AFFIRM; and Opinion Filed August 10, 2016.




                                          S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-15-00796-CV

             CHRISTOPHER CLICK AND JERRY LINDEMANN, Appellants
                                   V.
               TRANSPORT WORKERS UNION LOCAL 556, Appellee

                       On Appeal from the 116th Judicial District Court
                                    Dallas County, Texas
                            Trial Court Cause No. DC-13-13347

                              MEMORANDUM OPINION
                          Before Justices Francis, Fillmore, and Schenck
                                   Opinion by Justice Schenck
       Pro se appellants Christopher Click (“Click”) and Jerry Lindemann (“Lindemann”)

appeal a final judgment incorporating the trial court’s grant of summary judgment in their favor

in Transport Workers Union Local 556’s (“Union”) suit against them for alleged

misappropriation of Union funds and breach of fiduciary duty. On appeal, in seven interrelated

issues, appellants argue the trial court erred in failing to award them attorney’s fees as a sanction

against the Union for bringing suit in bad faith. We conclude appellants failed to preserve their

complaint for appeal. Accordingly, we affirm the trial court’s judgment. Because the dispositive

issue in this case is settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.4.
                            FACTUAL AND PROCEDURAL BACKGROUND

       Click and Lindemann served as officers of the Union from May 2012 through May 2013.

Stacy Martin (“Martin”) was President of the Union during that time. In 2013, the Union

brought disciplinary proceedings against Martin, Click, and Lindemann for alleged violations of

the Union’s constitution and by-laws. The disciplinary proceedings took place in the form of

internal trials during which members and officials of the Union heard the allegations against

Martin, Click, and Lindemann, made findings of fact, and recommended disciplinary action. The

disciplinary proceedings culminated in the Union removing Martin, Click, and Lindemann from

office. The Union then sued Martin, Click, and Lindemann for misappropriation of funds and

breach of fiduciary duty.

       Shortly before trial, Martin, Click, and Lindemann moved for summary judgment on the

Union’s claims against them. In the motion’s prayer, Martin, Click, and Lindemann asserted the

Union brought its lawsuit against them in bad faith, and requested that the court impose sanctions

against the Union pursuant to chapter 10 of the Texas Civil Practice & Remedies Code and rule

13 of the Texas Rules of Civil Procedure. The court orally granted summary judgment in favor

of Click and Lindemann, but not Martin. Trial then proceeded with Martin as the sole defendant.

The jury found Martin liable for breach of fiduciary duty and awarded the Union money

damages. The trial court entered judgment on the verdict, but did not include its prior ruling on

Click and Lindemann’s motion for summary judgment. Although not included in the record

before this Court, the parties acknowledge that Click and Lindemann filed a timely motion to

modify the judgment to reflect the granting of summary judgment in their favor and requesting

an award of attorney’s fees. Thereafter, the trial court entered an amended final judgment

ordering that the Union take nothing from Click and Lindemann. The amended judgment does

not include sanctions or attorney’s fees, taxes all costs of court against Martin, and includes a

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Mother Hubbard provision stating “all other relief not expressly granted in this Judgment is

denied.” This appeal followed.

           Some of the issues stated in appellants’ brief are unclear. 1 Nevertheless, as best we can

decipher, appellant’s first five issues appear to challenge the trial court’s failure to sanction the

Union, and their last two issues appear to assert a policy basis for the award of attorney’s fees,

separate and apart from sanctions under chapter 10 and rule 13.

                                                              DISCUSSION

     I.         SANCTIONS UNDER CHAPTER 10 AND RULE 13

           While appellants reference a request for an award of attorney’s fees in their motion to

modify the judgment, that document is not included in the appellant record and cannot be

considered by this Court. Burke v. Ins. Auto Auctions Corp., 169 S.W.3d 771, 775 (Tex. App.—

Dallas 2005, pet. denied). The only request for attorney’s fees before this Court is the request

appellants made in the prayer of their motion for summary judgment for an award of attorney’s

fees as sanctions against the Union pursuant to chapter 10 of the Texas Civil Practice and

Remedies Code and rule 13 of the Texas Rules of Civil Procedure.

           Chapter 10 and rule 13 allow a trial court to sanction an attorney or a party for filing

motions or pleadings that lack a reasonable basis in fact or law. CIV. PRAC. & REM. CODE ANN.

§ 10.004(a) (West 2002); TEX. R. CIV. P. 13. Chapter 10 and rule 13 require the trial court to

hold an evidentiary hearing to make the necessary factual determinations about the motives and


1
  On appeal, appellants state their issues as follows: (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 sufficient case law and evidence to support
the judgment and awarding of attorney’s fees? (3) Are Click and Lindemann entitled to attorney’s fees and other relief as decided by the court
and filed in the Original Motion for Summary Judgment and again in the Motion to Modify 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 Judgment and the decision of the judge in her final
judgment against Martin? (5) Did Click and Lindemann file in a timely 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 [Labor Management Reporting Disclosure Act], wherein there is an adequate
protection of union officers from baseless litigation? and (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?




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credibility of the person signing the allegedly groundless pleading. R.M. Dudley Const. Co., Inc.

v. Dawson, 258 S.W.3d 694, 709 (Tex. App.—Waco 2008, pet. denied) (evidentiary hearing

required on a request for sanctions under chapter 10); Keith v. Solls, 256 S.W.3d 912, 917 (Tex.

App.—Dallas 2008, no pet.) (evidentiary hearing required on a request for sanctions under rule

13). Without such an evidentiary hearing, the trial court has no evidence before it to determine

that a pleading was filed in bad faith or to harass. Alejandro v. Robstown Indep. Sch. Dist., 131

S.W.3d 663, 670 (Tex. App.—Corpus Christi 2004, no pet.). Motions and arguments of counsel

are not evidence in a sanction hearing context. McCain v. NME Hosps., Inc., 856 S.W.2d 751,

757 (Tex. App.—Dallas 1993, no writ).

          Appellants bore the burden of securing an evidentiary hearing on their request for

sanctions so as to put on evidence of the Union’s alleged bad faith in filing suit against them.

Trussell Ins. Servs., Inc. v. Image Solutions, Inc., No. 12–09–00390–CV, 2010 WL 5031100, at

*4 (Tex. App.—Tyler Dec. 8, 2010, no pet.) (mem. op.). The appellate record does not include a

reporter’s record of an evidentiary hearing on a motion for sanctions. Thus, appellants have

failed to show they satisfied chapter 10 and rule 13’s requirements of an evidentiary hearing.

See D Design Holdings, L.P. v. MMP Corp, 339 S.W.3d 195, 204 (Tex. App.—Dallas 2011, no

pet.). Further, the record does not show any objection by appellants to the lack of the required

evidentiary hearing. Id. (citing Trussell, 2010 WL 5031100, at *4) (where party failed to object

to nonevidentiary hearing on motion for sanctions and failed to secure evidentiary hearing on

such motion, party waived right to sanctions). On this record, we conclude appellants waived

their claim for an award of attorney’s fees as sanctions. Accordingly, we overrule appellants’

first five issues.

    II.      ATTORNEY’S FEE AWARD UNDER          THE   LABOR MANAGEMENT REPORTING           AND
             DISCLOSURE ACT



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          In their sixth and seven issues, appellants argue the Labor Management Reporting and

Disclosure Act 2 permits Unions to reimburse defendants who successfully defend against claims

of Unions. It does not appear from the record before this Court that appellants’ presented this

argument to the trial court.

          Rule 33.1(a)(1)(A) of the Texas Rules of Appellate Procedure provides:

          As a prerequisite to presenting a complaint for appellate review, the record must
          show that the complaint was made to the trial court by a timely request, objection,
          or motion that stated the grounds for the ruling the complaining party sought from
          the trial court with sufficient specificity to make the trial court aware of the
          complaint, unless the specific grounds were apparent from the context.

TEX. R. APP. P. 31(a)(1)(A). The failure to raise an issue in the trial court waives the issue on

appeal. See City of San Antonio v. Schautteet, 706 S.W2d 103, 104 (Tex. 1986). We conclude

appellants waived this argument on appeal. Accordingly, we overrule appellants’ sixth and

seventh issues.

                                             CONCLUSION

          We affirm the trial court’s judgment.




                                                        /David J. Schenck/
                                                        DAVID J. SCHENCK
                                                        JUSTICE



150796F.P05




   2
       29 U.S.C. § 501(b).



                                                  –5–
                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

CHRISTOPHER CLICK AND JERRY                          On Appeal from the 116th Judicial District
LINDEMANN, Appellant                                 Court, Dallas County, Texas
                                                     Trial Court Cause No. DC-13-13347.
No. 05-15-00796-CV         V.                        Opinion delivered by Justice Schenck.
                                                     Justices Francis and Fillmore participating.
TRANSPORT WORKERS UNION LOCAL
556, Appellee

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

        It is ORDERED that appellee TRANSPORT WORKERS UNION LOCAL 556 recover
its costs of this appeal from appellant CHRISTOPHER CLICK AND JERRY LINDEMANN.


Judgment entered this 10th day of August, 2016.




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