You are on page 1of 5

Filed 12 May 2 P5:01 Gary Fitzsimmons District Clerk Dallas District

CAUSE NO. DC-12-04834 CHRISTOPHER BRYAN FEARS, Plaintiff, vs. 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. AND PAUL DYER, AS DIRECTOR OF DALLAS PARK AND RECREATION DEPARTMENT, Defendants. IN THE DISTRICT COURT

192nd JUDICIAL DISTRICT

DALLAS COUNTY, TEXAS

EMERGENCY MOTION TO DISSOLVE TEMPORARY RESTRAINING ORDER Under Texas Rule of Civil Procedure 680, Defendants move to dissolve the Order entered in this case on May 1, 2012, which commands Defendants to desist and refrain from constructing a parking lot on specified property owned by the City of Dallas (the Order). The Order constitutes a temporary restraining order and it was obtained without notice to the Defendants. Texas Rule of Civil Procedure 680 provides that [o]n two days notice to the party who obtained the temporary restraining order without notice or on such shorter notice to that party as the court may prescribe, the adverse party may appear and move its dissolution or modification and in that event the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require. Defendants hereby provide such notice.

Defendants seek to dissolve the Order for numerous reasons, as discussed below. To obtain injunctive relief, the applicant must plead and prove three specific elements: (1) a cause of action against the defendants; (2) a probable right to the relief sought; and (3) a

EMERGENCY MOTION TO DISSOLVE TEMPORARY RESTRAINING ORDER


71000.1/355395v2

Page 1

probable, imminent, and irreparable injury in the interim. 1 The Application and Affidavit for Temporary Restraining Order and Temporary Injunction filed by Plaintiff on May 1, 2012 (the Application), fails to allege any specific cause of action whatsoever against the Defendants. In addition, the Application fails to allege any facts established by competent evidence that could support a specific cause of action against the Defendants or Plaintiffs entitlement to injunctive relief. Plaintiff is further not entitled to any injunctive relief because of the following deficiencies with his Application: Fails to allege a waiver or exception to sovereign immunity; Fails to allege a specific cause of action against the Defendants; Fails to allege facts that support a viable cause of action against the Defendants; Fails to allege a cause of action for which this Court has jurisdiction; Fails to support factual allegations with competent evidence; Contains inaccurate and misleading factual allegations; Fails to allege specific relief the Plaintiff is seeking; Fails to show that Plaintiff has a probable right to any relief; Fails to allege facts or provide any competent evidence that would support any injunctive relief against Defendants; Fails to allege facts to show that Plaintiff has standing to bring a cause of action against Defendants; Fails to allege facts to show that Defendants are liable in the capacity in which they have been sued.
1

Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). Page 2

EMERGENCY MOTION TO DISSOLVE TEMPORARY RESTRAINING ORDER


71000.1/355395v2

Plaintiff has not properly served any of the Defendants with the Application or the Order. Defendants respectfully submit that the Application was filed for the purpose of delaying the City of Dallas proper and valid utilization of its parks and other public facilities for the benefit of greater Dallas. Defendants request that this Emergency Motion to Dissolve Temporary Restraining Order be set for hearing on Friday, May 4, 2012, and, upon hearing, the Order be dissolved. 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

EMERGENCY MOTION TO DISSOLVE TEMPORARY RESTRAINING ORDER


71000.1/355395v2

Page 3

COUNSEL FOR DEFENDANT, MARY BRINEGAR, AS PRESIDENT AND CEO OF DALLAS ARBORETUM AND BOTANICAL SOCIETY AND DALLAS ARBORETUM AND BOTANICAL SOCIETY

CERTIFICATE OF CONFERENCE Counsel for Defendant and counsel for Plaintiff have personally conducted a conference regarding this motion and despite best efforts the counsel have not been able to revolve those matters presented. Certified to the 2nd day of May, 2012.

/s/ Molly B. Cowan Molly B. Cowan

EMERGENCY MOTION TO DISSOLVE TEMPORARY RESTRAINING ORDER


71000.1/355395v2

Page 4

CERTIFICATE OF SERVICE This is to certify that on the 2nd 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, Christopher Bryan Fears Hailey A. Hobren, Esq. FEARS NACHAWATI, PLLC 4925 Greenville Avenue, Suite 715 Dallas, Texas 75206 Attorneys for Plaintiff, Christopher Bryan Fears [ ] [ ] [ ] [ ] [x] U.S. Mail Hand Delivery Overnight Delivery Certified Fax [ ] [ ] [ ] [ ] [x] U.S. Mail Hand Delivery Overnight Delivery Certified Fax

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

EMERGENCY MOTION TO DISSOLVE TEMPORARY RESTRAINING ORDER


71000.1/355395v2

Page 5