ACCEPTED
12-15-00216-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
9/3/2015 2:56:56 PM
Pam Estes
CLERK
NO. ________________________
FILED IN
12th COURT OF APPEALS
IN THE TYLER, TEXAS
COURT OF APPEALS 9/3/2015 2:56:56 PM
FOR THE PAM ESTES
TWELFTH DISTRICT OF TEXAS Clerk
IN RE THOMAS LYTLE AND ELLEN LYTLE,
Relators,
v.
THE HONORABLE TERESA DRUM, JUDGE
PRESIDING 294TH JUDICIAL DISTRICT
COURT OF VAN ZANDT COUNTY, TEXAS,
Respondent,
Real Parties in Interest:
David C. Petruska
Sandra L. Petruska
Helmuth K. Gutzke and
Zackiann Gutzke,
Defendants.
APPENDIX TO PETITION
FOR WRIT OF MANDAMUS
PART ONE
Barbara L. Emerson, Esq.
Texas State Bar No. 06599400
BELLINGER & SUBERG, LLP ORAL ARGUMENT REQUESTED
10,000 N. Central Expy., Suite 900
Dallas, TX 75231
214.954.9540 – Telephone
214.954.9541 – Facsimile
bemerson@bd-law.com
TO THE HONORABLE COURT OF APPEALS:
Pursuant to Tex. R. App. p. 52.3(f) attached hereto as an appendix to
Relators Thomas Lytle and Ellen Lytle’s Petition for Writ of Mandamus are true
and correct copies of the following:
TAB 1. Certified Copy of Order Staying Proceedings signed 001
August 21, 2015
TAB 2. Certified Copy of Defendant David C. Petruska’s 002
Motion to Stay All Proceedings With Legal Authorities
in Support, filed August 4, 2015
TAB 3. Certified Copy of Plaintiffs' Opposition to Defendant 017
David C. Petruska's Motion to Stay All Proceedings,
filed August 14, 2015
TAB 4. Certified Copy of Plaintiffs' First Amended Petition, 023
filed February 12, 2015
TAB 5. Relevant Caselaw cited in Relators’ Petition for Writ of 029
Mandamus with Excerpts Highlighted
U.S. v. Little Al, 712 F.2d 133, 136 (5th Cir. 1983) 029
Alcala v. Texas Webb County, 625 F.Supp.2d 391, 034
397 (S.D.Tex. 2009)
In re Charles D. Messervey Trust, No. 04-00-00700- 053
CV, 2001 WL 55642 (Tex. App.—San Antonio
Jan. 24, 2001) (orig. proceeding)
In re Gore, 251 S.W.3d 696, 699 (Tex. App.—San 057
Antonio 2007) (orig. proceeding)
Gebhardt v. Gallardo, 891 S.W.2d 327, 331 (Tex. 063
App.—San Antonio 1995)
! l tol 0' &. If '" V 1 J1 1 V t .J _,, 1111
From: unknown Page: 212 Date: 8/211201510:42:15 AM
CAUSE N0.14-00172
THOMAS LYTLE & ELLEN LYTLE § IN THE DISTRICT COURT
§
v. § 294th JUDICIAL DISTRICT
§
DAVID C. PETRUSKA, ET. AL. § VANZANDT COUNTY, TEXAS
ORDER STAYING PROCEEDINGS
NOW on
~-:~o1Pt$ ·
the application for Stay of Proceedings filed in this matter on August 4,
2015 comes on for hearing. The Court having examined the application, the evidence and
counsels' argument, is of the opinion that the Motion should, in all things be granted.
THE COURT FINDS that the defendant, David C. Petruska, is the subject of a Felony
Indictment currently pending In the District Court of Van Zandt County, Texas and such
indictment contains factual allegations substantially similar to the allegations contained in the
instant matter.
THE COURT FURTHER FINDS that to continue these proceedings in this case would
create an impermissible jeopardy to the Defendant and would have the potential to cause the
Defendant to be forced to either forego his constitutional right against self-incrimination or be
forced to waive his constitutional right and suffer the consequences, If any, of such waiver.
THE COURT FURTHER FINDS that it is inappropriate in the Instant case to force the
. Defendant to choose between the assertion of or a waiver of his constitutional rights at this
. stage of this litigation.
IT IS THEREFORE ORDERED AND RENDERED that this proceeding is hereby stayed
for a period ending the earlier of six-months from the date of the Order, or the completion of
the trial level proceedings In the Van Zandt criminal action. In the event that the criminal
matter is not resolved within the six-month stay, the Defendant, David C. Petruska, has the
right to again move this Court for an additional stay and the Plaintiffs have the right to oppose
such stay should the Plaintiffs choose to make such opposition.
Signed this ~I day of August, 2015.
ORDeR STAYING PROCEEDINGS - page 1
TAB 1 APPENDIX 1
Filed 8/4/2015 10:45:22 AM
Karen L. Wilson
District Clerk
Van ZanGilblal~i~
K"mber1y Knowles
NO. 14-00172
THOMAS LYTLE AND ELLEN § IN Tiffi DIS'IRICT CO"QRT
LY1LE, §
§ I
!
v. § ! l
I
§
DAVID C. PETRUSKA, SANDRA L. § 294th JUDICIAL DISTRICT
PETRUSKA, CO:MPASS BANK, §
HELMUTII K. GUTZKE, and §
ZACKIANN GUTZKE § VANZANDT COUNTY TEXAS
PEFENDANT DAVID C. PETRUSKA'S MOTION TO
STAY ALL PROCEEDINGS WITH LEGAL AUTHORITIES IN
SUPPORT
TO THE COURT
COMES NOW, David C. Petruska, Defendant herein, by and through his att~mey of record,
Michael Pezzulli, and respectfully moves this Honorable Court for an Order staying all discovery
proceedings, on the following grounds and reasons:
FACTUAL BACKGROUND
Plaintiff's First Amended Petition seeks to inject state law claims of threat of bodily injury.
Specifically, Plaintiff claims that "Petruska has taken actions to assert his rights to the
easement, including coming onto Plaintiffs' property and threatening Plaintiff Thomas Lytle with
an assault rifle, and continuing to assert an easement existed in his pleadings before this
court.
Motion to Stay
APPENDIX 2
TAB 2
In essence, Plaintiff's suit papers mirrors the indictment that Plaintiff obtained against the
Defendant in Van Zandt County, Texas on April 21 , 2014. Specifically, the indictment1 alleges
that the Defendant, David Petruska, on or about February 15, 2014, did intentionally or
knowingly threaten Tom Lytle with imminent bodily injury and did there use or exhibit a deadly
weapon, to wit: a firearm, during the commission of said assault and said firearm in the manner
and means of use could have caused serious bodily injury or death to Tom Lytle.2
SUMMARY OF THE ARGUMENT
This requested stay involves weighing Mr. Petruska's fundamental constitutional right to a fair
trial in this civil threat of bodily injury case against a claim that somehow the Plaintiff will be
injured if he cannot maintain a parallel prosecution of the identical claims.
Discovery will obviously seek to elicit evidence from the defendant that he engaged in the
identical alleged illegal activity that is the subject of the State Indictment. The civil proceeding, if
not deferred, will undermine Defendants' Fifth Amendment privilege against self-incrimination,
expand rights of discovery beyond the limits of Texas Rule of Criminal Procedure and expose
the basis of the defense to the prosecution in advance of a criminal trial. A delay of this civil
proceeding will not seriously jeopardize the public interest.
1
A true and correct copy of the indictment is attached hereto as Exhibit 1.
2 Plaintiffs First Amended Complaint at Page 4, Paragraph 23.
Motion to Stay
APPENDIX 3
LEGAL ARGUMENT
A. When the court forces Relator to choose between waiving his Fifth
Amendment right or suffering an adverse inference in this civil case. an
abuse of discretion occurs.
Should this Court force the Defendant to answer civil discovery and forego his
constitutional right against self-incrimination while the option to stay the civil
proceedings is available, such order would be an abuse of discretion. In Wehling
v. Columbia Broadcasting System, Wehling invoked his Fifth Amendment right to
silence in the civil case while there was a competing grand jury proceeding, and
the district court ordered Wehling to answer the discovery requests or suffer
dismissal of his civil case. 608 F.2d 1084, 1086 (5th Cir. 1979), on reh'g, 611
F.2d 1026 (1980). Subsequently, the district court dismissed his case and
refused to g'rant a stay of civil discovery. /d. at 1086. On appeal and under an
abuse of discretion standard of review, the Wehling court reversed the dismissal ·
of Wehling's civil suit holding the district court's dismissal was "constitutionally
impermissible," for the U.S. Supreme Court has "disapproved of procedures l
I ;
which require a party to surrender one constitutional right in order to assert I
1.
,.
' .
I -
another." 608 F.2d at 1088 (noting that dismissal of the civil case is inappropriat$f'- !
!-,···.
where other, less burdensome remedies [such as a stay of civil discovery]
Motion to Stay
APPENDIX 4
available) (citing Simmons v. United States. 390 U.S. 377. 394 (1968)).
Therefore, when a court forces the Defendant to answer civil discovery and
forego his constitutional right to silence while the option to stay the civil
proceedings is available and the Defendant is under criminal indictment for the
same events, the refusal to stay the civil case is an abuse of discretion.
B. If ordered to give a civil deposition, Defendant will be unable to
adequately defend himself in both cases, thus violating his
constitutionaf·rights to due process and against self-incrimination.
Absent the requested stay, the Defendant will be unable to answer any questions
of substance in his civil deposition; therefore, he will be unable to make his
defense to the accusations asserted by the Plaintiff, Tom Lytle. This outcome is
an unconstitutional denial of David Petruska's right to due process in this case. A
fundamental precept of our judicial system is equal treatment under the law and
hamstringing David Petruska by the tactic of insisting on a premature deposition
to force assertion of the Fifth Amendment violates that premise. Once a
deposition occurs in this context, the harm is done, and the bell cannot be
unrung.
This trial court should stay the civil case when, as here, such a stay is necessary
to avoid "substantial and irreparable prejudice." United States v. Little AI. 712
F.2d 133. 136 (5th Cir. 1983) (citing SEC v. First Fin. Group of Tex.. Inc.. 659
F.2d 660.668 (5th Cir. 1981)). In this case, Defendanfs exposure to an adverse
inference from the invocation of the Fifth Amendment would similarly result i~~}l "'.'~.~~~')'
('~~ ~·-· APPENDIX-/ t· •.. 10 ... -~~' J
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CauseNo. C/(tt{~ 00/85 1l ,.
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C:Ourt: 294111 Judicial District Court of VanZandt County, Texas '. !: .n?.,.
TheStal¢ofTexas Vs. DAVID CHARLES PETRUSKA
Cha~e: PC 5eetfon 22.02-Aggravatcd Assault with a DeadJy Weapbn
Degree: Second De.gree Fl!lony
• · -~ ••·• • • '• ·• • • • • ••-• a" • ·• a • .• • •• • • • • • • a il• a ..A • • • a •• • ·· ·~ -• • ·• • ·• ·• ·• ·• • • • • a ·• • ·• • ·• ·• • • • • • • • • • • .-.·
lN THE NAl\lfE AND BY AUTHORITY OF THE STATE OF TEXAS:
THE GR.A!~D JURY,_ for the County of V~n landt, Stare of Texas. duly selected
impan~led, swam, charged.' and organized as such at lhe JANUARY Term A.D~ 2014 of the
2941• Jvdicial District Co\111 for said County, upori their oaths present ip and to said court at said
term that DAVID CHARLES PETRL'SKA herei11after st)iled Defendant, on or about
Fl!BR.UARY ts11i, 2014, and before the presentrnent of this indictment,Jn the County and Smte
aforesaid. did then ·aQ(i th~ intentiol'\ally or knowingly threaten TOM LTILE. with imminent
bodliy injucy by POIN'fiNO.A FIREARM AT HIM AND THREATENINO TO KILL HIM~ and
did and there use or exhibit a deadly weapon. to wit A FIREARM, during the commission of the
said assault and said FlRtARM .in the manner and means of use could have caused. serious
·bodily ilijuryor d~ to TOM LYTLE;
Against the peace and dignity of the State.
APPENDIX 15
i·.
T B :Z STAT B 0 F T B% AS
CU4-00185
PRECEPT TO SBRVJ!: DIDJ:CTMEHT
TO THE SHERIFF OF VAN ZANDT COONTY I SAID STATE I GREETING:
YOU ARE HEREBY COMMANDED to serve
DAVJ:D Clt\lJI.BS PB'l'lilUSKA 1 DOB: 5/11/1945
the defendant in Cause No. Ckl4-00185, wherein The State of Texas is
pla.intiff, and DAv.tD CHARLBS Pll'l'Rt1SltA , is defendant, in person, with
the accompanying certified copy of the original Bill of Lndictment now on
tile in 294th District Court, van Zandt County, Canton, Texas.
HEREIN FAIL NOT, but of this Writ make due return as the law directs.
Issued and given under my hand and seal of Office, this the 21st
Of April I 2014.
S H E R X F F' S RETURN
came to band on the _2='...,.C~ day ot _ ___.4u,:.«::-.:../.:../______, 2o.l!:f_,
by delivering to the within named
in my custody, in person, a
certified copy of the indictment mentioned within, and delivered to me with
this writ, on the 1.( day of --'~J,i'l'(';FII..:I:..r.•t_ _ _ __
,,_
Returned on the ---~~~-- day of , - - - • 20..1!L.
-_.64~•1UC.:a~:J._·
L , R-4'{. Sheriff,
_.-;V.c~.W~DL..4o!,..>!C.IIII#.J..,-,;;.L._·- - - - county, Texas •
BY_ ~:#=-:'fn:;.r....l-----
___,_/tuc:u;Jw.,_.·
APPENDIX 16
Filed 8/14/2015 6:41:45 PM
Karen L. Wilson
District Clerk
Van Zanin Re: Thomas Lytle and Ellen Lytle
Combined Opinion