory and unsupported allegations of injury, the Application only claims

DEFENDANTS’ BRIEF IN SUPPORT OF EMERGENCY MOTION TO DISSOLVE TEMPORARY RESTRAINING ORDER – PAGE 16

the alleged potential loss of an undefined ecosystem on City land. This is not an alleged injury

unique to Plaintiff but rather one common to the public. Since Plaintiff lacks standing, no

jurisdiction exists for injunctive relief.

V. THE TRO SHOULD BE DISSOLVED BECAUSE PLAINTIFF FAILED TO COMPLY WITH THE LOCAL RULES

Local Rule 2.02(a) provides that an applicant seeking a temporary restraining order shall

notify the opposing party’s counsel or the opposing party if unrepresented and provide a copy of

the application and the proposed order at least 2 hours before any hearing. The requirement is

excused only if (1) the applicant’s counsel or the applicant certify that there is insufficient time

to notify opposing party or counsel because the irreparable harm is imminent or (2) or the subject

matter of the application could be destroyed if notice were given.

Plaintiff and Plaintiff’s counsel failed to forward a copy of the Application to the City

Defendants or their counsel prior to the hearing seeking the TRO. After Mr. Fears left voice

messages regarding a possible hearing with City Defendants, the City Attorney’s Office called

Mr. Fears’ office prior to any filing or hearing, requested that he call, and requested a copy of

anything filed prior to the hearing. See the Affidavit of Annie Marshall attached hereto as

Exhibit “D;” see also, Exhibit “C,” Estee Aff. at p. 1. There was no return call and a copy of the

filing was not provided until after the TRO was granted. See Exhibit “C,” Estee Aff. at p. 1.

Plaintiff and his counsel are charged with knowledge that the City Attorney represents the City

and its officials and employees. See Dallas City Charter, Chapt. VII, Section 3; Stone v. City of

Dallas, 244 S.W.2d 937, 941 (Tex. App.-Waco 1952, writ dism’d). Plaintiff’s certificate of

conference states only they attempted to call the Defendants but were unable to reach them. The

certification does not satisfy the requirements of the local rule. The pleadings and supporting

documents were all signed on April 30, 2012 and the only attempt to contact the Defendants was

DEFENDANTS’ BRIEF IN SUPPORT OF EMERGENCY MOTION TO DISSOLVE TEMPORARY RESTRAINING ORDER – PAGE 17

on that day but the filing and hearing did not occur until a day later on May 1, 2012. There was

no immediacy or imminent harm to obtain a TRO let alone not give two hours notice. Based on

the failure to comply with the Local Rules the TRO should be dissolved.

VI. OBJECTION TO PLAINTIFFS’ SUPPORTING AFFIDAVIT AND APPLICATION

As explained in Defendants’ Objections and Motion to Strike Affidavits Supporting

Plaintiff’s Application for Temporary Restraining Order and Temporary Injunction, the

affidavits are defective and insufficient to support the request for injunctive relief. 1

The Application does contain a verification, however, both the Application and the

supporting affidavits are defective because they fail to identify facts and only speak in

generalities and in conclusory terms. A complainant seeking injunctive relief must plead

affirmatively the necessary facts and not legal conclusions. Such allegations must be direct,

certain and particular and must allege a basis for equitable relief. Texas State Board of Medical

Examiners v. McKinney, 315 S.W.2d 387, 390 (Tex.Civ.App.1958, no writ). No such

allegations are made in Plaintiff’s Application.

VII. THE TRO SHOULD BE DISSOLVED BECAUSE THE ORDER IS VOID

Tex. R. Civ. P. 680 states that a temporary restraining order shall “define the injury and

state why it is irreparable and why the order was granted without notice.” Tex. R. Civ. P. 683

requires that “every restraining order shall set forth the reasons for its issuance [and] shall be

specific in terms.” An temporary restraining order that fails to comply with the requirements of

Rules 680 and 683 is void because the requirements are mandatory and must be strictly followed.

See In re Attorney General, 257 S.W.3d 695, 697-98 (Tex. 2008) (applications that fail to meet

1 Defendants’ Objections and Motion to Strike Affidavits Supporting Plaintiff’s Application for Temporary

Restraining Order and Temporary Injunction is incorporated by this reference.

DEFENDANTS’ BRIEF IN SUPPORT OF EMERGENCY MOTION TO DISSOLVE TEMPORARY RESTRAINING ORDER – PAGE 18

Rule 680 and 684 are void); Qwest Comm. Corp. v. AT & T Corp., 24 S.W.3d 334, 337 (Tex.

2000) (requirements of 683 and 684 are mandatory and orders that fail to meet them are subject

to being declared void and dissolved). The reasons stated in the order for granting the injunctive

relief must be specific and legally sufficient, and must not be mere conclusory statements.

Indep. Capital Mgmt., L.L.C v. Collins, 261 S.W.3d 792, 795 (Tex. App.—Dallas 2008, no pet.)

(involving sufficiency of temporary injunction order); El Tacaso, Inc. v. Jireh Star, Inc., 356

S.W.3d 740, 744 (Tex. App.—Dallas 2011, n.p.h.) (involving sufficiency of temporary

injunction order).

The Order signed by the Court, contains the conclusory finding that “plaintiff will suffer

irreparable injury because of the danger to his community and the animal wildlife and habitat.”

The order does not define any injury to Plaintiff and does not state why any claimed injury is

irreparable and does not state why it was granted without notice other than in conclusory terms.

Thus, the Order is void and should be dissolved.

VIII. PLEA TO THE JURISDICTION

The Plaintiff lacks standing to prosecute any claim against any of the Defendants, the

Plaintiff is not entitled to injunctive relief, the Plaintiff asserts theories for which this court has

no jurisdiction, and the Plaintiff asserts theories not recognized in Texas law. The Court lacks

jurisdiction

Any claim against the City Defendants is barred by governmental or sovereign immunity

or official immunity in whole or, alternatively, in part. The alleged activities involved the City’s

governmental function and the City Defendants’ actions were all taken in their official capacities

and within their discretion. In addition, the Plaintiff failed to give proper and timely notice. The

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 cohzwerlaw@sbcglobal.net 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 hhobren@fnlawfirm.com Attorneys for Plaintiff, Christopher Bryan Fears

[ ] U.S. Mail [ ] Hand Delivery [ ] Overnight Delivery [ ] Certified [ ] Fax [x] Electronic Mail

/s/ Edward P. Perrin, Jr. Edward P. Perrin, Jr.