Opinion
No. 01-04-00843-CV
Opinion issued November 23, 2005.
On Appeal from the 151st District Court, Harris County, Texas, Trial Court Cause No. 98-51193A.
Panel consists of Justices TAFT, KEYES, and HANKS.
MEMORANDUM OPINION
Dana and Tammy LeJune appeal from a final judgment awarding sanctions rendered under chapter 10 of the Civil Practice and Remedies Code. See Tex. Civ. Prac. Rem. Code Ann. §§ 10.001-.006 (Vernon 2002). The trial court ordered the LeJunes to pay the attorney's fees and court costs of appellee, Dennis Pow-Sang, as sanctions. See Tex. Civ. Prac. Rem. Code Ann. § 10.004(c)(3) (Vernon 2002) ("A sanction may include any of the following: . . . (3) an order to pay to the other party the amount of the reasonable expenses incurred by the other party because of the filing of the pleading or motion, including reasonable attorney's fees."). We determine (1) whether the LeJunes may prevail, in the absence of a reporter's record, in their challenges asserting that the trial court abused its discretion in granting Pow-Sang's motion for sanctions; (2) alternatively, whether the trial court abused its discretion in granting Pow-Sang's motion for sanctions based on affidavit evidence; (3) whether the LeJunes preserved their complaint that the trial court violated their due process rights by allegedly not holding an evidentiary hearing; and (4) whether the trial court's sanctions order adequately explained the sanctions' bases. We affirm.
Facts
On March 26, 1997, the LeJunes contracted with Yigal Kass for the construction of their home. After a dispute arose, Kass filed a mechanics and materialmens' lien. Pow-Sang notarized Kass's lien affidavit.
The LeJunes sued Kass, Pow-Sang, and Pow-Sang's surety, Universal Surety of America, in October 1998. The LeJunes' sole allegation against Pow-Sang was that he had violated his notary duties by acknowledging Kass's signature on a lien affidavit for a matter in which Pow-Sang allegedly had a pecuniary interest, due to his having been Kass's "spouse" (the LeJunes used italics in their petition) and the real-estate broker for the sale of the lot and the home to the LeJunes.
On November 13, 1998, Pow-Sang answered and counter-claimed, seeking sanctions for the filing of frivolous pleadings under Chapter 10 of the Civil Practice and Remedies Code and under Rule of Civil Procedure 13. See Tex. Civ. Prac. Rem. Code Ann. §§ 10.001-.006; Tex. R. Civ. P. 13. The LeJunes non-suited their claims against Pow-Sang and the surety on January 11, 1999. On March 31, 1999, Pow-Sang moved for sanctions against the LeJunes under both chapter 10 and rule 13.
On September 30, 1999, after having held an oral hearing in June of that year, the trial court granted Pow-Sang's motion for sanctions, assessing sanctions against the LeJunes and their attorney's firm, LeJune Singer, which was also Mr. LeJune's firm. That order required the LeJunes and LeJune Singer each to pay half of Pow-Sang's attorney's fees and costs for trial: $3,835.50 in fees and $263.00 in costs, for a total of $4,098.50. On March 29, 2001, the trial court severed Pow-Sang's counter-claim for sanctions against the LeJunes from the suit's remaining claims. Pow-Sang later moved for entry of judgment in the severed cause, adding a request to increase the sanctions by his estimated appellate attorney's fees should the LeJunes pursue an unsuccessful appeal. On June 24, 2004, the trial court signed a final judgment in the severed cause, awarding Pow-Sang monetary sanctions under chapter 10 in the amount of his trial costs and attorney's fees (together $4,098.50) and awarding him appellate attorney's fees contingent upon an unsuccessful appeal by the LeJunes ($7,500 for an appeal to the court of appeals, and $5,000 for an appeal to the Texas Supreme Court). Unlike the sanctions order, the final judgment awarded all of the sanctions against only the LeJunes, not against their attorneys.
Standard of Review
We review a sanctions order for abuse of discretion. Finlay v. Olive, 77 S.W.3d 520, 524 (Tex.App.-Houston [1st Dist.] 2002, no pet.). A trial court abuses its discretion if it acts without reference to any guiding rules and principles. Id. One who asserts that the trial court abused its discretion "labors under a heavy burden." Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985).
Sanctions Under Chapter 10
In issues one, two, four, and six, the LeJunes complain that the trial court abused its discretion in awarding sanctions to Pow-Sang.
Specifically, the LeJunes argue:
• "Did Dennis Pow-Sang meet his burden establishing a right to sanctions?" (issue one)
• "Did the trial court abuse its discretion in awarding sanctions against the LeJunes?" (issue two)
• "Did the LeJunes file a suit against Pow-Sang that was groundless, in bad faith or brought for improper purposes?" (issue four)
• "Did the trial court err in awarding sanctions against the LeJunes?" (issue six)
Civil Practice and Remedies Code section 10.001 provides, in pertinent part, as follows:
The signing of a pleading or motion as required by the Texas Rules of Civil Procedure constitutes a certificate by the signatory that to the signatory's best knowledge, information, and belief, formed after reasonable inquiry:
(1)the pleading or motion is not being presented for any improper purpose, including to harass or to cause unnecessary delay or needless increase in the cost of litigation;
(2)each claim, defense, or other legal contention in the pleading or motion is warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; [and]
(3)each allegation or other factual contention in the pleading or motion has evidentiary support or, for a specifically identified allegation or factual contention, is likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. . . .
Tex. Civ. Prac. Rem. Code Ann. § 10.001. "A court that determines that a person has signed a pleading or motion in violation of Section 10.001 may impose a sanction on the person, a party represented by the person, or both." Id. § 10.004(a).
The trial court's sanctions order, which was incorporated by reference into the final judgment, provided in pertinent part:
A. Conduct of [the LeJunes] the Court Finds to Have Violated Tex. Civ. Prac. Rem. Code Ann. § 10.001
1.[The LeJunes] brought their suit against [Pow-Sang] for an improper purpose, to harass and threaten Defendants with scurrilous and unproved allegations regarding extremely private, personal matters that have nothing to do with [the LeJunes'] claims of construction defects in their home, but which allegations were calculated to bully Defendants into settling in order to avoid embarrassment. See Tex. Civ. Prac. Rem. Code Ann. § 10.001(1).
2.[The LeJunes'] claim that male co-defendants Pow-Sang and Yigal Kass were "spouses," upon which [the LeJunes'] suit against Pow-Sang was affirmatively predicated, was not warranted by existing law or by any non-frivolous argument for the extension, modification or reversal of existing law. See Tex. Civ. Prac. Rem. Code Ann. § 10.001(2).
3.[The LeJunes'] claim that they were damaged by Pow-Sang's notarizing Yigal Kass's signature on a lien affidavit had no evidentiary support — nor was it likely to ever have evidentiary support — because the notarized signature's authenticity was never in dispute. [The LeJunes'] damages, if any, flowed from the substantive act of signing or filing the lien affidavit — which acts were performed by another — not from Pow-Sang's ministerial act of notarizing a signature thereon. Without the necessary element of causation, [the LeJunes'] claims against Pow-Sang could never have had evidentiary support. Tex. Civ. Prac. Rem. Code Ann. § 10.001(3).
B. Basis [sic] for Sanctions Imposed
4.Because [the LeJunes'] suit against Pow-Sang was brought for purposes of harassment and intimidation, and because [the LeJunes'] allegation that they were damaged by Pow-Sang's notarization of a genuine signature on an affidavit had no evidentiary support, and was unlikely to ever have any evidentiary support, [the LeJunes] are subject to sanction under Tex. Civ. Prac. Rem. Code Ann. §§ 10.001(1), 10.001(3).
5.Because the claims in [the LeJunes'] pleadings that male Co-Defendants [Pow-Sang] and Yigal Kass were "spouses" was not warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law, or the establishment of new law, [the LeJunes'] attorneys, LeJune Singer, are subject to sanction under Tex. Civ. Prac. Rem. Code Ann. §§ 10.001(2), 10.004(d).
As noted above, although the sanctions order assessed sanctions against both the LeJunes and their attorney's firm, the final judgment assessed all sanctions against the LeJunes. This paragraph of the sanctions order, incorporated by reference into the final judgment, assessed sanctions for a violations of section 10.001(2). See Tex. Civ. Prac. Rem. Code Ann. § 10.001(2). A trial court may generally assess sanctions for section 10.001 violations against either a party, its counsel, or both. See id. § 10.004(a) (Vernon 2002). However, a trial court "may not award monetary sanctions against a represented party for a violation of Section 10.001(2)." Id. § 10.004(d) (Vernon 2002). Although the sanctions order awarded sanctions for the section 10.001(2) violation against only the LeJunes' attorneys, the final judgment assessed all sanctions — presumably including those rendered for violation of section 10.001(2) — against the LeJunes. The LeJunes do not, however, assign error to the judgment for the reason that it may have assessed some monetary sanctions against them personally for such a violation. Accordingly, we do not consider the matter. See Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993) ("We have held repeatedly that the courts of appeals may not reverse the judgment of a trial court for a reason not raised in a point of error.").
6.Because [the LeJunes] did not show due diligence in investigating the law and facts before filing their groundless, frivolous suit against Pow-Sang, the Court may award Pow-Sang all costs for inconvenience, harassment, and out-of-pocket expenses incurred or caused by the subject litigation. See Tex. Civ. Prac. Rem. Code Ann. § 10.002(c).
7. . . . The payment of Pow-Sang's attorney's fees and costs incurred or caused by the subject litigation would (i) compensate Pow-Sang for the expenses that he has been forced to incur; (ii) punish [the LeJunes] and their counsel for violating the rules of pleading; and hopefully (iii) deter other litigants from violating the rules of pleading.
(Emphasis in original.)
"When an order of sanctions refers to one specific rule, either by citing the rule, tracking its language, or both, we are confined to determining whether the sanctions are appropriate under that particular rule." Finlay, 77 S.W.3d at 524 (citing Metzger v. Sebek, 892 S.W.2d 20, 51 (Tex.App.-Houston [1st Dist.] 1994, writ denied)). Accordingly, our review is limited to the ruling's propriety in light of the bases specified in the sanctions order, i.e., section 10.001(1) through (3). See id.
We conclude that we must affirm the judgment awarding sanctions because the LeJunes cannot show an abuse of discretion on this record. As the movant, Pow-Sang had the burden in the trial court of proving his entitlement to chapter 10 sanctions. See Bug Master Exterminating Serv., Inc. v. Abash Exterminating, Inc., No. 03-02-00048-CV, 2002 WL 31890819, at *2 (Tex.App.-Austin Dec. 31, 2002, no pet.) (memo. op.) (indicating that it is burden of movant to prove bases alleged in motion for sanctions asserted under Civil Practice and Remedies Code section 10.001). Given that some of the recited bases for sanctions involved evidentiary matters, Pow-Sang's burden was, at least in part, evidentiary. See Tex. Civ. Prac. Rem. Code Ann. § 10.001(1), (3) (providing that sanctions are appropriate if, among other things, pleading was presented for improper purpose, including harassment, unnecessary delay, or increased litigation cost, or if the pleading's allegations and factual contentions did not have or would likely not have evidentiary support).
However, the appellate record contains no reporter's record of the June 1999 sanctions hearing. Although the LeJunes acknowledge that a hearing was held in June 1999, they contend that "the trial court failed to hold an evidentiary hearing," that it rendered judgment "without any evidence at all," and that "Pow-Sang did not present any evidence to support the Motion for Sanctions." But there is nothing in the record to support the LeJunes' allegations. In fact, the record indicates the opposite, i.e., that the June 1999 sanctions hearing was evidentiary. For example, the sanctions order's recited grounds concerned evidentiary matters, such as the LeJunes' purpose, their diligence, and their pre-suit investigation, none of which were the express subject of affidavits submitted elsewhere in the record. Additionally, the sanctions order recited that "[a]fter considering the motion, the affidavits, the response, other testimony received or evidence on file, and arguments of counsel, if any, the Court finds the [sanctions] Motion to be well-taken, and Grants the Motion." (Emphasis added.) A judgment's recitals are presumed to be true and can be rebutted only when there is a conflict between the judgment and the record. Alcantar v. Okla. Nat'l Bank, 47 S.W.3d 815, 823 (Tex.App.-Fort Worth 2001, no pet.). Nothing in the record rebuts the above-quoted recital. Finally, Pow-Sang's brief indicates that the trial court received into evidence at the June 1999 hearing three affidavits and a certified lien affidavit that he had attached to his motion for sanctions. The order's recital indicating that the hearing was evidentiary, the nature of the order, the order's recited bases for the ruling (which were evidentiary in part), and Pow-Sang's brief all imply that the June 1999 sanctions hearing was evidentiary. See Michiana Easy Livin' Country, Inc. v. Holten, 168 S.W.3d 777, 783 (Tex. 2005) ("If the proceeding's nature, the trial court's order, the party's briefs, or other indications show that an evidentiary hearing took place in open court, then a complaining party must present a record of that hearing to establish harmful error.").
The inclusion of "if any" is, at best, ambiguous and, given that some of the sanctions order's recited bases concerned evidentiary matters not otherwise expressly appearing in the clerk's record, the inclusion of "if any" does not necessarily show that the hearing was not evidentiary. For example, the term could be read to refer only to "arguments of counsel," the term immediately next to which it appears. See, e.g., Margaret Shertzer, the Elements of Grammar 47 (1st ed. 1986) (providing that subordinate clauses should generally be placed near words that are modified); Manual on Usage, Style, Editing A:1:1 (9th ed. 2002) (indicating same).
Although it was Pow-Sang's burden in the trial court to show entitlement to sanctions, it is the LeJunes' burden, as appellants, to show that the trial court reversibly erred. See id.; see also Meachum v. Comm'n for Lawyer Discipline, 36 S.W.3d 612, 615 (Tex.App.-Dallas 2000, pet. denied) ("It is [the appellant's] burden to establish reversible error."). Generally, in order successfully to challenge a ruling rendered upon consideration of evidence presented at a hearing, an appellant must ensure that that hearing be recorded and request that a reporter's record of the hearing be made. See Michiana Easy Livin' Country, Inc., 168 S.W.3d at 783; Univ. of Tex. at Arlington v. Bishop, 997 S.W.2d 350, 357-58 (Tex.App.-Fort Worth 1999, pet. denied) (holding, in appeal of sanctions order rendered under section 10.001(1)-(3), that "[t]he party that complains of abuse of discretion has the burden to present a record showing such abuse."); see also Dob's Tire Auto Ctr. v. Safeway Ins. Agency, 923 S.W.2d 715, 720 (Tex.App.-Houston [1st Dist.] 1996, writ dism'd w.o.j.) ("Points of error dependent on the state of the evidence cannot be reviewed absent a complete record."). This rule exists because, in the absence of a reporter's record from an evidentiary hearing, we must presume that sufficient evidence supported the ruling. See Rittenhouse v. Sabine Valley Found. Ctr., Inc., 161 S.W.3d 157, 165 (Tex.App.-Texarkana 2005, no pet.); Bishop, 997 S.W.2d at 357-58 (holding, in appeal of sanctions order rendered under section 10.001(1)-(3), that, because appellant had not brought forth record of sanctions hearing, "we must presume that sufficient evidence was introduced" to support sanctions award). If one does not have an evidentiary hearing recorded, then one will generally not be able to show harmful error in the ruling to the extent that it was based on evidence admitted at that hearing. See Michiana Easy Livin' Country, Inc., 168 S.W.3d at 783.
The June 1999 hearing was not recorded; it appears to have been evidentiary; and the LeJunes' issues one, two, four, and six depend on the evidence that the trial court considered in support of its ruling. Accordingly, we hold that the LeJunes' four appellate issues fail for lack of a reporter's record.
Alternatively, even if the hearing was not evidentiary beyond the simple admission of Pow-Sang's three affidavits and the certified copy of the lien affidavit, we would still affirm the judgment. Pow-Sang filed three affidavits in support of his sanctions motion. In the first, Pow-Sang averred that he was not, could not be, and had never claimed to be, the "spouse" of Kass; that he had no pecuniary interest in the subject of the lien affidavit, including by virtue of his having been the real-estate broker; and that Kass was the person who signed the lien affidavit. In the second, Kass averred to similar things. In the third, Pow-Sang's attorney attested to the reasonable attorney's fees and out-of-pocket expenses that Pow-Sang had incurred in the trial court because of the LeJunes' suit. Finally, Pow-Sang submitted the lien affidavit that formed the basis of the LeJunes' cause of action against him. The record contains no controverting evidence offered by the LeJunes.
See Michiana Easy Livin' Country, Inc. v. Holten, 168 S.W.3d 777, 783 (Tex. 2005) (holding that, unless proceeding's nature, order, parties' briefs, or other indications show that evidentiary hearing occurred, appellate courts "should presume that pretrial hearings are nonevidentiary, and that the trial court considered only the evidence filed with the clerk."; further holding, "Either party, of course, may allege that a hearing was evidentiary, but that allegation must be specific. Merely asserting that the trial court `considered evidence at the hearing' is not enough — trial courts do that when a hearing is conducted entirely on paper, or based solely on affidavits and exhibits filed beforehand. Instead, there must be a specific indication that exhibits or testimony was presented in open court beyond that filed with the clerk.") (emphasis in original). In his motion for a ruling on his motion for sanctions, Pow-Sang asserted that the evidence that he presented at that hearing was that appended to his motion for sanctions and that the LeJunes did not present any controverting evidence.
The LeJunes' claim against Pow-Sang was that he "violated his duties as a notary public, and as such, breached a duty owed to [the LeJunes]" because he had notarized the lien affidavit when he allegedly had a pecuniary interest in the Kass suit, either as Kass's "spouse" or as the real-estate broker for the earlier real-estate sale. One of the bases on which the trial court assessed sanctions was that this claim had no evidentiary support, and would likely never have any, because Pow-Sang's acknowledging what was without dispute an authentic signature caused none of the LeJunes' damages; rather, any damages that the LeJunes might have had flowed from filing the lien, which was done by Kass, not by Pow-Sang.
We hold that the trial court did not abuse its discretion in assessing sanctions on this basis, which was based in part upon the affidavit evidence that Kass's signature was genuine. Whether Pow-Sang violated his notary duties by acknowledging Kass's signature was irrelevant because, even had Pow-Sang violated his notary duties by doing so, that would not have changed the cause of the LeJunes' damages. Simply put, the trial court could reasonably have concluded that the damages that the LeJunes sought — for diminution in the home's value; for out-of-pocket losses, such as repair costs; for the cost of inconvenience; for the inability to obtain the remaining funds from their lender because of a cloud on their title; and for mental anguish — in no way arose from Pow-Sang's act of ministerially acknowledging a signature which was, in fact, authentic. Rather, the trial court would have been within its discretion to conclude that the LeJunes' pleaded damages arose, if at all, from Kass's work product or from his filing the lien affidavit.
Additionally, we note that the undisputed affidavit evidence demonstrated that Pow-Sang did not have any pecuniary interest in anything affected by Kass's lien.
Moreover, the LeJunes did not cite to the trial court any authority providing that a notary's acknowledging an authentic signature, when the notary also has a pecuniary interest in the underlying transaction, can give rise to a private cause of action for money damages. We have found no such authority, and the authority that we have found indicates that a notary public's having an interest in the underlying transaction merely disqualifies him from notarizing documents related to that transaction, so that any resulting affidavit is invalid. See, e.g., Philips v. Brazosport Savs. Loan Ass'n, 366 S.W.2d 929, 931-32 (Tex. 1963) (stating general rule that one who is financially and beneficially interested in transaction is disqualified from taking acknowledgment concerning that transaction); Dyson Descendant Corp. v. Sonat Exploration Corp., 861 S.W.2d 942, 948 (Tex.App.-Houston [1st Dist.] 1993, no writ) (same); see also Tex. Gov't Code Ann. § 406.018(a) (Vernon 2005) (providing that notary public guilty of willful neglect of duty or malfeasance in office may be removed from office in manner provided by law). The trial court's finding that Pow-Sang's acknowledgment could not have caused the LeJunes' pleaded damages is supported by the fact that the LeJunes' suit did not seek a finding that Pow-Sang was disqualified so that they could then have Kass's lien affidavit declared invalid, but instead sought monetary damages allegedly arising from the filing of the lien itself or from Kass's workmanship on their home.
Because this one basis for sanctions supports their award, we need not consider whether the trial court abused its discretion in awarding sanctions on the other bases recited in the order.
We overrule issues one, two, four, and six.
Due Process
In issue three, the LeJunes complain that the trial court violated their due process rights by assessing sanctions without first holding an evidentiary hearing.
Nothing shows that the LeJunes preserved this challenge: it does not appear in their post-order motions, and there is no reporter's record of the sanctions hearing to show if they asserted it then. This is the type of challenge that must be preserved. See Santos v. Comm'n for Lawyer Discipline, 140 S.W.3d 397, 404-05 (Tex.App.-Houston [14th Dist.] 2004, no pet.) (holding that complaints that (1) appellant did not receive notice of separate sanctions hearing and (2) appellant's due process rights were violated by certain language in final sanctioning order were not preserved for failure to raise them in trial court). Accordingly, we hold that this challenge is waived. See Tex.R.App.P. 33.1(a)(1); Santos, 140 S.W.3d at 404-05. Moreover, we have already concluded that the hearing was evidentiary.
We assume without deciding that an evidentiary hearing, rather than simply an adequate opportunity otherwise to be heard, is required to satisfy due process in awarding sanctions under Civil Practice and Remedies Code chapter 10. See Tex. Civ. Prac. Rem. Code Ann. § 10.003 (Vernon 2002) (requiring court to provide party against whom sanctions are sought notice of allegations and reasonable opportunity to respond to them).
We overrule issue three.
C. Adequacy of Trial Court's Order
In issue five, the LeJunes complain that the trial court erred because its sanctions order did not adequately explain the bases for sanctions. Specifically, the LeJunes argue that (1) Pow-Sang did not segregate his attorney's fees evidence to show which fees he incurred defending against the LeJunes' allegation that he was Kass's "spouse" and which fees he incurred defending the allegations that he had violated his duties as a notary; (2) the order's recitation that the court considered "the motion, the affidavits, the response, other testimony received or evidence on file, and arguments of counsel, if any" was erroneous because the court did not actually receive affidavits, testimony, or evidence; and (3) the order expressly referred only to the LeJunes' allegation that Pow-Sang was Kass's "spouse," not to the other allegations that their petition made against Pow-Sang.
Section 10.005 requires that "[a] court . . . describe in an Order imposing a sanction under this chapter the conduct the court has determined violated Section 10.001 and explain the basis for the sanction imposed." Tex. Civ. Prac. Rem. Code Ann. § 10.005.
As for the first complaint — that Pow-Sang did not segregate his attorney's fees evidence to show which fees he incurred defending against the LeJunes' allegation that he was Kass's "spouse" and which fees he incurred defending the allegations that he had violated his duties as a notary — this has to do with the merits of the amount of sanctions awarded, not with whether the sanctions order was sufficiently specific to comply with section 10.005. That is, whether Pow-Sang carried his burden of showing what his reasonable expenses and fees were is irrelevant to whether the court sufficiently "describe[d] in an order imposing a sanction under this chapter the conduct the court has determined violated Section 10.001 and explain[ed] the basis for the sanction imposed." Id. Moreover, the LeJunes did not preserve this challenge. See Tex.R.App.P. 33.1(a)(1). Finally, even were this challenge both relevant and preserved, we would overrule it. The fact that the LeJunes alleged two factual bases — that Pow-Sang was the real-estate broker for the lot's and home's sale and that he was Kass's "spouse" — for a single cause of action against Pow-Sang — that he breached his duties as a notary — changes nothing. It strains the limits of credibility to argue that Pow-Sang had to segregate fees for time that he spent defending against separate factual bases for a unified cause of action, especially when Pow-Sang virtually always made arguments relevant to both factual bases within the same trial-court pleadings.
Although the LeJunes objected below to the attorney's fees awarded, they did so on the grounds that (1) some fees were incurred after Pow-Sang was non-suited and (2) some might be attributable to work for other co-defendants. Additionally, although the LeJunes asserted below that the evidence was legally and factually insufficient to support the attorney's fees award, they did so only in an untimely motion for new trial, and the trial court did not rule on the LeJunes' motion under Rule of Civil Procedure 306a(4) and (5). See Tex. R. Civ. P. 329b(d) (providing 30-day plenary power after judgment, in which court 30-day period court may grant new trial or vacate, modify, correct, or reform judgment); Tex. R. Civ. P. 306a(4) (extending 30-day plenary power if clerk does not notify party adversely affected by judgment of judgment within 20 days after judgment is signed). Rule 306a(4)'s extension is not automatic, but instead requires the adversely-affected party (1) to file a sworn motion and notice, (2) to prove the date on which he first received notice or acquired actual knowledge of the judgment, and (3) to prove that that date was more than 20 days after the judgment's signing. Tex. R. Civ. P. 306a(5); Moore Landrey, L.L.P. v. Hirsch Westheimer, P.C., 126 S.W.3d 536, 540 (Tex.App.-Houston [1st Dist.] 2003, no pet.). Furthermore, the trial court must sign a written order, pursuant to rule 306a, finding the date on which the party or its attorney received notice or acquired actual knowledge. Tex.R.App.P. 4.2(c). Compliance with rule 306a(5)'s requirements is jurisdictional: if the trial court's plenary power is not properly extended by rule 306a, the court's power ends 30 days after the signing of the judgment, and the court is without jurisdiction to grant or to deny a motion for new trial filed after the expiration of that period. Mem'l Hosp. of Galveston County v. Gillis, 741 S.W.2d 364, 365 (Tex. 1987); Moore Landrey, L.L.P., 126 S.W.3d at 540. Because the LeJunes did not obtain a rule 306a(5) ruling, the trial court never had jurisdiction over their motion for new trial, the motion was a nullity, and its grounds did not preserve error. See id.
As for the second complaint — that the order's preliminary recitations that the court considered evidence at the sanctions hearing were wrong — the court's recitations concerning what it considered in reaching its ruling have nothing to do with its totally separate recitations of the bases for its sanctions. That is, the complained-of preliminary recitations are irrelevant to the LeJunes' challenge under section 10.005. Moreover, as we have noted above, this particular recital is presumed to be true and can be rebutted only by a conflict between recital and the record, which does not exist here. See Alcantar, 47 S.W.3d at 823.
As for the final complaint — that the order expressly referred only to the LeJunes' allegation that Pow-Sang was Kass's "spouse," not to the other allegations that their petition made against Pow-Sang — we overrule it. The LeJunes' only argument in support is:
There is no specific reference [in the sanctions order] to any allegations other than the allegation that Kass referred to a `spouse'[-]like relationship between Kass and Pow-Sang. The basis for the mention of the relationship between Kass and Pow-Sang clearly provides support for the contention that Pow-Sang would financially benefit from the Kass lien and thus should not have notarized affidavit [sic].
(Emphasis added.) We fail to see how the italicized argument has anything to do with section 10.005's requirements. Moreover, as we understand this argument, it concerns the merits of the sanctions order, which we have already held that the LeJunes waived, and on which we have already held that they lose.
We overrule issue three.
Conclusion
We affirm the judgment of the trial court.