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Brief in Support of Emerg. MTD

Brief in Support of Emerg. MTD

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Published by: The Dallas Morning News on May 04, 2012
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DEFENDANTS’ BRIEF IN SUPPORT OF EMERGENCY MOTION TO DISSOLVETEMPORARY RESTRAINING ORDER – PAGE 1
 
CAUSE NO. DC-12-04834CHRISTOPHER BRYAN FEARS,
 Plaintiff,
vs.SHEFFIELD KADANE, AS CITYCOUNSILMAN FOR DISTRICT 9 OFCITY OF DALLAS, MARY BRINEGAR,AS PRESIDENT AND CEO OF DALLASARBORETUM AND BOTANICALSOCIETY, INC. AND PAUL DYER, ASDIRECTOR OF DALLAS PARK ANDRECREATION DEPARTMENT,
 Defendants.
§§§§§§§§§§§§§§§§IN THE DISTRICT COURT192
nd
JUDICIAL DISTRICTDALLAS COUNTY, TEXASDEFENDANTS’ BRIEF IN SUPPORT OF EMERGENCY MOTION TO DISSOLVETEMPORARY 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 (“theCity Defendants”) and Mary Brinegar, as president of the Dallas Arboretum and BotanicalSociety, Inc. (the “Arboretum Defendant”) and file this Brief in Support of Emergency Motion toDissolve Temporary Restraining Order (the “Motion”).
I.
 
INTRODUCTION
On May 1, 2012, Plaintiff filed his Application and Affidavit for Temporary RestrainingOrder 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 theCity Defendants and the Arboretum Defendant (the “TRO”). The TRO was improperly grantedand should be dissolved. Plaintiff cannot meet his burden to show he is entitled to injunctive
 
DEFENDANTS’ BRIEF IN SUPPORT OF EMERGENCY MOTION TO DISSOLVETEMPORARY RESTRAINING ORDER – PAGE 2
 
relief. In particular, Plaintiff’s Application fails to allege a specific cause of action againstDefendants or to allege facts sufficient to support any viable cause of action, and particularly tosupport injunctive relief. Additionally, the failure to plead a specific cause of action makes itimpossible for Plaintiff to establish that the Court has subject matter jurisdiction, that sovereignimmunity has been waived, or that Plaintiff has standing. Even assuming that Plaintiff hasalleged a viable cause of action against Defendants, he failed to comply with Local Rules inobtaining the TRO. Also, the pleadings and purported evidence do not support the grant of aTRO, 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 asa 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. Duringa portion of World War II, the area was used by the military including use as a camp forprisoners of war. After the war, the area was used for housing by Southern Methodist Universitystudents. 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 thearea, approximately twice a month. Because of budgetary constraints the City stopped regularlymowing the area and instead mowed only once a year. In 2011 the City added another baseballfield and parking.
See
Affidavit of James Page (the “Page Aff.”) p. 1, which is attached hereto asExhibit “A.”Early this year, the Arboretum approached the City about using the area for temporarypotential 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 DISSOLVETEMPORARY RESTRAINING ORDER – PAGE 3
 
parking due to construction, and the possible loss of certain overflow parking, the Arboretumwanted to ensure emergency overflow parking could be available. Therefore the City agreed thatthe Arboretum could have access to those certain areas of Winfrey Point and the Arboretumagreed to also make those parking areas available for other events. Any net revenues resultingfrom the operation of those lots will be given to the City to be used for improvement to WhiteRock Lake Park. This parking is part of proper and valid use by the City of its parks and otherpublic facilities, will make the area safer for everyone because people will not be parking on theroad 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 enterinto 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 involvesthe 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 asExhibit “B.”
III.
 
THE TRO SHOULD BE DISSOLVEDBECAUSE PLAINTIFF FAILED TO MEET HIS BURDEN
An applicant seeking a temporary injunctive relief must plead and prove three specificelements: (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
 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 willallegedly suffer immediate and irreparable injury, the Application does not purport to state anyspecific cause of action against any of Defendants.
(
Application at ¶4)
 An injunction is an

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