Filed 12 May 3 P3:43 Gary Fitzsimmons District Clerk Dallas District

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
DEFENDANTS OBJECTIONS AND MOTION TO STRIKE AFFIDAVITS SUPPORTING PLAINTIFFS APPLICATION FOR TEMPORARY RESTRAINING ORDER AND TEMPORARY INJUNCTION Page 1

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 Affidavits For 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

Humphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex. 1994)(emphasis added). In re Simpson, 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). 4 Bledsoe v. Mack, 57 S.W.2d 869, 869 (Tex. Civ. App.Galveston 1933, no writ). 5 Id.; Ex parte Rodriguez, 568 S.W.2d 894, 897 (Tex. App.Fort Worth 1978, orig. proceeding) DEFENDANTS OBJECTIONS AND MOTION TO STRIKE AFFIDAVITS SUPPORTING PLAINTIFFS APPLICATION FOR TEMPORARY RESTRAINING ORDER AND TEMPORARY INJUNCTION Page 2
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B.

Total Insufficiency of the Affidavits Supporting Plaintiffs TRO Plaintiff attached to his TRO the affidavits of Susan Rebecca Rader (Rader) 6, Edward

Barker (E. Barker) 7, Harold Barker (H. Barker) 8 and Plaintiff himself. 9

Each 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 Affidavit Plaintiffs 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
Plaintiffs Exhibit B. Plaintiffs Exhibit D. 8 Plaintiffs Exhibit F. 9 Plaintiffs Exhibit E. 10 See introductory paragraphs Plaintiffs Exhibits B, D, E, and F. 11 Humphreys, 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. DEFENDANTS OBJECTIONS AND MOTION TO STRIKE AFFIDAVITS SUPPORTING PLAINTIFFS APPLICATION FOR TEMPORARY RESTRAINING ORDER AND TEMPORARY INJUNCTION Page 3
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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. 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 Therefore, 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
See id. See id. 16 See id 3-4. 17 See id. 18 See id 5. DEFENDANTS OBJECTIONS AND MOTION TO STRIKE AFFIDAVITS SUPPORTING PLAINTIFFS APPLICATION FOR TEMPORARY RESTRAINING ORDER AND TEMPORARY INJUNCTION Page 4
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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

See id 10. See id 11. 21 See id 12. DEFENDANTS OBJECTIONS AND MOTION TO STRIKE AFFIDAVITS SUPPORTING PLAINTIFFS APPLICATION FOR TEMPORARY RESTRAINING ORDER AND TEMPORARY INJUNCTION Page 5
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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 Affidavit Plaintiffs 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

See id 14. See Exhibit D. 24 See id 3. 25 See id 6. DEFENDANTS OBJECTIONS AND MOTION TO STRIKE AFFIDAVITS SUPPORTING PLAINTIFFS APPLICATION FOR TEMPORARY RESTRAINING ORDER AND TEMPORARY INJUNCTION Page 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 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 Affidavit Plaintiffs 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.
See id 7. See id 8. 28 See id 9. 29 See id 10. 30 See Exhibit E. DEFENDANTS OBJECTIONS AND MOTION TO STRIKE AFFIDAVITS SUPPORTING PLAINTIFFS APPLICATION FOR TEMPORARY RESTRAINING ORDER AND TEMPORARY INJUNCTION Page 7
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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

See id 2. See id 3. 33 See id 4. 34 See id 5. DEFENDANTS OBJECTIONS AND MOTION TO STRIKE AFFIDAVITS SUPPORTING PLAINTIFFS APPLICATION FOR TEMPORARY RESTRAINING ORDER AND TEMPORARY INJUNCTION Page 8
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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 Affidavit Plaintiffs 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

See id 6. See Exhibit F. 37 See id 3. 38 See id 4. DEFENDANTS OBJECTIONS AND MOTION TO STRIKE AFFIDAVITS SUPPORTING PLAINTIFFS APPLICATION FOR TEMPORARY RESTRAINING ORDER AND TEMPORARY INJUNCTION Page 9
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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.

See id 5. See id 6. 41 See id 7. DEFENDANTS OBJECTIONS AND MOTION TO STRIKE AFFIDAVITS SUPPORTING PLAINTIFFS APPLICATION FOR TEMPORARY RESTRAINING ORDER AND TEMPORARY INJUNCTION Page 10
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Respectfully submitted, __/s/ Charles Estee___________________ Charles Estee State Bar No. 06673600 DALLAS CITY ATTORNEYS OFFICE 1500 Marilla Street, Room 7DN Dallas, Texas 75201 Telephone: (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 DEPARTMENT AND CITY OF DALLAS

__/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 HALLETT & PERRIN, P.C. 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

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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 450 Dallas, Texas 75202 Attorneys for Plaintiff Hailey A. Hobren, Esq. FEARS NACHAWATI, PLLC 4925 Greenville Avenue, Suite 715 Dallas, Texas 75206 Attorneys for Plaintiff _/s/ Edward P. Perrin, Jr.______________ Edward P. Perrin, Jr. [ ] [ ] [ ] [ ] [x] U.S. Mail Hand Delivery Overnight Delivery Certified Fax [ ] [ ] [ ] [ ] [x] U.S. Mail Hand Delivery Overnight Delivery Certified Fax

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