Affirmed and Opinion Filed October 21, 2016 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-11-01389-CV 

ROBERT WEBB AND RKW FAMILY FARM, LP, Appellants 

V. 

ERIC TOMBAUGH AND DENISE TOMBAUGH, Appellees 

On Appeal from the 296th Judicial District Court 

Collin County, Texas 

Trial Court Cause No. 296-01080-2011 

MEMORANDUM OPINION 

Before Chief Justice Wright, Justice Lang, and Justice Brown 

Opinion by Chief Justice Wright 

 Robert Webb and RKW Family Farm, LP appeal the trial court’s order dismissing their 

breach of restrictive covenant suit against Eric and Denise Tombaugh and imposing sanctions on 

Webb. Webb and RKW contend the trial court erroneously concluded they lacked standing to 

sue, and Webb further asserts the imposition of sanctions was an abuse of discretion. The 

Tombaughs respond the appeal is without merit and request Webb be sanctioned further for 

filing a frivolous appeal. We affirm the trial court’s order and deny the Tombaughs’ request for 

appellate sanctions. 

BACKGROUND

 This suit stems from the construction of an “outbuilding” by the Tombaughs on their 

property, located in Glenbrook Estates, a subdivision subject to the “Declaration of Covenants 
 –2– 

and Assessments for Glenbrook Estates” and mandatory membership in the Glenbrook Owners’ 

Association. At the time construction began in 2007, Webb owned the adjoining property; at the 

time suit was filed in 2011, RKW owned that property. 

In their suit, Webb and RKW alleged the outbuilding violated certain covenants in the 

Declaration. Webb, suing as the owner of the adjoining property at the time construction of the 

outbuilding began, and RKW, suing as the current owner of the adjoining property, alleged the 

violations constituted “irreparable harm.” As relief, they sought removal of the outbuilding, civil 

damages under Texas Property Code section 202.004(c), attorney’s fees, and costs. 

 The Tombaughs answered the suit asserting, in part, res judicata as an affirmative 

defense. According to the Tombaughs, Webb had previously filed a similar suit and “lost.” The 

Tombaughs also filed a plea to the jurisdiction seeking dismissal of the suit, alleging Webb and 

RKW lacked standing to bring the suit because (1) section 202.004 of the property code 

conferred standing to sue to enforce a restrictive covenant only on property owners’ associations 

or representatives designated by property owners; and (2) under the Declaration, Webb and 

RKW designated the Glenbrook Owners’ Association as their representative to enforce the 

covenants. Additionally, the Tombaughs asserted Webb lacked standing because he no longer 

owned the property adjoining theirs. 

The trial court granted the Tombaughs’ plea to the jurisdiction and dismissed Webb and 

RKW’s claims in their entirety. Subsequently, on the Tombaughs’ post-judgment motion and 

following an evidentiary hearing, the trial court assessed sanctions against Webb in the amount 

of $19,250. In assessing sanctions, the trial court found Webb’s claim was groundless, filed in 

bad faith, and brought for an improper purpose and for the purpose of harassment. See TEX. CIV.

PRAC. & REM. CODE ANN. §§ 10.001, 10.004 (West 2002); TEX. R. CIV. P. 13. In relevant part, 

the trial court also found: 
 –3– 

•This suit was filed shortly before the trial setting in Cause No. 219-0059106, a 

matter in which Denise Tombaugh was identified and scheduled to be a witness 

adverse to Robert Webb. 

•Webb admits he is not the record owner of any property within the boundaries of 

the Glenbrook Owners’ Association, and was not at the time of filing this suit. 

Webb lacks any standing to bring the claims he has asserted against the 

Tombaughs. 

•This is not the first time Webb has brought suit against Denise Tombaugh. 

Webb previously joined in a suit against Ms. Tombaugh and others in Cause No. 

219-00025-2008. The claims in the present suit are substantially similar to the 

claims made in Cause No. 219-00025-2008, and the present claims should have 

been brought in the prior suit. 

DISCUSSION 

We begin with Webb’s challenge to the sanctions order. We review such an order for an 

abuse of discretion. See Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007). This standard of 

review presumes a trial judge acted within his discretion and places the burden on the appellant 

to bring a reporter’s record affirmatively showing an abuse of discretion. See Willms v. Ams. 

Tire Co., Inc., 190 S.W.3d 796, 803 (Tex. App.—Dallas 2006, pet. denied); Marion v. Davis, 

106 S.W.3d 860, 869 (Tex. App.—Dallas 2003, pet. denied). Without a reporter’s record, an 

appellate court cannot determine if an abuse of discretion occurred. Willms, 190 S.W.3d at 803. 

 Although Webb bore the burden of bringing the record of the sanctions hearing, he failed 

to do so. Accordingly, we must presume the trial court’s findings in support of the award of 

sanctions are supported by sufficient evidence, and those findings stand. See id. We decide 

Webb’s second issue against him. 

 In light of the binding findings of res judicata, we need not address Webb and RKW’s 

first issue regarding standing. See Tex. Parks & Wildlife Dept. v. EE. Lowrey Realty, Ltd., 235 

S.W.692, 694 (Tex. 2007) (dismissal rather than remand appropriate where remand would serve 

no legitimate purpose). We deny the Tombaughs’ request for appellate sanctions. 
 –4– 

 Accordingly, we affirm the trial court’s order dismissing Webb’s and RKW’s claims and 

imposing sanctions on Webb. 

111389F.P05 

 

/Carolyn Wright/ 

CAROLYN WRIGHT 

CHIEF JUSTICE 
 –5– 

S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

ROBERT WEBB AND RKW FAMILY 

FARM, LP, Appellants 

No. 05-11-01389-CV V. 

ERIC TOMBAUGH AND DENISE 

TOMBAUGH, Appellees 

 On Appeal from the 296th Judicial District 

Court, Collin County, Texas 

Trial Court Cause No. 296-0180-2011. 

Opinion delivered by Chief Justice Wright. 

Justices Lang and Brown participating. 

 In accordance with this Court’s opinion of this date, we AFFIRM the trial court’s 

judgment. 

 We ORDER appellees Eric Tombaugh and Denise Tombaugh recover their costs of this 

appeal from appellants Robert Webb and RKW Family Farm, L.P. 

Judgment entered October 21, 2016.