                                                                                          ACCEPTED
                                                                                      12-15-00216-CV
                                                                         TWELFTH COURT OF APPEALS
                                                                                       TYLER, TEXAS
                                                                                 10/9/2015 2:13:25 PM
                                                                                            Pam Estes
                                                                                               CLERK


                                   NO. 12-15-00216-CV

                                                                      FILED IN
                                                               12th COURT OF APPEALS
                           IN THE COURT OF APPEALS                  TYLER, TEXAS
                      FOR THE TWELFTY DISTRICT OF TEXAS        10/9/2015 2:13:25 PM
                                                                      PAM ESTES
                                                                        Clerk

                     IN RE THOMAS LYTLE AND ELLEN LYTLE,
                                               REALTORS,

                                              v.
                     THE HONORABLE TERESA DRUM, JUDGE
                       PRESIDING 29rn 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.


REAL PARTIES IN INTEREST, DAVID C. PETRUSKA'S AND SANDRA L. PETRUSKA'S
             RESPONSE TO PETITION FOR WRIT OF MANDAMUS



Michael F. Pezzulli
State Bar No. 15881900
michael@courtroom.com
14911 Quorum Drive, Suite 340
Dallas, Texas 75254
Ph: 469-916-7700
Fax: 469-916-7705
                            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 Realtors:
                                                              Barbara L. Emerson
                                                              Texas State Bar No. 06599400
                                                              Bellinger & Suberg, LLP
                                                              10,000 N. Central Expressway
                                                              Suite 900
                                                              Dallas, Texas 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, Texas 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 -Facsimle
                                                              m ichael@courtroom.com

and

Helmuth K. Gutzke and                                         Counsel to Gutzke Parties:
                                                              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
                                           TABLE OF CONTENTS
                                                                                                           PAGE
IDENTITY OF PARTIES AND COUNSEL ..................................................... .i

TABLE OF CONTENTS ........... .. ............. ...... ...... ........ ....... .............. .. .... ... ii

INDEX OF AUTHORITIES ..... ...... .. ...... ... ....... .... ........................................ iii-iv

STATEMENT OF FACTS ....................................................................... ... !

ARGUMENT ....................... .. ... ... .. .......... ..... .... ................................ . ... .. 5


         A.       When the court forces the Defendant to choose between waiving his Fifth
                  Amendment right or suffering an adverse inference in this civil case, an abuse
                  of discretion occurs.

         B.       If ordered to give a civil deposition, Defendant will be unable to adequately
                  defend himself in both cases, thus violating his constitutional rights to due
                  process and against self-incrimination.

         C.       Several factors weigh in favor of granting the stay of the civil proceeding.

         D.       Texas Law Supports the Granting of the Requested Stay.

         E.       The Order staying the civil proceedings pending 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 was an appropriate exercise of
                  the courts inherent power to control her docket as well and an appropriate
                  exercise of her discretion.




                                                            ii
                                                 INDEX OF AUTHORITIES


CASES

Wehling v. Columbia Broadcasting System, 608 F.2d 1084 (5th Cir. 1979), on reh 'g,
611F.2d1026 (1980) ........ ... . .. ... . .. . ... ..... .. .. . .... . .. . ... ... ... .. . . .... . ... . .. .... .. ... .. . ... .5, 12

Simmons v. United States, 390 U.S. 377 (1968) .... .... . . .. .. . .. . .. .... ........ . . ... .... .. ... . ..... 6

United States v. Little Al, 712 F.2d 133, 136 (5th Cir. 1983)
(citing SEC v. First Financial Group of Texas, Inc., 659 F.2d 660, 668 (5th Cir. 1981)) ..... 7

Gebhardt v. Gallardo, 891 S.W.2d 327 (Tex. App.-San Antonio 1995, no writ) ............... 7

Baxter v. Palmigiano, 425 U.S. 308 (1976) ..... . ....... .. .. ... .. ... .. .. .... .. .. . .. . .. ... ..... .. .... 7

Texas Department of Public Safety Officers Association v. Denton,
897 S.W.2d 757, 763 (Tex. 1995) .. .. .. .. .. .... .... ...... .. ..... ... .. .. .. ...... ..... ..... ... ........ 7, 12

Librada v. MS. Carriers, Inc., C.A. No. 3:02-CV-2095D,
2002 WL 31495988 (N.D. Tex. Nov. 5, 2002) ................ .. ... ... .. .. ... ... . ... .. ........ .. ... 7, 8

Myer v. Tunks, 360 S.W.2d 518, 522-23 (Tex. 1962) .. ............... . .. ......... ...... .... . .. .. .8

Space Master Int'!, Inc. v. Porta-Kamp Mfg. Co.,
794 S.W.2d 944, 946 (Tex. App.-Houston [1st Dist.] 1990, no writ) . . .. .... .. ... .. . .. ....... .. 8

Jackson v. Smith Sec. Serv., Inc., 786 S.W.2d 787,
788-89 (Tex. App.-Houston [1st Dist.] 1990, no writ) .............. .. .......... ... ........ .. ..... 8

Fierson v. City ofTerrell, C.A. No. 3:02 CV 2340-H,
2003 WL 21355969 at *3 (N.D. Tex. June 6, 2003) .. .................. .. ....... . ....... .. ...... 8, 9

Trustees of Plumbers and Pipefitters Nat 'l Pension Fund v. Transworld Mech., Inc.,
866 F. Supp. 1134, 1139 (S.D.N.Y. 1995) ........................................................ 8, 10

United States v. Melchor Moreno, 536 F.2d 1024, 1049
(5th Cir. 1976) (citing United States v. Gomez-Rojas,
507 F.2d 1213, 1220 (5th Cir. 1975)) . .. ... . .. . .. ...... ... .. . ..... ............... .. ............... .9

Kmart Corporation v. Aronds, C.A. No. H-96-1212 (S.D. Tex. Dec. 11, 1996)
(citing SEC v. Dresser Industries, Inc., 628 F.2d 1368, 1375-76 (D.C. Cir),
cert. denied, 449 U.S. 993 (1980)) .... . .. .. .. ...... ........ .. .... ..... ........ .. .. .. . .. ... .. ... .. 9




                                                                      iii
Javier H Garcia-Botello, 218 F.R.D. 72, 75 (W.D.N.Y. 2003) ................... ........... 11

McCarth v. Arndstein, 266 U.S. 34, 40, 45 S.Ct. 16, 17, 69 L. Ed. 158 (1924) ............. 13

Kastigar v. United States, 406 U.S. 441, 444, 92 S.Ct. 1653,
1656, 32 L. Ed. 2d 212 (1972) .................................................................... 13

Spevackv. Klein, 385 U.S. 511, 515, 87 S.Ct. 625, 628, 17 L. Ed. 2d 574 (1967) ......... 13

Malloy v. Hogan, 378, U.S. 1, 7, 84 S.Ct. 1489, 1493, 12 L. Ed. 2d 653 (1964) ........... 13

Callahan v. Giles, 137 Tex. 571, 155 S.W.2d 793 (1941) ...................... ......... ...... 15

Westerman v. Mims, 111 Tex. 29, 227 S.W. 178 (1921); City of Wink v. Griffith Amusement
Co., 129 Tex. 40, 100 S.W.2d 695 (1936) ...................................................... .15




                                                      iv
                                                   I.

                                   STATEMENT OF FACTS


        Real Parties in Interest, David C. Petruska, an attorney, 1 and Sandra L. Petruska

("Petruska") supplement the Relators' Statement of facts as follows:

        Contrary to the representations of Realtors that "Petruska is currently a defendant

in two (2) actions" 2 there are actually three (3) underlying matters that all involve Relator

Thomas Lytle and should be considered in reviewing this Petition for Writ of Mandamus:

    •   April 14, 2014: State of Texas v. David Charles Petruska, Charge: PC Section
        22.02-Aggravated Assault with a Deadly Weapon (Complaining Witness: Tom
        Lytle)3 ("Defendant, on or about February 15th, 2014, and before the presentment
        of this indictment, in the County and State aforesaid, did then and there
        intentionally or knowingly threaten TOM LYTLE with imminent bodily injury by
        POINTING A FIREARM AT HIM AND THREATENING TO KILL HIM, and
        did then and there use or exhibit a deadly weapon to wit: A FIREARM during the
        commission of the said assault and said FIREARM in the manner and means us use
        could have caused serious bodily injury or death to TOM LYTLE;" (emphasis
        supplied)

    •   July 8, 2014: Plaintiff's Original Petition, Thomas Lytle v. David C. Petruska,
        In the County Court at Law No. 2, Dallas County, Texas ("Defendant
        intentionally and knowingly threatened Plaintiff with imminent bodily injury.
        Defendant pointed an assault rifle at Plaintiff from less than 10 feet away, and
        threatened Plaintiff with imminent bodily injury ... ") (emphasis supplied) 4




1
  David Petruska is an attorney licensed and in good standing by the State Bar of Texas,
SBN: 15853200.
2
  Relators Petition for Writ of Mandamus at Page 5.
3
  Relators Appendix to Petition for Writ of Mandamus ("Relators APP"), at Relators APP
at 15-16.
4
  Respondents Record regarding Petition for Writ of Mandamus ("Respondents Rec), at
Respondents Rec at 1-

REAL PARTIES IN INTEREST, DAVID C. PETRUSKA AND SANDRA L. PETRUSKA'S
OPPOSITION TO RELATORS PETITION FOR WRIT OF MANDAMUS                                             PAGE 1
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    •   July 9, 2014: Plaintiffs' Original Petition, Thomas Lvtle and Ellen Lvtle v. David
        C. Petruska, Sandra L. Petruska, Compass Bank, Helmuth K. Gutzke and
        Zackiann Gutzke, In the District Court, 294th Judicial District, Van Zandt County,
        Texas 5

            o    "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." 6 (emphasis supplied)

    In the third matter, the Van Zandt County Case which is the subject of this Petition for

    Writ of Mandamus, there are additional statements and representations by Relator that

    are relevant to the Court's consideration:

    •   September 30, 2014: Plaintiffs' First Supplemental Response to Request for
        Disclosures, responding to (c) "The legal theories and, in general, the factual bases
        of the responding party's claims ..... "

            o    "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" 7

    •   February 12, 2015: Plaintiffs' First Amended Petition:

             o   "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." 8

        Repeatedly, the Relators alleged as an element of their proof the claims involving

the alleged assault of Mr. Thomas Lytle by David C. Petruska with an "assault rifle." If

the Relators did not believe that this allegation was a material part of their proof, they could

have amended it out of their Petition when they filed their amendment on February 15,


5
  Plaintiffs Van Zandt County Case, Cause No. 14-001 72, the underlying case to this
Petition for Writ of Mandamus. (Van Zandt Case)
6
  Plaintiffs Original Petition (Van Zandt Case) at Page 4, Paragraph 24. Respondents
Rec at RPI 0001 - 0006.
7
  Relators' Supplemental Record Regarding Petition for Writ of Mandamus at 28-31.
8
  Relators' Record Regarding Petition for Writ of Mandamus at Record 127.

REAL PARTIES IN INTEREST, DAVID C. PETRUSKA AND SANDRA L. PETRUSKA'S
OPPOSITION TO RELA TORS PETITION FOR WRIT OF MANDAMUS                                            PAGE2
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2015. They did not demonstrating that they had a belief that these allegations were

important proof elements in their claim against the Petruskas. It is disingenuous at best to

now say that these allegations should not be considered when evaluating the decision of

the Honorable Teresa Drum, Judge Presiding, in entering the Stay of the Proceedings.

        The Order signed by Judge Drum virtually identical to the Order that the Relators

approved in the Dallas County case. The Realtors neglected to mention this material fact

to this Court in their Petition for Writ of Mandamus.

        Referring back to the Dallas County case, Thomas Lytle v. David Petruska, the

Relators agreed to the following Order, both as to Form and Substance:

        August 3, 2015: AGREED ORDER STAYING PROCEEDINGS:

        "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 or 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 .... " 9

    •   The above referenced Order arising out of County Court at Law No. 2, Dallas
        County Texas was:


9
 Relators Supplemental Record Regarding Petition for Writ of Mandamus at
Supplemental Record 32.

REAL PARTIES IN INTEREST, DAVID C. PETRUSKA AND SANDRA L. PETRUSKA'S
OPPOSITION TO RELA TORS PETITION FOR WRIT OF MANDAMUS                                            PAGE3
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             o   APPROVED AS TO FORM AND SUBSTANCE
                   • /s/ Barbara Emerson, Counsel for Plaintiff [Thomas Lytle]. 10

     The Order complained of in this Petition for Writ of Mandamus is, in all material

respects, IDENTICAL to the Order Approved as to Form and Substance by Ms. Barbara

Emerson, Counsel for Relator Thomas Lytle. As the record reveals, Ms. Emerson is

counsel to Mr. Lytle in both cases.

     Despite the remarkable similarity in the allegations relating to the claimed assault of

Mr. Lytle by Mr. Petruska in the Indictment, the Van Zandt County case and the Dallas

County Case, there is not one mention of the Dallas County case by Relators in their

Petition for Writ of Mandamus. There is, however, a material misstatement by Relators in

their Petition for Writ of Mandamus when they represent to this Court that "Petruska is

currently a defendant in two (2) actions. The underlying suit and a criminal prosecution

pending in the same court. Record 145-146" 11 As can be seen by the above factual

recitation, Mr. Petruska is involved in three (3) actions, the criminal case, with Mr. Lytle

being the complaining witness, and two (2) civil actions, both of which are brought by Mr.

Lytle with the same counsel, Ms. Barbara Emerson.

     The Petruskas also take issue with the representations that the underlying lawsuit

relates only to a 2008 transaction. If the allegations recited above in the Van Zandt civil

suit relating to the alleged assault with an assault rifle were and are irrelevant, why were



10
   Interestingly, while the referenced order was included by Relators as the last two pages
of their Supplemental record regarding Petition for Writ of Mandamus, it is never once
mentioned in the body of their Petition for Writ of Mandamus.
11
   Petition for Writ of Mandamus at Page 5 B. For the record, despite Relator's claim
that Petruska pushes the "envelope on bad faith pleadings" (Id at page 12), the Petruskas
will not engage in such personal attacks despite the actual facts as are revealed in this
Opposition to the Petition for Writ of Mandamus.

REAL PARTIES IN INTEREST, DAVID C. PETRUSKA AND SANDRA L. PETRUSKA'S
OPPOSITION TO RELA TORS PETITION FOR WRIT OF MANDAMUS                                              PAGE4
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they pled the same facts in the Plaintiffs' Original Petition (a copy of which was not

provided to the Court by the Relators ), in the Relators Disclosures, where such allegation

of the alleged assault by Mr. Petruska with the ARI 5 was represented to be "a factual basis

of the responding party's claims .... " and in the Relators Amended Petition in the

underlying suit? The allegation relating to the alleged assault by Mr. Petruska would not

be in every key pleading by the Relator if they considered it irrelevant. Accordingly, such

allegation must be considered an important proof element by the Relators and should be

considered by this Court in reviewing the Relators' Petition for Writ of Mandamus.

     The Petruskas are requesting that this Court deny the Petition for Writ of Mandamus

and allow the Order of the Honorable Teresa A. Drum to stand.

                                                   II.

                                           ARGUMENT

RESPONDENT'S ORDER OF AUGUST 21, 2015 STAYING ALL PROCEEDINGS
WAS NOT AN ABUSE OF DISCRETION AND THIS PETITON FOR WRIT OF
MANDAMUS SHOULD BE DENIED.

A.      When the court forces the Defendant 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




REAL PARTIES IN INTEREST, DAVID C. PETRUSKA AND SANDRA L. PETRUSKA'S
OPPOSITION TO RELA TORS PETITION FOR WRIT OF MANDAMUS                                            PAGE5
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RESPONSE TO MANDAMUS V2.DOCX
Wehling to answer the discovery requests or suffer dismissal of his civil case 12 •

Subsequently, the district court dismissed his case and refused to grant a stay of civil

discovery. Id. 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 which require a party to surrender one constitutional right in

order to assert another." 608 F.2d at 1088 (noting that dismissal of the civil case is

inappropriate where other, less burdensome remedies [such as a stay of civil discovery] are

available) (citing Simmons v. United States, 390 U.S. 377, 394 (1968)) 13 . 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 constitutional 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 Plaintiffs, Tom Lytle and Ellen 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


12
   Wehling v. Columbia Broadcasting System, 608 F.2d 1084 (5 1h Cir. 1979), on reh 'g,
611F.2d1026 (1980)
13
   Simmons v. United States, 390 U.S. 377 (1968)

REAL PARTIES IN INTEREST, DAVID C. PETRUSKA AND SANDRA L. PETRUSKA'S
OPPOSITION TO RELA TORS PETITION FOR WRIT OF MANDAMUS                                            PAGE6
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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 un-rung.

        The trial court properly stayed the civil case because, as here, such a stay is

necessary to avoid "substantial and irreparable prejudice." 14 In this case, Petruskas'

exposure to an adverse inference from the invocation of the Fifth Amendment would

similarly result in such "substantial and irreparable prejudice" if the action proceeds. Each

time David Petruska asserts the Fifth Amendment privilege, which would occur

continuously throughout these proceedings, his credibility would be subject to negative

inferences. 15   16
                      Undoubtedly, the accumulated effect of these negative inferences will be

crippling to his defense, and will force David Petruska to relinquish his right to due process

and forfeit his legal remedies in this civil case.

        Under these circumstances, the Court should attempt to fashion a remedy that does

not impinge upon the Petruskas' constitutional right and does not unduly prejudice either

of the parties. ("The trial court should weigh options for delaying civil proceedings during

the pendency of criminal investigations or parallel proceedings") 17 . A temporary judicial

stay is one such remedy. (Finding that a partial stay was appropriate until such time as a




14
   United States v. Little Al, 712 F.2d 133, 136 (5th Cir. 1983) (citing SEC v. First
Financial Group ofTexas, Inc., 659 F.2d 660, 668 (5th Cir. 1981))
15
   Gebhardt v. Gallardo, 891 S.W.2d 327 (Tex. App.-San Antonio 1995, no writ)
16
   Baxter v. Palmigiano, 425 U.S. 308 (1976)
17
   Texas Department of Public Safety Officers Association v. Denton, 897 S.W.2d 757,
763 (Tex. 1995)

REAL PARTIES IN INTEREST, DAVID C. PETRUSKA AND SANDRA L. PETRUSKA'S
OPPOSITION TO RELATORS PETITION FOR WRIT OF MANDAMUS                                             PAGE?
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verdict of not guilty has been returned or sentencing has been completed in the criminal

action against defendant). 18

        Under Texas law, a trial court may stay a pending case at its discretion. 19                20
                                                                                                         In

determining whether to stay an action, the trial court should consider the similarity of issues
                                                                   21
between the criminal matter and the civil litigation.                   (Where the court using its

discretionary power stayed the plaintiffs appeal of her civil case "until the Court of

Criminal Appeals has decided her criminal appeal and issued a mandate").

C.      Several factors weigh in favor of granting the stay of the civil proceeding.

        All of the common law factors point to a stay of the civil proceeding. When

considering a motion to stay in the context of competing interests between the parties,

courts generally weigh several factors, including: (I) the extent to which the issues in the

two cases overlap, (2) the status of the cases including whether the defendant has been

indicted, (3) the interests of the plaintiff in proceeding versus the prejudice caused by delay,

(4) the interests of the defendant, (5) the interests of the courts, and (6) the public interest. 22




18
   Librada v. MS. Carriers, Inc., C.A. No. 3:02-CV-2095D, 2002 WL 31495988 (N.D.
Tex. Nov. 5, 2002)
19
   Myer v. Tunks, 360 S.W.2d 518, 522-23 (Tex. 1962)
20
   Space Master Int'!, Inc. v. Porta-Kamp Mfg. Co., 794 S.W.2d 944, 946 (Tex. App.-
Houston [1st Dist.] 1990, no writ)
21
   Jackson v. Smith Sec. Serv., Inc., 786 S.W.2d 787, 788-89 (Tex. App.-Houston [1st
Dist.] 1990, no writ)
22
   Librada v. MS. Carriers, Inc., C.A. No. 3:02-CV-2095D, 2002 WL 31495988 at *1
(N.D. Tex. Nov. 5, 2002)

REAL PARTIES IN INTEREST, DAVID C. PETRUSKA AND SANDRA L. PETRUSKA'S
OPPOSITION TO RELATORS PETITION FOR WRIT OF MANDAMUS                                             PAGES
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23 24
        Each of these factors support staying this case pending resolution of the parallel

criminal proceeding against the Defendant.

          The most important factor to be considered in determining whether to grant a stay

"is the degree to which the civil issues overlap with the criminal issues."25 (Finding that

the overlap between the issues in parallel civil and criminal sexual harassment suits

justified a civil stay). In this case, the subject matter of the civil suit relating to the alleged

assault with an assault rifle and the criminal indictment is identical, both actions arise out

of the same February 15, 2014 allegations that the Defendant threatened the Plaintiff with

a deadly weapon. In fact, the overlap is so extensive that the Defendant could "legitimately

refuse to answer essentially all relevant questions relating to this allegation because of the

threat of incrimination." 26 (Holding that in such circumstances, a witness could be totally

excused from responding to civil inquiries). Here, the criminal and civil cases almost

completely overlap as it relates to the allegations involving the alleged assault with an

AR15. ("[T]he strongest case for deferring civil proceedings until after completion of

criminal proceedings is where a party under indictment for a serious offense is required to

defend a civil or administrative action involving the same matter." Id. at 5) 27 .




23
   Fierson v. City ofTerrell, C.A. No. 3:02 CV 2340-H, 2003 WL 21355969 at *3 (N.D.
Tex. June 6, 2003)
24
   Trustees of Plumbers and Pipefitters Nat 'l Pension Fund v. Transworld Mech., Inc.,
866 F. Supp. 1134, 1139 (S.D.N.Y. 1995)
25
   Fierson v. City ofTerrell, C.A. No. 3:02 CV 2340-H, 2003 WL 21355969 at *3 (N.D.
Tex. June 6, 2003)
26
   United States v. Melchor Moreno, 536 F.2d 1024, 1049 (5th Cir. 1976) (citing United
States v. Gomez-Rojas, 507 F.2d 1213, 1220 (5th Cir. 1975))
27
   Kmart Corporation v. Aronds, C.A. No. H-96-1212 (S.D. Tex. Dec. 11, 1996) (citing
SEC v. Dresser Industries, Inc., 628 F.2d 1368, 1375-76 (D.C. Cir), cert. denied, 449
U.S. 993 (1980))

REAL PARTIES IN INTEREST, DAVID C. PETRUSKA AND SANDRA L. PETRUSKA'S
OPPOSITION TO RELATORS PETITION FOR WRIT OF MANDAMUS                                             PAGE9
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        The second factor, the status of the cases, also weighs in favor of a stay of this civil

action. See id. ("A stay of a civil case is most appropriate where a party to the civil case

has already been indicted for the same conduct.. .. "). In this matter, David Petruska faces

current pending felony charges for the same conduct alleged by Plaintiff herein. If

discovery against Mr. Petruska were to proceed before resolution of the criminal

proceeding, the parties in both cases might very well encounter the kinds of conflicts and

tensions-e.g., assertions of Fifth Amendment privileges by potential witnesses and

concerns about the impact of discovery in this action on the parallel criminal proceeding-

that a stay is precisely designed to prevent.

        The third factor cited above, the interests of the plaintiff, also weighs in favor of a

stay of this proceeding. Because it appears that the criminal action will be resolved in the

reasonably near future, any inconvenience or other prejudice associated with delaying these

proceedings is likely to be slight, if not altogether non-existent. See Trustees of Plumbers,

886 F. Supp. at 1140 28 (indicating that the expectation that the related criminal action

would be resolved within six months supported staying the civil case). Moreover, the

interests of the Plaintiff herein, must be severely discounted to a de minimis amount, for

the Plaintiff's entire claims are that he has fear and apprehension.               If the Plaintiff can

actually prove his allegations, there will be little impact on his claimed damages for a six-

month to a year stay in the civil action.

        The interests of the Defendant, the fourth factor, clearly support a stay of this

proceeding. Because the two cases arise from the same alleged facts, the Defendant faces



28Trustees of Plumbers and Pipejitters Nat'/ Pension Fund v. Transworld Mech., Inc.,
866 F. Supp. 1134, 1139 (S.D.N.Y. 1995)

REAL PARTIES IN INTEREST, DAVID C. PETRUSKA AND SANDRA L. PETRUSKA'S
OPPOSITION TO RELA TORS PETITION FOR WRIT OF MANDAMUS                                           PAGE 10
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the unenviable prospect that every statement he makes in the civil proceeding could be

used against him in the criminal case (where, of course, ordinarily the parties are permitted

only limited discovery). In short, allowing discovery against the Defendant in the instant

action, and that would include discovery from the Defendant or his wife, to proceed on a

simultaneous "double track" with the criminal action compromises Defendant's due

process rights in both proceedings.

         The fifth factor cited above, which considers the courts' interests, also supports

staying this proceeding. Staying discovery in this case against the Defendant until the

criminal proceeding is no longer pending will serve judicial economy because the parties

will be in a better position to cooperate with each other on testimonial matters-thereby

avoiding unnecessary disputes and moving the case along-once the overriding concern

about the effect testimony in this proceeding has on the criminal case is removed. A short

stay in this proceeding also alleviates the consideration by the trial court of the adverse

inference claims that will arise if civil discovery against the Defendant were allowed to

proceed.

         Finally, the last factor, the public interest, supports a stay as do the other factors.

"[T]he public's interest in the integrity of the criminal case is entitled to precedence over

the civil litigant."29 Staying this action in favor of the nearly identical criminal action would

permit the latter to be resolved without any possibility of interference from the civil

proceeding (e.g., claims or disputes that one party was using the testimony in this civil

matter unfairly in the criminal case).




29
     Javier H Garcia-Botello, 218 F.R.D. 72, 75 (W.D.N.Y. 2003)

REAL PARTIES IN INTEREST, DAVID C. PETRUSKA AND SANDRA L. PETRUSKA'S
OPPOSITION TO RELATORS PETITION FOR WRIT OF MANDAMUS                                           PAGE 11
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     Thus, all of the factors weigh in favor of granting the stay of the civil proceeding.


D.      Texas Law Supports the Granting of the Requested Stay.


     The Texas Supreme Court has explained that the dangers of compelling "any

prospective criminal defendant to testify are real." 30 As "the scope of discovery allowed in

a civil trial may exceed what a prosecutor would be permitted in a criminal proceeding," a

prosecutor "could use the discovery responses ... against [Defendant] in a criminal

proceeding," for the civil "testimony might give a prosecutor a dress rehearsal of

[Defendant's] defense to criminal charges." Id. at 764-65 (collecting cases).


     Because of those dangers and due process concerns, the Texas Supreme Court has

followed its federal counterparts and held that even a civil plaintiff is entitled to the

protections afforded by the Fifth Amendment when there is a threat of criminal

proceedings. Id. at 760-61. Ifby asserting the right to silence, Defendant jeopardizes his

civil case, then the guarantee of that right would ring hollow. Even in the case where it is

a civil plaintiff who is using the privilege offensively, the Texas Supreme Court held that

the following should be considered in assessing how to proceed: When delaying civil

proceedings during the pendency of criminal investigations, one should consider the statute

of limitations for the relevant crime, and "the extent to which the delay would prejudice

the defendant's ability to prepare a defense." 31 Id. at 763.




30
   Texas Department of Public Safety Officers Association v. Denton, 897 S.W.2d 757,
763 (Tex. 1995) (Gonzalez, J., concurring)
31
   Citing Wehling v. Columbia Broadcasting System, 608 F.2d 1084 (5th Cir. 1979), on
reh'g, 611F.2d1026 (1980)

REAL PARTIES IN INTEREST, DAVID C. PETRUSKA AND SANDRA L. PETRUSKA'S
OPPOSITION TO RELATORS PETITION FOR WRIT OF MANDAMUS                                           PAGE 12
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     The Denton opinion stands for the proposition that the trial court must fashion a remedy

to make the proceeding fair to both parties.

     The Fifth Amendment can be asserted in both civil and criminal trials "wherever the

answer might tend to subject to criminal responsibility him who gives it."32 Generally, the

exercise of the privilege should not be penalized. 33 The rule against penalizing the use of

the privilege does not prohibit a trial court from taking acts to ensure that the civil

proceeding remains fair. 34 35

Id. at 760.

E.    THE ORDER STAYING THE CIVIL PROCEEDINGS PENDING 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 WAS AN
      APPROPRIATE EXERCISE OF THE COURTS INHERENT POWER TO
      CONTROL HER DOCKET AS WELL AND AN APPROPRIATE EXERCISE
      OF HER DISCRETION.

     Despite Relaters representation that Petruska is only a defendant in two (2) actions, the

truth is that Relater, Thomas Lytle, has sued David Petruska in two civil actions and is the

complaining witness in the criminal action or three (3) actions. 36 The Realtor in the trial

court case that is the subject of this Petition for Writ of Mandamus has repeatedly injected

the assault allegations that specifically relate to the allegations in the indictment.

     The stay ordered by the Honorable Teresa A Drum involves weighing Mr. Petruska's

fundamental constitutional right to a fair trial in this real estate and allegations that Mr.


32
   McCarth v. Arndstein, 266 U.S. 34, 40, 45 S.Ct. 16, 17, 69 L. Ed. 158 (1924)
33
   Kastigar v. United States, 406 U.S. 441, 444, 92 S.Ct. 1653, 1656, 32 L. Ed. 2d 212
(1972)
34
   Spevackv. Klein, 385 U.S. 511, 515, 87 S.Ct. 625, 628, 17 L. Ed. 2d 574 (1967)
35
   Malloy v. Hogan, 378, U.S. 1, 7, 84 S.Ct. 1489, 1493, 12 L. Ed. 2d 653 (1964)
36
   See Pages 1- 3, infra.

REAL PARTIES IN INTEREST, DAVID C. PETRUSKA AND SANDRA L. PETRUSKA' S
OPPOSITION TO RELATORS PETITION FOR WRIT OF MANDAMUS                                             PAGE 13
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Petruska engaged in a 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.

         As can be seen from the factual recitation above and contrary to the assertions of
                                                                                   37
the Realtors, this case is anything but "fairly straight forward."                      The Realtors

conveniently neglect to tell this Court that they have a parallel civil claim against Mr.

Petruska in Dallas County which they have conceded is so close to the indictment that a

stay is appropriate. ' Their claim now that a stay is not appropriate in the instant case can

only mean that either (1) they have chosen to take a position inconsistent with a position

that they have already judicially admitted is appropriate or (2) they have engaged in a

strategy to attempt to forum shop the case that they want tried first since the Dallas County

Case was set for trial at or about the time that the Relators agreed to the stay of the Dallas

County Case.

      Certainly, the failure to disclose the Dallas County Case or either strategy listed above

should be considered in the granting or denial of the Petition for Writ of Mandamus. It is


37
     Petition for Writ of Mandamus at Page 7.

REAL PARTIES IN INTEREST, DAVID C. PETRUSKA AND SANDRA L. PETRUSKA'S
OPPOSITION TO RELATORS PETITION FOR WRIT OF MANDAMUS                                           PAGE 14
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true that, although mandamus is a legal remedy, it is governed, to some extent at least, by

equitable principles. 38 In some instances the equitable doctrine of clean hands has been

invoked to deny issuance of the writ. 39 The Petruskas would ask the Court to consider

whether or not the Realtors have come to this Court with clean hands and if they did not

come to this Court with clean hands, then deny the mandamus, for this reason, in addition

to those outlined above.

     WHEREFORE, the Petruskas respectfully request that this Court deny the Petition for

Writ of Mandamus in its entirety and grant the Petruskas any other relief to which they

may be entitled.

                                                    Respectfully submitted,

                                                    THE HOLMES FIRM PC


                                                    ls/Michael F. Pezzulli
                                                    Michael F. Pezzulli
                                                    State Bar No. 15881900
                                                    michael@courtroom.com
                                                    14911 Quorum Drive, Suite 340
                                                    Dallas, Texas 75254
                                                    Ph: 469-916-7700
                                                    Fax: 469-916-7705

                                                    ATTORNEYS FOR REAL PARTIES IN
                                                    INTEREST DAVID C. PETRUSKA AND
                                                    SANDRA L. PETRUSKA




38
  Callahan v. Giles, 137 Tex. 571, 155 S.W.2d 793 (1941)
39
  Westerman v. Mims, 111 Tex. 29, 227 S.W. 178 (1921); City of Wink v. Griffith
Amusement Co., 129 Tex. 40, 100 S.W.2d 695 (1936)

REAL PARTIES IN INTEREST, DAVID C. PETRUSKA AND SANDRA L. PETRUSKA'S
OPPOSITION TO RELATORS PETITION FOR WRIT OF MANDAMUS                                           PAGE 15
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                                 CERTIFICATE OF SERVICE
       The undersigned certifies that a true and correct copy of the Response to the
Petition for Writ of Mandamus has been forwarded to all counsel via e-filing and email
on the 9th day of October, 2015 as provided below.

RESPONDENT                                          COUNSEL TO HELMUTH GUTZKE
                                                    AND ZACKIANN GUTZKE
The Honorable Teresa Drum
County Courthouse                                   Ralph E. Allen
121 E. Dallas Street, Ste. 301                      Attorney and Counselor at Law
Canton, Texas 75103                                 100 East Ferguson, Ste. 901
c/o Kathy Jackson, Court Coordinator                Tyler, Texas 75702
kjackson@vanzandtcounty.org                         rallen@tyler.net

PLAINTIFF'S COUNSEL

Barbara L. Emerson
Bellinger & Suberg, L.L.P.
10,000 N. Central Expressway, Ste. 900
Dallas, Texas 75231
bemerson@bd-law.com


                                                             ls/Michael F. Pezzulli




REAL PARTIES IN INTEREST, DAVID C. PETRUSKA AND SANDRA L. PETRUSKA'S
OPPOSITION TO RELATORS 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

Michael Pezzulli, known to me, who after being duly sworn on her oath stated that she is

the counsel of record David C. Petruska and Sandra L. Petruska 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 Appendi~~k~



                                                    Mic~zzulli                            ~
        Subscribed and sworn to before me on this          ~ay of October, 2015.

             JEANA RENEE STEIN
            My Commilllon~rtl
             ' July 7, 2011c




REAL PARTIES IN INTEREST, DAVID C. PETRUSKA AND SANDRA L. PETRUSKA'S
OPPOSITION TO RELATORS PETITION FOR WRIT OF MANDAMUS                                           PAGE 17
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