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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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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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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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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.


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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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.


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


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


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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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.



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


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


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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for the opinions and conclusion expressed regarding any destruction of an undefined

ecosystem, which is not alleged to include Winfrey Point.26


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


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



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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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


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


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


made therein lack foundation and represent unsubstantiated factual conclusions for which no

expertise or qualifications are alleged or shown, and constitute impermissible hearsay.34


therein lack foundation, are based upon hearsay, and represent unsubstantiated factual

conclusions unsupported by any admissible facts. Plaintiff does not provide any facts


31See id 2.

32See id 3.

33See id 4.

34See id 5.


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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.


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


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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therein lack foundation and represent unsubstantiated factual conclusions for which no expertise

or qualifications is alleged much less shown, and constitute impermissible hearsay.39


therein lack foundation, are based upon hearsay, and represent unsubstantiated factual

conclusions unsupported by any admissible facts. H. Barker does not provide any facts


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


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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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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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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