arboretumvwinfrey
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DEFENDANTSOBJECTIONS AND MOTION TO STRIKE AFFIDAVITS SUPPORTING
PLAINTIFFS APPLICATION FOR TEMPORARY RESTRAINING ORDER AND TEMPORARY INJUNCTION 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 OBJECTIONS AND MOTION TO STRIKE AFFIDAVITS
SUPPORTING PLAINTIFFS APPLICATION FOR TEMPORARY RESTRAINING
ORDER AND TEMPORARY INJUNCTION
Defendants Sheffield Kadane, as City Councilman for District 9 of City of Dallas, Mary
Brinegar, as President and CEO of Dallas Arboretum and Botanical Society, Inc.
(the Arboretum) and Paul Dyer, as Director of Dallas Park and Recreation Department
(collectively, Defendants) file their Objections and Motion to Strike Affidavits Supporting
Plaintiff Christopher Bryan Fears (Plaintiff) Application for Temporary Restraining Order and
Temporary Injunction as follows:
I.
INTRODUCTION
Plaintiff sought and obtained an ex parte temporary restraining order against Defendants
from constructing a parking lot on property known as Winfrey Point at White Rock Lake. In
support of Plaintiffs Application and Affidavit for Temporary Restraining Order and Temporary
Injunction (Plaintiffs TRO), he provided the affidavits of Susan Rebecca Rader, Edward
Filed12 May 3 PGary FitzsiDistrict CleDallas Dist
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DEFENDANTSOBJECTIONS AND MOTION TO STRIKE AFFIDAVITS SUPPORTING
PLAINTIFFS APPLICATION FOR TEMPORARY RESTRAINING ORDER AND TEMPORARY INJUNCTION Page 2
Barker, Harold Barker and himself. These affidavits are insufficient and must be stricken
because they are not based on positive and unqualified personal knowledge, as is necessary to
support an application for temporary restraining order. In addition, the overwhelming majority
of the statements contained in these affidavits are objectionable and must be stricken because
they lack foundation, are conclusory, are based upon hearsay, and are not within the affiants
expertise. As a result, Defendants request that the Court sustain Defendants objections to these
affidavits, as set forth fully below, and strike the affidavits.
II.
ARGUMENTS & AUTHORITIES
A. Standard for AffidavitsFor an affidavit to be legally sufficient, it must positively and unqualifiedly represent the
facts as disclosed in the affidavit to be true and within the affiants personal knowledge.1 The
requirement of a sworn motion is not satisfied by the affiant's allegation that "the facts contained
herein are true and correct to the best of my knowledge."2
Similarly, an affidavit based on
information and belief is insufficient as verification by oath and its content is not factual
proof.3
Affidavits must be direct and in such positive terms as would sustain a charge of
perjury.4 Affidavits based on information and belief, or to the best of ones knowledge, are
defective and cannot support the issuance of injunctive relief.5
1Humphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex. 1994)(emphasis added).
2In reSimpson, 932 S.W.2d 674, 677 (Tex. App.Amarillo 1996, no writ).
3 Wells Fargo Const. Co. v. Bank of Woodlake, 645 S.W.2d 913, 914 (Tex. Civ. App.Tyler 1993, no
writ)(emphasis added).4Bledsoe v. Mack, 57 S.W.2d 869, 869 (Tex. Civ. App.Galveston 1933, no writ).
5Id.;Ex parte Rodriguez, 568 S.W.2d 894, 897 (Tex. App.Fort Worth 1978, orig. proceeding)
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DEFENDANTSOBJECTIONS AND MOTION TO STRIKE AFFIDAVITS SUPPORTING
PLAINTIFFS APPLICATION FOR TEMPORARY RESTRAINING ORDER AND TEMPORARY INJUNCTION Page 3
B. Total Insufficiency of the Affidavits Supporting Plaintiffs TROPlaintiff attached to his TRO the affidavits of Susan Rebecca Rader (Rader) 6, Edward
Barker (E. Barker)7, Harold Barker (H. Barker)
8and Plaintiff himself.
9Each of the
affidavits states that it is based on an affirmation of belief and is true and correct to the best of
[the affiants] knowledge.10 Because the affidavits must positively and unqualifiedly represent
the facts as disclosed in the affidavit to be true and within the affiants personal knowledge,
Defendants hereby object and contend that the affidavits of Rader, E. Barker, H. Barker and
Plaintiff are legally insufficient and fail to meet the requirements of Rule 682, and must be
stricken.
11
Because Plaintiffs TRO relied upon affidavits that are legally insufficient, Plaintiffs
TRO is void and no injunction may be granted on the current pleadings as a matter of law. 12
Nor is Plaintiffs purported Verification sufficient or availing. Plaintiff merely
purports to verify the facts referenced in the attached affidavits, which as shown above are
factually and legally deficient. Furthermore, any such adoption set forth above of such affidavit
facts constitutes impermissible hearsay and multi-level hearsay, and Plaintiffs own affidavit
on which such verification is based is insufficient as a matter of law.
C. Specific Objections to Raders AffidavitPlaintiffs TRO contains the affidavit of Rader, a self-described wildlife biologist and
member of the Texas Master Naturalist Group. 13 First and foremost, Raders affidavit is fatally
defective because she fails state any facts supporting any expertise in Blackland Prairies (for
6
Plaintiffs Exhibit B.7Plaintiffs Exhibit D.
8Plaintiffs Exhibit F.
9Plaintiffs Exhibit E.
10See introductory paragraphs Plaintiffs Exhibits B, D, E, and F.
11Humphreys, 888 S.W.2d at 470; see also Burke v. Satterfield, 525 S.W.2d 950, 954-55 (Tex. 1975)([u]nless
authorized by statute, an affidavit is insufficient unless the allegations therein are direct and unequivocal and perjury
can be assigned upon it).12
Tex. R. Civ. P. 682.13
See Exhibit B.
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DEFENDANTSOBJECTIONS AND MOTION TO STRIKE AFFIDAVITS SUPPORTING
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which no definition is provided).14
Rader fails to state any facts providing any level of required
experience, training, or expertise to demonstrate that she has the requisite qualifications to render
any of the opinions, conclusions or statements in her affidavit,15
including any undefined
endangered ecosystems, wildlife, habitats, or Blackland Prairie. Therefore, any
opinions and conclusions offered in Raders affidavit should be stricken.
Objections to Paragraph 3 and 4: Defendants further object to Paragraphs 3 and 4 as
the statements made therein lack any foundation (proper or otherwise), make unsubstantiated
factual conclusions that are not alleged or shown to relate to Winfrey Point, and are wholly
without any supporting or demonstrated expertise. Raders affidavit is devoid of any
demonstrated or even purported expert qualifications in Blackland Prairies or their history,
destruction and conservation.16
Moreover, Rader provides no factual basis for her assertions that
Blackland Prairies are one of the most endangered ecosystems or that all habitats in this
ecoregion are threatened by rapid population growth, and additionally constitute hearsay.17
Objections to Paragraph 5: Defendants further object to Paragraph 5 as the statements
made therein lack foundation, represent unsubstantiated purported facts/factual conclusions for
which no expertise, qualifications or source are remotely shown. Moreover, Rader provides no
factual basis for her assertions concerning unspecified tall prairie grasses and other birds,
much less provide any relationship between such allegations and the issues in this suit. 18
Defendants also object to this paragraph as hearsay.
Objections to Paragraph 6: Defendants further object to Paragraph 6 as the statements
and compilation of undefined terms made therein are made by third party entities (which Rader
14See id.
15See id.
16See id 3-4.
17See id.
18See id 5.
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DEFENDANTSOBJECTIONS AND MOTION TO STRIKE AFFIDAVITS SUPPORTING
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does not even contend to be a member), lack foundation, represent unsubstantiated factual
conclusions and/or unsubstantial statements, and further constitute hearsay on multiple levels.
Objections to Paragraph 10: Defendants further object to Paragraph 10 as the
statements made therein lack foundation and represent unsubstantiated factual and legal
conclusions for which no expertise or qualification is alleged or shown. Rader also did not
allege any facts demonstrating that Plaintiffs TRO was the only way to preserve the status quo
at Winfrey Point, or that destruction of the habitat at Winfrey Point is imminent,19 and as
previously noted, demonstrates no foundation for such statements or expert opinions, or their
admissibility.
Objections to Paragraph 11: Defendants further object to Paragraph 11 as the
statements made therein lack foundation and represent unsubstantiated factual conclusions for
which no expertise or qualifications is alleged or shown, and constitute impermissible hearsay. 20
Objections to Paragraph 12: Defendants further object to Paragraph 12 as the
statements made therein lack foundation, are based upon hearsay, and represent unsubstantiated
factual conclusions unsupported by any admissible facts. Rader does not provide any facts
demonstrating who she spoke with at the Arboretum or the Dallas Park and Recreation
Department, nor did she provide any facts how the Arboretum made clear any intent, or how
the Dallas Park and Recreation Department affirmed certain generalized conduct. 21
Objections to Paragraph 13: Defendants further object to Paragraph 13 as the
statements made therein lack foundation. Rader did not allege any facts or specify what the
other avenues, community advocacy, or other communications claimed. Moreover, there
19See id 10.
20See id 11.
21See id 12.
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DEFENDANTSOBJECTIONS AND MOTION TO STRIKE AFFIDAVITS SUPPORTING
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is no bases, expertise or qualifications for the opinions/conclusions expressed regarding the
destruction of any ecosystem, which is not even alleged to include Winfrey Point.
Objections to Paragraph 14: Defendants further object to Paragraph 14 as the
statements made therein lack foundation and represent unsubstantiated factual and legal
conclusions and expert opinions for which no expertise or qualification is alleged or shown,
including that destruction of the habitat at Winfrey Point is imminent.22
D. Specific Objections to E. Barkers AffidavitPlaintiffs TRO contains the affidavit of E. Barker, a resident of land adjacent to Winfrey
Point.
23
E. Barkers affidavit contains numerous statements which lack foundation or represent
unsubstantiated factual conclusions and should be stricken.
Objections to Paragraph 3: Defendants object to Paragraph 3 as the statements made
therein lack foundation and represent unsubstantiated factual conclusions. E. Barker does not
state any facts supporting his assertion of unspecified destruction caused to the Winfrey Point
habitat, nor does he remotely provide any foundation, expertise or qualifications to make such
claim, or that the City of Dallas has acquiesced, participated and encouraged such uses.24
Objections to Paragraph 6: Defendants further object to Paragraph 6 as the statements
made therein lack foundation and represent unsubstantiated factual conclusions, and E. Barkers
allegations that he has a long, written history of parking abuses constitutes hearsay.25
Objections to Paragraph 7: Defendants further object to Paragraph 7 as the statements
made fail to allege any facts, or specify what political alternatives, community advocacy or
other communications are referred to. Moreover, there is no bases, expertise or qualifications
22See id 14.
23See Exhibit D.
24See id 3.
25See id 6.
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DEFENDANTSOBJECTIONS AND MOTION TO STRIKE AFFIDAVITS SUPPORTING
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for the opinions and conclusion expressed regarding any destruction of an undefined
ecosystem, which is not alleged to include Winfrey Point.26
Objections to Paragraph 8: Defendants further object to Paragraph 8 as the statements
made therein lack foundation and represent unsubstantiated factual conclusions. E. Barker failed
to provide any facts or expertise supporting his allegation that the alleged use the land at Winfrey
Point would endanger Blackland Prairie and unspecified wildlife.27
Objections to Paragraph 9: Defendants further object to Paragraph 9 as the statements
made therein lack foundation, are based upon hearsay, and represent unsubstantiated factual
conclusions unsupported by any admissible facts. E. Barker does not provide any facts
demonstrating who he spoke with at the Arboretum or the Dallas Park and Recreation
Department, nor did he provide any facts how the Arboretum made clear any intent, or how the
Dallas Park and Recreation Department affirmed certain generalized conduct. 28
Objections to Paragraph 10: Defendants further object to Paragraph 10 as the
statements made therein lack foundation and represent unsubstantiated factual and legal
conclusions for which no expertise or qualification is alleged or shown, including that
destruction of the habitat at Winfrey Point is imminent.29
E. Specific Objections to Plaintiffs AffidavitPlaintiffs TRO contains his own affidavit, as a resident of land within one hundred yards
of the proposed parking area at Winfrey Point.30
Plaintiffs affidavit contains numerous
statements which lack foundation or represent unsubstantiated factual conclusions and should be
stricken.
26See id 7.
27See id 8.
28See id 9.
29See id 10.
30See Exhibit E.
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DEFENDANTSOBJECTIONS AND MOTION TO STRIKE AFFIDAVITS SUPPORTING
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Objections to Paragraph 2: Defendants object to Paragraph 2 as the statements made
therein concerning safety, unique ecological nature of the area, and wildlife habitat are
unsubstantiated factual conclusions and expert opinions for which no foundation, expertise or
qualifications are alleged or demonstrated.31
Objections to Paragraph 3: Defendants further object to Paragraph 3 as the statements
made therein about destruction caused to the Winfrey Point habitat and Blackland Prairie
lack foundation and represent unsubstantiated factual conclusions for which no bases, expertise
or qualifications are alleged or shown.32
Objections to Paragraph 4: Defendants further object to Paragraph 4 as the statements
made therein lack foundation. Plaintiff does not allege any facts or specify what the other
avenues, community advocacy, or other communications claimed. Moreover, there is no
bases, expertise or qualifications for the opinions/conclusions expressed regarding the
destruction of any ecosystem, which is not even alleged to include Winfrey Point.33
Objections to Paragraph 5: Defendants further object to Paragraph 5 as the statements
made therein lack foundation and represent unsubstantiated factual conclusions for which no
expertise or qualifications are alleged or shown, and constitute impermissible hearsay.34
Objections to Paragraph 6: Defendants object to Paragraph 6 as the statements made
therein lack foundation, are based upon hearsay, and represent unsubstantiated factual
conclusions unsupported by any admissible facts. Plaintiff does not provide any facts
demonstrating who he spoke with at the Arboretum or the Dallas Park and Recreation
31See id 2.
32See id 3.
33See id 4.
34See id 5.
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DEFENDANTSOBJECTIONS AND MOTION TO STRIKE AFFIDAVITS SUPPORTING
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Department, nor did he provide any facts how the Arboretum made clear any intent, or how the
Dallas Park and Recreation Department affirmed certain generalized conduct. 35
Objections to Paragraphs 7 and 8: Defendants further object to Paragraphs 7 and 8 as
the statements made therein lack foundation and represent unsubstantiated legal and factual
conclusions, and do not provide any basis, expertise or qualifications or other foundation
sufficient to support the conclusory assertion that destruction of the habitat at Winfrey Point is
imminent.
F. Specific Objections to H. Barkers AffidavitPlaintiffs TRO contains the affidavit of H. Barker, a resident of land adjacent to Winfrey
Point.36 H. Barkers affidavit contains numerous statements which lack foundation or are
represent unsubstantiated factual conclusions and should be stricken.
Objections to Paragraph 3: Defendants object to Paragraph 3 as the statements made
therein about destruction caused to the Winfrey Point habitat and Blackland Prairie lack
foundation and represent unsubstantiated factual conclusions for which no bases, expertise or
qualifications are alleged or shown.37
Objections to Paragraph 4: Defendants further object to Paragraph 4 as the statements
made therein lack foundation. H. Barker did not allege any facts or specify what the other
avenues, community advocacy, or other communications claimed. Moreover, there is no
bases, expertise or qualifications for the opinions/conclusions expressed regarding the
destruction of any ecosystem, which is not even alleged to include Winfrey Point.38
35See id 6.
36See Exhibit F.
37See id 3.
38See id 4.
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DEFENDANTSOBJECTIONS AND MOTION TO STRIKE AFFIDAVITS SUPPORTING
PLAINTIFFS APPLICATION FOR TEMPORARY RESTRAINING ORDER AND TEMPORARY INJUNCTION Page 10
Objections to Paragraph 5: Defendants object to Paragraph 5 as the statements made
therein lack foundation and represent unsubstantiated factual conclusions for which no expertise
or qualifications is alleged much less shown, and constitute impermissible hearsay.39
Objections to Paragraph 6: Defendants object to Paragraph 6 as the statements made
therein lack foundation, are based upon hearsay, and represent unsubstantiated factual
conclusions unsupported by any admissible facts. H. Barker does not provide any facts
demonstrating who he spoke with at the Arboretum or the Dallas Park and Recreation
Department, nor did she provide any facts how the Arboretum made clear any intent, or how
the Dallas Park and Recreation Department affirmed certain generalized conduct.
40
Objections to Paragraph 7: Defendants further object to Paragraph 7 as the statements
made therein lack foundation and represent unsubstantiated factual and legal conclusions for
which no expertise or qualification is alleged or shown, including that destruction of the habitat
at Winfrey Point is imminent.41
III.
REQUEST FOR RELIEF
For all these reasons, Defendants respectfully request that the Court sustain their
objections and strike the affidavits of Rader, E. Barker, H. Barker and Plaintiff in their entirety
or, in the alternative, strike the aforementioned portions of the affidavits of Rader, E. Barker, H.
Barker and Plaintiff, and for such other and further relief to which Defendants may show
themselves justly entitled.
39See id 5.
40See id 6.
41See id 7.
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DEFENDANTSOBJECTIONS AND MOTION TO STRIKE AFFIDAVITS SUPPORTING
PLAINTIFFS APPLICATION FOR TEMPORARY RESTRAINING ORDER AND TEMPORARY INJUNCTION Page 11
Respectfully submitted,
__/s/ Charles Estee___________________
Charles Estee
State Bar No. 06673600
DALLAS CITY ATTORNEYS OFFICE1500 Marilla Street, Room 7DN
Dallas, Texas 75201Telephone: (214) 670-3519
Facsimile: (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 DEPARTMENTAND CITY OF DALLAS
__/s/ Edward P. Perrin, Jr._____________
Edward P. Perrin, Jr.
State Bar No. 15796700
Molly B. CowanState Bar No. 24025312
Meghan E. Cook
State Bar No. 24064125HALLETT &PERRIN,P.C.
1445 Ross Avenue, Suite 2400
Dallas, Texas 75202Telephone: (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
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DEFENDANTSOBJECTIONS AND MOTION TO STRIKE AFFIDAVITS SUPPORTING
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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 450Dallas, Texas 75202
Attorneys for Plaintiff
[ ] U.S. Mail[ ] Hand Delivery
[ ] Overnight Delivery[ ] Certified
[x] Fax
Hailey A. Hobren, Esq.
FEARS NACHAWATI,PLLC
4925 Greenville Avenue, Suite 715Dallas, Texas 75206
Attorneys for Plaintiff
[ ] U.S. Mail
[ ] Hand Delivery
[ ] Overnight Delivery[ ] Certified
[x] Fax
_/s/ Edward P. Perrin, Jr.______________
Edward P. Perrin, Jr.
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