Darryl Heffner v. Timothy Heffner, Matthew Heffner, and Jonathan Heffner ( 2023 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00149-CV
___________________________
DARRYL HEFFNER, Appellant
V.
TIMOTHY HEFFNER, MATTHEW HEFFNER, AND JONATHAN HEFFNER,
Appellees
On Appeal from the 235th District Court
Cooke County, Texas
Trial Court No. CV21-00248
Before Sudderth, C.J.; Kerr and Birdwell, JJ.
Memorandum Opinion by Chief Justice Sudderth
MEMORANDUM OPINION
Appellant Darryl Heffner attempts to appeal from three trial court orders: two
orders expunging notices of lis pendens and one scheduling order. Appellees
Timothy Heffner, Matthew Heffner, and Jonathan Heffner have moved to dismiss
this appeal for want of jurisdiction. Appellant has filed a response to the dismissal
motion.
Generally, appeals may be taken only from final judgments or appealable
interlocutory orders. In re Guardianship of Jones, 629 S.W.3d 921, 924 (Tex. 2021);
Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Orders expunging notices
of lis pendens are neither final nor subject to interlocutory appeal. Smith v. Schwartz,
No. 02-15-00146-CV, 2015 WL 3645862, at *1 (Tex. App.—Fort Worth June 11,
2015, no pet.) (per curiam) (mem. op.). The same is true of scheduling orders; they
are neither final nor subject to interlocutory appeal. P.K. v. S.B., No. 02-19-00141-CV,
2019 WL 3756210, at *1 n.1 (Tex. App.—Fort Worth Aug. 8, 2019, no pet.) (per
curiam) (mem. op.); Thomas v. Pugliese, No. 02-17-00407-CV, 2017 WL 6616243, at *1
(Tex. App.—Fort Worth Dec. 21, 2017, no pet.) (per curiam) (mem. op.).
Nonetheless, Appellant opposes Appellees’ motion to dismiss this appeal. He
asserts that “[e]xpungement is tantamount to dismissal” of his case. Although
Appellant’s legal rationale is unclear, from what we can gather, Appellant contends
that expunging the two notices of lis pendens reflected “[t]he trial [court’s] perspective
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that [he] has no ownership interest in either property” and thus implicitly resolved
Appellant’s claims against him.1
This is not the case. A notice of lis pendens does not adjudicate the property’s
ownership; it merely “broadcasts ‘to the world’ the existence of ongoing litigation
regarding ownership of the property.” Sommers for Ala. & Dunlavy, Ltd. v. Sandcastle
Homes, Inc., 521 S.W.3d 749, 753 (Tex. 2017) (quoting Tex. Prop. Code Ann.
§ 13.004(a)). For much the same reason, expunging the “broadcast[]” is not a “full-
blown adverse judgment on the merits.” Id. at 753–57 (rejecting intermediate court’s
interpretation of expungement’s effect on notice of lis pendens). Expungement
“restor[es] the chain of title free of the record notice of [the] potential claim of
interest” but does not leave the “persons claiming an interest in [the] property . . . in a
worse position for having filed a [later-expunged] lis pendens . . . than had they not
filed one.” Id. at 756–57.
There are numerous grounds for expunging a notice of lis pendens that have
nothing to do with the merits of the property-related dispute. See, e.g., Tex. Prop.
Code Ann. § 12.0071(c)(3) (requiring expungement if “the person who filed the notice
for record did not serve a copy of the notice on each party [statutorily] entitled to a
copy”); In re Collins, 172 S.W.3d 287, 293 (Tex. App.—Fort Worth 2005, orig.
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Appellant further contends that the trial court’s failure to set a trial date in the
scheduling order evidenced its recognition that the expungements resolved all pending
issues.
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proceeding) (noting that “the suit on which the lis pendens is based must claim a
direct interest in real property, not a collateral one”).
Here, the trial court expunged the notices because it determined that “the
pleading on which the notice[s were] based d[id] not contain a real property claim.”
Tex. Prop. Code Ann. § 12.0071(c)(1). The trial court could rule on this issue without
resolving the merits of Appellant’s various trust-related claims—claims which include,
inter alia, breach of fiduciary duty and disqualification of Appellees as trustees. The
same is true for the scheduling order; the trial court could schedule discovery
deadlines without finally resolving the merits of the case. Nothing in the three
challenged orders (1) “actually dispose[d] of every pending claim and party” or
(2) “clearly and unequivocally state[d] that it finally dispose[d] of all claims and
parties.” Patel v. Nations Renovations, LLC, No. 21-0643, 2023 WL 1871558, at *3 (Tex.
Feb. 10, 2023) (quoting Jones, 629 S.W.3d at 924); Lehmann, 39 S.W.3d at 205. In fact,
the scheduling order reflects the opposite: that pending parties and claims remain.
Otherwise, there would be no reason to schedule discovery deadlines.
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Because there is neither a final order nor an appealable interlocutory order, we
grant Appellees’ motion and dismiss this case for want of jurisdiction. See Tex. R.
App. P. 42.3(a), 43.2(f).
/s/ Bonnie Sudderth
Bonnie Sudderth
Chief Justice
Delivered: April 13, 2023
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