APPELLANTS BRIEF ON THE MERITS - 1

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28 No. 05

- 15

- 00796

- CV

In The 5 th Court of Appeals Dallas, Texas

Chris Click and Jerry Lindemann

v. Transport Workers Union Local 556

ON APPEAL FROM THE 116 TH CIVIL DISTRICT COURT

DALLAS COUNTY TEXAS

TRIAL COURT CAUSE NO DC

- 13

- 13347 JUDGE TONYA PARKER, PRESIDING

APPELLANTS FIRST BRIEF ON THE MERITS OF THE APPEAL

Appellant: Chris Click 1711 Waltman Road Edgewood, MD 21040 (410)507

- 9082 Jerry Lindemann 20802 Phlox Meadow San Antonio, TX 78259 (210)269

- 6654 ACCEPTED 05-15-00796-CV FIFTH COURT OF APPEALS

DALLAS, TEXAS 10/14/2015 8:25:10 PM

LISA MATZ CLERKAPPELLANTS BRIEF ON THE MERITS

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28 Chris Click, Pro Se 1711 Waltman Road Edgewood, MD 21040

5 TH COURT OF APPEALS FOR DALLAS COUNTY

CHRIS CLICK AND JERRY LINDEMANN , Plaint i f f (s) ,

vs.

TRANSPORT WORKERS UNION LOCAL 556 , Defendant (s) ) ) ) ) ) ) ) ) ) ) Case No.: 05

- 15

- 00796

- CV

APPELLANTS BRIEF ON THE MERITS

BRIEF IN SUPPORT OF THE MERITS OF THE APPEAL

IDENTITY OF PARTIES AND COUNSEL

Appellant/Plaintiff: Pro Se Christopher L Click

1711 Waltman Road Edgewood, MD 21040 (410)507

- 9082

Appellant/Plaintiff: Pro Se Jerry Lindemann

20802 Phlox Meadow San Antonio, TX 78259 (210)269

- 6654APPELLANTS BRIEF ON THE MERITS

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28 Original Trial Judge:

Honorable Tonya Parker, Presiding George L Allen Sr Courts Building 600 Commerce Street, 6 th Floor New Tower Dallas, TX 75202 (214)653

- 6015

Appellee/Defendant: Attorney For Defendant: Transport Workers Union Local 556 Edward Cloutman

7929 Brookriver Drive Suite 750 3301 Elm Street Dallas, TX 75247 Dallas, TX 75226APPELLANTS BRIEF ON THE MERITS

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28 TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL............................................................................. 2

TABLE OF CONTENTS......................................................................................................................... 4

TABLE OF AUTHORITIES.............................................................................................................. 5

STATEMENTS OF THE CASE............................................................................................................ 6

STATEMENT REGARD ING ORAL ARGUMENTS........................................................................ 7

ISSUES PRESENTED.......................................................................................................................... 8

STATEMENT OF FACTS........................................................................................................................ 9

ARGUMENT...................................................................................................................................................... 1 1

PRAYER...........................................................................

............................................................................... 1 4

APPENDIX OF EXHIBITS............................................................................................................... .1 6

CERTIFICATE OF SERVICE..........................................................................................................1 9APPELLANTS BRIEF ON THE MERITS

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28 INDEX OR TABLE OF AUTHORITIES

1. American Bank v. Waco Airmotive Inc., 818 S.W.2d 163, 178 (Tex. App.

- Waco 1991, writ denied).

2. Dawson Austin v. Austin, 968 S.W.2d 319 (Tex. 1998).

3. Gabauer, et al v. Woodcock, et al., 425 F.Supp 1, 2 (E.D. Missouri 1976)

4. Holdeman v.Sheldon , 311 F.2d 2, 3 (2nd Cir. 1962)

5. Kerr v. Shanks, 466 F.2d 1271, 1277 (9th Cir. 1972).

6. Larrumbide v. Doctors Health Facilities, 734 S.W.2d 685, 693

- 94 (Tex. App.

- Dallas 1987, writ denied).

7. L.M. Healthcare, Inc. v. Childs, 929 S.W.2d 442, 443 (Tex. 1996).

8. McNamara, et al v. Johston, et al., 522 F.2d4115 7, 1167 (7th Cir. 1975)

9. Mulligan v. Parker, 805 F.Supp 592, n. 4 (ND Illinois 1992)

10. Texas Educ. Agency v. Maxwell, 937S.W.2d 621, 623 (Tex. App.

- Eastland 1997, writ denied);APPELLANTS BRIEF ON THE MERITS

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28 STATEMENTS OF THE CASE

1. On November 8 th , 2013, Defendant Transport Workers Union Local 556, through their attorney Edward Cloutman filed a civil action against Christopher Click and Jerry Lindemann in the 116 th Civil Ciruit Court seeking damaged and other relief pertaining to Click and Lindemann’s

service as Officers in t he Local Union.

2. On February 2 nd , 2014, Attorneys for Lindemann and Click filed a motion to Consolidate the case into a third open case against Stacy Martin who was also being sued in the 116 th court for damaged.

3. Chris Click served as the Vice President o n the Executive Board for Transport Workers Union Local 556 from May 2012 through May 2013. Jerry Lindemann also served on the Executive Board for Transport Workers Union Local 556 from May 2012 through May 2013.

4. The Motion to Consolidate was not opposed b y TWU Local 556 or their

counsel Edward Cloutman and as such were combined into action number

DC

- 13

- 13347 (TWU Local 556, v. Stacy Martin, et al)

5. On November 26 th , 2014 Attorney Dan Nelson (attorney for Click and Lindemann) filed a Traditional AND No Evide nce Motion for Summary Judgment and requested a hearing to present oral arguments on said

motion.

6. On December 16 th , 2014, Attorneys for TWU Local 556 filed their opposition to Click and Lindemanns Motion for Summary Judgment.

7. After Oral Arguments from both parties regarding the Motion for Summary Judgment, Judge Tonya Parker ruled on motion GRANTING Click and Lindemann’s No Evidence and Traditional Summary Judgment and exluded them from the Jury Trial set to begin three days later.APPELLANTS BRIEF ON THE MERITS

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28 8. Defendant TWU Local 556 D id not Appeal the decision of the trial

judge within thirty (30) days of the decision of the court which means the judgment GRANTING the Motion for Summary Judgment is

FINAL.

9. On January 29 th , 2015 the Jury Trial in the matter of TWU Local 556 v. Stacy Mart in, et all proceeded in the 116 th Circuit Court with Honorable Judge Tonya Parker Presiding. After three days of testimony and hours of deliberations the courts returned a guilty verdict against Stacy Martin and awarded TWU Local 556 monetary damages.

10. Jud ge Parker signed a final judgment on February 19 th , 2015. Ordering that Stacy Martin pay TWU Local 556 monetary damages and that TWU Local 556 take nothing from Click and Lindemann.

11. On March 3 rd , 2015 Attorneys for Click and Lindemann filed a

Motion to Mo dify Judgment as a final award decision for the Motion for Summary Judgment had not been addressed in the final ruling.

12. On June 3 rd , 2015 the Honorable Judge Tonya Parker signed an amended Final Judgment regarding TWU Local 556 v. Stacy Martin,

however had still not addressed the Motion for Summary Judgment and ultimately the dismissal of the case against Click and Lindemann.

13. On July 1 st , 2015, Chris Click and Jerry Lindemann both Pro Se filed a Notice of Appeal with the 116 th Circuit Civil Court and it

was submitted on the same day to the 5 th Court of Appeals. Case was assigned number 05

- 15

- 00796

- CV

STATEMENTS REGARDING ORAL ARGUMENTS

1. Plaintiff Chris Click and Jerry Lindemann do not feel the presentation of Oral Arguments will aid the appellate courts decision in the matter, nor are oral arguments appropriate.APPELLANTS BRIEF ON THE MERITS

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28 ISSUES PRESENTED

1. Did the Trial Court err in the final judgment by excluding awards for both Click and Lindemann in regards to the GRANTING of a Motion for Summary Judgment?

2. Is there factually s ufficient case law and evidence to support the judgment in the trial court and again in the appeals court?

3. Are Click and Lindemann entitled to attorney fees and other relief as decided by the court and filed in the Original Motion for Summary Judgment?

4. Are Click and Lindemann entitled to a portion of relief as decided by the appellate court based on the Original Motion for Summary Judgme nt and the decision of the judge in her final judgment against

Martin in DC13

- 13347?

5. Did Click and Lindemann file in a tim ely manner and in accordance with Texas Procedural Law their Motion to Modify Judgment?

6. Is there a long standing practice that shows a history and policy of “permitting union officers who have successfully defended themselves against charges of 501 of the LMRDA, wherein there is an adequate protection of union officers from baseless litigation”?

7. Is there case law in place “Permitting a union to reimburse a defendant if he is successful in his defense, and in which provides sufficient financial protection of union officials against nuisance

suits.”?APPELLANTS BRIEF ON THE MERITS

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28 STATEMENT OF FACTS

1. In March 2012, Chris Click and Jerry Lindemann were elected to serve as Vice President and Treasurer of Transport Workers Union Local

556. Click and Lindemann ran on a slate with three o thers (Stacy Martin/President, Dawn Wann/2 nd Vice President, and Jannah Dalak/Recording Secretary). During their first year in office Click and Lindemann were presented with charges no fewer than six times. During that time the board found the charges im proper.

2. In November 2012, when Martin, Click and Lindemann had discovered that several Executive Board Members had been claiming work on their time sheets and being paid for that work, without the work actually being done, Martin made a move to slash the b udget for these officers and refused to pay time sheets for work that could not be verified of being completed. Many board members were upset by these

decisions.

3. In January and February of 2013 during normally scheduled Membership Meeting, Click and Marti n shared the financial findings with members of the local during routine question and answer sessions regarding financial expenditures. The Board Members who had taken part in the pay schemes were upset about this decision and considered Martins

actions “ harmful to them as members”

4. The Executive Board moved to present charges against Click, Martin and Lindemann and in April 2013, May 2013 and again in June 2013 found Stacy Martin, Chris Click and Jerry Lindemann guilty of

various articles of the Constituti on and Bylaws of the Local. TheyAPPELLANTS BRIEF ON THE MERITS

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28 were removed from office and restricted from holding elected or

appointed office for a period of three additional years.

5. In November 2013, TWU Local 556 presented civil actions separately against Stacy Martin, Chris Click and Jerry Lindemann for the costs incurred during trials and expenses incurred after their removal from office (during suspension and after being removed).

6. In November 2014, Attorneys for Chris Click, Stacy Martin and Jerry

Lindemann filed Motions for No E vidence and Traditional Summary Judgment to the courts. December 2014, TWU Local 556 filed their oppositions to motion and both motions were set for oral arguments after the Holiday break.

7. In January 2015 attorneys for both parties presented oral arguments

in the 116 th Circuit Court regarding the Motions for Summary Judgment. The Court GRANTED in WHOLE the Motion for Summary Judgment for Click and Lindemann and DENIED the Motion for Summary Judgement for Martin. Stacy Martin proceeded to jury trial three days after.

8. In January 2015 , the jury trial for Stacy Martin proceeded and Martin was in the end found guilty of the charges against him. Martin was not found guilty of the charges against Click and

Lindemann.

9. In February 2015 the Trial Judge Parker issue d her final judgment and did not issue a signed final ruling for CLICK and LINDEMANN’s Motion for Summary Judgment.

10. In March 2015, Attorneys for Click and Lindemann filed a Motion to Modify Judgment seeking the honorable Parker to sign her oral ruling of t he Motion for Summary Judgment.APPELLANTS BRIEF ON THE MERITS

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28 11. In June 2015, the Honorable Parker issued an amended ruling

in the matter of TWU Local 556 v. Stacy Martin however still failed to address the Motion for Summary Judgment.

12. In July 2015, Click and Lindemann filed (pro se) the ir Notice to Appeal the decision of the trial court due to the fact a

decision had not been rendered in the final award for Click and Lindemann. Appellant has appealed their case to the 5 th Court of Appeals at Dallas County, Texas asking the appellate cou rt to modify the courts final judgment.

ARGUMENT

1. If the judgment did not award a party all the relief it was entitled to, or awarded the other party more relief than it was entitled to, the complaint must be brought to the attention of the

trialcourt i n a written motion. Tex. R. Civ. P. § 329b(g). A party should file a motion to modify the judgment if the court did not award the correct amount of prejudgment interest. If a party does not bring the issue to the attention of the trial

court in a motion to modify the judgment or make some other objection that appears on the record, the party cannot raise the issue on appeal. Larrumbide v. Doctors Health Facilities, 734 S.W.2d 685, 693

- 94 (Tex. App.

- Dallas 1987, writ denied). 2. A party should file a moti on to modify the judgment when the trial court does not award attorneys fees or does not award the correct amount of fees. Texas Educ. Agency v. Maxwell, 937APPELLANTS BRIEF ON THE MERITS

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28 S.W.2d 621, 623 (Tex. App.

- Eastland 1997, writ denied); American

Bank v. Waco Airmotive Inc., 81 8 S.W.2d 163, 178 (Tex. App.

- Waco 1991, writ denied).3 3. A party should file a motion to modify the judgment when the judgment does not award costs, awards costs to the wrong party, or

does not award the correct amount of costs. Dawson Austin v. Austin , 968 S.W.2d 319 (Tex. 1998). A party should file a motion to modify the judgment if there is any other error in the judgment. L.M. Healthcare, Inc. v. Childs, 929 S.W.2d 442, 443 (Tex. 1996). On July 14, 2014,

4. Defendants Click and Lindemann filed the ir No

- Evidence Motion for Summary Judgment praying this Honorable Court grant their Motion and requested relief, both special and general, at law and in equity. On November 26, 2014, Defendants filed their Traditional Motion for Summary Judgment praying th is Honorable Court to grant their Motion, and pray and requested relief for Attorneys Fees, costs of court, pre and post judgment interest and any other relief they may so justly be entitled to in law or equity. On January 22, 2015, this Honorable Court GR ANTED Defendants Click and Lindemann’s Motions for Summary Judgment; however, no Order or Judgment has been entered as to the relief requested by Defendants Click and Lindemann, and that of which they are entitled. Moreover, there is long standing preceden ce that shows a history of policy “permitting union officers who have successfully defended themselves against charges of § 501 of the LMRDA, wherein there is an adequate protection of union officers from baseless litigation.” Kerr v. Shanks, 466 F.2d 1271, 1277 (9th Cir. 1972).APPELLANTS BRIEF ON THE MERITS

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28 Citing Holdeman v. Sheldon, where the 2nd Circuit originally held

that there is a policy in place “permitting a union to reimburse a Defendant if he is successful in his defense...[which] provides sufficient financial protection o f union officials against nuisance suits.” Holdeman v.Sheldon, 311 F.2d 2, 3 (2nd Cir. 1962); See also, McNamara, et al v. Johston, et al., 522 F.2d4 1157, 1167 (7th Cir. 1975)(“Union officials charged as defendants in suits [under section 501 of the LMRDA ] should retain independent counsel and bear the financial burden of their defense; however, if they prevail, they may properly be reimbursed by the union for the costs of their legal defense.”); See also, Gabauer, et al v. Woodcock, et al., 425 F.Supp 1, 2 (E.D. Missouri 1976)(“Union officials charged as defendants in suits [under section 501 of the LMRDA] should retain independent counsel and bear the financial burden of their defense; however, if they prevail, they may properly be reimbursed by the union for the costs of their legal defense.”); See also, Mulligan v. Parker, 805 F.Supp 592, n. 4 (ND Illinois 1992) quoting Holdeman (“The policy of permitting the union to reimburse the officers for successful defense provides sufficient financial protection of the officers against harassing lawsuits.”)

5. Therefore, Defendants Click and Lindemann are entitled to the relief requested, and move this Honorable Court to modify the Judgment in this matter to award for the said relief of which they are so justly e ntitled. 6. The Appellee Will ARGUE that the costs would have been incurred for Martin regardless and because he was found guilty they are not liable for the defense of CLICK and LINDEMANN, but in fact CLICK and LINDEMANN had their cases dismissed by the honorable court and wereAPPELLANTS BRIEF ON THE MERITS

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28 not tried by jury. As such the resulting trial against MARTIN has

no bearing on the matter of law listed in this appeal. Further, the affidavit attached from attorney Dan Nelson lists fees due by Click and Lindemann only and the fees for Martin are much greater than listed above. Collectively the three clients in the original trial has spent in excess of $120,000 and are continuing to acquire debt on the matter due to still unpaid invoices due to our attorney. In

the matter above, the listed amount found in the prayer section provides for the money owed by CLICK AND LINDEMANN only and is shown

in the affidavit listed in the APPENDIX.

PRAYER

1. This Honorable Court enter Order of Judgment GRANTING Defendants

Click and Lindemann’s No

- Evidence and Traditional Motions for Summary Judgment. 2. Defendants CLICK and LINDEMANN be entitled to pre and post judgment interest accruing at a rate of 5%.

3. Defendants CLICK and LINDEMANN be entitled to all court costs

attributable to each of them.

4. Defendants CLICK and LINDEMANN be entitled to their uncontested reasonable attorneys fees. (“See attached Exhibitsof DefendantsAPPELLANTS BRIEF ON THE MERITS

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28 Traditional Motion for Summary Judgment

- Defendants’ Uncontested

Affidavit for Attorneys’ Fees”).

E. Defendan ts CLICK and LINDEMANN request and pray for any other and further relief of which they may so be justly entitled. WHEREFORE, premises considered, Defendants CHRIS CLICK and JERRY LINDEMANN pray this Court GRANT their Motion for Modification of Judgment, and award them all relief herein requested of which they are so justly entitled, and for any other and further relief that this Honorable Court may deem appropriateAPPELLANTS BRIEF ON THE MERITS

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28 APPENDIX OF EXHIBITS

Chris Click, Pro Se 1711 Waltman Road Edgewood, MD 21040

5 TH COURT OF APPEALS FOR DALLAS COUNTY

CHRIS CLICK AND JERRY LINDEMANN, Plaintiff(s),

vs. TRANSPORT WORKERS UNION LOCAL 556, Defendant(s) ) ) ) ) ) ) ) ) ) ) Case No.: 05

- 15

- 00796

- CV

ORDER GRANTING APPEAL AND FINAL JUDGMENT

FINAL JUDGMENT This Honorable Court having considered all the pleadings, evidence, and arguments herein is of the opinion that Defendants’ CHRIS CLICK and JERRY LINDEMANN’s Motion to Modify should be GRANTED. Therefore, it is ORDERED, ADJUDGED and DECREED that Final Jud gment is awarded to Defendants CHRIS CLICK and JERRY LINDEMANN, as follows: (A). Defendants CHRIS CLICK and JERRY LINDEMANN are hereby entitled to all pre and post judgment interest accruing at a rate of 5%. (B). Defendants CHRIS CLICK and JERRY LINDEMAN N are hereby entitled to all costs of the court of which are attributable to each Defendant in the amount of $________.____ (C). Defendants CHRIS CLICK and JERRY LINDEMANN are hereby entitled to their uncontested attorneys fees in the amount of Forty Four Thousand Three Hundred Seventy

- One Dollars and nineteen cents ($44,371.19).

________________________

JUDGE PRESIDING1 CAUSE NO. DC

- 13

- 13347

TRANSPORTATION WORKERS § IN THE DISTRICT COURT OF UNION LOCAL 556 , § § Plaintiff, § v . § DALLAS COUNTY, TEXAS § STACY MARTIN , CHRIS CLICK, § AND JERRY LINDEMANN § § Defendants. § 11 6th JUDICIAL D ISTRIC T

DEFENDANTS ’ MOTION FOR TRADITIONAL SUMMARY JUDGMENT AND BRIEF IN SUPPORT THEREOF COMES NOW, DEFENDANTS STACY MARTIN, CHRIS CLICK and JERRY LINDEMANN, and files this, their Traditional Motion for Summary Judgment pursuant to Texas

Rules of Civil Procedure 166a(c ). Defendants would respectfully show unto thi s Honorable Court the following:

I.

INTRODUCTION On November 8, 2013, Plaintiff, Transport Workers Union, 556 (“TWU”) sued Defendants Stacy Martin, Chris Click and Jerry Lindemann individually in Dallas County District Court. Defendant Martin’s case was assigned cause number DC

- 13

- 13347, and was filed in the 116th Judicial District. Defendant Lindemann’s case was assigned cause number DC

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- 13348, and was filed in the 192nd Judicial District. De fendant Click’s case was assigned cause

number DC

- 13

- 13350, and was also filed in the 116th Judicial District. On February 14, 2014, Defendants filed a Motion to Consolidate, and on May 15, 2014, all three cases were Ordered

consolidated under Defendant Ma rtin’s cause number, which is the above cited caption. FILED DALLAS COUNTY 11/26/2014 11:28:01 AM GARY FITZSIMMONS DISTRICT CLERK2 Specifically, Plaintiff TWU sued Defendant Martin for alleged causes of action of (1) Misappropriation of Union Funds

– Breach of Fiduciary Duty, and (2) Conversion of Union Property. Further, Plaint iff TWU also sued Defendants Lindemann and Click for alleged Misappropriation of Union Funds

– Breach of Fiduciary Duty. Defendants individually filed their Answers, and generally denied all claims and allegations as lawfully allowed pursuant to Texas Ru le of Civil Procedure 92. Further, Defendants individually filed affirmative defenses of abuse of process, negligence, mitigation, waiver, estoppel and frivolous suit. Defendants now move for traditional summary judgment based on Plaintiff TWU’s lack

of e vidence to support its causes of action in this matter, and their inability to demonstrate any genuine issue of material fact that exists and is in dispute. Defendants are entitled to summary judgment because Plaintiff TWU has had an adequate time for disc overy , and cannot demonstrate that there is any evidence to support their causes of action as plead against

Defendants.

II.

BACKGROUND The allegations asserted by Plaintiffs arise from a detailed history amongst both sides. In 2011, the then active/curren t top officers of the TWU Local 556 Executive Board (“Plaintiffs”) consisted of the following:

President: Thom McDaniel 1st Vice

- President: Michael Massoni 2nd Vice

- President: Stacy Martin Secretary: Cuyler Thompson Treasurer: John Parrott (“

Defendant’s Exhibits 1

- 3

- Affidavits of Defendants Martin, Lindemann and Click ”)3 Prior to the 2012 elections, Thom McDaniel , then Board President, made it known to the

Local 556 that he would not seek re

- election as president , as he was taking a positi on with the

International Union. ( “ id ”). Also , Michael Massoni made it known that he too would not seek re

election. (“ id ”). Moreover , at the same time, Defendants Martin, Lindemann and Click (“Defendants”) were making it known of their intention to run fo r the top officers spots. (“ i d ”). Specifi c ally, Defendant Click made it known he was running for 1st Vice

- President, (“

Defendant’s Exhibit 3 ”). Defendant Martin made it known he was running for President, (“

Defendant’s Exhibit 1 ”), and Defendant Lindeman n made it known he was running for

Treasurer. (“ Defendant’s Exhibit 2 ”)

. The then current Executive Board all knew of Defendants’ intention of running for office. (“ Defendants Exhibits 1, 2 and 3 ”). In 2012, two groups of candidates ran for the top offic er positions, which consisted of the following: Lauck Group:

President: Allyson Parker Lauck 1st Vice

- President: Audrey Stone 2nd Vice

- President: Brett Nevarez Secretary: Cuyler Thompson (re

- election) Treasurer: John Parrott (re

- elect ion) Martin Group:

President: Stacy Martin 1st Vice

- President: Chris Click 2nd Vice

- President: Dawn Wann Secretary: Jannah Dalak Treasurer: Jerry Lindemann (“

Defendants Exhibits 1, 2 and 3 ”).

Thom McDaniel made it abundantly clea r that his allegiance for replacement was with the Lauck Group. (“ id ”).4 In March of 2012, elections were held and the Martin Grou p won the election with a vote

of 65 %. (“ id ”). The new board members w ere set to take over on May 1st, 2012. (“ id ”).

In the preceding months before the turnover , as was standard and necessary, then current board members were required to aid in the transition of the new ly elected officers

. (“ id ”). This consisted of training, transferring information, and essentially, getting t hem up to speed and making the transition as smooth as possible. (“ id ”). However, during this time perio d, while still acting President, Thom McDaniel instructed the other then current board members to deny the newly elected officers from entering the uni on office. (“ id ”). This was done solely to stifle the transition and make it as difficult as possible for the newly elected members to transition into their new positions. (“ id ”). Almost immediately after taking office in May of 2012, members of the Lauc k Group including Allyson Parker Lauck, Cuyler Thompson, Brett Nevarez, as well as other members supporting the Lauck Group, including Audrey Stone’s boyfriend Kevin Schnittiker and Don Shipman embarked on a systematic dismantling of the union’s electoral system and democratic structure by filing a barrage of unfounded charges against the newly elected officers simply as a means to harass and disrupt the union ’s infrastructure and business. (“ id ”). Members and supporters of the Lauck Group made it well k nown that they were going to do everything they could to get the Martin Group removed from office. (“ id ”). On no less than five times subsequent to the Martin Group taking over did Cuyler Thompson submit unfounded charges simply to harass the Martin offic ers in an attempt to undermine the electoral system and disrupt the basic democratic structure by doing everything he could no matter what to remove

them from office and have himself reinstated. (“ id ”).5 On no less than four times subsequent to the Mart in Group taking over did Allyso n Parker Lauck submit charges against the Martin Group simply to harass and undermine the electoral system and disrupt the union democratic infrastructure. (“ id ”).

In November of 2012 , a required audit of the union financials had revealed that several of the board members had been paid excessive amounts of money for work that was unverified. (“ id ”). Subsequently, in December 2012 during the Executive Board Meeting, Defendant Martin as president outlined and proposed immediate changes. (“ Defendant’s Exhibit 1 ”). T he changes

Defendant Martin installed were to modify the future payouts to reduce the expenses. (“ id ”).

Defendant Martin was acting to protect the treasury and limit board pay, which during the board meeting, Defenda nt s revealed through a slideshow these expenses had increased for some board members by 190% in one year. (“ id ”). Seizing another opportunity, members of the Lauck Group submitted false accusations and charges that the Defendants were maliciously spread ing false information. (“ Defendants’

Exhibits 1

- 3 ”). However , the audit clearly verified the information put forth in the December meeting, and further, the information being revealed was in fact not confidential and public

information for all members. (“ id ”). Subsequently, Cuyler Thompson , at this time only a union member, filed charges with the Recording Secretary Board Member Jannah Dalak, alleging that Defendants Lindemann and

Click “conducted themselves in a m anner unbecoming a Member of our Union a nd in violation of the TWU International Constitution and Local 556 Bylaws.” (“ Defendant’s Exhibit 4

- Thompson’s Charges Against Lindemann and Click ”). Also, around this time in M arch of 2013, Defendant Click attended a rally in Washington DC to protes t the TSA change of allowing knives to pa ss through security checkpoints and be6 allowed on commercial aircraft. (“ Defendant’s Exhibit 3 ”). Defendant Click attended this rally to protest the change. (“ id ”). He was not there in any official capacity as Vice

- President, but simply as member of Local 556 voicing his opposition. (“ id ”). During this rally, Defendant Click was carrying a sign that read “Ain’t nobody got time

for dat.” (“ id ”). Another member of the union , Ms. Corliss King Hale, who attended the rally,

and was a supporter of the Lauck Group, reported the sign to the Local 556, wherein again members of the opposition saw an opportunity to submit charges against Defendant Click for alleged misconduct

. (“ id ”). Charges of racial discrimination were su bmitted against Defendant Click based on the sign being allegedly offensive. (“ id ”). Defendant Click was then suspended from his role as 1st Vice President, and was banned from acting in any capacity whatsoever as 1st Vice President. (“ id ”). Thereafter, during the April 2013 TWU Local 556 Executive Board Meeting, the Executive Board reviewed the charges brought by Thompson and King Hale against Defendants

Lindemann and Click and “found them proper, requiring that trial be held.” (“ Defendant’s

Exhibit 5

- Certified Letter from Plaintiff to Lindemann; Defendnat’s Exhibit 6

- Certified Letter from Plaintiff to Click ”). Subsequently, on April 30th, 2013, Recording Secretary Jannah Dalak

sent certified letters to Defendants Lindemann and Click informing them th at charges have been found proper against them, and trials will be held. (“ id ”). Further, the certified letter s to Defendants Lindemann and Click regarding the Thompson charges stated, “The Executive Board has selected Flight Attendants Carissa Orr, Davi d Weber, Michelle Ryder to serve on the trial committee.” (“ Defendants Exhibit 5 ”). Also, the certified letter to Defendant Click regarding the King Hale charges stated, “The Executive Board has7 selected Flight Attendants Sharon King, Ryan Rodney and Javie r Pedraza to serve on the trial committee.” (“ Defendant’s Exhibit 6 ”). Further, the certified letters indicated that the accused Defendants Lindemann and Click “may challenge any Member of this Committee on the grounds that he/she is a party to or

direct ly interested in the charges against you. Any such challenge must be made to the Executive Board by May 8, 2013.” (“ Defendants’ Exhibits 5 and 6 ”).

The certified letters also informed Defendants Lindemann and Click that they had until May 8, 2013 to chal lenge any Member of the Trial Committee. (“ id ”). And f inally, the certified

letters informed Defendants Lindemann and Click that their Trial Co mmittee Hearings were

scheduled for Defendant Click on the 14th of May 2013 (King Hale charges) and the 15th of t he May 2013 (Thompson charges), and for Defendant Lindemann on the 15th of May 2013 (Thompson charges). (“ id ”). On May 8, 2013, Defendant Click sent an email to the Executive Board challenging the Members of the Trial Committee. (“ Defendants’ Exhibit 3; a nd Defendants’ Exhibit 7

- Click

Email to the Executive Board ”). Defendant Click challenged two members of Plaintiff’s trial committee on the basis that they signed a petition to recall him from his position as 1st Vice President, as well as challenges to Mark Hattoon, Jeff Haley and Milton Matthews (alternates)

. (“ id ”). Defendant Click’s challenges were denied. (“ id ”).

Defendant Cli ck arrived in Dallas on Monday May 13th , the day before his hea rings , which were set by Plaintiff for the 14th and 15th of M ay 2013 . U pon arrival , Oakland Based representative Matt Hettich informed Defendant Click, for the first time, through email, that his hearings were rescheduled

. (“ Defendant’s Exhibit 3 ; Defendant’s Exhibit 8

- Verified Transcript of the May 15th, 2013 Tri al Committee Hearing for Click and Lindemann (pgs. 7

- 9 ”). Defendant8 Click consulted with President Defendant Martin , and Defendant Martin informed Defendant Click that his hearings were in fact moving forward and that he believed Hettich had no authority

t o cancel the hearings. (“ Defendants’ Exhibits 1, 3 and 8 ”). Defendant Click’s May 14th Trial Committee Hearing went forward as set by P laintiff in

front of Plaintiff’s personally selected Trial Committe e Members . (“ Defendants’ Exhibit 1 and

3 ”). Defendan t Click had no say in whether to continue the Trial Hearing on the 14th, or postpone the Hearing. (“ Defendant’s Exhibit 1 and 3 ”). Defendant Click was told to show up for the Trial Committee Hearing on the 14th, specifically scheduled by the Plaintiff, as well as told

to him by Local Union President Defendant Martin. (“ Defendants’ Exhibits 1 and 3 ”).

Both Defendant s Lindemann and Click attended their Trial Committee Hearings on May

15 th , 2013, as scheduled by Plaintiff. That morning of the Trial Committee Hearing on the 15th, around 9:00 a.m., two Executive Board members, Jimmy West and Ad die Crisp, interrupted the proceedings informing the Committee that the trial had been rescheduled. (“ Defendant’s Exhibit

2 , 3 and 8 ” ). This was the first time Defendant Lindemann had ever been informed that his trial

was allegedly rescheduled. (“ Defendants’ Exhibits 2 and 8 ”).

The Trial Committee deliberated amongst themselves on whether the Trial Committee Hearing should stop, or continue as scheduled. (“ Defendants’ Ex hibit 8 ”). After consideratio n, the Trial Committee Members decided that there was no authority to postpone the Hearing , and they themselves chose to continue the proceedings . (“ Defendants’ Exhibit 8 ”). Defendants

Lindemann and Click had no say whether to continue or postpone the Trial Committee Hearings against them. (“ Defendants Exhibits 2, 3 and 8 ”). Ultimately, Members of the Local 556 Executive Board contacted Defendant Martin on May 13th, 2013, and insisted that he delay the May 1 4th and 1 5th 2013 h earings for Defendants9 Lindemann and Click

. (“ Defendant’s Exhibit 1 ” ). However, Defendant Martin could not reschedule the Hearings because he believed the Constitution for the Transportation Workers

Union of the AFL

- CIO (“TWU Constitution”) proscribed only two instances underwhich Article XIX and Article XXI hearings may be rescheduled; (1) if the claimant removes the charges; or (2) the accused successfully challenges the impartiality of a member(s) of the Trial Committee. (“

Defendant’s Exhibit 9

- TWU Con stitution ” ). Neither of these instances occurred. (“

Defendant’s Exhibit 1 and 9 ”). Defendant Martin, as President believed rescheduling the Click and Lindemann trials from May 1 4th and 1 5th , 2013 to May 2 2nd and 2 3rd , 2013, would have required him to viola te the clear terms of the Constitution

. (“ Defendants’ Exhibits 1 and 9 ” )

. Thus, the Trial Committee Hearings for Defendants Lindemann and Click went forward as scheduled by Plaintiffs on the 14th and 15th of May 2013. (“ Defendants Exhibits 1

- 8 ”). Every si ngle party to the Hearings showed up as scheduled by Plaintiffs , including the court reporter, the union attorney, counsel for Defendants, Defendants’ witnesses, and the trial committee members selected by the Union’s Executive Board

. ( “Defendants Exhibits 1

- 8 ”). The only

individuals not to show were Plaintiffs, or the accusers. (“ Defendants Exhibits 1, 2, 3 and 8 ”).

The Trial Committee Members fou nd Defendants Lindemann and Click Not Guilty on all charges. (“ Defendants’ Exhibit 10

- Trial Committee Findi ngs for May 15th ”). Despite the Not Guilty findings in the May 14th and 15th Trial Committee Hearings , Plaintiff not satisfied with the outcome, took it upon themselves to set up new Trial Committee Hearing s for Defendants Lindemann and Click for the charg es against them . (“ Defendants’ Exhibits 1, 2, 3, 9; Defendants’ Exhibit 11

- Correspondence dated 5/16/2013 from Cuyler Thompson ”). Thus, Defendants Lindemann and Click’s Trial Committee Hearings from the 14th and

15th of May were resc heduled to the 24th of May, 2013

. (“ Defendants’ Exhibit 1 1 ” ). Defendant10 Click requested that Plaintiffs set a new date for the Second Trial Committee Hearing as he indicated it was impossible for his witnesses to return for the new hearing on short notice, and

that his couns el was unavailable on such short notice as well for a re

- trial. (“ Defendants’ Exhibit

3 ” ). Plaintiff Click’s request for a continuance was denied, and subsequently he requested the board provide him with Positive Space Air Transportation to the new trials, which is required

and standard for him to attend the Second Trial Committee Hearing s; however, Plaintiff denied him this request. (“ Defendants’ Exhibit 3 ”). Shortly after the May 15th Trial Committee Hearing, Defendant Lindemann went on approved medica l leave from the Union and his employer Southwest Airlines

. (“ Defendants’

Exhibit 2 ” ). Defendant Lindemann requested a continuance, as he indicated that due to his medical leave he would be physically unable to attend the unauthorized Second Trial Committe e Hearing

. (“ Defendants’ Exhibit 2; Defendants’ Exhibit 12

- Correspondence to Board ” ). Plaintiffs denied his request, and proceeded with the Second Trial Committee hearing without him being present

. (“ id ”). Ultimately, all three Defendants were remove d permanently from their positions on the Executive Board, and banned from running for re

- election for three years. (“ Defendants’ Exhibits

1

- 3 ”). Several months later, and without exhausting any internal union procedures for discipline as required by their Constitution, Plaintiff filed three separate lawsuits against Defendants for allegedly “misappropriating Union funds

- breach of fiduciary duty,” and for Defendant Martin “conversion of Union property” ( Defendants’ Exhibi ts 9, 13

- 15

- Plaintiff’s Original Petitions ”).11 III.

FACTS ALLEGED BY PLAINTIFF

A. Defendant Lindemann Under section V of Plaintiff’s Original Petition against Defendant Lindemann, Plaintiff alleges the following: (1). “Because of scheduling conflicts and other logistical issues...the a forementioned Article XIX trial [of Defendant Lindemann]...needed to be postponed from its original setting on May 15, 2013. ( Defendants’ Exhibit 13 ; page 3

- § V (10 ”). (2). “As such, the Executive Board directed Defendant [Lindemann] to reschedule the h earing

. ” (“ Defendants’ Exhibit 13 ; page 3

- § V(10) ”). (3). “Sufficient notice of the need for postponement was given to the Defendant [Lindemann].” (“ Defendants’ Exhibit 13 ; page 3

- § V(10) ”). (4). “Rather than acknowledge this necessity, the Defendan t [Lindemann] insisted on ordering the expenditure of the time and resources necessary for the Article XIX trial to take place on its originally set date(sic) and against the explicit instruction from the Executive Board.” (“ Defendants’ Exhibit 13 ; page 3

- § V(10) ”). (5). “As a result, significant time and money was wasted and the Plaintiff was left to foot

- the

- bill.” (“ Defendants’ Exhibit 13 ; page 3 § V(10) ”)

. (6). “Defendant [Lindemann]’s portion of these expenses totaled Two Thousand Four Hundre d Eighty

- Four Dol lars and Ten Cents ($2,484.10).” (“ Defendants’ Exhibit 13 ; page 3 § V(10) ”). (7). “Plaintiff has repeatedly asked that Defendant [Lindemann] rei mburse the Union for his share of all the aforementioned unnecessary and wasteful expenditur e of Union resources. Defendant [Lindemann] has repeatedly refused to acknowledge or respond to said demands.” (“ Defendants’ Exhibit 13 ; page 4 § V(12 ) ”). These allegations are taken verbatim from Plaintiff’ Original Petition against Defendant

Lindema nn , and no other facts have been pleaded against Defendant Lindemann . (“ Defendants’

Exhibit 1 3 ”). Defendant Lindemann generally and specifically denies each and every allegation.12 B. Defendant Click Under section V of Plaintiff’s Original Petition agains t Defendant Click, Plaintiff alleges the following: (1). “Because of scheduling conflicts and other logistical issues...the aforementioned Article X IX trial [of Defendant Click ]...needed to be postponed from its original setting s on May 14

- 15, 2013. ( Defenda nts’ Exhibit 14 ; page 3

- §V(10 ”). (2). “As such, the Executive Board directed Defendant [Click] to reschedule the hearing” (“ Defendants’ Exhibit 14 ; page 3

- § V(10) ”). (3). “Sufficient notice of the need for postponement was given to the Defendant [ Click ].” (“ D efendants’ Exhibit 14 ; page 3

- § V(10) ”). (4). “Rather than acknowledge this necessity, the Defendant [Click ] insisted on ordering the expenditure of the time and resources necessary for the Article XIX trial to take place on its originally set dates and against the explicit instruction from the Executive Board.” (“ Defendants’ Exhibit 14 ; page 3

- § V(10) ”). (5). “As a result, significant time and money was wasted and the Plaintiff was left to foot

- the

- bill.” (“ Defendants’ Exhibit 14 ; pa ge 3 § V(10) ”). (6). “Defendant [ Click ]’s portion of these expenses totaled Two Thousand Four Hundred Eight y - Four Dollars and Ten Cents ($6,210.26 ).” (“ Defendants’ Exhibit 14 ; page 3 § V(10) ”). (7). “After the Defendant [Click] was removed from office by virtue of both trials, he refused to vacate his office. Defendant [Click], and others with whom he acted in concert, unlawfully occupied Plaintiff’s offices for several days and refused to vacate until explicitly directed to do so by the TWU Internat ional President. The costs to Plaintiff deriving from this unlawful siege were Four Thousand Four Hundred Twenty

- Two Dollars and Forty Cents ($4,422.40)(Defendant [Click]’s portion of which amounts to Two Thousand Two Hundred Eleven Dollars and Twenty Cents ($2,211.20).” (“ Defendants’ Exhibit 14 ; page 4

- § V(12) ”). (8). “Lastly, Defendant [Click] continued to misuse Union funds when, after his suspension, Defendant [Click] took his wife to London (where TWU International was having a conference) fo r several days and charged the entire cost of the trip to Plaintiff. (“ Defendants’ Exhibit 14 ; page 4

- § V(13) ”). (9). “Furthermore, representatives of TWU International explicitly warned Defendant [Click] that because of his suspension his attendance at the conference would be wholly unauthorized.” (“ Defendants’ Exhibit 14 ; page 4

- § V(12) ”)13 (10). “The costs to Plaintiff deriving from this knowingly unlawful use of Union funds were One Thousand One Hundred Sixty

- Four Dollars and Five Cents ($1,16 4.05).” (“ De fendants’ Exhibit 14 ; page 4

- § V(12) ”) (11 ). “Plaintiff has repeatedly asked that Defendant [Click] reimburse the Union for his share of all the aforementioned unnecessary and wasteful expenditure of Union resources. Defendant [Click] has repeatedly refused to acknowledge or respond to said demands.” (“ Defendants’ Exhibit 14 ; page 4 § V(10) ”). These allegations are taken verbatim from Plaintiff’ s Original Petition against Defendant

Click , and no other facts have been pleaded against Defe ndant Click . (“ Defendants’ Exhibit 1 4 ”). Defendant Click generally and specifically denies each and every allegation.

C. Defendant Martin Under section V of Plaintiff’s Original Petition against Defendant Martin , Plaintiff alleges the following: (1). “Be cause of scheduling conflicts and other logistical issues...the aforementioned Artic le XIX trial [of Defendants Click and Lindemann ]...needed to be postponed from its original settings on May 13

- 14 , 2013 1 . ( Defendants’ Exhibit 15 ; page 3

- §V(10 ”). (2). “ As such, the Executive Board directed Defendant [Martin] to reschedule the hearing” (“ Def endants’ Exhibit 15 ; page 3

- § V(10) ”). (3). “Sufficient notice of the need for postponement was given to the Defendant [ Martin ].” (“ Defendants’ Exhibit 15 ; page 3

- § V(10) ”). (4). “Rather than acknowledge this necessity, the Defendant [ Martin ] insisted on ordering the expenditure of the time and resources necessary for the Article XIX trial on its originally set dates despite his knowledge that the accusing par ty would not be able to proceed on that date and against the explicit instruction from the Executive Board.” (“ Defendants’ Exhibit 15 ; page 3

- § V(10) ”). (5). “As a result, significant time and money was wasted and the Plaintiff was left to foot

- the

- bill.” (“ Defendants’ Exhibit 15 ; page 3 § V(10) ”). (6). “Defendant [ Martin ]’s portion of these expenses totaled Two Thousand Four Hundred Eighty

- Four Dollars and Ten Cents ($6,210.26).” (“ Defendants’ Exhibit 15 ; page 3 § V(10) ”).

1 Def endants believe that Plaintiff’s accidentally plead “their original proceedings on May 13

- 14, 2013” by mistake, as the14 (7). “After the Defend ant [Martin ] was removed from office by virtue of both trials, he refused to vac ate his office. Defendant [Martin ], and others with whom he acted in concert, unlawfully occupied Plaintiff’s offices f or several days and refused to vacate until explicitly directed to do so by the TW U International President. The costs to Plaintiff deriving from this unlawful siege were Four Thousand Four Hundred Twenty

- Two Dollars and Forty Cent s ($4,422.40)(Defendant [Martin]’s portion of which amounts to Two Thousand Two Hundred Eleven Dollars and Twenty Cents ($2,211.20).” (“ Defendants’ Exhibit 15 ; page 4

- § V(12) ”). (8). “Plaintiff has repeatedly asked that Defendant [Martin] reimburse the Union f or his share of all the aforementioned unnecessary and wasteful e xpenditure of Union resources. Defendant [ Martin ] has repeatedly refuse d to acknowledge or respond to said demands.” (“ Defendants’ Exhibit 15 ; page 4 § V(10) ”). (8). “ Additionally, Defendant [Martin] has engaged in the unlawful conversion of Union pro perty since being removed from office. Specifically, Defendant [Martin has refused t o either return or pay for the laptop computer valued at over Four Thousand two Hundred Seventy

- Five Dollars ($4,275.00) .” (“ Defendants’ Exhibit 15 ; page 4

- § V(14 ) ”). (9). “The Defendant [Martin] ’s unlawful appropriation of this valuable piece of Union property has been brought to his attention with a corresponding demand for payment for/or return of said property. Defendant [Martin] has thus far refused to remedy this unlawful conduct, as well. (“ Defendants’ Exhibit 15 ; pages 4

- 5; § V(15) ”). These allegations are taken verbatim from Plaintiff’ Original Petition against Defendant Martin, and no other facts have been pleaded against Defendant Martin. (“ Defendants ’ Exhibit

1 5 ”). Defendant Martin generally and specifically denies each and everyone of these allegations.15 IV.

STATEMENT OF THE ISSUES (1). Whether any f iduciary r elationship existed between Defendant Lindemann and Plaintiff, and if so, whether any fiduciary duty existed when his Article XIX Hearing on May 15th, 2013 was adjudicated

. (2). Whether any f iduciary relationship existed between Defendant Click and Plaintiff, and if so, whether any fiduciary duty exis ted when his Article XIX Hearing s on May 14th and 15th were adjudicated

. (3). Whether any fiduciary duty existed when Defendant Click allegedly failed to vacate Union offices after being removed from office as 1st Vice President. (4). Whether any fiduciary duty existed when Defendant Cl ick attend e d a n International meeting in London after being suspended fro m office as 1st Vice President. (5). Whether any fiduciary duty existed between Defendant Martin and Plaintiff when Defendants Lin d e mann and Click’s Article XIX Trial Committee H earings were adjudicated on May 14th and 15th, 2013. (6). Whether any fiduciary relationship or duty existed when Defendant Martin allegedly failed to vacate Union offices after being removed from office as President

. V . SUMMARY JUDGMENT STANDARD

Tex as Rule of Civil Procedure 166a, which governs summary judgment practice, permits a party to obtain a prompt disposition of a case involving patently unmeritorious claims and

untenable defense s

. Casso v. Brand , 776 S.W.2d 551, 556 (Tex. 1989). To prevail o n a traditional motion for summary judgment asserted under Rule 166a(c) of the Tex. R. Civ. P., a movant must prove that there is no genuine issue of material fact, and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c)

. A party moving for traditional summary judgment on a claim for which it does not bear the burden of proof must either (1) disprove at least one element of the Plaintiff’s cause of16 action, or (2) plead and conclusively establish each essential element of an affirma tive defense to

rebut the Plaintiff’s cause. Am. Tobacco Co., Inc. v. Grinnell , 951 S.W.2d 420, 425 (Tex. 1997). Once the movant establishes its right to summary judgment as a matter of law, the burden shifts

to the non

- movant to present evidence raising a genuine issue of material fact. Espalin v. Children’s Med. Ctr. of Dallas , 27 S.W.3d 675, 682 (Tex. App.

- Dallas 2000, no pet.).

VI.

ARGUMENTS AND AUTHORITIES In order for a Plaintiff to establish a cause of breach of fiduciary duty, he or she must

pr ove the following elements : (1). The Plaintiff and Defendant had a fiduciary relationship; (2). The Defendant breached its fiduciary duty to the Plaintiff; and (3). The Defendant’s breach resulted in (a). Injury to the Plaintiff, or (b). Benefit to th e Defendant. Johnston v. Kruse , 261 S.W.3d 895, 902 (Tex. App.

- Dallas 2008, n.p.h.); Dearing, Inc. v. Spiller , 824 S.W.2d 728, 733

- 34 (Tex. App.

- Fort Worth 1992, writ denied). To prove an action for breach of fiduciary duty, the Plaintiff must estab lish that Defendant was the Plaintiff’s fiduciary. Lacy v. Ticor Title Ins. Co. , 794 S.W.2d 781, 788 (Tex. App.

- Dallas 1990), writ denied , 803 S.W.2d. 265 (Tex. 1991). When one person is under a duty, created by law or contract, to act on or give advice for the benefit of another within the scope of the relationship, that person has a fiduciary relationship with the other person. Id. Whether Plaintiff and Defendant have a formal fiduciary relationship is a question of law. Environmental Procedures, Inc . v. Guidry , 282 S.W.3d 602, 605 (Tex. App.

- Houston [14th Dist.] 2008, n.p.h.).17 In 1959 Congress enacted the Labor Management Reporting and Disclosure Act (“LMRDA”) as a result of congressional findings of widespread corruption, breaches of trust,

and disregard of the individual rights of employees. LMRDA § 2b, 29 U.S.C. § 401(b) (1970)

. The Act provides union members with a general “bill of rights,” election safeguards, trusteeship regulations, and places detailed financial reporting and disclosure req uirements on unions, employers, and union officials. LMRDA §§ 101

- 105, 201

- 211, 301

- 306, 401

- 404, 501(a); 29 U.S.C. §§ 411

- 415, 431

- 440, 461

- 466, 481

- 484, 501(b) (1970) . Additionally, in a subchapter entitled “Safeguard for Labor Organizations

- Fiduciary Responsibility of Officers of Labor Organizations ,” the Act provides for the continuing judicial supervision of individual union

officers in section 501. LMRDA § 501(a

- c)

. In Section 501(a), the Act states that the persons who are subject to the position of fiduciary are “officers, agents, shop stewards, and other representatives of a labor organization who occupy positions of trust in relation to such organization and its members as a group” Id. Further, the LMRDA under § III, “Definitions” in subsectio n (q) defines “Officer, agent, shop steward, or other representative, when used with respect to a labor organization, as elected officials and key administrative personnel, whether elected or appointed (such as business agents, heads of departments or majo r units, and organizers who exercise substantial independent authority), but does not include salaried non

- supervisory professional staff, stenographic personnel.” LMRDA § III(q) “Defenitions” Further, to prove an action for breach of fiduciary duty, the Plaintiff must establish the Defendant breached some fiduciary duty owed to Plaintiff. Rankin v. Naftalis , 557 S.W.2d 940, 944 (Tex. 1997). Fiduciary duties do not extend to matters beyond the scope of the underlying relationship of the parties. Rankin , a t 944.18 The scope of the underlying relationship between Plaintiff and Defendants in this matter is specifically enumerated in Section 501(a) of the LMRDA. 29 U.S.C. § 501(a) . Specifically those duties enumerated to the “officers, agents, shop stewards, an d other representatives of a labor organization who occupy positions of trust in relation to such organization and its members as a group (“Fiduciaries”)” are required as follows: (1). That these [Fiduciaries] hold the organization’s money and property sol ely for the benefit of the organization and its members; (2). That these [Fiduciaries] manage, invest, and expend the same in accordance with its constitution and by

- laws, and any resolutions of the governing bodies adopted thereunder; (3). That these [Fiduciaries] refrain from dealing with the organization as an adverse party or in behalf of an adverse party in any adverse party in any matter connected with their duties; (4). That these [Fiduciaries] not hold or acquire any pecuniary or personal in terest which conflicts with the interests of the organization; and (5). That these [Fiduciaries] account to the organization for any profit received by them in whatever capacity connected with business conducted by them on behalf of the organization. LRMDA § 501(a), 29 U.S.C. § 501(a)

A. DEFENDANT CLICK A detailed recitation of the facts alleged against Defendant Click are outlined above; however, the only cause of action Plaintiff is alleging against Defendant Click is a breach of fiduciary duty fo r allegedly misappropriating Union funds.

ELEMENT 1

- FIDUCIARY RELATIONSHIP (1). Defendant Click Was NOT in a Position of Fiduciary When He Allegedly Wasted Union Funds Regarding His May14th and 15th Hearings In Plaintiff’s Original Peti tion against De fendant Click, Plaintiff alleges, “The

even ts giving rise to Plaintiff’s claims begin in late 2012 through early 2013. At that19 time, Defendant [Click ] was an elected official of TWU LOCAL 556 with his primary office in Dallas County, Texas.” (“ Defendant’s Exhibit 14 , pg. 2 § V(6) ”). Plaintiff then goes on to allege that because of “scheduling conflicts” and “other logistical issues,” Defendant Click’s Article XIX Trial Committee Hearings “needed to be postponed from their original settings on May 14

- 15, 2 013.” (“ Defendants’ Exhibit 14 , pg. 2 § V(10) ”).

Plai ntiff goes on to further allege that , “sufficient notice of the need for postponement was given to the Defendant [Click]. Rather than acknowledge this necessity, the Defendant [Click] insisted on order ing the expenditure of the time and resources necessary for the Article XIX trial on its originally set dates.” (“ id ”). As a result of these allegations, Plaintiff allegedly had to “foot

- the

- bill” for alleged, “significant time and money [being] wasted”. ( “ id ”).

Plaintiff do es not allege any specific dates for their accusations, other than the events giving rise to their claims began in late 2012 through early 2013, and that Defendant Click’s First Trial Committee Hearings were held on May 14th and 15th o f

2013. From what Defendants can glean from Plaintiff’s poorly delineated time line , is that some time before the May 14th and 15th Tria l Committee Hearings, Plaintiff allegedly gave Defendant Click “sufficient notice of the need for postponement.” However, Plaintiff does not provide a specific date for when they allegedly informed him of this

need. Nonetheless, Defendants have provided through summary judgment evidence a correspondence dated May 16, 2013 from Cuyler Thompson which reads, “Dear Brothers

Cl ick and Lindemann...The Executive Board takes the position that no duly constituted20 trial has taken place on these charges, as they were re

- set for hearing on May 10, 2013 , by vote of the Executive Board.” (“ Defendants’ Exhibit 11 ”). The letter further goes on to read, “Notice was given to the Charging Party and the Charged Party of this change of hearing.” (“ id ”). A gain, nowhere does Plaintiff indicate specifically when it gave this “notice of change” to Defendant Click. However, based on the pleadings and t his correspondence from Mr. Thompson we know it had to have allegedly taken place

sometime between May 10th, 2013 and May 16, 2013. (“ id ”)

In April of 2013, Plaintiff suspended Defendant Click from his duties as 1st Vice

President. (“ Defendants’ Exhibit s 3 and 16 ”). Plaintiff relieved Defendant Click of all of his duties incumbent upon his official position as 1st Vice President, and stripped him of all authority. ( “ id ”). Plaintiff removed Defendant Click from occupy ing his position of

trust , and took away all substantial authority he held

. (“ id ”). As stated above, “Section 501(a) of the LMRDA states that the persons who are subject to the position of fiduciary are “officers, agents, shop stewards, and other representatives of a labor organization who occ upy positions of trust in relatio n to such organization and its members as a group” Id. Further, the LMRDA under § III, “Definitions” in subsection (q) defines “Officer, agent, shop steward, or o ther representative, when used with respect to a labor organi zation, includes elected officials and key administrative personnel, whether elected or appointed (such as business agents, heads of departments or major units, and organizers who exercise substantial indepe ndent authority), but does not include salaried n on - supervisory professional staff, stenographic personnel.”21 Once Defendant Click was suspended from his position as 1st Vice President, and stripped of all his duties and authorities, he no longer was in a ny fiduciary relationship contemplated under Secti on 501(a) and subsection (q) of the LMRDA.

Thus , Plaintiff ’ s claim of Misappropriation of Union Funds

- Breach of Fiduciary Duty against Defendant Click for alleged “time and money wasting” surrounding his May 14th and 15th Trial Committee Hearings fails as a matter of law because the summary judgment evidence indisputably demonstrates that there is no genuine issue as to any material fact that exists whether Plaintiff and Defendant had a fiduciary relationship. They simply did not.

(2 ). Defendant Click Was NOT in a Position of Fiduciary When He Allegedly Failed to Vacate Union Offices After Being Removed From His Position as 1st Vice President

. Plaintiff Judicially a dmits in its Original Petition against Defendant Click that he

“was removed from his official position within TWU LOCAL 556 and has not been reinstated.” (“ Defendants’ Exhibit 14 , pg. 4

- § V (11 and 12 ) ”). Plaintiff alleges that

Defendant “unlawfully occupied Plaintiff’s offices for seve ral days and refused to

vacate” (“ id ”). However, a s Plaintiff Judicial ly admits in its Original Petition , Defendant

Click was “removed from his official position within TWU LOCAL 556 and has not been reinstated.” (“ id ”). Assuming arguendo that Defendant Click did in fact “unlawfully

occupy Plaintiff’s offic es,” it was not done so in any official capacity as an elected

officer , because as Plaintiff judicially admit s, he was no longer an officer. (“ id ”). Thus, Plaintiff’s claim of Misappropriation of Union Funds

- Breach of Fiduciary Duty again st Defendant Click for allegedly “unlawfully occupying Plaintiff’s office for several days and refusing to vac a te ” fails as a matter of law because by Plaintiff’s own22 judicial admissions and the indisputable summary judgment evidence demonstrate s, there is no genuine i ssue as to any material fact that exists as to whether Plaintiff and Defendant had a fiduciary relationship. They simply did not.

(3 ). Defendant Click Was NOT in a Position of Fiduciary When He Allegedly Misused U nion Funds When He Attended an Internatio nal Conference in London

. Plaintiff alleges in its Original Petition against Defendant Click that “Lastly, Defendant [Click] continued to misuse Union funds when, after his suspension, Defendant took his wife to London (where TWU International was havin g a conference) for several days and charged the entire cost of the trip to Plaintiff.” (“ Defendants’ Exhibit 14, pg. 4

- § V (13) ”). Again, unfortunately due to Plaintiff’s poorly delineated timeline in its Original Petition against Defendant Click, it is difficult to know when Defendant went to London. The only indication Plaintiff gives is that it was “after his suspension.” (“ id ”). Defendant Click was suspended from all of his 1st Vice Presidential duties and authorities in early April 2013. (“ Defenda nts’ Exhibit 3 ”) To sustain a cause of action for breach of fiduciary duty the Plaintiff must show that Defendant was Plaintiff’s fiduciary. Lacy , at 788. The facts, summary judgment evidence and Plaintiff’s own judicial admissions indicating Defendant C lick was suspended (“ Defendants’ Exhibit 14 and 16 ”) indisputably show that Defendant Click was not Plaintiff’s fiduciary at the time of his trip to London. Thus, Plaintiff’s claim of Misappropriation of Union Funds

- Breach of Fiduciary Duty against Def endant Click for allegedly “misusing Union funds to fly to London” fails as a matter of law because by Plaintiff’s own judicial admissions and as the indisputable23 summary judgment evidence demonstrates, there is no genuine issue as to any material

fact tha t exists as to whether Plaintiff and Defendant had a fiduciary relationship. They simply did not.

ELEMENT 2

- FIDUCIARY DUTY OWED (1). Plaintiff CANNOT Establish That Defendant Click Owed Plaintiff Any Fiduciary Duty Involving His May 14th and 15th Hear ings

. Defendant again, emphatically reemphasizes that no fiduciary relationship existed between Defendant Click and Plaintiff. However, should the Court find a relationship existed, Defendant would argue as follows: Section 501(a) has not been addre ssed very much in the State of Texas, either in

Federal or State Court. However, Defendants believe the seminal case in this matter is the

5th Circuit’s decisions in Hoffman v. Kramer, et al , 362 F.3d 308 (5th Cir. 2004) 2

. Hoffman has provided us with t he guideline of where allegations of breach of fiduciary

duties fall under Section 501 of the LMRDA

. Id

. The Court in Hoffman stated that “ the fiduciary obligations imposed are primarily pecuniary in nature

- that is, having to do with the custody, cont rol, and use of a union’s money and its financial interests or property and the conduct of union officials in relation

there of .” Hoffman v. Kramer , et al , 362 F.3d 308, 317 n.4 (5th Cir. 2004). The Court goes on to further state that “ disagreements ov er the wisdom or appropriateness of particular administrative and employment actions and decisions are usually not am enable to suit under the LMRDA. ” Hoffman, at 322

. Further , the Court states that “ most of these matters are the sort of internal grie vances properly left to be worked out via union democratic processes...and not by a

2 Defendants have at tached a copy of the Hoffman v. Kramer Case for this Court’s reference.24 federal court sitting as a sort of super

- review board. ” Hoffman, at 322 (citing United

Food and Commercial Workers Int’l Union Local 911 v. United Food and Commercial

Work ers Int’l Union , 301 F.3d 468, 475 (6th Cir. 2002).

Thus, the Court puts a perspective on where allegations of Section 501 may fall

. Ultimately we have a spectrum that ranges from: Pecuniary Fiduciary Obligations in Nature

T o Disagreements Over Ap propriateness of Administrative Actions and Decisions Hoffman , at 322. Specifically, when deciding the issues in Hoffman , the 5th Circuit stated that the allegations against Defendants merely amounted to a “derelict [ion] in the performance of [Defend ant’s] employment obligations, ” which did not give rise to a breach of fiduciary duty under Section 501(a) of the LRMDA. Hoffman, at 322.

In Hoffman , the allegations against Defendants were as follows: (1). Defendants conspired to rig the November 19 99 election, and Plaintiff sought damages for funds allegedly misused during an d as a r esult of this conspiracy; and (2). Defendants were accused of maladministration o f the union’s affairs, such as allegedly destroying union and budget records , and accepting a plane ride without disclosure

. Hoffman , at 319

- 22

. The Court ruled that no breach of fiduciary duties transpired for allegations under (1) because “the remedy for the defective electoral process is not this suit but the

interven tion of the Labor Department...and the money spent to re

- run the election did not personally benefit the Defendants. ” Hoffman , at 320.25 Further, the 5th Circuit reasoned that no breach of fiduciary duties transpired for the allegations under (2) because “however stupid and wasteful the former officers’ actions may have been, they raise issues of time, attendance, performance and

administration

- not breach of fiduciary duty. The law confides these concerns to the union membership through the election o f officers; in fact, the Defendants have already been replaced on the u nion’s board.” Hoffman , 321

- 22. Here, Plaintiff alleges that Defendant Click “wasted significant time and money” when he allegedly “insisted on ordering the expenditure of the time a nd resources necessary for the Article XIX trial on its originally set dates , d espite sufficient notice that the accusing party would not be able to proceed because of scheduling conflicts and other logistical issues.” (“ Defendants’ Exhibit 14 , pg. 3 § V ( 10) ”). The best Defendants can glean from this allegation is that Defendant Click allegedly breached subsection (2) “That these [Fiduciaries] manage, invest, and expend the same in accordance with its constitution and by

- laws, and any resolutions of the governing bodies adopted thereunder” under Section 501(a) of the LMRDA. 29 U.S.C. 501(a)

. (a ). Sufficient Notice of Need For Postponement

. As stated above, based on the summary judgment evidence, and viewing the facts and evidence in the light as best as possible for Plaintiff, the absolute earliest Plaintiff could have notified Defendant of the “need for postponement” was May 10, 2013, when Plaintiff allegedly voted to re

- set Defendant Click’s Hearings. (“ Defendants’ Exhibit 11 ”).26 However, the summary judgment evidence produced clearly shows that

the first time Defendant Click was ever made aware of any possible reset was that Monday, May 13th, 2013 when he arrived in Dallas the day be for e his He arings on the 14th and 15th, wherein he received an em ail from Oakland based Rep Matt

Hettich saying the Hearings were rescheduled . (“ Defendants’ Exhibit 3 and 8 ”). Sending Defen dant an email the day before his Hearing is not sufficient

notice

. (b ). Defendant Did NOT Insist O n Ordering the Expenditure of the T ime and Resources Necessary for His Trial Committee Hearings on the 14th and 15th of May, 2013

. In any event, Plaintiff is under some misguided belief that Defendant Click had any power whatsoever to “order” his Hearings on the 14th and 15th of May, 201 3 to move forward on those dates. All the facts and summary judgment evidence clearly show that Defendant Click received a correspondence from Recording Secretary Jannah Dalak dated April 30, 2013. (“ Defendants’ Exhibit 3

and 5 ”). The letter indicated that Defendant Click had a Trial Committee Hearing set against him on May 14th and 15th of 2013. (“ id ”). Subsequently, Defendant Click attempted to challenge several of the Trial Committee Members; however, he was unsuccessful. (“ Defendants’ Exhibit 3 and 7” )

. O n Monday, May 13th, 2013 , Defendant Click got on a plane from Baltimore and flew to Dallas for said Hearings. (“ Defendants’ Exhibit 3 and 8 ). On May 13th, 2013 , Defendant Click received an email from Matt Hettich, an Oakland based rep telling him that his Hearings had been rescheduled. (“ id ”).27 After reading the email, Defendant Click called the President of the LOCAL 556 Union, Defendant Martin, and inquired if his Hearings had been rescheduled. (“ Defendants’ Exhibits 1 and 3 ”). Disagreeing with Matt Hettich,

and other members of Plaintiff’s Executive Board over union policies and what the Constitution stated, Defendant Martin in his Presidential administrative role

told Defendant Click that he did not believe that the Plaintiff had any authority to

re schedule his Hearings , and thus advised him to show up for the Hearings. (“

Defendants’ Exhibit 1 and 3 ”). Defendant Click showed up to his Hearing s on May 14th and 15th , 2013, where every single person scheduled to be there: Defendant s, Defendant s ’ witne ss es, the Union attorney, Defense s ’ counsel, the court reporter, and the Trial Committee Members were all ready to proceed with a Trial Committee Hearing. ( “Defendants’ Exhibit 3 and 8 ”). Defendant had no reason to believe otherwise

that his trial was resc heduled. At the behest of the Trial Committee Members, and not because Defendant Click “insisted on ordering the expenditure of the time and resources to proceed ” his May 14th and 15th Hearing s were adjudicated , wherein he was found not guilty of the all egations. (“ Defendants’ Exhibits 3, 8 and 10 ”). Moreover, the certified transcripts from Defendant Click’s Ma y 15th Hearing clearly indicate that the Trial Committee Members deliberated on whether Plaintiff had any authority to reschedule the Hearings , a nd after deliberation clearly decided , making the decision themselves , that the Trial Committee Hearing would proceed . (“ Defendants’ Exhibit 8 ”). Not Defendants.28 The Hearing s against Defendant Click took place on May 14th and 15th,

2013 because (1) Plaint iff scheduled his Hearing s for those date s , (2) the President of the Local Chapter of the Union told him that his Hearing s were not rescheduled; and (3) The Trial Committee Members chosen by Plaintiff to adjudicate the Hearing chose to proceed with the 14t h and 15th Hearings. In no way, shape or form did Defendant Click “insist on ordering the expenditure of the time and resources necessary for the Article XIX trial on its originally set dates despite sufficient notice of any postponement.” (c ). Plaintiff s Allegations Do NOT Rise to Any Level of Breach of Fiduciary Duty Contemplated under § 501(a) of the LRMDA

. Assuming arguendo that this Honorable Court were to disregard the overwhelming amount of summary judgment evidence and precedence, and

believe t hat the al legations asserted by Plaintiff had any merit, Defendant Click’s

actions would still not rise to any level of breach of fid uciary duty enumerated

under Section 501(a) of the LMRDA. The Defendants in Hoffman were accused of misusing union funds b y riggin g their November 1999 elections. Hoffman , at 320. Similary, Defendant Click in this case is being accused of wasting time and money, or misusing Union

funds , to force the Trial Committees on May 14th and 15th to proceed despite some alleged notific ation otherwise.

In Hoffman , the Court found no good cause to proceed on the misuse of union funds because “the remedy for the defectiv e election process [was] not the lawsuit, but the intervention of the Labor Department.” Hoffman , at 320. Further,

the Court in Hoffman stated that “The money spent to re

- run the elections did not29 personally benefit the Defendants.” Id . Further , the Court in Hoffman ruled that “the general allegations that officers conducted an illegal election does not state a

breach of t he duties referred to in § 501(a), although it may violate other provisions of the Act.” Id.

Just as in Hoffman , Plaintiff’s allegations that Defendant Click misused union funds by allegedly ordering his Article XIX Trials to move forward despite

some all eged notification they were rescheduled , simply does not state a breach of fiduciary duty contemplated under § 501(a) of the LMRDA

. Further, as in Hoffman , the money spent on rescheduling and retrying the Hearings on May 24th did not personally benefit Defendant Click in anyway . In fact, it was extremely detrimental to Defendant Click, whereas he was found guilty on the re

- trial s , and permanently r emoved from office entirely

. Finally, even if the Court were to believe that Defendant Click “wasted signi ficant time and money,” Hoffman clearly states that “however stupid and wasteful the former officers’ actions may have been, issues of time, attendance, performance and administration are not a breach of fiduciary duty. The law

confides these concerns to t he union membership through the election of officers; in fact, the Defendants have already been replaced on the union’s board.” Hoffman , 321

- 22. As in Hoffman , Defendant Click was removed form office and replaced.

The allegation s against Defendant Click a re exactly the kind, which the 5th Circuit identifies as “the sort of internal grievances properly left to be worked30 out via union democratic processes...and not by a federal court sitting as a sort of

super - review board.” Hoffman, at 322. Thus, Plaintiff’ s claim of Misappropriation of Union Funds

- Breach of Fiduciary Duty against Defendant Click for allegedly “misusing Union funds by wasting significant time and money” surrounding his May 14th and 15th Trial Committee Hearings fails as a matter of fact an d law because the summary judgment evidence indisputably demonstrates that there is no genuine issue as to any material fact that exists wherein Defendant breached any fiduciary duty o wed

to Plaintiff. (2 ). Defendant Click Did NOT Breach Any Fiduciary By Allegedly Failing to Vacate Union Offices After Being Removed From His Position as 1st Vice President

. Again, Defendant maintains that no fiducia ry relationship existed between

Defendant Click and Plaintiff , after Plaint iff removed him from office as 1st Vice

President . However, despite the indisputable summary judgment evidence otherwise, should the Court believe a fiduciary r elationship existed, Defendant Click’s alleged “failure to vacate Union offices” does not rise to any breach of fiduciary duty under Section 501(a) of the LMRDA. Taking as true all facts alleged by Plaintiff and viewing them in the light most favorable to Plaintiff, “unlawfully occupying Plaintiff’s offices for several days and refusing to vacate until directed to do so by the T WU International President” does not rise to a level of fiduciary duty contemplated under Section 501(a) of the LMRDA. Assuming arguendo, Defendant Click , in fact refused to vacate Union offices, it

was not done so because he was breaching some fiduciary duty, its because they clearly31 did not agree with the “appropriateness of the administrative actions and decisions” taken against them by Plaintiff. (“ Defendants’ Exhibit 3 ”). There was a clear disagreement over

whether the Executive Board had the authori ty to remove him from office. (“ id ”). Refusing to vacate the Union offices does not rise to a level of a fiduciary duty owed

. Worst case scenario, Defendant Click’s action s am ounted to a dereliction of his officer duties. Once again the 5th Circuit in Ho ffman has stated that “Section 501(a) does not permit derivative actions for dereliction of employment duties.” Hoffman , at 322. The 5th Circuit Court in Hoffman clearly ruled that “disagreements over the wisdom or appropriateness of particular administr ative and employment actions and decisions are usually not amenable to suit under the LMRDA’s” Section 501(a) breach of fiduciary duties offenses. Hoffman , at 322. Plaintiff’s Executive Board made an administrative decision to remove Defendant

Click from his 1st Vice President position, after he had already been suspended for nearly

two months . (“ Defendant’s Exhibits 14 and 16” ). Defendant Click disagreed whether Union policies gave Plaintiff’s Executive Board the authority to do so. (“ Defendants’

Exhibit s 3 ”). Thus, even taking as true that Defendant Click mishandled the internal administration of the union by failing to vacate Union offices, as directed by Plaintiff, causing the Union to incur costs; their actions still fall well short of the subject m atter contemplated under Section 501(a) of the LMRDA. Again, even if Plaintiff some how incurred cost for Defendant failing to vacate Union offices, the 5th Circuit’s decision in Hoffman clearly states , “however stupid and

wasteful the former officers’ a ctions may have been, issues of time, attendance,32 performance and administration” do not fall within the subject matter of Section 501(a)

of the LMRDA. Hoffman , 321

- 22. Even with this Court viewing Plai ntiff’s allegations in the light most favorable to

Pl aintiff, at most , Defendant Click’s refusal to vacate Union offices amounted to a derelictio n of his duties as 1st Vice President because he disagreed with the appropriateness of an administrative Executive Board action telling him to vacate

. This simply c annot rise to any level of fiduciary duty owed, and is simply not something contemplated under Section 501(a) of the LMRDA. Thus, Plaintiff’s claim of Misappropriation of Union Funds

- Breach of Fiduciary Duty against Defendants Click for allegedly “refu sing to vacate Union offices” fails as a matter of fact and law because the summary judgment evidence indisputably demonstrates that there is no genuine issue as to any material fac t that exists wherein

Defendant breached any fiduciary duty owed to Plainti ff. (3 ). Defendant Click Did NOT Breach Any Fiduciary Duty By Flying to London to Attend a TWU International Meeting. Again, Defendant maintains that no fiduciary relationship existed between

Defendant and Plaintiff when Plaintiff removed him from offic e as 1st Vice President. However, despite the indisputable summary judgment evidence otherwise, should the Court believe a fiduciary relationship exis ted, Defendant Click’s trip to London does not rise to any breach of fiduciary duty under Section 501(a) o f the LMRDA. As judicially admitted by Plaintiff, prior to the International conference in London, Defendant Click was suspended from his officer position of 1st Vice President. (“

Defendants’ Exhibit 14 and 16 ”). However, prior to Defendant Click’s suspen sion, TWU International had specifically requested Defendant Click to attend the conference in33 London. (“ Defendants’ Exhibit 3 ”). Moreover, Plaintiff had specifically approved their budget , and the funds to send a representa tive to London for this conference. (“ id ”). Defendant Click at that time was the Safety Chair of the Local 556 Union, and also, a member of the Cabin Air Quality Board (“CAQB”). (“ id ”). The specific conference in London was the Global Cabin Air Quality Executive Conference, and thus, as Safety Chair and a member of the CAQB at that time, Plaintiff chose to send Defendant Click. (“ id ”).

Defendant Click was scheduled to fly to London two days after his suspension. (“ id ”). After being suspended, Defendant Click contacted the TWU International President, Mr. James Little, and local Union President at the time, Defendant Martin, and asked if his attendance in London was still required despite being suspended. (“ id ”). Mr. Little and Defendant Martin both indicated that the entry fee and other expenses had already been purchased and were non

- refundable, and told Defendant Click he should still attend the meeting. (“ id ”). Moreover, Defendant Click was not being paid to attend this conference. (“ id ”).

It was not until Defendant Click h ad already arrived in London, and participated fully in an entire day of the conference, until Plaintiff contacted Defendant Click and told him to not attend the conference anymore. (“ id ”). Subsequently, Defendant Click contacted Denver based representativ e Chris Sullivan to attend on behalf of Plaintiff. (“ id ”). As requested, Defendant Click did not participate in the remainder of the conference, and returned home on his scheduled flight. (“ id ”).

Defendant Click’s attendance at the International Conf erence in London does not give rise to any breach of fiduciary duty. Plaintiff specifically budgeted for Defendant34 Click to attend the International Conference in London. (“ id ”). Plaintif f suspended

Defendant Click two days before he was scheduled to l eave for London for the conference. (“ Defendant’s Exhibit 3 and 14 ”). The President of the TWU International specifically told Defendant Click that expenses had been paid, and his attendance was required at the Conference in London. (“ Defendants’ Exhibit 3 ”). Plaintiff did not inform Defendant Click that his presence was no longer required at the London conference until the second full day of the trip. (“ id ”). As soon as Defendant Click was informed he was no longer to attend the conference, another rep was contacted to fill in for him. (“ id ”). Assuming arguendo, taking Plaintiff’s allegations as true that Defendant Click was “explicitly warned that because of his suspension his attendance at the conference would be wholly unauthorized [and] desp ite the warning, Defendant [Click] went to London ...and used Union funds” cannot and does not rise to any level of breach of any fiduciary duty. (“ Defendants’ Exhibit 14 ”). The 5th Circuit has abundantly determined that “claims generally alleging

maladmini stration of the union’s affairs...are either not amenable to monetary damages, for example the alleged destruction of union and budget records or the acceptance of a plane ride without disclosure; or were not for the Defendants’ personal benefit. As such

the y do not appear to fall within the subject matter of Section 501(a) of the LMRDA.” Hoffman , at 321. The indisputable facts clearly show that (1) Plaintiff specifically budgeted for

Defendant Click to attend the International Conference in London prio r to his suspension; (2) Plaintiff used the monetary funds budgeted to purchase Defendant Click’s entry fee to the conference, his flight to the conference, and his hotel room during the conference; (3)35 Plaintiff chose to suspend Defendant Click 2 days pr ior to his departure date from the

London conference , wherein no other member was selected to fillin ; (4) Defendant Click was informed by then Local President Defendant Martin that the expenses were not refundable and he was required to attend despite the suspension; (5) upon being informed

on the second day of the conference that he was no longer to attend the conference,

Defendant Click did not participate any further and another member filled in ; and (6) Defendant Click was in no way compensated or benefited financially fr om this trip. Even in the light most favorable to Plain tiff, the facts alleged at most amount to a dereliction of Defendant’s duties over the appropriateness of a particular administrative

action or decision. The entire basis of this allegation stems from an administrative decision entirely out of the control of Defendant.

The 5th Circuit in Hoffman , once again, cl early ruled that “disagreements over the wisdom or appropriateness of particular administrative and employment actions and decisions are usually not amendable to suit under the LMRDA”... no matter “however stupid and wasteful the former officer’s actions may have been [because] they raise issues of time, attendance, performance and administration

- not breach of fiduciary duty.” Hoffman , at 321

- 22. Thus, Plaintiff’s claim of Misappropriation of Union Funds

- Breach of Fiduciary Duty against Defendant Click for allegedly “attending a conference in London without authorization” fails as a matter of fact and law because the summary judgment evidence indisputably demonstrates that there is no genuine issue as to any material fact that exists

wherein Defendant br eached any fiduciary duty owed to Plaintiff.36 B. DEFENDANT MARTIN A detailed recitation of the facts alleged against Defendant Martin are outlined above; however, Plaintiff is alleging that Defendant Martin breached a fiduciary duty owed to Plaintiff

for allegedly misappropriating Union funds.

ELEMENT 1

- FIDUCIARY RELATIONSHIP (1 ). Defendant Martin Was NOT in a Position of Fiduciary When He Allegedly Failed to Vacate Union Offices After Being Removed From His Official Position

. Again, Plaintiff j udi cially admits in its Original Petition against Defendant Martin that he “was removed from his official position within TWU LOCAL 556 and has not been reinstated.” (“ Defendants’ Exhibit 15, pg. 4

- § V (11 and 12) ”). Again, as with Defendant Click, assuming arguendo that Defendant Martin did in fact “unlawfully occupy Plaintiff’s offices for several days and refused to vacate” he was not doing so in any official capacity with any authority to do so . (“ id ”). As Plaintiff judicially admits,

Defendant Martin “ was removed from his official position within TWU LOCAL 556 and has not been reinstated.” (“ id ”). Defendant was no longer in a fiduciary position. Thus, Plaintiff’s claim of Misappropriation of Union Funds

- Breach of Fiduciary Duty against Defendant Martin for allegedly “unlawfully occupying Plaintif f’s office for several days and refusing to vacate” fails as a matter of law because by Plaintiff’s own judicial admissions and indisputable summary judgment evidence demonstrates, there is no genuine issue as to any material fact that exists as to whether Plaintiff and Defendant had a fiduciary relationship. They simply did not.37 ELEMENT 2

- FIDUCIARY DUTY OWED (1 ). Defendant Martin Did NOT Breach Any Fiduciary Duty Allegedly Owed to Plaintiff By Insisting that Defendant Lindemann and Click’s Trial Commi ttee Hearings Proceed on May 14th and 15th

. Plaintiff alleges that Defendant Martin “wasted significant time and money” when he allegedly “insisted on ordering the expenditure of the time and resources necessary for

Defendant s Lindemann and Click’s Artic le XIX trial s on its originally set dates despite sufficient notice that the accusing party would not be able to proceed because of scheduling conflicts and other logistical issues.” (“ Defendants’ Exhibit 15, pg. 3 § V (10) ”). The best Defendants can gle an from this allegation is that Defendant Click allegedly breached subsection (2) “That these [Fiduciaries] manage, invest, and expend the same in accordance with its constitution and by

- laws, and any resolutions of the governing bodies adopted thereunder” under Section 501(a) of the LMRDA. 29 U.S.C. 501(a)

. (a). Sufficient Notice of Need For Postponement As stated above, based on the summary judgment evidence, and viewing the facts and evidence in the light as best as possible for Plaintiff, the absolute

earliest Plaintiff could have “directed Defendant [Martin] to reschedule ” Defendants Lindemann and Click’s Hearings due to a “need for postponement” was May 10, 2013, when Plaintiff allegedly voted to re set the Hearings. (“

Defendants’ Exhibit 11 ”).

Howev er, the summary judgment evidence clearly shows that on May 10th, members of the Executive Board were conferring and deliberating on38 Defendant Click’s objections to the Trial Committee Members. (“ Defendants’

Exhibit 1 ”). Also, the Executive Board had propo sed moving Defendants Lindemann and Click’s Hearings to the 24th of May , but had never made a

decision . (“ id ”). On Sunday May 12th, the Executive Board finally rendered a 6

- 5 vote denying Defendant Click’s objections, and also, voted to move the Hearings to May 24th. (“ id ”).

It wasn’ t until that Monday the 13th in the afternoon, the day before Defendant Click’s May 14th Hearing, when Thompson and Hettich approached

Defendant Martin in his office to tell him that the Executive Board voted and

wanted him to postpone the Hearings. (“ id ”)

. Defendant Martin , believing that the Executive B oard did not have the authority according to the Constitution to reschedule, and acting in his role as

President , as is required by him, contacted the Trial Committee members involved

in the matter to i nform them that Hearings would proceed on the 14th and 15th of May 2013. (“ id ”). Also, as indicated above, Hettich sent an email to Defendant Click on May 13th informing him his Hearings had been rescheduled. (“ Defendants’ Exhibits 1,

3 and 8 ”). Defendan t Martin received a phone call from Defendant Click, wherein Defendant Martin conveyed to Defendant Click that he did not believe the Executive Board had the authority to reschedule his Hearings and that he needed to show up and proceed with the Hearings. (“ id ”).39 The next morning, May 14th, 2013, the Executive Board met, wherein the

first order of business was to send Defendant Martin to Defendant Click’s Hearing and tell the Committee Members that Defendant Click’s Hearing was rescheduled. (“ Defendants’ E xhibit 1; Defendants’ Exhibit 16

- Board Minutes from May 14

- 17, 2013 ”). However, prior to Defendant Martin leaving to inform the Committee Members of this decision, the Executive Board voted to suspend

him from his duties as President. (“ id ” ). (b). Plaintiffs Allegations Do NOT Rise to Any Level of Breach of Fiduciary Duty Contemplated under § 501(a) of the LRMDA

. As stated above, Defendant Martin was informed on Monday May 13th,

2013 that the Executive Board voted to reschedule Defendant s Lindemann and Click’s Hearings scheduled for May 14th and 15th 2013. (“ id. ”). Upon receiving this information, Defendant Martin consulted the Union’s Constitution , contacted

various me mbers of the International Union , and determined that the Executive

Bo ard did not have the authority to reschedule the Hearings by simply voting to have them rescheduled. (“ id ”). Defendant Martin believed he could not reschedule the Hearings because

he believed the Constitution for the Transportation Workers Union of the A FL

CIO proscribed only two instances underwhich Article XIX and Article XXI hearings may be rescheduled; (1) if the claimant removes the charges; or (2) the accused successfully challenges the impartiality of a member(s) of the Trial

Committee. (“ Defendant ’s Exhibit 1 and 9” ). Ultimately, the basis for all three of these lawsuits amounts to a disagreement between the Executive Board and the President of the Local Union.40 In Hoffman , the Court stated that the allegations against Defendants amounted to “disagreements in which Defendants ha ndled the internal administration of the union during their tenure.” Hoffman , at 321. The Court ruled that “claims generally alleging maladministration of the union’s affairs by the Defendants are either not amenable to monetary damages... or were not for th e Defendants’ personal financial benefit...[and] as such do not appear to fall within the subject matter of Section 501 of the LMRDA.” Hoffman , at 321. Taking as true Plaintiff’s allegations that Defendant Martin was “directed

to r eschedule the hearings,” and acting as President , based on his belief that the Constitution did not allow for the rescheduling, still “insisted on ordering the expenditure of the time and resources necessary for the Article XIX Hearings on its originally set dates... which result[ed ] in significant time and money wasted, causing Plaintiff to foot

- the

- bill” still does not rise to any level of breach under Section 501(a) of the LMRDA. Hoffman , 321

- 22. Hoffman clearly ruled that , “disagreements over the wisdom or appropriateness of par ticular administrative and employment actions and decisions are usually not amenable to suit under the LMRDA.” Hoffman , at 322. Indeed, the Court in Hoffman goes on to rule that “most of these matters are the sort of ‘internal union grievances’ properly left to be worked out via union democratic processes (as they eventually were) and not by a federal court sitting as sort of super

- review board.” Hoffman , at 322; United Food and Commercial

Workers Int’l Local 911 , 301 F.3d at 475.41 Moreover, the Hoffman Court ruled that , “Section 501(a) does not permit these derivative actions for dereliction of employment duties. Disputes over whether elected union officials are adequately performing their employment obligations are matters usually to be worked out within the union and its governing structure and not in federal courts.” Hoffman , at 322. Finally, the Hoffman Court reasoned that , “however stupid and wasteful the former officers’ actions may have been they raise issues of time, attendance, performance and ad ministration

- not breach of fiduciary duty.” Hoffman , at 321

. Thus, even taking as true all of Plaintiff’s allegations, at most , Defendant

Martin’s actions as union President stemmed from a disagreement of the administration of union policy, which assuming he was in the wrong about the policy, cou ld at worst be seen as a dereliction of his Presidential duties. The matter was handled internally when he was suspended from his duties as President, charges were brought against him , and he was ultimately removed as President. (“ Defendants’ Exhibit 16 ”).

Like in Hoffman , the matter was handled internally, as it should have

been. Moreover , even if Defendant Martin did wrongly “Order the adjudication of the Hearings on their original dates,” he in no way benefited financially from it. Thus, Plaintiff’s c laim of Misappropriation of Union Funds

- Breach of Fiduciary Duty against Defendant Martin for allegedly “misusing Union funds by wasting significant time and money” by “insisting on ordering the May 14th an d 15th Trial Committee Hearings” of Defendants L indemann and Click fails as a matter of fact and law because the summary judgment evidence indisputably42 demonstrates that there is no genuine issue as to any material fact that exists wherein Defendant breached any fiduciary duty owed to Plaintiff. (2). De fendant Martin Did NOT Breach Any Fiduciary Duty By Allegedly Failing to Vacate Union Offices After Being Removed From His Position as President

. Again, Defendant Marin maintains that no fiduciary relationship existed between

himself and Plaintiff, after P laintiff removed him from office as President. However, despite the indisputable summary judgment evidence otherwise, should the Court believe a fiduciary relationship existed, Defendant Martin’s alleged “failure to vacate Union

offices” does not rise to a ny breach of fiduciary duty under Section 501(a) of the

LMRDA. Taking as true all facts alleged by Plaintiff and viewing them in the light most favorable to Plaintiff, “unlawfully occupying Plaintiff’s offices for several days and refusing to vacate them until directed to do so by the TWU International President” does not rise to a level of fiduciary duty contemplated under Section 501(a) of the LMRDA. Assuming arguendo, Defendant Martin , in fact refused to vacate Union offices, it

was not done so becau se he was breaching some fiduciary duty, its because he clearly did not agree with the “appropriateness of the administrative actions a nd decisions” taken against him by Plaintiff. (“ Defendants’ Exhibit 1 ”). There was a clear disagreement over

wheth er the Executive Board had the authority to remove Defendant Martin from office. (“ id ”). Refusing to vacate the Union offices simply does not rise to a level of a fiduciary duty owed.43 Worst case scenario, Defendant Martin’s action amounted to a derelicti on of his officer duties. Once again the 5th Circuit in Hoffman has stated that “Section 501(a) does not permit derivative actions for dereliction of employment duties.” Hoffman , at 322. The 5th Circuit Court in Hoffman clearly ruled that “disagreements over the wisdom or appropriateness of particular administrative and employment actions and decisions are usually not amenable to suit under the LMRDA’s” Section 501(a) breach of fiduciary duties offenses. Hoffman , at 322. Plaintiff’s Executive Board made an administrative decision to remove Defendant

Martin as President . (“ Defendant’s Exhibits 15

- 16 ” ). Defendant Martin disagreed whether Union policies gave Plaintiff’s Executive Board the authority to do so. (“

Defendants’ Exhibits 1 ”). Thus, even taking as true that Defendant Martin failed to vacate Union offices, as directed by Plaintiff, therefore mishandling the internal administration of the union that removed him, and thereby causing the Union to incur costs; Defendant Martin’s actions

still fall wel l short of the subject matter contemplated under Section 501(a) of the

LMRDA. Again, even if Plaintiff some how incurred cost for Defendant failing to vacate Union offices, the 5th Circuit’s decision in Hoffman clearly states, “however stupid and

wastefu l the former officers’ actions may have been, issues of time, attendance, performance and administration” do not fall within the subject matter of Section 501(a)

of the LMRDA. Hoffman , 321

- 22. Even with this Court viewing Plaintiff’s allegations in the light most favorable to

Plaintiff , at most , Defendant Martin ’s refusal to vacate Union offices amounted to a44 dereliction of his duties as President because he disagreed with the appropriateness of an administrative Executive Board action. This simply cannot rise to any level of fiduciary duty owed, and is simply not something contemplated under Section 501(a) of the

LMRDA. Thus, Plaintiff’s claim of Misappropriation of Union Funds

- Breach of Fiduciary Duty against Defendant Martin for allegedly “refusing t o vacate Union offices” fails as a matter of fact and law because the summary judgment evidence indisputably demonstrates that there is no genuine issue as to any material fact that exists wherein Defendant breached any fiduciary duty owed to Plaintiff.

C. DEFENDANT LINDEMANN A detailed recitation of the facts alleged against Defendant Lindemann are outlined above; however, Plaintiff is alleging that Defendant Lindemann breached a fiduciary duty owed to Plaintiff for allegedly misappropriating Union funds.

ELEMENT 2

- FIDUCIARY DUTY OWED (1). Defendant Lindemann Did NOT Breach Any Fiduciary Duty Allegedly Owed to Plaintiff Involving his May 15th Trial Committee Hearing

. Plaintiff alleges that Defendant Lindemann “wasted significant time and money”

when he allegedly “insisted on ordering the expenditure of the time and resources necessary for his Article XIX trial on its originally set dates despite sufficient notice that the accusing party would not be able to proceed because of scheduling conflicts and ot her logistical issues.” (“ Defendants’ Exhibit 13, pg. 3 § V (10) ”). The best Defendants can glean from this allegation is that Defendant Lindemann allegedly breached subsection (2) “That these [Fiduciaries] manage, invest, and expend

the same in accordan ce with its constitution and by

- laws, and any resolutions of the45 governing bodies adopted thereunder” under Section 501(a) of the LMRDA. 29 U.S.C. 501(a)

. (a). Sufficient Notice of Need For Postponement As stated above, based on the summary judgment evid ence, and viewing the facts and evidence in the light as best as possible for Plaintiff, the absolute

earliest Plaintiff could have notified Defendant Lindemann of the “need for postponement” was May 10, 2013, when Plaintiff voted to re

- set Defendant

Linde mann’s Hearings. (“ Defendants’ Exhibit 11 ”). However, the summary judgment evidence produced clearly shows that the first time Defendant Lindemann was made aware of any possible reset was Wednesday morning, May 15th, 2013, during his Trial Committee Hear ing. (“

Defendants’ Exhibit 2 and 8 ”). Plaintiff sent two Board Members to interrupt Defendant Lindemann’s Trial Committee Hearing the morning of May 15th, 2013 to inform everyone there that the Hearings were rescheduled. (“ id ”). That was the

first time Def endant Lindemann had heard about his Hearing being rescheduled. (“ id ”). Telling someone their Trial Committee Hearing had been rescheduled during that Hearing does not come anywhere close to being “sufficient notice.” (b). Defendant Did NOT Insist on Or dering the Expenditure of the Time and Resources Necessary for His Trial Committee Hearing on the 15th of May 2013

. Again, Plaintiff is under some misguided belief that Defendant Lindemann had any power whatsoever to “order” his Hearing on the 15th of M ay, 2013 to proceed. All the facts and summary judgment evidence clearly show that46 Defendant Lindemann received a correspondence from Recording Secretary Jannah Dalak dated April 30, 2013. (“ Defendants’ Exhibit 2 and 6 ”). The letter

indicated that Defendan t Lindeman had a Trial Committee Hearing set against him on May 15th of 2013. (“ id ”). As expected, Defendant Lindemann showed up to his Hearing on May 15th, 2013, where every single person scheduled to be there: Defendants, Defendants’ witnesses, the Uni on attorney, Defenses’ counsel, the court reporter, and the Trial Committee Members were all ready to proceed with a Trial Committee Hearing. ( “Defendants’ Exhibit 2 and 8 ”). Defendant had no reason to

believe otherwise that his trial was rescheduled.

Th at morning as the Trial Committee Members commenced proceedings, Plaintiff sent two individuals to interrupt the Hearings and inform everyone that the Hearings had been rescheduled. (“ id ”). That was the first time Defendant

Lindemann was ever made aware that Pl aintiff was trying to reschedule his Hearing. (“ id ”). At the behest of the Trial Committee Members, and not because Defendant Lindemann “insisted on ordering the expenditure of the time and resources to pro ceed,” his May 15th Hearing as adjudicated; wh erein he was found not guilty of the allegations against him. (“ id ”). Moreover, the certified transcripts from Defendant Lindemann’s May 15th Hearing clearly indicate that the Trial Committee Members deliberated on whether Plaintiff had any authority to reschedule the Hearings, and after said deliberation the Trial Committee Members clearly decided , making the decision47 themselves, that the Trial Committee Hearing would proceed. (“ Defendants’

Exhibit 8 ”). The Hearing against Defendant Lindemann took place on May 15th, 2013 because (1) Plaintiff scheduled his Hearing for that date, (2) Prior to his May 15th Trial commencing, he had not been informed by anyone that his Hearing was being rescheduled; (3) The morning of his Hearing was the first time Defendant

Lindemann had ever been made aware that his Hearing was being resch eduled and (4 ) The Trial Committee Members, chosen by Plaintiff to adjudicate the Hearing, themselves chose to proceed with the May 15th Hearing believing that Plaintiff had no authority to reschedule it. In no way, shape or form did Defendant Lindemann “insist on ordering the expenditure of the time and resources nece ssary for the Article XIX trial on its originally set dates despite sufficient notice of any postponement.” (c). Plaintiff’s Allegations Do NOT Rise to Any Level of Breach of Fiduciary Duty

. In any event, assuming arguendo that this Honorable Court we re to disregard the overwhelming amount of summary judgment evidence and precedence, and believe that the allegations asserted by Plaintiff had any merit, Defendant Lindemann’s actions would still not rise to any level of breach of fiduciary duty enumerate d under Section 501(a) of the LMRDA.

In Hoffman , the Defendants were accused of misusing union funds by rigging their November 1999 elections, Hoffman , at 320. Similary, Defendant Lindemann in this case is being accused of wasting time and money, or misu sing48 Union funds, to force the Trial Committees on May 15th to proceed despite some alleged notification otherwise.

In Hoffman , the Court found no good cause to proceed on the misuse of union funds because “the remedy for the defective election process [ was] not the lawsuit, but the intervention of the Labor Department.” Hoffman , at 320. Further,

the Court in Hoffman stated that “The money spent to re

- run the elections did not personally benefit the Defendants.” Id . Finally, the Court in Hoffman ruled tha t “the general allegations that officers conducted an illegal election does not state a breach of the duties referred to in § 501(a), although it may violate other provisions of the Act.” Id.

Just as in Hoffman , Plaintiff’s allegation that Defendant Linde mann misused union funds by allegedly ordering his Article XIX Trials to move forward, despite some alleged notification they were rescheduled, simply does not state a breach of duty referred to in § 501(a) of the LMRDA. Further, as in Hoffman , the mone y spent on rescheduling and retrying the Hearing on May 24th did not personally benefit Defendant Lindemann in any way. In fact, it was extremely detrimental to Defendant Lindemann, whereas he was found guilty on the re

- trial, and removed from his officer position. (“

Defendants’ Exhibit 13 ). Finally, even if the Court were to believe that Defendant Lindemann “wasted significant Union time and money,” Hoffman clearly states that “however stupid and wasteful the former officers’ actions may have been, issue s of time, attendance, performance and administration are not a breach of fiduciary duty.49 The law confides these concerns to the union membership through the election of officers; in fact, the Defendants have already been replaced on the union’s board.”

Ho ffman , 321

- 22. And as in Hoffman , Defendant Lindemann was removed from

office. The allegations against Defendant Lindemann are exactly the kind, which the 5th Circuit identifies as “the sort of internal grievances properly left to be

worked out via union democratic processes...and not by a federal court sitting as a sort of super

- review board.” Hoffman, at 322. Thus, Plaintiff’s claim of Misappropriation of Union Funds

- Breach of Fiduciary Duty against Defendant Lindemann for allegedly “misusing Union

fu nds by wasting significant time and money” surrounding his May 15th Trial Committee Hearings fails as a matter of fact and law because all summary judgment evidence and precedence indisputably demonstrates that there is no genuine issue as to any materi al fact that exists wherein Defendant Lindemann breached any fiduciary duty owed to Plaintiff.

VII.

CONCLUSION Plaintiff has failed to provide even a mere scintilla of evidence to demonstrate that a genuine issue of material fact exists on each and every one of their causes of action against Defendants Martin, Click and Lindemann. As a matter of law Plaintiff is not entitled to the relief they seek, and moreover, have demonstrated no basis whatsoever, in law or fact, to justify their allegations against D efendants.50 By their own admissions, Plaintiff has established that no fiduciary relationship existed between Defendants and Plaintiff, let alone any duty owed. Plaintiff simply fails to even come close to meeting the requirements to overcome summary judg ment

. Therefore, as a mater of law, Defendants are entitled to summary judgment.

VIII.

PRAYER

A. Requests For Attorney ’ s Fees Pursuant to T.R.C.P. § 13 & Texas C.P.R.C § 10 Tex. R. Civ. P. § 13 authorizes the imposition of sanctions against any attorne y, a represented party, or both, who filed a pleading that is either (1) groundless and brought in bad faith; or (2) groundless and brought to harass. Tex. R. Civ. P. § 13

. The rule defines “groundless” as having “no basis in law or fact and not warranted by good faith argument for the extension, modification, or reversal of existing law.” Tex. R. Civ. P. § 13

. Similarly, Chapter 10 of the Texas Civ. P. and Rem. Code allows a trial court to sanction an attorney or a party for filing motions or pleadings t hat lack a reasonable basis in fact or law. Tex. Civ. Prac. & Rem. Code Ann. §§ 10.001

- .005; Low v. Henry , 221 S.W.3d 609, 615 (Tex. 2007). Chapter 10 must show (1) the pleading or motion was brought for an improper purpose; (2) there were no grounds for t he legal arguments advanced; or (3) the factual allegations or denials lacked evidentiary support. Tex. Civ. Prac. & Rem. Code § 10.001; Low, at 614. A sanction under Chapter 10 may include ordering a party to pay the reasonable attorney’s fees ( “ Defendants ’ Exhibit 17 ” ) incurred by the other party because of the filing of the frivolous pleadings. Tex. Civ. Prac. & Rem. Code Ann § 10.004(c)(3)

. For the reasons stated above in Defendants’ brief in support of their Traditional Motion for Summary Judgment, Defendants seek relief from this Honorable Court pursuant to the Tex.51 R. of Civ. P. § 13 and Tex. Civ. Prac. & Rem. Code §§ 10.001

- 005. Plaintiff’s lawsuits against Defendants are groundless, and have been brought simply to harass them. By their own admissions, Plaintiff had no grou nds to bring forth these lawsuits. Plaintiff’s allegations lack

evident iary support, as well as any facts or law to justify their advancement of these lawsuits. WHEREFORE, PREMISES CONSIDERED, Defendants further pray that their Motion

for Traditional Su mmary Judgment be in all things GRANTED, and that all of Plaintiff’s claims be dismissed with prejudice. Further, Defendants pray that this Honorable Court award all attorneys fees, costs of court, pre

- judgment and post

- judgment interests they may so justl y be entitled to. And for such other and further relief, both special and general, at law and in equity, to which Defendants my show themselves justly entitled. Respectfully Submitted, NELSON PURSLEY, PLLC By: /s/ John F. Nels on DANIEL B. NELSON State Bar No. 14888470 JOHN F. NELSON State Bar No. 24074802 4635 Southwest Freeway, Suite 600 Houston, Texas 77027 (O) 713

- 589

- 8811 (F) 713

- 589

- 7159 john.nelson @nelsonpursley.com ATTORNEYS FOR DEFENDANTS, STACY MARTIN, CHRIS CLICK, and JERRY LINDEMANN52 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing has been forwarded by facsimile and/or regular U S mail on all parties and/or attorneys of record on this the 26 th day of November 2014. Edward B. Cloutman, III Edward B. Cloutman, IV Cloutman & Cloutman 3301 Elm Street Dallas, Texas 75226

/s/ John F. Nelson JOHN F. NELSONCAUSE NO. DC

- 13

- 13347

TRANSPORTATION WORKERS § IN THE DISTRICT COURT OF UNION LOCAL 556 , § § Plaintiff, § v . § DALLAS COUNTY, TEXAS § STACY MARTIN , CHRIS CLICK, § AND JERRY LINDEMANN § § Defendants. § 11 6th JUDICIAL DISTRIC T

ORDER GRANTING DEFENDANTS ’ MOTION FOR TRADITIONAL SUMMARY JUDGMENT ON THIS day came to be heard Defendants STACY MARTIN, CHRIS CLICK and

JERRY LINDEMANN’s Motion for Traditional Summary Judgment. After considering the Motion, the resp onse and evidence, if any, this Honorable Court finds that Defendants’ Motion should, in all respects, be GRANTED.

It is TH EREFORE, ORDERED that Defendant STACY MARTIN, CHRIS CLICK and

JERRY LINDEMANN’s Motion for Traditional Summary Judgment is GRANTED.

SIGNED on this the _____ day of ________________, 2014.

________________________ ______ JUDGE PRESIDING1 CAUSE NO. DC

- 13

- 13347

TRANSPORTATION WORKERS § IN THE DISTRICT COURT OF UNION LOCAL 556 , § § Plaintiff, § v . § DALLAS COUNTY, TEXAS § CHRIS CLICK, § AND JERRY LINDEMANN § § Defendants. § 11 6th JUDICIAL DISTRIC T

MO TION TO MODIFY JUDGMENT COMES NOW, DEFENDANTS CHRIS CLICK and JERRY LINDEMANN (“Defendants”), and files this, their Motion to Modify Judgment pursuant to Tex as Rules of Civil

Procedure 329b . Defendants would respectfully show unto this Honorable Court th e following:

I.

PROCEDURAL HISTORY

1. On July 14, 2014 Defendants filed their No

- Evidence Motion for Summary Judgment.

2. On November 26, 2014, Defendants filed their Traditional Motion for Summary Judgment.

3. This Honorable Court set an Oral Hearing f or both Defendants’ Motions for No

Evidence Summary Judgment and Traditional Summary Judgment for January 16, 2015

. 4. On January 16, 2015, this Honorable Court heard oral arguments on Defendants’ Motions for Summary Judgment; however, t he Hearing was no t concluded and continued for January 22, 2015

. 5

. On January 22, 2015, this Honorable Court continued its Oral Hearing on

Defendants’ Motions for No

- Evidence a nd Traditional Summary Judgment, and this Honorable Lantz Sandra FILED DALLAS COUNTY 3/13/2015 3:08:48 PM FELICIA PITRE DISTRICT CLERK2 Court GRANTED Defendants’ Motion s for Summa ry Judgment as to Defendants CLICK and

LINDEMANN.

6. However, as of the date of filing this Modification of Judgment, no entry of Judgment or Order has been entered as to the relief entitled to Defendants CLICK and

LINDEMANN.

7

. Defendants CLICK and LIND EMANN move this Court to enter Judgment and /or

Order as to Defendants’ relief herein entitled

. II.

ARGUMENTS AND AUTHORITIES If the judgment did not award a party all the relief it was entitled to, or awarded the other party more relief than it was entitl ed to, the complaint must be brought to the attention of the trial

court in a written motion. Tex. R. Civ. P. § 329b(g)

. A party should file a motion to modify the judgment if the court did not award the correct amount of prejudgment interest. If a party does not bring the issue to the attention of the trial court in a motion to modify the judgment or make some other objection that appears on the record, the party cannot raise the issue on appeal. Larrumbide v. Doctors Health Facilities , 734 S.W.2d 685, 69 3

- 94 (Tex. App.

- Dallas 1987, writ denied). A party should file a motion to modify the judgment when the trial court does not award attorneys fees or does not award the correct amount of fees. Texas Educ. Agency v. Maxwell , 937 S.W.2d 621, 623 (Tex. App

. - Eastland 1997, writ denied); American Bank v. Waco Airmotive,

Inc. , 818 S.W.2d 163, 178 (Tex. App.

- Waco 1991, writ denied).3 A party should file a motion to modify the judgment when the judgment does not award costs, awards costs to the wrong party, or does not award the correct amount of costs. Dawson

Austin v. Austin , 968 S.W.2d 319 (Tex. 1998). A party should file a motion to modify the judgment if there is any other error in the judgment. L.M. Healthcare, Inc. v. Childs , 929 S.W.2d 442, 443 (Tex . 1996). On July 14, 2014, Defendants Click and Lindemann filed their No

- Evidence Motion for Summary Judgment praying this Honorable Court grant their Motion and requested relief, both special and general, at law and in equity. On November 26, 2014, Defe ndants filed their Traditional Motion for Summary Judgment praying this Honorable Court to grant their Motion, and pray and requested relief for Attorneys Fees, costs of court, pre and post judgment interest, and any other relief they may so justly be enti tled to in law or equity. On January 22, 2015, this Honorable Court GRANTED Defendants Click and Lindemann’s Motions for Summary Judgment; however, no Order or Judgment has been entered

as t o the relief requested by Defendants Click and Lindemann, and th at of which they are

entitled. Moreover, there is long standing precedence that shows a history of policy “permitting union officers who have successfully defended themselves against charges of § 501 of the LMRDA, wherein th ere is an adequate protection of union officers from ba seless litigation.”

Kerr v. Shanks , 466 F.2d 1271, 1277 (9th Cir. 1972). Citing Holdeman v. Sheldon , where the 2nd Circuit originally held that there is a policy in place “permitting a union to reimburse a Defendant if he is successful in his defense... [which] provi des sufficient financial protection of union officials against nuisance suits.” Holdeman v.

Sheldon , 311 F.2d 2, 3 (2nd Cir. 1962); See also, McNamara, et al v. Johston, et al. , 522 F.2d4 1157, 1167 (7th Cir. 1975)(“Union officials charged as defendants in suits [under section 501 of the LMRDA] should retain independent counsel and bear the financial burden of their defense; however, if they prevail, they may properly be reimbursed by the union for the costs of their legal defense.”); See also, Gabauer, et a l v. Woodcock, et al., 425 F.Supp 1, 2 (E.D. Missouri 1976)(“Union officials charged as defendants in suits [under section 501 of the LMRDA] should retain independent counsel and bear the financial burden of their defense; however, if they prevail, they ma y properly be reimbursed by the union for the costs of their legal defense.”); See also, Mulligan v. Parker , 805 F.Supp 592, n. 4 (ND Illinois 1992) quoting Holdeman (“The policy of permitting the union to reimburse the officers for successful defense provi des sufficient financial protection of the officers against harassing lawsuits.”) Therefore, Defendants Click and Lindemann are entitled to the relief requested, and move this Honorable Court to modify the Judg ment in this matter to award for the said relief of which

th ey are so justly entitled.

III. RELIEF REQUESTED

A

. This Honorable Court enter Order of Judgment GRANTING Defendants Click

and Lindemann’s No

- Evidence and Traditional Motions for Summary Judgment.

B

. Defendants CLICK and LINDEMANN be entitled to pre and post judgment interest accruing at a rate of 5%.

C

. Defendants CLICK and LINDEMANN be entitled to all court costs attributable to

each of them.5 D

. Defendants CLICK and LINDEMANN be entitled to their uncontested reasonable attorneys fees. (“ See attached h erein, Exhibit 17 of Defen dants Traditional Motion for Summary Judgment

- Defendants’ Uncontested Affidavit for Attorneys’ Fees ”).

E

. Defendants CLICK and LINDEMANN request and pray for any other and further relief of which they may so be justly entitled. WHEREFORE, premises considered, Defendants CHRIS CLICK and JERRY LINDEMANN pray this Court GRANT their Motion for Modification of Judgment , and award

them all relief herein requested of which they are so justly entitled, and for any other and further

rel ief that this Honorable Court may deem appropriate. Respectfully Submitted, NELSON PURSLEY, PLLC By: /s/ John F. Nelson DANIEL B. NELSON State Bar No. 14888470 JOHN F. NELSON State Bar No. 24 074802 4635 Southwest Freeway, Suite 600 Houston, Texas 77027 (O) 713

- 589

- 8811 (F) 713

- 589

- 7159 john.nelson@nelsonpursley.com

ATTORNEYS FOR DEFENDANTS, CHRIS CLICK and JERRY LINDEM ANN6 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing has been forwarded by facsimile and/or regular US mail on all parties and/or attorneys of record on this the 13th day of March 2015. Edward B. Cloutman, III Edw ard B. Cloutman, IV Cloutman & Cloutman 3301 Elm Street Dallas, Texas 75226

/s/ John F. Nelson JOHN F. NELSON7 CAUSE NO. DC

- 13

- 13347

TRANSPORTATION WORKERS § IN THE DISTRICT COURT OF UNION LOCAL 556 , § § Plaintiff, § v . § DALLAS COUNTY, TEXAS § CHRIS CLICK AND § JERRY LINDEMANN § § Defendants. § 11 6th JUDICIAL DISTRIC T

FINAL JUDGMENT This Honorable Court having considered all the pleadings, evidence, and arguments herein is of the opinion that Defendants ’ CHRIS CLICK and JERRY LINDEMANN’s Motion to Modify should be GRANTED. Therefore, it is ORDERED, ADJUDGED and DECREED that Final Judgment is

awarded to Defendants CHRIS CLICK and JERRY LINDEMANN, as follows: (A). Defendants CHRIS CLICK and JERRY LINDEMANN are hereby entitled to all pre and post judgment interest accruing at a rate of 5%. (B). Defendants CHRIS CLICK and JERRY LINDEMANN are hereby entitled to all

costs of the court of which are attributable to each Defendant in the amount of $________.____ (C). Defendants CHRIS CLICK and JERRY LINDEMANN are hereby entitled to their uncontested attorneys fees in the amount of Forty Four Thousand Three Hundred Seventy

One Dollars and nineteen cents ($44,371.19).

________________________ JUDGE PRESIDING

# EXHIBIT

T7CAUSE TRANSPORTATION WORKERS UNION 

### LOCAL 556, DC-13-r3347 IN 

### THE DISTRICT COURT OF NO.

$ s s $ $ $ $ s s $ Plaintiff,

v. STACY 

### MARTIN, CHRIS 

### CLICK, AND JERRY 

### LINDEMANN DALLAS COUNTY. TNXAS

Defendants.



### AFFIDAVIT IN I I6th JTJDICIAL DISTRICT

SUPPORT OF ATTORNEYS' FEFJ,S

STA]'IJ 

### OII'fIIXAS

COTJNl'Y OII HARRIS



### lllrFORlr 

### MIr. the undersigned authority" 

### on this day pcrsonally appcarcd.fOtlN It Nfll.SON who being lirst duly sworn, stated as lbllows: 

## l. "My namc is John Ir. Nelson. 

### I am an attorney in the above-stylcd and numbered Causc 

### fbr and on behalf 

### of Def'endants. Stacy Martin. Chris Click and Jerry Lirrdemann. 

### I am ovcr eightecn ( I 8) ycars o1' age and am 

### fully competcnt and duly authorized to makc this Af f rdavit. which fircts arc true and correct. 

## 2. I am an attorney dply licenscd by the Statc 

### of 'l'cxas. 

### I am currcntly practicing out 

### of f{ouston. Ilarris County. Texas. 

### I am fanriliar with the f-ees charged by attorneys in ancl arouud Dallas County. Texas. fbr services of a similar nature to those perlbrmed herein. 

## 3. t)et-cndants Stacy Martin, Chris Cllick and.lerry Lindenlann have retained thc law llrm o1' NELSON PURSLIIY, PLI.C 

### to represent thcm 

### in the instant suit brought against thcm by Transportation Workers Llnion, l,ocal 556. Plaintil-l' hcrein. 

## 4. A11 legal services perfbrmed on behalf o1'Def-endants Stacy Martin. Chris Click and.ferry l,indemann have been reasonable and necessary. 

## 5. In my opinion, a usual and customary hourly billing rate for Mr. Daniel B. Nelson. a duly licensed attorney in and for the State 

### of Texas for 27 years. should be $375.00. and an hourly billing rate for myself, being duly licensed in and fbr the State of Texas fbr 4 years, should be ti J $ ,'i J"$275.00. Accordingly, 

### it is my opinion that the sum 

### of Forty-One Thousand Five Hundred and 0/100 Dollars ($41.500.00) is a reasonable and customary f-ee fbr the legal services perfbrmed in this matter fbr and on behalf 

### of Defendants in and around Dallas County. In the event this case 

### is appealed 

### to the Court 

### of Appeals 

### an additional Fifleen Thousand and 00/100 Dollars ($15,000.00) would be reasonable and necessary attorneys' f-ees. and an additiclnal Ten'l'housand and 00/100 Dollars ($10,000.00) if this case is appealed to the Sqpreme Court of Texas would be reasonable and necessary attorneys' f-ees. 

## 6. In addition. Def-endants have expended another 

### Two 'fhousand I'.ight F{undred and Seventy-One Dollars and 19/100 ($2.921.19) 

### in reasonable and necessary crxpenscs associated with this litigation.

7 

## . My opinion is based on a numbcr of f'acts. including without limitation, to the fbllowing:



## a. l'he time and labor required. the novelty and 

### difllculty 

### of the qucstions involved. and thc skill requisite to perfbrm the legal serviccs properly: 

## b. The I'ee customarily charged in the locality firr similar legal services: 

## c. The amounl of time involved: 

## d. The time limitation imposed by thc client and the circumstances; 

### e. 'l'he nature and length of thc prof'essional relationship with the client; and 

## f. The experience of the attorneys pcrlorrning these services." 

## 8. In November o1'2013, 

### Plaintiff 

### lllcd thrce separatc lawsuits against each Def-endant. Since thcn. De1'ensc counsel has spent in excess ol'over 150 hours thus far dcl-ending Plaintilf s allegations. The lbregoing has included, 

### but 

### is not limited 

### to: client meetings. rcccipt and analysis of pleadings, preparation ol'deltnsc pleadings, legal research. preparation ol- motions to the Court. attendance 

### of hearings. documcnt revicw. mediation attendance. cliscovcry. and trial preparation."

FURTI IIlR At' F'lAN]' SAYET'H 

### NOl'

ELSON

SUBSCRIBED AND SWORN TO BEFORE ME on this th

Notary Public in and fbr the State of Texas By:

DANIET BRYAN NELSON Notorv Public, Slole ot Texos

My Commission Explres MoY 06, 20161 CAUSE NO. DC

- 13

- 13347

TRANSPORTATION WORKERS § IN THE DISTRICT COURT OF UNION LOCAL 556 , § § Plaintiff, § v . § DALLAS COUNTY, TEXAS § CHRIS CLICK, § AND JERRY LINDEMANN § § Defendants. § 11 6th JUDICIAL DISTRIC T

MO TION TO MODIFY JUDGMENT COMES NOW, DEFENDANTS CHRIS CLICK and JERRY LINDEMANN (“Defendants”), and files this, their Motion to Modify Judgment pursuant to Tex as Rules of Civil

Procedure 329b . Defendants would respectfully show unto this Honorable Court th e following:

I.

PROCEDURAL HISTORY

1. On July 14, 2014 Defendants filed their No

- Evidence Motion for Summary Judgment.

2. On November 26, 2014, Defendants filed their Traditional Motion for Summary Judgment.

3. This Honorable Court set an Oral Hearing f or both Defendants’ Motions for No

Evidence Summary Judgment and Traditional Summary Judgment for January 16, 2015

. 4. On January 16, 2015, this Honorable Court heard oral arguments on Defendants’ Motions for Summary Judgment; however, t he Hearing was no t concluded and continued for January 22, 2015

. 5

. On January 22, 2015, this Honorable Court continued its Oral Hearing on

Defendants’ Motions for No

- Evidence a nd Traditional Summary Judgment, and this Honorable Lantz Sandra FILED DALLAS COUNTY 3/13/2015 3:08:48 PM FELICIA PITRE DISTRICT CLERK2 Court GRANTED Defendants’ Motion s for Summa ry Judgment as to Defendants CLICK and

LINDEMANN.

6. However, as of the date of filing this Modification of Judgment, no entry of Judgment or Order has been entered as to the relief entitled to Defendants CLICK and

LINDEMANN.

7

. Defendants CLICK and LIND EMANN move this Court to enter Judgment and /or

Order as to Defendants’ relief herein entitled

. II.

ARGUMENTS AND AUTHORITIES If the judgment did not award a party all the relief it was entitled to, or awarded the other party more relief than it was entitl ed to, the complaint must be brought to the attention of the trial

court in a written motion. Tex. R. Civ. P. § 329b(g)

. A party should file a motion to modify the judgment if the court did not award the correct amount of prejudgment interest. If a party does not bring the issue to the attention of the trial court in a motion to modify the judgment or make some other objection that appears on the record, the party cannot raise the issue on appeal. Larrumbide v. Doctors Health Facilities , 734 S.W.2d 685, 69 3

- 94 (Tex. App.

- Dallas 1987, writ denied). A party should file a motion to modify the judgment when the trial court does not award attorneys fees or does not award the correct amount of fees. Texas Educ. Agency v. Maxwell , 937 S.W.2d 621, 623 (Tex. App

. - Eastland 1997, writ denied); American Bank v. Waco Airmotive,

Inc. , 818 S.W.2d 163, 178 (Tex. App.

- Waco 1991, writ denied).3 A party should file a motion to modify the judgment when the judgment does not award costs, awards costs to the wrong party, or does not award the correct amount of costs. Dawson

Austin v. Austin , 968 S.W.2d 319 (Tex. 1998). A party should file a motion to modify the judgment if there is any other error in the judgment. L.M. Healthcare, Inc. v. Childs , 929 S.W.2d 442, 443 (Tex . 1996). On July 14, 2014, Defendants Click and Lindemann filed their No

- Evidence Motion for Summary Judgment praying this Honorable Court grant their Motion and requested relief, both special and general, at law and in equity. On November 26, 2014, Defe ndants filed their Traditional Motion for Summary Judgment praying this Honorable Court to grant their Motion, and pray and requested relief for Attorneys Fees, costs of court, pre and post judgment interest, and any other relief they may so justly be enti tled to in law or equity. On January 22, 2015, this Honorable Court GRANTED Defendants Click and Lindemann’s Motions for Summary Judgment; however, no Order or Judgment has been entered

as t o the relief requested by Defendants Click and Lindemann, and th at of which they are

entitled. Moreover, there is long standing precedence that shows a history of policy “permitting union officers who have successfully defended themselves against charges of § 501 of the LMRDA, wherein th ere is an adequate protection of union officers from ba seless litigation.”

Kerr v. Shanks , 466 F.2d 1271, 1277 (9th Cir. 1972). Citing Holdeman v. Sheldon , where the 2nd Circuit originally held that there is a policy in place “permitting a union to reimburse a Defendant if he is successful in his defense... [which] provi des sufficient financial protection of union officials against nuisance suits.” Holdeman v.

Sheldon , 311 F.2d 2, 3 (2nd Cir. 1962); See also, McNamara, et al v. Johston, et al. , 522 F.2d4 1157, 1167 (7th Cir. 1975)(“Union officials charged as defendants in suits [under section 501 of the LMRDA] should retain independent counsel and bear the financial burden of their defense; however, if they prevail, they may properly be reimbursed by the union for the costs of their legal defense.”); See also, Gabauer, et a l v. Woodcock, et al., 425 F.Supp 1, 2 (E.D. Missouri 1976)(“Union officials charged as defendants in suits [under section 501 of the LMRDA] should retain independent counsel and bear the financial burden of their defense; however, if they prevail, they ma y properly be reimbursed by the union for the costs of their legal defense.”); See also, Mulligan v. Parker , 805 F.Supp 592, n. 4 (ND Illinois 1992) quoting Holdeman (“The policy of permitting the union to reimburse the officers for successful defense provi des sufficient financial protection of the officers against harassing lawsuits.”) Therefore, Defendants Click and Lindemann are entitled to the relief requested, and move this Honorable Court to modify the Judg ment in this matter to award for the said relief of which

th ey are so justly entitled.

III. RELIEF REQUESTED

A

. This Honorable Court enter Order of Judgment GRANTING Defendants Click

and Lindemann’s No

- Evidence and Traditional Motions for Summary Judgment.

B

. Defendants CLICK and LINDEMANN be entitled to pre and post judgment interest accruing at a rate of 5%.

C

. Defendants CLICK and LINDEMANN be entitled to all court costs attributable to

each of them.5 D

. Defendants CLICK and LINDEMANN be entitled to their uncontested reasonable attorneys fees. (“ See attached h erein, Exhibit 17 of Defen dants Traditional Motion for Summary Judgment

- Defendants’ Uncontested Affidavit for Attorneys’ Fees ”).

E

. Defendants CLICK and LINDEMANN request and pray for any other and further relief of which they may so be justly entitled. WHEREFORE, premises considered, Defendants CHRIS CLICK and JERRY LINDEMANN pray this Court GRANT their Motion for Modification of Judgment , and award

them all relief herein requested of which they are so justly entitled, and for any other and further

rel ief that this Honorable Court may deem appropriate. Respectfully Submitted, NELSON PURSLEY, PLLC By: /s/ John F. Nelson DANIEL B. NELSON State Bar No. 14888470 JOHN F. NELSON State Bar No. 24 074802 4635 Southwest Freeway, Suite 600 Houston, Texas 77027 (O) 713

- 589

- 8811 (F) 713

- 589

- 7159 john.nelson@nelsonpursley.com

ATTORNEYS FOR DEFENDANTS, CHRIS CLICK and JERRY LINDEM ANN6 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing has been forwarded by facsimile and/or regular US mail on all parties and/or attorneys of record on this the 13th day of March 2015. Edward B. Cloutman, III Edw ard B. Cloutman, IV Cloutman & Cloutman 3301 Elm Street Dallas, Texas 75226

/s/ John F. Nelson JOHN F. NELSON7 CAUSE NO. DC

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- 13347

TRANSPORTATION WORKERS § IN THE DISTRICT COURT OF UNION LOCAL 556 , § § Plaintiff, § v . § DALLAS COUNTY, TEXAS § CHRIS CLICK AND § JERRY LINDEMANN § § Defendants. § 11 6th JUDICIAL DISTRIC T

FINAL JUDGMENT This Honorable Court having considered all the pleadings, evidence, and arguments herein is of the opinion that Defendants ’ CHRIS CLICK and JERRY LINDEMANN’s Motion to Modify should be GRANTED. Therefore, it is ORDERED, ADJUDGED and DECREED that Final Judgment is

awarded to Defendants CHRIS CLICK and JERRY LINDEMANN, as follows: (A). Defendants CHRIS CLICK and JERRY LINDEMANN are hereby entitled to all pre and post judgment interest accruing at a rate of 5%. (B). Defendants CHRIS CLICK and JERRY LINDEMANN are hereby entitled to all

costs of the court of which are attributable to each Defendant in the amount of $________.____ (C). Defendants CHRIS CLICK and JERRY LINDEMANN are hereby entitled to their uncontested attorneys fees in the amount of Forty Four Thousand Three Hundred Seventy

One Dollars and nineteen cents ($44,371.19).

________________________ JUDGE PRESIDING

# EXHIBIT

T7CAUSE TRANSPORTATION WORKERS UNION 

### LOCAL 556, DC-13-r3347 IN 

### THE DISTRICT COURT OF NO.

$ s s $ $ $ $ s s $ Plaintiff,

v. STACY 

### MARTIN, CHRIS 

### CLICK, AND JERRY 

### LINDEMANN DALLAS COUNTY. TNXAS

Defendants.



### AFFIDAVIT IN I I6th JTJDICIAL DISTRICT

SUPPORT OF ATTORNEYS' FEFJ,S

STA]'IJ 

### OII'fIIXAS

COTJNl'Y OII HARRIS



### lllrFORlr 

### MIr. the undersigned authority" 

### on this day pcrsonally appcarcd.fOtlN It Nfll.SON who being lirst duly sworn, stated as lbllows: 

## l. "My namc is John Ir. Nelson. 

### I am an attorney in the above-stylcd and numbered Causc 

### fbr and on behalf 

### of Def'endants. Stacy Martin. Chris Click and Jerry Lirrdemann. 

### I am ovcr eightecn ( I 8) ycars o1' age and am 

### fully competcnt and duly authorized to makc this Af f rdavit. which fircts arc true and correct. 

## 2. I am an attorney dply licenscd by the Statc 

### of 'l'cxas. 

### I am currcntly practicing out 

### of f{ouston. Ilarris County. Texas. 

### I am fanriliar with the f-ees charged by attorneys in ancl arouud Dallas County. Texas. fbr services of a similar nature to those perlbrmed herein. 

## 3. t)et-cndants Stacy Martin, Chris Cllick and.lerry Lindenlann have retained thc law llrm o1' NELSON PURSLIIY, PLI.C 

### to represent thcm 

### in the instant suit brought against thcm by Transportation Workers Llnion, l,ocal 556. Plaintil-l' hcrein. 

## 4. A11 legal services perfbrmed on behalf o1'Def-endants Stacy Martin. Chris Click and.ferry l,indemann have been reasonable and necessary. 

## 5. In my opinion, a usual and customary hourly billing rate for Mr. Daniel B. Nelson. a duly licensed attorney in and for the State 

### of Texas for 27 years. should be $375.00. and an hourly billing rate for myself, being duly licensed in and fbr the State of Texas fbr 4 years, should be ti J $ ,'i J"$275.00. Accordingly, 

### it is my opinion that the sum 

### of Forty-One Thousand Five Hundred and 0/100 Dollars ($41.500.00) is a reasonable and customary f-ee fbr the legal services perfbrmed in this matter fbr and on behalf 

### of Defendants in and around Dallas County. In the event this case 

### is appealed 

### to the Court 

### of Appeals 

### an additional Fifleen Thousand and 00/100 Dollars ($15,000.00) would be reasonable and necessary attorneys' f-ees. and an additiclnal Ten'l'housand and 00/100 Dollars ($10,000.00) if this case is appealed to the Sqpreme Court of Texas would be reasonable and necessary attorneys' f-ees. 

## 6. In addition. Def-endants have expended another 

### Two 'fhousand I'.ight F{undred and Seventy-One Dollars and 19/100 ($2.921.19) 

### in reasonable and necessary crxpenscs associated with this litigation.

7 

## . My opinion is based on a numbcr of f'acts. including without limitation, to the fbllowing:



## a. l'he time and labor required. the novelty and 

### difllculty 

### of the qucstions involved. and thc skill requisite to perfbrm the legal serviccs properly: 

## b. The I'ee customarily charged in the locality firr similar legal services: 

## c. The amounl of time involved: 

## d. The time limitation imposed by thc client and the circumstances; 

### e. 'l'he nature and length of thc prof'essional relationship with the client; and 

## f. The experience of the attorneys pcrlorrning these services." 

## 8. In November o1'2013, 

### Plaintiff 

### lllcd thrce separatc lawsuits against each Def-endant. Since thcn. De1'ensc counsel has spent in excess ol'over 150 hours thus far dcl-ending Plaintilf s allegations. The lbregoing has included, 

### but 

### is not limited 

### to: client meetings. rcccipt and analysis of pleadings, preparation ol'deltnsc pleadings, legal research. preparation ol- motions to the Court. attendance 

### of hearings. documcnt revicw. mediation attendance. cliscovcry. and trial preparation."

FURTI IIlR At' F'lAN]' SAYET'H 

### NOl'

ELSON

SUBSCRIBED AND SWORN TO BEFORE ME on this th

Notary Public in and fbr the State of Texas By:

DANIET BRYAN NELSON Notorv Public, Slole ot Texos

My Commission Explres MoY 06, 2016APPELLANTS BRIEF ON THE MERITS

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28 Respectfully Submitted,

D ated this 15 th of October , 2015

Christopher Click, Pro Se Jerry Lindemann, Pro Se

CERTIFICATE OF SERVICE

I hereby certify that on October 15th , 2015 a copy of the foregoing

“ APPELLANTS BRIEF ON THE MERITS ” was served on the following counsel for Appellee TRANSPORT WORKERS UNION LOCAL 556. Served to

Edward B Clo utman IV

CLOUTMAN AND CLOUTMAN

3301 Elm Street Dallas, TX 75226