Affirmed and Opinion Filed October 21, 2016 

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In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-11-01389-CV ROBERT WEBB AND RK W 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 app eal 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 err oneously 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 mer it 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 subdivi sion subject to the “Declaration of Covenants–2– and Assessments for Glenbrook Estates” and manda tory 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 outbui lding 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 propert y, alleged the violations constituted “irreparable harm.” As relief, they sought removal of the outbuilding, civil damages under Texas Property Code secti on 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 s eeking dismissal of the suit, alleging Webb and RKW lacked standing to bring the suit beca use (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 ow ners; and (2) under the Declaration, Webb and RKW designated the Glenbrook Owners’ Associati on as their representative to enforce the covenants. Additionally, the Tombaughs assert ed 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. Subseque ntly, on the Tombaughs’ post-judgment motion and following an evidentiary hearing, the trial cour t assessed sanctions against Webb in the amount of $19,250. In assessing sanctions , the trial court found Webb’s cl aim was groundless, filed in bad faith, and brought for an improper purpose and for the purpose of harassment. See T EX
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. & R EM
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. §§ 10.001, 10.004 (West 2002); T EX
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. P. 13. In relevant part, the trial court also found:–3– •This suit was filed shortly before th e trial setting in Cause No. 219-0059106, a matter in which Denise Tombaugh was iden tified 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 cl aims 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 su it are substantially similar to the claims made in Cause No. 219-00025-2008, a nd 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 affirmativ ely 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. de nied). 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 br inging the record of the sa nctions hearing, he failed to do so. Accordingly, we must presume the tr ial court’s findings in support of the award of sanctions are supported by sufficient ev idence, and those findings stand. See id. We decide Webb’s second issue against him. In light of the binding findings of res j udicata, 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 Tomb aughs’ 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– 

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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.