                                                                                          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
                                                                    TYLER, TEXAS
                               IN THE                           9/3/2015 2:56:56 PM
                         COURT OF APPEALS                             PAM ESTES
                              FOR THE                                   Clerk
                      TWELFTH DISTRICT OF TEXAS


                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.


                   PETITION FOR WRIT OF MANDAMUS


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
                  IDENTITY OF PARTIES AND COUNSEL

      The following is a complete list of all parties to the trial court proceedings as

well as the name and addresses of their counsel:

Relators:
Thomas Lytle and Ellen Lytle

Counsel to Relators:
Barbara L. Emerson
Texas State Bar No. 06599400
Bellinger & Suberg, LLP
10,000 N. Central Expressway, Suite 900
Dallas, TX 75231
214.954.9540 – Telephone
214.954.9541 – Facsimile
bemerson@bd-law.com


Respondent:
The Honorable Teresa Drum, Judge Presiding
294th Judicial District Court of
Van Zandt County, Texas
County Courthouse
121 East Dallas Street, Suite 301
Canton TX, 75103
903.567.7555 – Telephone
903.567.5652 – Facsimile

Real Parties In Interest:

David C. Petruska and                      Counsel to Petruska Parties:
Sandra L. Petruska                         Michael F. Pezzulli
                                           Holmes Firm PC
                                           14911 Quorum Drive, Suite 340
                                           Dallas, Texas 75254
                                           469.916.7700 – Telephone
                                           469.916.7705– Facsimile
                                           michael@courtroom.com

                                          ii
and

Helmuth K. Gutzke and    Counsel to Gutzke Parties:
Zackiann Gutzke          Ralph E. Allen
                         Attorney and Counselor at Law
                         100 East Ferguson, Suite 901
                         Tyler, Texas 75702
                         903.593.9727 – Telephone
                         903.531.2566 – Facsimile
                         rallen@tyler.net




                        iii
                                         TABLE OF CONTENTS
                                                                                                                   Page

IDENTITY OF PARTIES AND COUNSEL ........................................................... ii

TABLE OF CONTENTS ......................................................................................... iv

·INDEX OF AUTHORITIES ..................................................................................... v

STATEMENT OF THE CASE ............................................................................... vii

STATEMENT OF JURISDICTION ........................................................................ ix

ISSUES PRESENTED .............................................................................................. X

STATEMENT OF FACTS ....................................................................................... 1

ARGUMENT ............................................................................................................ 4
      ISSUE: Respondent's Order of August 21, 2015 Staying All Proceedings
      Was an Abuse of Discretion as There Was No Factual or Legal Basis to
      Grant the Stay and the Stay Denied Relators Rights Pursuant to the "Open
      Courts" Provision of the Texas Constitution ..................................................... .4
    A. A Writ Of Mandamus Is The Proper Legal Remedy When The Trial
       Court Has Abused its Discretion by Staying All Proceedings ....................... .4
    B. Under Texas Law Respondent's Order Staying Of All Civil Proceedings
       Was An Abuse Of Discretion .......................................................................... 5
    C. Reliance on Federal Standards Does Not Justify a Stay, as Federal
       Standards Do Not Provide A Legal Basis For The Stay .............................. 10

PRAYER ................................................................................................................. 15

VERIFICATION ..................................................................................................... 17

CERTIFICATE OF SERVICE ............................................................................... 18

APPENDIX ............................................................................................................. 20




                                                            IV
                                        INDEX OF AUTHORITIES

Cases
Alcala v. Texas Webb County, 625 F.Supp. 2d 391 (S.D.Tex.
   2009 .................................................................................................6, 7, 10, 11, 12
Gebhardt v. Gallardo, 891 S.W.2d 327 (Tex. App.—San
  Antonio 1995) ..................................................................................................... 6, 9
In re Charles D. Messervey Trust, No. 04-00-00700-CV, 2001 WL
  55642 (Tex. App.—San Antonio Jan. 24, 2001) (orig. proceeding) ................ 9, 10
In re Discovery Operating, Inc., 216 S.W.3d 898 (Tex. App.—Eastland
  2007 (orig. proceeding) ...................................................................................... 4-5
In re Gore, 251 S.W.3d 696 (Tex. App.—San Antonio 2007) (orig.
  proceeding) ...............................................................................................4, 8, 9, 13
In re Immobiliere Jeuness Establissement, 422 S.W.3d 909 (Tex.
  App.—Houston [14th Dist.] 2014) (orig. proceeding) ...................................ix, 4, 5
In re Reece, 341 S.W.3d 360 (Tex. 2011) ................................................................. 4
In re Thirty-Four Gambling Devices and Six Hundred and Thirty-Nine
  Dollars in United States Currency, 304 S.W.3d 503 (Tex. App.—
  Amarillo 2009) (orig. proceeding) ......................................................................... 5
Jackson v. Smith Sec. Serv. Inc., 786 S.W.2d 787 (Tex. App.—Houston
  [1st Dist.] 1990, no writ) ...........................................................................14, 15, 18
Javier v. Garcia-Botello, 218 F.R.D. 72 (W.D.N.Y. 2003) ..............................14, 15
Librado v. MS Carriers, Inc., No. 3:02-CV-2095D, 2002 WL
  31495988, (N.D. Tex. Nov. 5, 2002)..............................................................11, 14
McInnis v. State, 618 S.W.2d 389 (Tex. Civ. App.--Beaumont 1981,
  writ ref'd n.r.e.) ....................................................................................................... 9
Meyers v. Turks, 360 S.W.2d 518 (1962) .................................................................. 6
SEC v. First Financial Group, 659 F.2d 660 (5th Cir. 1981)............................... 5, 10
SEC v. Kiselak Capital Group, LLC, Civil Action No. 4:09-CV-256-A,
  2011 WL 4398443 (N.D. Tex. Sept. 20, 2011) ............................................5, 6, 11
Trapnell v. Hunter, 785 S.W.2d 426 (Tex. App.—Corpus Christi 1990)
  (orig. proceeding) ................................................................................................... 5
Trustees of Plumbers and Pipefitters Nat’l Pension Fund v. Transworld
  Mich., Inc., 886 F.Supp. 11334 (S.D.N.Y. 1995)...........................................14, 15
Underwood v. Bridewell, 931 S.W.2d 645 (Tex. App.--Waco 1996)
  (orig. proceeding.) .................................................................................................. 9
U.S. ex rel Gonzalez v. Fresenius Med. Care N.Am., 571 F.Supp.2d 758
  (W.D.Tex. 2008)................................................................................................... 10


                                                              v
U.S. v. Little Al, 712 F.2d 133 (5th Cir. 1983) .......................................................... 11
Wehling v. Columbia Broadcasting System, 611 F.2d 1026 (5th Cir.
  1980) ..................................................................................................................... 14


United States Constitution
U.S. Const. amend. V........................................................................................... 6, 10


Texas Constitution
TEX. CONST. art. I, §13 .................................................................................x, 5, 9, 12


Statutes
TEX. CIV. PRAC. & REM. CODE § 12.002......................................................... vii, 1, 7
TEX. GOV’T. CODE 22.221........................................................................................ ix
TEX. PEN. C. § 22.02. .................................................................................................3
TEX. R. APP. P. 52 .................................................................................................... ix




                                                              vi
                          STATEMENT OF THE CASE

      The underlying suit is an action to quiet title to certain real property, a

private driveway, owned by Relators and for damages pursuant to TEX. CIV.

PRAC. & REM. CODE § 12.002 for a fraudulent claim filed against the same real

property. Relators Thomas Lytle and Ellen Lytle are the Plaintiffs. Record 124.

The Defendants are Real Parties in Interest David C. Petruska, Sandra L. Petruska,

Helmuth K. Gutzke and Zackiann Gutzke.

      The suit is pending as Cause No. 14-00172, in the 294th Judicial District

Court of Van Zandt County, Texas. Respondent, the Honorable Teresa Drum is

the presiding judge of the 294th Judicial District Court.

      Relators’ suit was filed July 9, 2014, and set for trial on December 1, 2015.

On August 4, 2015, Real Party In Interest, David C. Petruska (“Petruska”), filed

Defendant David C. Petruska’s Motion to Stay All Proceedings with Legal

Authority in Support seeking to stay the underlying suit due to an April 21, 2014

criminal indictment, filed in the 294th District Court of Van Zandt County, Texas.

Record 132.    The indictment charges Petruska with aggravated assault with a

deadly weapon. The indictment arises from actions on or about February 15, 2014.

The victim identified in the indictment is Relator Thomas Lytle. Record 145-146.




                                          vii
      On August 21, 2015 the Respondent, the Hon. Teresa Drum, granted the

motion to stay and signed an order staying all proceedings in the underlying suit.

Record 153. As a result of this order all activity in the underlying case is stayed.

      Relators are seeking a writ of mandamus directing the Respondent to vacate

the August 21, 2015 Order and directing the Respondent to set the matter for trial.




                                         viii
                      STATEMENT OF JURISDICTION

      This Court has original jurisdiction over this matter pursuant to TEX. GOV’T.

CODE 22.221 and TEX. R. APP. P. 52. TEX. GOV’T. CODE 22.221 grants this Court

jurisdiction to issue all writs of mandamus against a judge of a district court. The

Order of August 21, 2015 was an abuse of discretion. Relators’ right to seek relief

by writ of mandamus arises because Respondent’s Order granting a stay of all

proceedings has no adequate remedy on appeal.          In re Immobiliere Jeuness

Establissement, 422 S.W.3d 909, 914 (Tex. App.—Houston [14th Dist.] 2014).




                                         ix
                      ISSUES PRESENTED


RESPONDENT’S ORDER OF AUGUST 21, 2015 STAYING ALL
PROCEEDINGS WAS AN ABUSE OF DISCRETION AS THERE WAS NO
FACTUAL OR LEGAL BASIS TO GRANT THE STAY AND THE STAY
DENIED RELATORS RIGHTS PURSUANT TO THE “OPEN COURTS”
PROVISION OF THE TEXAS CONSTITUTION. TEX. CONST. art. I, § 13.




                              x
                                  STATEMENT OF FACTS

        The underlying suit involves a disputed easement on property owned by the

Relators. Relators Thomas Lytle and Ellen Lytle (the “Lytles”) are Plaintiffs

below and on July 9, 2014, filed their Original Petition to quiet title and for

damages under TEX. CIV. PRAC. & REM. CODE § 12.002 for a fraudulent claim filed

against real property owned by Relators.         The real property at issue (the

“Property”) is a private roadway owned by the Lytles and described as follows:

        Roadway situated in Van Zandt County, State of Texas, on the M.V.
        Lout Survey, A-468 and being a part of the called 68.78 acre tract
        conveyed to Thomas M. Lytle and Ellen Lytle, by Ricky Lee Hadley,
        by General Warranty Deed recorded in Volume 1771, Page 609, of
        the Van Zandt County Real Records and a part of the called 1.10 acre
        tract conveyed to Thomas M. Lytle and Ellen Lytle, by Ricky Lee
        Hadley, by General Warranty Deed recorded in Volume 1771,
        Page 629, of the Van Zandt County Real Records.

Record 125. Relators’ original petition was amended and the operative pleading

before the trial court in the underlying suit is Plaintiffs’ First Amended Petition.

Record 124.

        The private driveway runs from the Lytles home to County Road 2319. Real

Parties In Interest Helmuth Gutzke and Zackiann Gutzke (the “Gutzkes”) owned

real property adjacent to the private driveway. On or about May 16, 2008 the

Gutzkes sold their property to Real Parties In Interest David C. Petruska and

Sandra L. Petruska (the “Petruskas”).      As part of the transaction the Gutzkes


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executed a General Warranty Deed with Vendor’s Lien filed as Document

No. 2008-004602 in the real property records of Van Zandt County, Texas.

Record 126. This deed purported to convey to Petruskas an easement on the

Property. As part of the same transaction, Petruskas executed a Deed of Trust in

favor of Compass Bank which stated it was granting a lien in an easement on the

Property. The Deed of Trust was filed of record as Document No. 2008-004603 in

the real property records of Van Zandt County, Texas. Record 126.

        Lytles have alleged that the easement allegedly conveyed to Petruskas did

not exist. They have also alleged that the parties to the transaction executed and

filed the warranty deed and deed of trust with knowledge that no easement existed,

knowingly creating a false and fraudulent interest in the property of the Lytles.

Record 128. The operative facts for these claims are the actions, knowledge and

intent of the Defendants when Gutzkes sold their property to the Petruskas in 2008.

        Petruskas base their motion for a stay on one statement in the Lytles’

petition. Included in the background facts of the petition is the following:

        Petruska has taken certain actions to assert his rights to the easement,
        including coming onto Plaintiffs’ property and threatening Thomas
        Lytle with an assault rifle.

Record 127. This statement was also in the original petition filed July 9, 2014.

        It is undisputed that this statement references an incident on or about

February 15, 2014, the same incident which is the basis of the indictment filed in


PETITION FOR WRIT OF MANDAMUS                                                      Page 2
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Van Zandt County on or about April 21, 2014. The indictment charges David C.

Petruska with aggravated assault with a deadly weapon under TEX. PEN. C. § 22.02.

Record 145.

        It was not until after the suit had been pending for more than a year, and was

set for trial on December 1, 2015 (Record 130) that Petruska filed a motion seeking

a stay of all proceedings, including pending third party depositions and the trial

date. Record 132.




PETITION FOR WRIT OF MANDAMUS                                                   Page 3
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                                           ARGUMENT

ISSUE:          Respondent’s Order of August 21, 2015 Staying All Proceedings
                Was an Abuse of Discretion as There Was No Factual or Legal
                Basis to Grant the Stay and the Stay Denied Relators Rights
                Pursuant to the “Open Courts” Provision of the Texas
                Constitution.

A.      A Writ Of Mandamus Is The Proper Legal Remedy When The Trial
        Court Has Abused its Discretion by Staying All Proceedings.

        This action is an original proceeding pursuant to TEX. R. APP. p. 52 seeking

a writ of mandamus vacating the August 21, 2015 order of the Hon. Teresa Drum

and ordering that Judge Drum proceed with the trial previously set for December 1,

2015.

        Mandamus will issue when it is demonstrated that (i) the trial court abused

its discretion and (ii) there is no adequate remedy by appeal. In re Reece, 341

S.W.3d 360, 364 (Tex. 2011); In re Immobiliere Jeuness Establissement, 422

S.W.3d 909, 914 (Tex. App.—Houston [14th Dist.] 2014) (orig. proceeding). The

trial court abuses its discretion where there is no legal basis for abating or staying a

case. In re Gore, 251 S.W.3d 696, 699 (Tex. App.—San Antonio 2007) (orig.

proceeding). By the nature of a stay, the victim of the abatement or stay has no

adequate remedy by appeal. As stated in Immobiliere:

        Abatement of an action not only precludes the trial court from going
        forward on a case, it prohibits the parties from proceeding in any
        manner until the case has been reinstated. ... An adequate remedy by
        appeal does not exist when the plaintiff is “ ‘effectively denied any
        other method of challenging the court’s action for an indefinite period

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        of time during which the cause of action remains in a suspended
        state.’ ” In re Discovery Operating, Inc., 216 S.W.3d 898, 905 (Tex.
        App.—Eastland 2007 (orig. proceeding) (quoting Trapnell v. Hunter,
        785 S.W.2d 426, 429 (Tex. App.—Corpus Christi 1990) (orig.
        proceeding).

In re Immobiliere Jeuness Establissement, 422 S.W.3d at 914. Additionally, where

the trial court’s action denies a party of its fundamental opportunity to be heard,

mandamus will issue requiring a district court to proceed to trial. In re Thirty-Four

Gambling Devices and Six Hundred and Thirty-Nine Dollars in United States

Currency, 304 S.W.3d 503, 505 (Tex. App.—Amarillo 2009) (orig. proceeding).

        In this case Defendant Petruska failed to present any legal basis for staying

the case. The result of the stay is a violation of the “open courts” provision in

Article 1, Section 13 of the Texas Constitution. Mandamus is the proper legal

remedy to correct the stay of all proceedings ordered by the trial court.

B.      Under Texas Law Respondent's Order Staying Of All Civil Proceedings
        Was An Abuse Of Discretion.
        Petruska is currently a defendant in two (2) actions. The underlying suit and

a criminal prosecution pending in the same court. Record 145-146. This fact

alone does not entitle Defendant to a stay of the civil proceeding. Both state and

federal courts have repeatedly held “there is no general federal constitutional,

statutory or common law rule barring the simultaneous prosecution of separate

civil and criminal actions.” SEC v. Kiselak Capital Group, LLC, Civil Action No.

4:09-CV-256-A, 2011 WL 4398443 *2 (N.D. Tex. Sept. 20, 2011); see also,


PETITION FOR WRIT OF MANDAMUS                                                  Page 5
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SEC v. First Financial Group, 659 F.2d 660, 666 (5th Cir. 1981). A party has no

right “to choose the case, either criminal or civil, which he desires to first proceed

to trial.” Gebhardt v. Gallardo, 891 S.W.2d 327, 331 (Tex. App.—San Antonio

1995). It is “the rule rather than the exception” for criminal and civil proceedings

to move forward contemporaneously. Alcala v. Texas Webb County, 625 F.Supp.

2d 391, 397 (S.D.Tex. 2009); Gebhardt v. Gallardo, 891 S.W.2d at 330.

        The Texas Supreme Court has rejected a principle that a criminal defendant

is automatically protected from civil discovery. In Meyers v. Turks, 360 S.W.2d

518 (1962), the Court rejected defendant’s argument that as the subject of multiple

indictments, his oral deposition should be quashed. The Texas Supreme Court

held the defendant had a constitutional privilege not to answer questions, but it

must be exercised in connection with precise questions.              Contrary to this,

Respondent's order granting the motion to stay is an extraordinary remedy which

allows Petruska to make an improper blanket assertion of the Fifth Amendment

protection against self incrimination.      SEC v. Kiselak Cap. Group, 2011 WL

4398443 *2.

        In order to establish he is entitled to this extraordinary remedy, a stay of all

trial court proceedings, Petruska carried the burden of a strong showing that the

civil and criminal proceedings so overlap that he cannot protect himself by

selectively invoking his Fifth Amendment privilege or it is impossible for him to


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mount an effective defense in both proceedings. Alcala v. Texas Webb County,

625 F.Supp.2d at 401. That overlap does not exist.

        The underlying civil suit is fairly straight forward. In 2008 the Lytles and

the Gutzke Defendants owned adjacent properties. A portion of that adjacent

property was a private driveway that ran from the Lytles’ home to the county road.

When the Gutzkes sold their property to the Petruskas, they did so by a Warranty

Deed with Vendor’s Lien, with language stating they were also conveying to the

Petruskas an easement on the Lytles’ private driveway. At the same time the

Petruskas executed a Deed of Trust for the benefit of Compass Bank. That Deed

of Trust identifies an easement on the Lytles’ private driveway as a property

interest securing a loan from Compass Bank.

        The Lytles’ suit seeks a declaratory judgment that they are the sole owners

of the private driveway and declaring that all claims to any easement in the

property be declared null and void. Record 128. They have also claimed damages

pursuant to TEX. CIV. PRAC. & REM. CODE 12.002(b) (Record 128) which prohibits

a person from making a fraudulent claim or lien in real property, with the intent

that the document or record be given legal effect and with the intent to cause

physical injury, financial injury or mental anguish. Lytles’ causes of action are

based upon a transaction which occurred in 2008.




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        There is one sentence in Plaintiff’s First Amended Petition which states that

on February 15, 2014, six (6) years after the sale to Petruskas, there was an assault

of Thomas Lytle by David Petruska. Defendant Petruska, by his own pleadings,

has admitted there is not overlap and that his assault of Thomas Lytle “had no

connection to the disputed easement.”1 The indictment, which is the basis of

Petruska’s motion to stay, charges an assault “on or about February 15, 2014”

when Petruska threatened Thomas Lytle by pointing a firearm at him and

threatening to kill him. Record 145-146. The assault is much more “one step

removed” from the operative facts forming the basis of the Lytles’ suit to quiet title

and recover damages for fraud.

        In seeking the stay, Petruska failed to provide legal authority which would

support a stay on the facts of the underlying suit. In nearly every case cited by

Defendant, the court declined to stay all the proceedings and frequently declined to

stay the civil deposition of the criminal defendant.

        The Texas Courts of Appeals have repeatedly held that parties to a civil suit

“are entitled to full discovery within a reasonable time, to develop their claims and

defenses, and to have the case tried.” In re Gore, 251 S.W.3d 646, 699 (Tex.

App.—San Antonio 2007) (orig. proceeding). As the Gore court noted, the mere

existence of a pending criminal proceeding based on the same facts will not justify

1
    Defendants David C. Petruska and Sandra L. Petruska’s Response to Plaintiffs’ Motion for
    Summary Judgment on Liability, subject to their Motion for Continuance. Record 15,
    paragraph 17.
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staying all civil discovery or the civil proceedings. By their nature such stays

violate the “open courts” provision Texas Constitution. Id.,2 TEX. CONST. art. I,

§13.

        Petruska’s claim for relief and the validity of a stay is even more tenuous

than those presented in Gore and Gebhardt. In Gehbardt the defendant alleged he

was the subject of a grand jury investigation arising from the same conduct that

was the basis for the civil suit. The Court of Appeals found the entry of an order

staying the case an abuse of discretion. Similarly in Gore, the court found an

abuse of discretion because the stay order, by abating all proceedings, was

impermissibly overbroad.3

        Even if Petruska could show himself entitled to some relief, the order

entered in the underlying case was an abuse of discretion. Directly on point is the

unreported opinion of In re Charles D. Messervey Trust, No. 04-00-00700-CV,

2001 WL 55642 (Tex. App.—San Antonio Jan. 24, 2001) (orig. proceeding). The

stay entered was nearly identical to Judge Drum’s August 21, 2015 Order. It

stayed the case until the criminal case became final, or six (6) months, whichever


2
    See also, Underwood v. Bridewell, 931 S.W.2d 645, 647-48 (Tex. App.—Waco 1996) (orig.
    proceeding.) (It was an abuse of discretion to abate civil forfeiture action until criminal
    prosecution is completed.); McInnis v. State, 618 S.W.2d 389, 392-93 (Tex. Civ. App.—
    Beaumont 1981, writ ref’d n.r.e.) (upheld the trial court’s refusal to continue civil disbarment
    case until final disposition of the related criminal action.), cert. denied, 456 U.S. 967 (1982);
    In re Charles D. Messervey Trust, No. 04-00-00700-CV, 2001 WL 55642 *4 (Tex. App.—
    San Antonio, Jan. 24, 2001) (orig. proceeding) (It was an abuse of discretion to completely
    abate the civil case for six months because of a related criminal case.)
3
    In Gore, a forfeiture action, the defendant wished to proceed and the state sought the stay.
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was sooner. The Court held, as in Gore, such an order was overbroad because it

stayed the entire case and was an abuse of discretion. If a remedy is necessary to

protect the defendant, it is to fashion individual protective orders. Messervey, 2001

WL 55642 *4.

C.      Reliance on Federal Standards Does Not Justify a Stay, as Federal
        Standards Do Not Provide A Legal Basis For The Stay.
        Being unable to establish a legal basis under state standards, Defendant

Petruska looks to and relies upon the standard use by the federal courts. However,

even the federal standards fail to provide a basis for the stay. As noted above, the

federal courts have held there is federal constitutional, statutory or common law

rule barring the simultaneous prosecution of separate civil and criminal actions.

SEC v. First Financial Group, 659 F.2d 660, 666 (5th Cir. 1981). In order to

support a stay under federal standards there must be a “parallel criminal

proceeding.” But this alone is insufficient to support a stay as it is the “rule rather

than the exception that civil and criminal cases proceed together.” Alcala v. Texas

Webb County, 625 F.Supp.2d at 397 (quoting U.S. ex rel Gonzalez v. Fresenius

Med. Care N.Am., 571 F.Supp.2d 758, 761 (W.D.Tex. 2008). A complete stay is

considered an extraordinary remedy as it allows a defendant to make an improper

blanket assertion of the Fifth Amendment. Id. A moving party must establish

“special circumstances” and a showing that “substantial and irreparable prejudice”




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will result if the stay is not granted. U.S. v. Little Al, 712 F.2d 133, 136 (5th Cir.

1983).4

        To determine whether the “special circumstances” exist the federal courts

use a six (6) factor test as follows:

        (1)     the extent to which the issues in the criminal case overlap with those
                presented in the civil case;
        (2)     the status of the criminal case, including whether the defendants have
                been indicted;
        (3)     the private interests of the plaintiffs in proceeding expeditiously,
                weighed against the prejudice to plaintiffs caused by the delay;
        (4)     the private interests of and burden on the defendants;
        (5)     the interests of the courts; and
        (6)     the public interest.

Librado v. MS Carriers, Inc., No. 3:02-CV-2095D, 2002 WL 31495988 *1, (N.D.

Tex. Nov. 5, 2002).

        The first factor is the most important, the degree to which the civil issues

overlap with the criminal issues. SEC v. Kiselak Capital Group, LLC, No. 4:09-

CV-256-A, 2011 WL 4398443 *2 (N.D. Tex. Sept. 20, 2011). Defendant Petruska

was required to make a strong showing that the underlying case so overlaps the

criminal proceeding that he cannot be protected by selectively invoking his Fifth

Amendment privilege or the effective defense of both cases is impossible.

Alcala v. Texas Webb County, 625 F.Supp.2d at 401.

4
    In Little Al, defendant sought a continuance of the government’s motion for summary
    judgment in a civil forfeiture action during the pendency of his appeal from criminal
    conviction. The court affirmed the denial of the continuance holding that forcing to choose
    between preserving his Fifth Amendment privilege and losing the civil suit “hardly presents
    that type of circumstances or prejudice that require a stay.”
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        There is no overlap between the underlying civil suit and Defendant

Petruska’s indictment. The conduct giving rise to the civil claims occurred six (6)

years before the assault of Thomas Lytle described in the indictment. Plaintiffs’

petition has one sentence referencing the assault.          Additionally, Defendant

Petruska, by his pleadings in the trial court has admitted the reference to the assault

has “no connection to the disputed easement.” Record 15. As noted in Alcala, the

overlap is further reduced when the prosecutor in the criminal case is not a party to

the civil suit. “[T]he potential for prejudice to a criminal defense is diminished

where private parties, not the government, are the plaintiffs in the civil action.”

Alcala v. Texas Webb County, 625 F.Supp.2d at 402.

        Petruska repeatedly alleges the cases “completely overlap” or are “nearly

identical” but these allegations push the envelope on bad faith pleadings.

Defendant Petruska cannot get beyond this key factor. There is no overlap in the

suits. Plaintiffs could easily remove the reference in the petition and there would

be no change in their claims. There is no basis, factual or legal, to support a

complete stay of the proceedings.

        Even if there was some nominal overlap between the criminal and civil

actions, the balance of the remaining factors weigh against a complete stay of the

civil proceedings. Plaintiffs Relators have a state constitutional right of access to

the courts. TEX. CONST. art. I, § 13. This entitles them “to full discovery within a


PETITION FOR WRIT OF MANDAMUS                                                  Page 12
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reasonable time, to develop their claims and defenses, and to have the case tried.”

In re Gore, 251 S.W.3d at 699. The Order entered by Judge Drum stays all

proceedings, all discovery, and vacated the trial setting of December 1, 2015. It

precludes not just discovery that might implicate defendant Petruska’s privilege

against incrimination, it prevents discovery from other parties and witnesses

regarding events which occurred more than six (6) years before the assault. Any

further delay may make witnesses unavailable and compound the problem of

witnesses’ failing memory.

        Contrary to the assertions in defendant Petruska’s motion, there is no

evidence that “the criminal action will be resolved in the reasonably near future.”

At the time defendant filed the motion, defendant had continued the pre-trial

hearing in the criminal suit eight (8) times. Record 154.5

        There is no judicial efficiency which is promoted by the stay. Unlike the

cases of parallel criminal and civil proceedings, a criminal conviction, or acquittal,

will have no impact on the quiet title action or the fraud claims arising from the

execution of a deed and deed of trust in 2008. The criminal proceeding will not

simplify or streamline the issues in the underlying suit.

        The interests of Defendant Petruska do not require a stay of all proceedings.

The facts in 2008 have not been shown to have any relevance to the criminal


5
    In a meeting with the district attorney’s office after the August 18, 2015 pre-trial hearing,
    Relators were told it would be more than a year before a trial would be held.
PETITION FOR WRIT OF MANDAMUS                                                            Page 13
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charges. Contrary to Defendant’s motion the cases do not arise from the same

alleged facts. To the extent he has not already waived his privilege on the subject

of the assault, defendant Petruska may selectively invoke his right against self

incrimination, decline to testify and/or seek a protective order.

        There is no public interest served by a stay of the civil suit. Contrary to

Defendant’s argument, there is no “nearly identical criminal action.”

        If the Court finds the subject matter of the criminal charges are substantially

the same as the subject matter of the civil suit, a complete stay of the civil

proceeding is still not warranted. A limited stay only of discovery which directly

seeks testimony from the party subject to criminal proceedings is sufficient to

protect Defendant’s interests. Librado v. M.S. Carriers, 2002 WL 31495988 *3.

Stays of discovery which would reach to restrict discovery that is “not privileged”

are not warranted. Wehling v. Columbia Broadcasting System, 611 F.2d 1026 (5th

Cir. 1980).

        Even the cases relied upon by Defendant allow few complete stays of

proceedings. Only the cases of Trustees of Plumbers and Pipefitters Nat’l Pension

Fund v. Transworld Mich., Inc., 886 F.Supp. 11334 (S.D.N.Y. 1995); Javier v.

Garcia-Botello, 218 F.R.D. 72 (W.D.N.Y. 2003); and Jackson v. Smith Sec. Serv.

Inc., 786 S.W.2d 787 (Tex. App.—Houston [1st Dist.] 1990, no writ) allowed a

complete stay. Each had unique circumstances which do not exist in this case. In


PETITION FOR WRIT OF MANDAMUS                                                   Page 14
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Plumbers the court found the civil and criminal actions were based on the same

wrongful conduct and the resolution of the criminal case would have an impact on

the outcome of the civil action. In Javier the court found the claims in both actions

“involve nearly identical facts.” The only Texas case, Jackson, involved a unique

procedural scenario. The defendant had been convicted in the criminal suit and

filed an appeal. Based upon the conviction, summary judgment was granted in the

civil action. The defendant appealed the summary judgment, arguing that since the

conviction was on appeal it was not final and could not support summary judgment

in the civil action. The Court of Appeals stayed the civil appeal, pending the

appeal of the conviction.

        None of these cases have application to the underlying suit. There is no

overlap between the civil and criminal cases. There is no legal basis to grant a stay

of all proceedings. The Order staying the Lytles’ suit was an abuse of discretion

and the Respondent should be ordered to vacate the order, allow discovery to

proceed and set the matter for trial.

                                           PRAYER

        Therefore Relators respectfully request that this Court, on final hearing:

        1.      Issue a writ of mandamus directing Respondent the Hon. Teresa Drum
                to vacate the Order Staying Proceedings signed August 21, 2015 and
                to reinstate the trial date of December 1, 2015; and

        2.      Grant any other relief to which Relators are entitled.


PETITION FOR WRIT OF MANDAMUS                                                   Page 15
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                                           Respectfully submitted,

                                           BELLINGER & SUBERG, L.L.P.




                                           By:
                                                 BARBARA L. EMERSON
                                                 Texas State Bar No. 06599400
                                                 10,000 N. Central Expy., Suite 900
                                                 Dallas, Texas 75231
                                                 Telephone: 214/954-9540
                                                 Facsimile: 214/954-9541
                                                 bemerson@bd-law.com

                                           ATTORNEY FOR RELATORS,
                                           THOMAS LYTLE AND ELLEN LYTLE




PETITION FOR WRIT OF MANDAMUS                                                  Page 16
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                                           VERIFICATION


STATE OF TEXAS                             §
                                           §
COUNTY OF DALLAS                           §


        BEFORE ME, the undersigned Notary Public, on this day personally

appeared Barbara L. Emerson, known to me, who after being duly sworn on her

oath stated that she is the counsel of record for Relators in the above cause, that she

has reviewed the petition and concluded that every factual statement in the petition

is supported by competent evidence included in the Appendix and/or the Record.




                                               Barbara L. Emerson



        Subscribed and sworn to before me on the 3rd day of September, 2015.




                                               Notary Public, State of Texas




PETITION FOR WRIT OF MANDAMUS                                                  Page 17
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                               CERTIFICATE OF SERVICE

        The undersigned certifies that a true and correct copy of the Petition for Writ

of Mandamus has been forwarded to all counsel via eservice and email on the 3 rd

day of September, 2015 as provided below.

Respondent – Via Hand Delivery                 Counsel to Helmuth Gutzke and
The Hon. Teresa Drum                           Zackiann Gutzke
County Courthouse                              Ralph E. Allen
121 E. Dallas St., Suite 301                   Attorney and Counselor at Law
Canton TX, 75103                               100 East Ferguson, Suite 901
(903)567-7555 Telephone                        Tyler, Texas 75702
c/o Kathy Jackson, Court Administrator         (903) 593-9727 Telephone
kjackson@vanzandtcounty.org                    rallen@tyler.net

Counsel to David C. Petruska and
Sandra L. Petruska
Michael F. Pezzulli
Holmes Firm PC
14911 Quorum Drive, Suite 340
Dallas, Texas 75254
(469) 916-7700 Telephone
Michael@courtroom.com




                                           Barbara L. Emerson
                                           Texas State Bar No. 06599400
                                           BELLINGER & SUBERG, L.L.P.
                                           10,000 N. Central Expy., Suite 900
                                           Dallas, Texas 75231
                                           Telephone: 214/954-9540
                                           Facsimile: 214/954-9541
                                           bemerson@bd-law.com




PETITION FOR WRIT OF MANDAMUS                                                   Page 18
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