                                                                                                   ACCEPTED
                                                                                               12-15-00216-CV
                                                                                  TWELFTH COURT OF APPEALS
                                                                                                TYLER, TEXAS
                                                                                           9/3/2015 2:56:56 PM
                                                                                                     Pam Estes
                                                                                                        CLERK

                              NO. ________________________

                                                                               FILED IN
                                      IN THE                            12th COURT OF APPEALS
                                                                             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.

                                RECORD REGARDING
                         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

RECORD REGARDING WRIT OF MANDAMUS                                                           i
\\Bdnt-fs1\wpprolaw\3191.002\274673.docx
        Now come the Relators herein and file herewith the Official Record

containing certified copies of pleadings and orders from the 294 th District Court of

Van Zandt County, Texas, as outlined on the Table of Contents.

        A hearing on the underlying motion was held on August 17, 2015, at which

time certain exhibits were offered into evidence. On August 25, 2015, a request

was made to Estella Grisham, the Court Reporter for 294th District Court of Van

Zandt County, Texas, and payment was arranged for the transcript of the hearing

held on August 17, 2015, regarding Defendant David C. Petruska's Motion to Stay

All Proceedings With Legal Authorities in Support. The transcript has not been

completed at the time of this filing. The record will be supplemented with the

transcript once it is completed.




RECORD REGARDING WRIT OF MANDAMUS                                                  ii
\\Bdnt-fs1\wpprolaw\3191.002\274673.docx
                                           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




RECORD REGARDING WRIT OF MANDAMUS                                                     iii
\\Bdnt-fs1\wpprolaw\3191.002\274673.docx
                               CERTIFICATE OF SERVICE

        The undersigned certifies that a true and correct copy of the Record

Regarding Petition for Writ of Mandamus has been forwarded to all counsel via

eservice and email on the 3rd 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, 7510                                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


RECORD REGARDING WRIT OF MANDAMUS                                               iv
\\Bdnt-fs1\wpprolaw\3191.002\274673.docx
                                    TABLE OF CONTENTS

                                                                         Page

Defendants David C. and Sandra L. Petruska's Response to Plaintiffs'     001
Motion for Summary Judgment on Liability, Subject to Their Motion
for Continuance, filed December 2, 1014;

Plaintiffs' First Amended Petition, filed February 12, 2015;             124

Trial Setting Notice, dated July 19, 2015;                               130

Defendant David C. Petruska's Motion to Stay All Proceedings With        132
Legal Authorities in Support, filed August 4, 2015;

Plaintiffs' Opposition to Defendant David C. Petruska's Motion to Stay   147
All Proceedings, filed August 14, 2015;

Order Staying Proceedings; signed August 21, 2015;                       153

Criminal Docket sheet from cause number CR14-00185, in which The         154
State of Texas versus David Charles Petruska, pending in the 294th
District Court of Van Zandt County, Texas;




RECORD REGARDING WRIT OF MANDAMUS                                               v
\\Bdnt-fs1\wpprolaw\3191.002\274673.docx
                                                                                                   Malisa Chaney


                                         NO. 14-00172      .

THOMAS LYTLE AND ELLEN                       §      IN THE DISTRICT COURT
LYTLE,                                       §
                                             §
v.                                           §
                                             §
DAVID C. PETRUSKA, SANDRA L.                 §      294th JUDICIAL DISTRICT
PETRUSKA, COMPASS BANK,                      §
HELMUTH K. GUTZKE, and                       §
ZACKIANN GUTZKE                              §      VANZANDT COUNTY TEXAS

            DEFENDANTS DAVID C. AND SANDRA L. PETRUSKA'S
      RESPONSE TO PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT ON
         LIABILITY. SUBJECT TO THEIR MOTION FOR CONTINUANCE

                                       . I. Introduction

       Because Defendants David and Sandra Petruska have already .s igned (and Plaintiffs

Thomas and Ellen Lytle already filed) a release of easement and because the Petruskas raise a

genuine issue of material fact on key elements of the Lytles' claim under section 12.002 of the

Civil Practice & Remedies Code, the Court should dismiss some of the Lytles claims because no
                                                                                                                   ;
                                                                                                                   '
live controversy exists and it should deny the Lytles' motion for summary judgment on liability.                   !.


                                        IT. Background

       In November 2002, Thomas and Ellen Lytle purchased the property at .1603 VanZandt

County Road 2319.
                                             .      .
       In May 2008, David and Sandra Petruska purchased the neighboring property at 1601

Van Zandt County Road. 2319. As they believed that their predecessors and others had done,

they drove on the Lytles' driveway for access to and from their property and house to the county

road for years without complaint. After another dispute in February 2014, the Lytles' attorney

demanded that the Petruskas release the easement so that the Lytles wouldn't sue. The Petruskas

DEFENDANTS DAVlD C. AND SANDRA L.                                                         Page 1
MOTION FOR SUMMARY JUDGMENT '"'"A<~..~~t<"-'-":'\
MOTION FOR CONTINUANCE




                                                                                     RECORD 1
 signed the release of easement. But the Lytles sued anyway.

                                                   ID. Standards

            As a plaintiff with the burden of proof, a plaintiff who moves for a traditional summary                                    _,
                                                                                        1
' judgment must conclusively establish each element of his or her claim. To defeat the motion,

 the defendant must present sufficient evidence to justify a reasonable jury in finding in his or her

  favor on the relevant elements? A c~urt should resolve all doubts and draw all reasonable

                                                     3
 inferences in the favor of the non-movant

                                 IV. Grounds to Deny Summary Judgment

 A.         The Petruskas specially except.

            1.      No Specific Grounds for Summary Judgment

            The Petruskas specially except4 to the Lytles' failure to state the specific grounds for their

 motion within the meaning of Rule 166a(c).

            2.       No Briefing on the Elements of Section 12.002

            The Petruskas specially except to the Lytles' failure to cite section 12.002 of the Civil

  Practice & Remedies Code, recite its elements, recite any case law under the section, or

  1
      See Tex. R. Civ. P. I66a(c);Bowman v. Brook3hire Grocery Co., 317 S.W.3d 500,503 (Tex. App.-Tyler 2010,
  pet. denied).
  2
   See Merchant v. PHH Mtge. Corp., No. 12-12-00261-CV, 2013 WL 5593493, *I (Tex. App.-Tyler Oct. 9, 2013,
  no pet.) (memo). .
  3
      See Bowman, 317 S.W.3d at 503.
  4
    "The purpose of special exceptions in the SUllllil81y-judgment procedure is to ensure that the parties and the trial
  court are focused on the same grounds." Michol O'Connor, O'Connor's Texas Rules, Civil Trials 2013, 604 (2013)
  (citing McConnellv. Southside Ind. Sch. Dist., 858 S.W.2d 337, 342-43 (fex. 1993) (discussing the need for clear
  summary-judgment issues and the use of exceptions to clarify doubts)). "If the motion or response states grounds
  that are unclear or ambiguous, it is 'prudent trial practice' to file special exceptions." Michol O'Connor,
  O'Connor's Texas Rules, Civil Trials 2013, 604 (2013) (Citing McConnellv. Southside Ind. Sch. Dist., 858 S.W.2d
  337, 342-43 {Tex. 1993) ("Prudent trial practice dictates that such an exception should be lodged to ensure that the
  parties, as well as the trial court, are focused on the same grounds.j).
                                                                    .
                                                                                                      ,....:·. ~
                                                                                                               ~ .   , '"     ...
  DEFENDANTS DAVID C. AND SANDRA L. PETRUSKA'S RESPONSE TOP~~ ,
  MOTION FOR SUMMARY JUDGMENT ON UABillTY, SUBJECT TO                               'I'IIElf" :    .;.'''·~"' ~~ C T
  MOTION FOR CONTINUANCE
                                                                                           ,
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straightforwardly argue the evidence as it may or may not apply to the elements.

B.        Lyltes' Requested Relief

          With respect to the Lytles' requested relief listed on pages 2-3 of their motion, the

Petruskas counter:

1.        Because David and Sandy Petruska signed an returned the release of easement at Tab -->

there is no live controversy with respect to the Lytles' requested relief in sections II(2Xa), (b),

and (c). There is nothing for the Court to declare, and there is no further relief for the Lytles to

obtain.

2.        In section II(2)(c), the Lytles ask the Court to "mandate" that the Petruskas sign

documents to release all claims to the disputed easement. In addition to the fact that the

Petruskas have already signed a release and, thus, that this request involves no live controversy,

the Lytles don't invoke a statute authorizing such relief

3.        With respect to the Lytles' requested relief in section II(2)(d), a deed of trust sets out a

lender's remedies against a borrower. A deed oftrust doesn't affect the borrower's neighbors.

To the extent that the Petruskas' deed of trust with Compass Bank may affect the Lyltes, the

Petruskas have already signed a release of easement. Thus, there is no live controversy with

respect to this requested relief as to the Petruskas. For example, the Lytles haven't asserted or

briefed a provision under Chapter 65 of the Civil Practice & Remedies Code or met the standards

for a preliminary injunction.

4.        As Fact Nos15-16 discuss below, the Petruskas did not <?ause any fraudulent documents

to be filed in the public records within the meaning of section 12.002ofthe Civil Practice &

Remedies Code.

DEFENDANTS DAVID C. AND SANDRA L. PETRUSKA'S RESPONSE TO
MOTION FOR SUMMARY JUDGMENT ON LIABII;.ITY, SUBJECT TO THEIR
MOTION FOR CONTINUANCE




                                                                                            RECORD 3
                                                                                                       -

C.     Lytles' Arguments

       The Lytles failed to conclusive prove all of the elements of their claims. The Petruskas

had reasonable grounds to believe that they had a valid easement as of May 16, 2008. Also, the

evidence shows that the Petruskas never used the deeds knowing that the easement was false or

fraudulent, and the Petruskas never had any intention to cause the Lytles any financial harm or

emotional distress.

                         V. Notice of Summary-Judgment Evidence

Tab            Description

Tab 1 Affidavit of David C. Petruska

       Tab A Field Notes

       Tab B Deed of Trust

       Tab C General Warranty Deed with Vendor's Lien

       Tab D Amendment to Contract dated April2008

       Tab E Amendment to Contract dated May 16, 2008

       Tab F Letter reCommitment to Title Insurance dated April10, 2008

       Tab G Letter from Emily Dunn's dated February 28, 2014

       Tab H 032614 Letter toE Dunn with release of Easement

       Tab I Survey revised

       Tab J Photos

Tab 2 Affidavit of Sandra L. Petruska

Tab 3 Thomas and Ellen Lytles' Objections and Responses to David and Sandra Petruskas'
      First Requests for Admission



                                                                                   .( . '   ·\ ·:··.
DEFENDANTS DAVID C. AND SANDRA L. PETRUSKA'S RESPONSE TO PLAINTIFF /J* ·'· a.· \ ~~l!';r.'JO;
MOTION FOR SUMMARY JUDGMENT ON LIABILITY, SUBJECT TO THEIR        . -~.
MOTION FOR CONTINUANCE




                                                                                     RECORD 4
                                        VI. Facts not Reasonably Disputed

A.          Properties

            1.       David and Sandy Petruska own the property at 1601 Van Zandt County

Road 2319. 5 The property lies to the south of Van Zandt County Road 2319. 6 Van Zandt

County Road runs roughly east and west. 7

            2.       Thomas and Ellen Lytle claim to own the neighboring, contiguous property at

1603 VanZandt County Road 2319. This property lies south of the county road and to the north

or northwest of 1601 VanZandt County Road 2319. 8

B.         Driveway

           3.        The properties at 1601 and 1603 Van Zandt County Road 2319 are contiguotis

along a boundary on the west side of i 601 (or the east side of 1603) running southwest from Van

Zandt County Road 2319. 9 A driveway or roadway, located on 1603 VanZandt County Road

2319, runs southwest from the county road along the boundary line towards the houses on both

                 °
properties. 1 For years, there has been a tum off from this driveway or roadway that connects to

a bam or other farm building and, later since 1997, the house on 1601 Van Zandt County Road

and a separate tum off from the driveway that connects to the house on 1603 Van Zandt County



5
    See David Petruska's Affidavit,,- 2, Tab 1 ; Sandra Petruska's Affidavit, '112. Tab 2.
6
    &e David Petruska's Affidavit,~ 2, Tab 1.
7
    See David Petruska's Affidavit, 'l 2, Tab 1.
8
    See David Petruska's Affidavit,~ 3, Tab 1.
9
    See David Petruska's Affidavit, 'II 4, Tab I.
10
     See David Petruska's Affidavit, 'Jj4, Tab I.
                                                                  . . ....,... ,. .·-~ ·'·'"·
DEFENDANTS DAVID C. AND SANDRA L. PETRUSKA'S RESPONSE TO P~f.~', .":.
MOTION FOR SUMMARY JUDGMENT ON LIABILITY, SUBJECT TO·THE~'·~?-IC'f
                                                                                            1111

MOTION FOR CONTINUANCE                               · . ..:-'"''<$~···•:•
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Road.11 Before February 2014, Thomas Lytle told David Petruska that this driveway or roadway

was a former county road and that one of his predecessor landowners bought it from the

county.I2

                                                                                                          13
            4.       A diagram of the properties with the driveway is at Tab 1(A).                              Aerial
                                                                                                                 14
photographs of the properties, the county road, and the driveway are atTab 1(J).                                      These

photographs depict the properties, including the disputed driveway with its turn offs that lead to

the houses on each parcel, as they existed after we bought the property in May 2008 and before

the Lytles first disputed their use of the driveway in February 2014. 15

·D.         Easement ·

            5.       The photos of the driveway at Tab J show that the persons living in the house on

1601 Van Zandt County Road 2319 used and drove vehicles on the driveway or roadway on
                                                                              16
1603 Van Zandt County
                .     2319 for access to and
                                          . from the house to the county road. The
driveway or roadway was there when the Petruska bought 1601 Van Zandt County Road in May

2008, and it was obvious from the driveway and its wear, tear, and tracks, by then, that the

driveway had been heavily used by both properties. 17 For example, the driveway b.3.d a separate




11
     See David Petruska's Affidavit,~ 4, Tab 1; Sandra Petruska's Affidavit,, 4, Tab 2.
12
     See David Petruska's Affidavit, 'J 4, Tab 1.
13
     See David Petruska's Affidavit,, 5, Tab 1.
14
     See David Petruska's Affidavit,~ 5, Tab 1.
15
     See David Petruska's Affidavit, 1 5, Tab 1; Sandra Petruska's Affidavit, '1! 5, Tab 2.
16
     See David Petruska's Affidavit,, 6, Tab 1; Sandra Petruska's Affidavit, 16, Tab 2.

     See David Petruska's Affidavit, 1 6, Tab 1; Sandra Petruska' s Affidavit,,~. Tab 2.
17



DEFENDANTS DAVID C. AND SANDRA L. PETRUSKA'S RESPONSE JO PLAINTIFFS'          . Page 6
MOTION FOR SUMMARY JUDGMENT ON LIABILITY, SUBJECT       ~IR . .;{), •s~\         JP
MOTIONFORCONTINUANCE                               /    ~"",;,'.  ·<-:'/ ·, \
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                                                                                                                                                                  18
and well-worn split off leading to the house on 1601 VanZandt County Road by. May 2008.

Both properties, 1601 and 1603 VanZandt County Road 2319, shared one mail-box post at the
                                                                                                                                                            19
comer of the driveway and the county road between May 2008 and February 2014.

E.         Title Company

           6.       On or about April 10, 2008, the Petruskas' title company-Elliott & Waldron

Abstract & Title Company of Canton, Texas-wrote them a letter.20 Schedule B of the

accompanying Commitment for Title Insurance "Exceptions from Coverage," stated, in part, "In

addition to the Exclusion and Conditions and Stipulations, your Policy will not cover loss, costs,

attorneys' fees, and expenses resulting from ... 10. Easements or claims of easements which

may or may not be recorded in the public records of Zandt County, Texas." At the time of their
                                                                                                                                                                       21
purchase, the Petruskas believed that this exclusion from the title policy was standard language.

They did not believe that this language referred specifically to the easement set out in the

General Warranty Deed with Vendor's Lien from the Gutzkes. 22 Also, they didn't understand

the title company as telling them that the easement to use the neighboring driveway was invalid

or non-existent. 23 They understood the company to be saying that it just didn't insure

easements. 24 Also, no one from the title company told the Petruska that the easement identified



     See David Petruska's Affidavit,~ 6, Tab l; Sandra Petruska's Affidavit,~ 6, Tab 2.
18


19
     See David Petruska's Affidavit,~ 6, Tab 1; Sandra Petruska's Affidavit,~ 6, Tab 2.
20
     See David Petruska's Affidavit, , 7, Tab 1.

     See David Petruska's Affidavit, ~ 7, Tab 1; Sandra Petruska's Affidavit, , 7, Tab 2.
21



     See David Petruska's Mfidavit, ~ 7, Tab 1; Sandra Petruska's Affidavit,~ 7, Tab 2.
22



     See David Petruska's Affidavit,~ 7, Tab l; Sandra Petruska's Affidavit,~ 7, Tab 2.
23



 See David Petruska's Affidavit,~ 7, Tab 1; Sandra Petruska's Affidavit, ~ 7, Tab 2.
24

DEFENDANTS DAVID C. AND SANDRA L. PETRUSKA'S RESPONSE TO PLAINTIFFS'                                                                                             Page7
MOTION FOR SUMMARY JUDGMENT ON LIABILITY, SL""BJECT TO TIU!:fR1,: 111• . •··.
MOTION FOR CONTINUANCE                                            i     . ,,,•. "> i :· 'CT C ., , ..
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                                                                                               ';1/       :
in the General Warranty Deed was not valid.25 In fact, no one at all, including the title company

personnel, the bank personnel, the Gutzkes, or anyone else, ever suggested to the Petruskas that
                                                                                                             26
the easement identified in the General Warranty Deed was not valid.                                                   From Januruy 2008

during the times the Petruskas visited the property to make their purchase decision, they drove on

the neighboring driveway to access the property. 27 So did the realtors and others involved in

their purchase? 8 No one, including the Lytles, complained about this? 9

            7.       As Exhibit B(l) to Plaintiffs Motion for Summary Judgment on Liability (filed

Oct. 29, 2014), the Lytles attached a copy of our title policy for the property. Schedule B

(Exceptions) states, in part, "We do not cover loss, costs, attorneys' fees and expenses resulting

from: ... 6(1) We do not insure access via the roadway shown on property owned Lytle adjacent

to NW line of property shown on survey dated April23, 2008 by Gerald A. Carter." The
                                                                                                                                                           30
Petruskas did not receive a copy of the title policy at the time of closing on May 16, 2008.

Buyers ordinarily do not receive copies of the title policy at the time of the closing. 31 Closings

are predicated on the title commitment. 32 Title companies customarily provide a final title policy




25
     See David Petruska's Affidavit, '1!7, Tab 1; Sandra Petruska's Affidavit, '1!7, Tab 2.
26
     See David Petruska's Affidavit, '1!7, Tab I; Sandra Petruska' s Affidavit, '1!7, Tab 2.
27
     See David Petruska's Affidavit, '1!7, Tab 1; Sandra Petruska's Affidavit, '1!7, Tab 2.
28
     See David Petruska's Affidavit, '1!7, Tab I ; Sandra Petruska's Affidavit, '1!7, Tab 2.
29
     See David Petruska's Affidavit, '1!7, Tab 1; Sandra Petruska's Affidavit, '1!7, Tab 2.
30
     See David Petruska' s Affidavit, '1!8, Tab 1; Sandra Petruska' s Affidavit, '1!8, Tab 2.
31
     See David Petruska's Affidavit, '1!8, Tab 1; Sandra Petruska's Affidavit, 'V 8, Tab 2.
32
     See David Petruska's Affidavit, , &, Tab 1; Sandra Petruska's Affidavit;                                              •..
                                                                                       ; . ~-   .. ~~'' \ '1 \ . I ! I ; , i . .• .

DEFENDANTS DAVID C. AND SANDRA L. PETRUSKA'S " PQ~Sk;'Nl P~~T{FFS'                                                                                         Page 8
MOTION FOR SUMMARY JUDGMENT ON LIABILITY, SOB.fEt;Ti;b~. -:,. . ,
MOTION FOR CONTINUANCE
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                                                                                                 .   ' 11 1 11j_lll~~
                                                                                                              _,:,;.:...
four to six weeks after a closing. 33 In fact, the Petruskas are unsure when they first saw a copy of

their title policy, but it was long after closing.34 Also, the title company is not stating that the

easement shown on the General Warranty Deed with Vendor's Lien (dated May 16, 2008) from

the Gutzkes is invalid. 35

F.        · Independent Survey

            8.       In early 2008, the Petruskas engaged an independent surveyor, Registered

Professional Surveyor No. 1935 Gearld A Carter, to survey the property at 1601 VanZandt

County Road 2319 and to confirm the property's boundaries. 36 Mr. Carter provided the

Petruskas and the title company with a survey, field notes, and diagrams. 37 Although they're not

experts at reading technical surveys or diagrams, they understood that the documents at Tab_

likewise confirmed and documented this easement. The Petruskas understood this in 2008, as

well, when they bad their General Warranty Deed with Vendor's Lien and our Deed of Trust

recorded in Van Zandt County's public land records. 38

G.          The Petruskas bought 1601 VanZandt County Road 2319.

            9.       On Apri124, 2008, the Petruskas, on the one band, and the Gutzkes, on the other

hand, signed an amendment to the real-estate contract for the property, chiefly to make David



33
     See David Petruska's Affidavit, 1 8, Tab 1; Sandra Petruska's Affidavit, 1 8, Tab 2.
34
     See David Petruska's Affidavit, 1 8, Tab 1; Sandra Petruska's Affidavit,'! 8, Tab 2.

     See David Petruska's Affidavit, 'l 8, Tab 1; Sandra Petruska's Affidavit,~ 8, Tab 2.
35


36
     See David Petruska's Affidavit,, 9, Tab 1; Sandra Petruska's Affidavit, 119, Tab 2.
37
     See David Petruska's Affidavit, 19, Tab 1; Sandra Petruska's Affidavit, 19, Tab 2.
38
     See David Petruska's Affidavit,, 9, Tab 1; Sandra Petruska's Affidavit, II) 9, Tab 2.




                                                                                             RECORD 9
Petruska a party-buyer to the contract. 39 At the time, the title company recommended that the
                                                                                  40
parties obtain documentation of the easement signed by the Lytles.                     Exhibit A to the

amendment stated, "Closing is conditioned upon conveyance of easement acceptable to buyers

allowing access to said property from private driveway owned by Ms. Lytle.'"' 1 In April or May

2008, Sandy Petruka called Thomas Lytle about signing a paper to meet the title company's

suggestion. 42 Thomas Lytle said that he didn't want to spend money on an attorney to confirm

an easement that was clear or obvious that residents of 1601 VanZandt County Road 2319 had
                                                                                                            44
possessed and used for years. 43 Given this, the Petruskas didn't seek further documentation.

            10.     On or about May 16, 2008, the Petruskas, relying in part, on the representations in

the General Warranty Deed as well as the representations ofTom Lytle in his phone

conversation with Sandy, purchased the real property consisting of just over 25 acres ofland,

with a house and other buildings, at 160 I Van Zandt County Road 2319, being described in that

General Warranty Deed with Vendor's Lien dated May 16, 2008, from Helmuth Gutzke and

Zackiann Gutzke, recorded with Document Number 2008-004602 of the deed records of Van

Zandt County, Texas. 45

           11.      On May 16, 2008, the Petmskas and the Gutzkes signed another amendment,

39
     See David Petruska's Affidavit,, 10, Tab 1.
40
     See David Petruska's Affidavit,~ 10, Tab I.
41
     See David Petruska's Affidavit,~ 10, Tab I.
42
     See Sandra Petruska's Affidavit,~ 10, Tab 2.

     See; Sandra Petruska' s Affidavit,~ 10, Tab I; see also David Petruska's Affidavit,~ 10, Tab 1.
43



     See David Petruska's Affidavit,~ 10, Tab 1; Sandra Petruska's Affidavit,~ 10, Tab I.
44



     See David Petruska's Affidavit,~ 10, Tab 1.
45



DEFENDANTS DAVID C. ANJ? SANDRA L. PETRUSKA'S                                                             Page 10
MOTION FOR SUMMARY JUDGMENT ON LIABILITY,
MOTION FOR CONTINCANCE




                                                                                                       RECORD 10
                                                                                          '·




which stated, in part, "Seller and Buyer agree to waive the condition of the contract relating to

obtaining an easement from Thomas M. or Ellen Lytle." 46 The Petruskas believed that they did

not need any additional documentation of the easement. 47 First, their general warranty deed

(dated May 26, 2008) set out the easement. 48 Second, an independent surveyor confmned the

easement in Apri12008. 49 Third, they believed that the Gutzkes had used and driven vehicles on

                                                                        °
the driveway or roadway for years before May 16, 2008. 5 Fourth, Thomas Lytle had

acknowledged the· easement in a phone conversation with Sandy in April or May 2008. 51

            12.      The Gutzkes stated that they owned fee simple title to the property, including the

easement, at the time the Petruskas purchased it 52 By the terms ofthe General Warranty Deed,

the Gutzkes warranted the title conveyed to them, including the easement. 53 In part, ihe Deed

stated, "All that certain lot, tract or parcel ofland ... of the called 5. 753 acre first tract and all of

the called 20.00 acre second tract ... together with an Easement for 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 ... and part of the called 1.10 acre tract conveyed to Thomas M. Lytle and Ellen


46
     See David Petruska's Affidavit, 1J 11, Tab 1.

     See David Petruska's Affidavit,~ 11-12, Tab 1; Sandra Petruska's Affidavit,~ 12-13, Tab 2.
47


48
     See David Petruska's Affidavit,~ 11-12, Tab 1; Sandra Petruska's Affidavit,    n 12-13, Tab 2.
~See David Petruska's Affidavit, 'J'J 11-12, Tab 1; Sandra Petruska's Affidavit, '11'11 12-13, Tab 2.
50
     See David Petruska's Affidavit,,, 11-12, Tab 1; Sandra Petruska's Affidavit, 'lf'lf12-13, Tab 2.
51
     See David Petruska's Affidavit,   n 11-12, Tab 1; Sandra Petruska's Affidavit,,, 12-13, Tab 2.
52
     See David Petruska's Affidavit, 'If 13, Tab 1.
53
     See David Petruska's Affidavit, 'If 13, Tab 1.

                                                                                                          Page 11




                                                                                                        RECORD 11
                                                               . ,.




Lytle ...."54 The Gutzkes executed and delivered the General Warranty Deed pursuant to a

purchase agreement and in consideration of the purchase price paid that the Petruskas paid to the

Gutzkes including purchase of the easement.55

            13.      On or about May 16,2008, the Petruskas also signed a Deed of Trust, which

contained the same property description and easement language as the General Warranty Deed

with Vendor's Lien, as part of secw:ing a loan from Compass Bank. 56

            14.      Between May 16,2008 and February 2014, the Petruskas used and drove on the

driveway on the Lytles' property without complaint.57 Both properties shared a single mail-box

post at the comer of the county road and the driveway or roadway. 58 Before February 2014,

David Petruska gave Thomas Lytle a check for what County Commissioner Virgil Melton told

David was one-half of the cost of repairing the culvert and entranceway from the county road to

the driveway or roadway, and Lytle cashed the check. 59

H.          The Petruskas had a valid easement on May 16, 2008.

            15.      The Petruskas believed that they had or acquired a valid easement, attached to

their property, to use and drive vehicles on the driveway or roadway located on 1603 Van Zandt

County Road 2319, on May 16,2008.60 First, their general warranty deed (dated May 26, 2008)


54
     See David Petruska's Affidavit, '1[13, Tab 1.
55
     See David Petruska's Affidavit, '1[13, Tab 1.
56
     See David Petruska's Affidavit, 'i 14, Tab 1.

     See David Petrus~'s Affidavit, 'i 15, Tab 1; Sandra Petruska's Affidavit, 1 15, Tab 2.
57


58
     See David Petruska's Affidavit, 'i 15, Tab 1; Sandra Petruska's Affidavit, 1 15, Tab 2.
59
     See David Petruska's Affidavit, 'i 15, Tab 1.
60
 See David Petruska's Affidavit,     n
                                 16-17, Tab 1; Sandra Petruska'
DEFENDANTS DAVID C. AND SANDRA L. PETRUSKA'S ~:Sll-(>f'ITE>~                                      Page 12
MOTION FOR SUMMARY JUDGMENT ON LIABILITY,.....,,....,..,.,..._.
MOTION FOR CONTINUANCE                                    .




                                                                                               RECORD 12
set out the easement. 61 Second, an independent surveyor confirmed the easement :in April

2008. 62 Third, they believed, based on conversations with the Gutzkes, that the Gutzkes had
                                                                                                      63
used and driven vehicles on the driveway or roadway for years before May 16, 2008.                         Fourth,
                                                                                                               64
Thomas Lytle aclmowledged the easement :in a phone call with Sandy in April or May 2008.

Fifth, the two properties shared one mail-box post at the corner of the driveway and VanZandt

County Road2319 when in May 2008. 65 Moreover, the Petruskas' beliefs were confirmed by

their experience in using and driving vehicles on the driveway between May 2008 and February

2014 without complaint from the Lytles or anyone else. 66 Mr. Lytle's later acceptance and

cashing of the check for what Commissioner Melton said was one-half of the cost to replace the

culvert and repair the affected part of the driveway also confirmed their beliefs. 67

I.         The Petruskas committed no fraud.

            16.     Their information as of May 16, 2008, including that set out in paragraph 15,

shows that the Petruskas did not commit any fraud, including fraud under section 12.002 of the

Civil Practice & Remedies Code. 68 They had a valid easement and documentation to support this




61
     See David Petruska's Affidavit,,, 16-17, Tab 1; Sandra Petruska's Affidavit,~, 16-17, Tab 2.
62
     See David Petruska's Affidavit, ,, 16-17, Tab 1; Sandra Petruska's Affidavit, ~ 16-17, Tab 2.
63
     See David Petruska's Affidavit, ,, 16-17, Tab 1; Sandra Petruska's Affidavit, m116-17, Tab 2.
64
     See David Petruska's Affidavit,,, 16-17, Tab 1; Sandra Petruska's Affidavit,,, 16-17, Tab 2.
65
     See David Petruska's Affidavit, , 17, Tab 1; Sandra Petruska's Affidavit, , 17, Tab 2.
66
     See David Petruska's Affidavit,, 17, Tab 1; Sandra Petruska's Affidavit,, 17, Tab 2.
67
     See David Petruska's Affidavit, , 17, Tab 1.
68
     See David Petruska's Affidavit, , 1&, Tab 1; Sandra Petruska's Affidavit, , 1&, Tab 2.

                                                                                                             Page 13




                                                                                                     RECORD 13
                                                                                                                                            ~ .
                                                                                                                                            i .

conclusion. 69 They did not prepare, or participate in the preparation of, the General Warranty

Deed with Vendor's Lien (May 16, 2008), Tab C, from the Gutzkes, and the deed described the

easement70 The Petruskas did not prepare, or participate in the preparation of {beyond signing),

the Deed of Trust (May 16, 2008), Tab B, for Compass Bank, which contained the same

description of the easement.71 Given their documentation, including the independent survey and

the general warranty deed, the Petruskas did not search the deed records to see what might or

might not be reflected in the Lytles' deed or deeds. 72 Moreover, the Gutzkes said that they had

used the driveway to access the property and house for years. 73 The Gutzkes said, in the

warranty deed, that they had an easement to sell 74 An surveyor independently confirmed the

easement. 75 No one--including persons from our title company, the real~estate agents, Compass

Bank, and our surveyor~ver suggested that the easement was invalid or that the General

Warranty Deed with Vendor's Lien or the Deed of Trust were fraudulent or contained any

materially false information.76 The Petruskas never had any intention of causing a fraudulent

document to be filed of public record in conjunction with their purchase of 1601 Van Zandt




69
     See David Petruska's Affidavit, -v 18, Tab 1; Sandra Petruska's Affidavit, 'j 18, Tab 2.
70
     See David Petruska's Affidavit, 'i 18, Tab 1; Sandra Petruska's Affidavit, 1 18, Tab 2.
71
     See David Petruska's Affidavit, 'i 18, Tab 1; SandraPe1ruska's Affidavit, -v 18, Tab 2.

n See David Petruska's Affidavit, -v 18, Tab 1; Sandra Petruska's Affidavit, 'i 18, Tab 2.
73
     See David Petruska's Affidavit, 'i 18, Tab 1; Sandra Petruska's Affidavit, 1 18, Tab 2.
74
     See David Petruska's Affidavit, 1 18, Tab 1; Sandra Petruska's Affidavit, 1 18, Tab 2.
15
     See David Petruska's Affidavit, 'j 18, Tab 1; Sandra Petruska's Affidavit,, 18, Tab 2.
76
     See David Petruska's Affidavit,, 18, Tab 1; Sandra Petruska's Affidavit, 1 18, Tab 2.

DEFENDANTS DAVID C. AND SANDRA L. PETRUSKA' RESPONSE TO PLAINTIFFS'                                                               Page 14
MOTION FOR SUMMARY JUDGMENT ON LIABILIT , SUBJECT TO~,
MOTION FOR CONTINUANCE                   · ~' ':·•• • • • • • :... · ). ·:
                                                             •
                                                                           ...."   '\._.   ..
                                                                         ..::~ ,_:'- ..• fl"_,
                                                                 ~~    .;"" . . . ..          v
                                                                 -~    :: ():
                                                                 ;

                                                                 ' ~~
                                                                       :; :
                                                                       -
                                                                       ... ~~.. y
                                                                                   .
                                                                                                                               RECORD 14
                                                                  \ ~ .t.. •.
                                                                   ~..   ...~ ..1A~· .. · · · ..
                                                                   '           ~~-     .. v   :l' •••• '    ~~ ......,..,..,
                                                                        ~~-           /, <. . \       ..~,: ~\ \ .
County Road, nor were any fraudulent documents filed in conjunction with such purchase. 77

J.          David Petruska did not assert his rights to the easement with an assault rifle.

            17.      In paragraph 21 of Plaintiff's Motion for Summary Judgment on Liability (filed

Oct. 29, 2014), the Lytles wrote, "The Petruskas have taken actions to assert their rights to the

easement, including coming on to Plaintiffs' property and threatening Plaintiff, Thomas Lytle,

with an assault rifle." David Petruska denies this. 78 He never came on to the Lytles' property

with an assault rifle. 79 On February 15, 2014, he had an unloaded assault rifle on his gator and

was driving on his own property. 80 He had a rifle because Thomas Lytle had threatened to shoot

him and three other workers, while they were working on a fence on the Petruskas' property. 81

David never threatened Thomas Lytle with my rifle. 82 Also, his driving with the rifle had no

connection to the disputed easement. 83 The Petruskas drove on the driveway located on the

Lytles' property between May 2008 and February 2014 without complaint from the Lytles. 84

K.          Moreover, the Petruskas released the easement before the Lytles filed suit.

            18.      On February 28,2014, the Lytles' attorney, Emily Jones Dunn, wrote the

Petruskas a letter and asserted that they didn't have a recorded easement to use the driveway or


77
     See David Petruska's Affidavit, ~ 18, Tab 1; Sandra Petruska's Affidavit, ~ 18, Tab 2.
78
     See David Petruska's Affidavit,~ 19, Tab 1.
79
     See David Petruska's Affidavit, ~ 19 ,-T-ab 1.
80
     See David Petruska's Affidavit,~ 19, Tab 1.
81
     See David Petruska's Affidavit,~ 19, Tab 1.
82
     See David Petruska's Affidavit,~ 19, Tab 1.
83
     See David Petruska's Affidavit,~ 19, Tab 1.
84
     See David Petruska's Affidavit,~ 19, Tab 1.

DEFENDANTS DAVID C. Ai~D SANDRA L. PETRUSKA'S RESJi(I)NSE TOP                                                     Page 15
MOTION FOR SUM.MARY JUDGMENT ON LIABILITY, SU · c.:t-):Q "'"" ........:
MOTION FOR CONTINUANCE                              ~': :: ..
                                                                       ; g...,t;- <v   .
                                                                                      .
                                                                           .:.;;
                                                                       .. :u:
                                                                       '   ~. .     ..-\  .
                                                                             ~- ~-··.
                                                                                   ~,.,.,_,//~
                                                                                         'I
                                                                                            . ···
                                                                                              .. . :··""   ..   RECORD 15
roadway on the Lytles' property which created a cloud on their title.85 She offered, "I am

requesting that you execute the enclosed release stating that there is no easement. If I do not

. receive a properly executed release within 30 days from the date of this letter, I am prepared to

litigate." 86

            19.      The Petruskas believed that the attorney was incorrect.87 First, their general

warranty deed (dated May 16, 2008) reflected the easement. 88 Second, an independent surveyor

confirmed the easement in Apri12008. 89 Third, they believed that the residents of 1601 Van

Zandt County Road 2319 had used and driven vehicles on the driveway or roadway for many

years and the Petruskas had used the driveway between May 2008 and February 2014 without

complaint 90 Nonetheless, in an effort to avoid litigation and further problems, the Petruskas

accepted the Lytles' offer and signed the release of easement and returned it to the LytJes'

attorney on March 26, 2014. 91 They would not have signed the release of easement or returned

it, unless the Lytles had agreed, in return, not to sue over the easement. 92

            20.      Again, the Petruskas fully performed all of their material duties under the contract

with the Lytles, under which the Lytles agreed not to sue over the easement in exchange for a


85
     See David Petruska's Affidavit, 'll 20, Tab 1.

     See David Petruska's Affidavit,~ 20, Tab 1.
86


87
     See David Petruska's Affidavit, 'll 21, Tab 1; Sandra Petruska's Affidavit, 1 20, Tab 2.
88
     See David Petruska's Affidavit, 'i 21, Tab 1.
89
     See David Petruska's Affidavit,~ 21, Tab 1.
90
     See David Petruska's Affidavit, 'i 21, Tab 1; Sandra Petruska's Affidavit, 'l! 20, Tab 2.
91
     See David Petruska's Affidavit, 'll 21, Tab 1; Sandra Petruska's Affidavit, 1J 20, Tab 2.
92
     See David Petruska's Affidavit, 1J 21, Tab 1; Sandra Petruska's Affidavi
                           ~
                                                                             '     •'   ·~   '
                                                                                                 .   _ , ab2.
                                                                                                 • \ \ \ , ,   ~   } I •, I


DEFENDANTS DAVID C. AND SANDRA L PETRUSKA'S . . -~N§_~ \fQ:~LAINTIFFS'                                                           Page 16
MOTION FOR SUMMARY JUDGMENT ON LIABILITY, . · Q't :I'O 'I'~ '. . ·
MOTIONFORCONTINUANCE                       . ~': .- --:.· ; . !.- •. ·; :·· ....
                                           . ~ ~ .~~      I' "'        ~-
                                                                      . _-:;t.....:               ~
                                                                         -. -.
                                                                     ·.. =:u
                                                                                                               t



                                                                          - ...
                                                                         .;
                                                                             :
                                                                         .
                                                                          ~ 'it •••
                                                                             ~"Z h;.;···-
                                                                                 "',
                                                                                         • • ••
                                                                          ..q;_, / /11· "I .., ~
                                                                                             /11        J . ' ·..
                                                                                                                              RECORD 16
                                                                                   .               / .11, ' .
                                                                                                        Ju~ ..
signed release of easement. In contrast, the Lytles materially breached the contract by (a) filing

this lawsuit on July 9, 2014, (b) filing a motion for summary judgment on October 29, 2014, and

(c) continuing this lawsuit. The Lytles' material breaches have proximately caused, and continue

to cause, the Petruska's damages, including attorney's fees and litigation expenses.

                            VII. The Court should deny the Lytles' motion.

A.       Lyltes' Requested Relief

         1.       Lytles' Sections ll(2)(a), (b), and (c)

         At pages 2-3 of their motion, the Lytles seek

         •        § II(2)(a)- a declaration that no easement exists for the benefit of the Petruskas'

property;

                  § II(2)(b)- a declaration that any easement in the Petruskas' General Warranty

Deed with Vendor's Lien or the Deed of Trust with Compass Bank is null and void;

                  § II(2)(c) - "mandate" that the Petruskas sign a release of all claims to the

disputed easement.
                                                                                 93
But a court's subject-matter jurisdiction requires a live controversy,                and the Petruskas have
                                                                                             94
already signed and returned to the Lytles the release of easement at Tab 1(H).                    Thus, there is no

live controversy with respect to these requests for relief by the Lytles. The Court has no

jurisdiction over these claims or these aspects of the Lytles' claims and should deny the

93
  See The State Bar of Texas v. Gomez, 891 S.W.2d 243 , 245 (Tex. 1994) (" Subject matter jurisdiction requires that
the party bringing the suit have standing, that there be a live controversy between the parties, and that the case be
justiciable."); see also Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 865 (Tex. 2010) (same).


94
  See David Petruska' s Affidavit, m\20-22, Tab 1; Sandra Petruska' s Affidavit, ~~ 19-21 , Tab 2; Thomas and Ellen
Lytles' Objections and Responses to David and Sandra Petruskas ' First Requests for Admission, response to nos. 1
& 2 (served Nov. 6, 20 14), Tab 3 (admitting that the Petruskas signed the release of easement on or about March 26,
2014 and that the Lytles filed the release in the public records before July 1, 20 14).

DEFENDANTS DAVID C. AND SANDRA L. PET RUSKA'S "'""'"''"''J'                                                 Page 17
MOTION FOR SUMMARY JUDGMENT ON LIABILITY, ~~J .....,"''A .....
MOTION FOR CONTINUANCE




                                                                                                   RECORD 17
requested relief and dismiss the related claims or aspects of the claims for lack of jurisdiction.

         2.       Lytles' Section II(2)(b)

         A deed of trust is a mortgage document and gives a bank or other lender certain rights or

remedies against~ borrower (related to the real estate purchased). 95 The Lytles cite no authority

or evidence that the Petruskas' deed of trust affects the Lytles. Instead, the Lytles complain

about the deed of trust's inclusion oflanguage about the disputed easement. To this extent, the

Lytles have no live complaint with the Petruskas, because the Petruskas have already signed a

release of easement. Thus, there's nothing in this regard for the Court to find or declare. The

Court has no jurisdiction over this claim or this aspect of the Lytles' claims and should deny the

requested relief and dismiss the related claim or aspect.

         3.       Lytles' Section II(2)(d)

         In section ll(2)(d), the Lytles ask the Court to order the Petruskas and Comp3:ss Bank to

sign an amended deed of trust to remove all references to the disputed easement and to release all

claims to the disputed easement Again, a deed of trust is a contract between the Petruskas and

Compass Bank, and the Lytles aren't a party. Again, the Lytles cite no authority or evidence that

the deed of trust affects them or their property. Instead, the Lytles complain about the deed of

trust's inclusion of language about the diSputed easement. To this extent, the Lytles have no live

complaint with the Petruskas, because the Petruskas have already signed a release of easement.




95
  See, e.g.,Kaldis v. Aurora Loan Servs., No. 01-09-00270-CV, 2010 WL 2545614, *1 n.2 (Tex. App.- Houston
[1st Dist) June 24,2010, pet dism'd w.oJ.) (unpublished) ("An alternative to a mortgage, a deed of trust is an
agreement between three parties, whereby the title holder deeds the property to a trustee who holds the title for the
lender until the loan is fully repaid); Stephens v. LPP Mtge, Ltd., 316 S. W.3d 742, 746, 750 (Tex. App.-Austin
2010, pet denied) (noting that a deed of trust secured a note's repayment); Black's                  414 (6th ed.
1990).

DEFENDANTS DAVID C. AND SANDRA L. PETRUSKA'S
MOTION FOR SUMMARY JUDGMENT ON UABILITY,
MOTION FOR CONTINUANCE




                                                                                                     RECORD 18
                                                                           96
The Lytles have already filed the release on the public records.

            4.     Lytles' Section II(2)(e)

            As Fact Nos. 15-16 discuss, the Petruskas did not cause any fraudulent documents to be

filed in the public records within the meaning of section 12.002 of the Civil Practice & Remedies

Code. The Petruskas had no intent to cause financial harm to the Lytles-as their provision of

the release of easement conclusively proves.

B.          Lytles' Arguments

            The Lytles' must conclusively prove as a matter oflaw that David and Sandy Petruska

( 1) made or used a document with knowledge that it was a fraudulent lien; (2) intended the

document be given legal effect; and (3) intended to cause Thomas and Ellen Lytle financial
           97
illjury.


            First, David and Sandy Petruska didn't draft the General ~arranty Deed with Vendor's

Lien, Tab l(C), from the Gutzkes.

            Second, beyond signing it, the Petruskas didn't draft the Deed of Trust with Compass

Bank. Also, with respect to their signature, the Petruskas signed (andthe Lytles flied) a release

of easement before the Lytles filed suit.

            Third, David and Sandy Petruska had no knowledge that the easement described in their

general warranty deed was non-existent, much less fraudulent. In fact, their documentation-


96
  See Thomas and Ellen Lytles' Objections and Responses to David and Sandra Petruskas' First Requests for
Admission, response to nos. 1 & 2 (served Nov. 6, 2014), Tab 3 (admitting that the Petruskas signed the release of
easement on or about March 26, 2014 and that the Lytles filed the release in the public records before July 1, 2014).
97
  See Gray v. Entis Mech. Servs., LLC, 343 S.W.3d 527, 529-30 (Tex. App.-Houston [14th Dist.] 2011, no pet.)
(reciting the plaintiff-movant's burden to get a summary judgment on a claim under section 12.002 of the Civil
Practice & Remedies Code.)

                                                                                                            Page 19




                                                                                                   RECORD 19
including their general warranty deed and their surveyor's independent confirmation-supported

their belief that the easement was valid and existing. Thomas Lytle acknowledged the easement

in a phone conversation with Sandy Petruska before they bought the property. Their experience

in driving on the driveway between May 2008 and February 2014 confirmed their belief. Fact

Nos. 15-16, above, extensively discuss this, as do David's and Sandy's affidavits.

       Fourth, the Lytles'-through their attorney's letter at Tab l(G)-asked the Petruskas to

sign a release of easement. This act alone suggests that the Lytles or their attorney had grounds

to believe that an easement   existe~   that allowed the owners of 160 1 Van Zandt County

Road 2319 to use the driveway on 1603 Van Zandt County Road 2319. This alone creates a

genuine issue of material fact that justifies denying summary judgment.

       In paragraphs 12-15 oftheir motion for summary judgment, the Lytles argue that the

April24, 2008 and the May 16, 2008        amen~ents   to the Petruskas' purchase agreement show

that the Petruskas knew that there was no valid easement when they bought their parcel in May

2008. David Petruska addresses this argument in paragraphs 10-12 of his affidavit (Fact Nos. 9-

11, above). The Petruskas believed that they did not need additional documentation of the

easement because of the general warranty deed's language, the independent surveyor's

confirmation, their belief that the Gutzkes had used the driveway for years without complaint,

and that Thomas Lytle had acknowledged the easement in his phone conversation with Sandy in

April or May 2008.

       Fifth, David and Sandy Petruska never had an intention to cause fmancial injury or

emotional distress to Thomas or Ellen Lytle. Again, the Petruskas had good reason to believe

that they had a valid easement and they drove on the driveway for years with no complaint.

DEFENDANTS DAVID C. AND SANDRA L. PETRUSKA'S RE                                             Page 20
MOTION FOR SUMMARY JUDGMENT ON LIABILITY,
MOTION FOR CONTINUANCE




                                                                                     RECORD 20
Also, the Petruskas promptly signed and returned the release of easement provided by the Lytles'

attorney, which alone conclusively negates any intention to cause fmancial harm or emotional

distress.

        In sum, the evidence is that the Petruskas had good reason to believe that they were

buying a valid easement to use the neighboring driveway-as photos show that other had done

for years-when they bought their property in May 2008. Also, the evidence shows that the

Petruskas never used the deeds with lmowledge that the easement language was false or

fraudulent. And the evidence conclusively shows that the Petruskas never had an intent to cause

financial injury or emotional distress to the Lytles. Thus, the Court should deny summary

judgment. 98

C.      David Petruska never tried to enforce the easement with a firearm.

        In paragraph 21 <;>ftheir motion, the Lytles assert that David Petruska tried to enforce the

easement with a firearm. David Petruska denies and discusses this assertion in paragraph 19 of

his affidavit. He never entered the Lytles' property with a firearm, and he carried one only

because Thomas Lytle-who is younger, larger, and stronger than David-threatened to shoot

David and three other workers in the past.

                                            VITI. Conclusion

        Because the Petruskas have already signed (and the Lytles already filed) a release of

easement and because the Petruskas raise a genuine issue of material fact on key elements of the

Lytles' claim under section 12.002 of the Civil Practice & Remedies Code, the Court should


98
  E.g., Gordon v. West Houston Trees, Ltd., 352 S.W.3d 32,46-47 (Tex. App.-Houston [1st Dist.] 2011, no pet.)
(reversing a summary judgment on a section 12.002 claim where the plaintiff failed to         show that the
defendant knew that the relevant records were false or fraudulent).

DEFENDANTS DAVID C. AND SANDRA L. PETRUSKA'S
MOTION FOR SUMMARY JUDGMENT ON LIABILITY, SUBJECT
MOTION FOR CONTINUANCE




                                                                                              RECORD 21
dismiss some of the Lytles claims because no live controversy exists and it should deny the

Lytles' motion for summary judgment on liability.

                                            Respectfully submitted,

                                            PEZllnULIB~S,LLP


                                            Is/ Michael F. Pezzuili
                                            MICHAEL F. PEZZULLI
                                            State Bar No. 15881900
                                            michael@courtroom.com
                                            CHRISTOPHER L. B~S
                                            State BarNo. 00792175
                                            chris@courtroom.com
                                            M. ELLEN SKINNER
                                            State Bar No. 24033075
                                            ellen@courtroom.com
                                            17300 Preston Road, Suite 220
                                            Dallas, Texas 75252-5476
                                            (972) 713-1300

                                             -and-


                                             Rothweii B. Pool
                                             Rothwell B. Pool
                                             State Bar No. 16120500
                                             Law Offices of Rothwell B. Pool
                                             408 W. Nash
                                             Terrell, Tx. 7 5160
                                             972-524-7585
                                             972-524-3909 (fax)
                                             Attorneys for David and Sandra Petruska




DEFENDANTS DAVID C. AND SANDRA L. PETRUSKA'S                                              Page22
MOTION FOR SUMMARY JUDGMENT ON LIABILITY,jbB;l,IN~~~.~~1J!{..~.
MOTION FOR CONTINUANCE




                                                                                   RECORD 22
.   ·,




                                             CERTIFICATE OF SERVICE

                I certify that on Monday, December 1, 2014 a true and correct copy of Defendants David
         C. and Sandra L. Petruska's Response to Plaintiffs' Motion for Summary Judgment on Liability,
         Subject to their Motion for Continuance was served by electronic notice on the below:

         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: 214/954-954L
         bemerson@bd-law.com
         Attorney for Thomas and Ellen Lytle

         Ralph E. Allen
          100 East Ferguson, Suite 901
         Tyler, Texas 75710-0028
         Phone:903-593-9727
         Fax: 903-531-2566
         rallen@tyler.net
         Attorney for Helmuth K. Gutzke and
         Zackiann Gutzke

         William "Pat'' Huttenbach
         Aaron E. Homer
         1415 Louisiana Street, 36th Floor
         Wedge International Tower
         Houston, Texas 77002
         Phone:713-223-5181
         Fax: 713-223-9319
         ahomer@hirschwestcom
         Attorney for Compass Bank



                                                    Is/ Michael E Pezzulli
                                                    Michael F. Pezzulli




         DEFENDANTS DAVID C. AND SANDRA L. PETRUSKA'S                                           Page23
         MOTION FOR SUMMARY JUDGMENT ON LIABILITY,
         MOTION FOR CONTINUANCE




                                                                                         RECORD 23
                                         NO. 14-00172

THOMAS L Y1LE AND ELLEN                     §        IN TifE DISTRICT COURT
LYTLE,                                      §
                                            §
V.                                          §
                                            §
DAVID C. PETRUSKA, SANDRA L.                §        294th JUDICIAL DISTRICT
PETRUSKA, COMPASS BANK,                     §
HELMUTH K. GUTZKE, and                      §
ZACK.IANN GUTZKE ·                          §        VANZANTITCOUNTYTEXAS


                              AFFIDAVIT OF DAVID C. PETRUSKA

        1.      My name is David. C. Petruska. I am one ofthe defendants in this case. My wife
is Sandra L. Petruska, who is another defendant. I am competent to make this affidavit. My
personal knowledge is based on my first-hand experience in buying, with my wife, the property
at 1601 VanZandt County Road 2319 in May 2008; my experience in driving on the disputed
driveway between January 2008 and February 2014 with no protest from Thomas or Ellen Lytle;
my experiences in living on or visiting the property regularly between May 2008 and the present;
my personal reviewofthe General Warranty Deed with Vendor's Lien we received from
Helmuth and Zackiann Gutzk:e, the Deed of Trust we signed with Compass Bank, the release of
easement I signed and returned to the Lytles' attorney in March 2014, and the Lytles' original
petition, which is in the Court's file; my personal conversations with the Gutzkes, the Lytles,
representatives of Compass Bank, and Registered Professional Land Surveyor No. 1935 Gearld
A. Carter, as discussed below; and my personal review of other documents and photographs
discussed below. The facts I discuss are within my personal knowledge and are true and COlTect.

A.      Property: 1601 VanZandt County Road 2319

        2.   . My wife, Sandra, and I own the property at 1601 Van Zandt County Road 2319,
Canton, Texas. The property consists of just over 25 acres that lie just south of VanZandt
County Road 2319, which runs roughly east and west. A house sits on the property back from
the driveway on the neighboring prope1ty. To best of my knowledge the house was on the
property since some time in 1997 when it was built, and a diagram from a 2008 survey shows a
"concrete slab" at the house's location and the diagram states, "Revised 6-9-97." A true and
correct copy of the survey is at Tab I. Thus, I believe that the house was built by or in 1997.

B.      Neighboring Property: 1603 VanZandt County Road 2319

       3.    Thomas and Ellen Lyt1e claim to own the neighboring property at 1603 Van
Zandt County Road 2319, which also lies south of the count



Affidavit of David C. Petruslrn                                                           - Page 1




                                                Tab] ·

                                                                                   RECORD 24
                                                                                                                 -·


C.      Driveway or Roadway

       4.      The properties at 1601 and 1603 Van Zandt County Road 2319 are contiguous
along a boundary on the west side ofl601 (or the east side of 1603) running southwest from Van
Zandt County Road 2319. A driveway or roadway, located on 1603 Van Zandt County Road
2319, runs southwest from the county road along the boundary line towards the houses on both
properties. For years, there has been a tum off from this driveway or roadway that connects to a
bam or other fann building and, later since 1997, the house on 1601 VanZandt County Road and
a separate tum off from the driveway that connects to the house on 1603 Van Zandt County
Road. ·Before February 2014, Thomas Lytle told me that this driveway or roadway was a former
county road and that one of his predece~sor landowners bought it from the county.

        5.      A true and correct diagram of the properties is at Tab I. This diagram accurately
depicts the relevant portion ofVan Zandt County Road 2319, the "private road" or driveway on
the Lytle's land, and our property. True and correct photographs of the properties are at Tab J.
These photographs depict the properties, including the disputed driveway with its tum offs that
lead to the houses on each parcel, as they existed after we bought the property in May 2008 and
before the Lytles first disputed our use of the driveway in February 2014.

D.      Easement

         6.     The photos of the road at Tab J show that the persons living in the house on 1601
 Van Zandt County Road 2319 used and drove vehicles on the driveway or roadway on 1603 Van
 Zandt Cowty 2319 for access to and from the house to the county road. The driveway or
 roadway was there when my wife and I bought 1601 VanZandt County Road in May 2008, and
 it was obvious from the driveway and its wear, tear, and tracks, by then, that the driveway had
 been heavily used by both properties. For example, the driveway had a separate and well-worn
 split offleading to the house on 1601 VanZandt County Road by May 2008. Both properties,
 1601 and.l603 VanZandt County Road 2319, shared one mail-box post at the comer of the
·driveway and the county road between May 2008 and February 2014.

E.      Title Company

        7.       On or about April 10, 2008, our title company-Elliott & Waldron Abstract &
Title Company ofCanton, Texas-wrote us a letter. A true and correct copy of the letter is at
Tab F. Schedule B ofthe accompanying Commitment for Title Insurance ''Exceptions from
Coverage," states, in part, ''In addition to the Exclusion and Conditions and Stipulations, your
Policy will not cover loss, costs, attorneys' fees, and expenses resulting from ... 10. Easements
or claims of easements which may or may not be recorded in the public records of Zandt County,
Texas." At the time of our purchase I believed that this exclusion from our title policy was .
standard language. I did not believe that this language referred specifically to the easement set
out in the General Warranty Deed with Vendor's Lien from the Gutzkes. Also, I don't believe
that the title company was telling us that the easement to use the              driveway was
invalid or non-existent I understood the company to be saying that it juSt
easements. Also, no one from the title company told us tha ~e easem1:nt
Affidavit of David C. Petruska                           ·
                                                                ~- '··'•""'.. .
                                                                ::.;.c,.' .~··. . ·~ 1,
                                                                                                                  ....                                   -   Page 2
                                                                ~ t.:J . ; . , • "''
                                                               ... . • . ···" ' , 1
                                                              :ec;: -..;:~~. 1 t;?.r
                                                                 ~f?t;'~ .;.(
                                                             . ;: .:tf ~ ~, y-     .i.. ' · \ :
                                                                                                             s·  ...
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                                                               ~ ....        • •                           ~~ .......   .1>· .
                                                               - ~,~ ·.                       _.:..1"
                                               Tab 1           ·. <:--.·· t, ••                ?             .,. . ...
                                                               •)
                                                                    X
                                                                        ~ ~
                                                                         ~~
                                                                          ~        ~    .. •        , , .,~•-~
                                                                                                                          ,.         -,.....,",_ ,...,
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                                                                                                                   •. •
                                                                                                    r·! l.i:-'- •,··:                               RECORD 25
                                                                             . ·.;.:{til i: :,lJ.~.f\ •••>
                                                                                     '4·      ::!.:..,..                ••   1:;......
General Warranty Deed was not valid. In fact, no one at all, including the title company
personnel, the bank personnel, the Gutzkes, or anyone else, ever suggested that the easement
identified in the General Warranty Deed was not valid. From January 2008 during the times we
visited the property to make our purchase decision, we drove our vehicle on the subject driveway
to access the property. So did the realtors and others involved in our purchase. No one,
including the Lytles, complained about this.

        8.      As Exhibit B(1) to Plaintiff's Motion for Summary Judgment on Liability (filed
Oct. 29, 2014), the Lytles attached a copy of our title policy for the property. Schedule B
(Exceptions) states, in part, "We do not cover loss, costs, attorneys' fees and expenses resulting
from: ... 6(1) We do not insure access yia the roadway shown on property owned Lytle adjacent
to NW line of property shown on survey dated April23, 2008 by Gerald A. Carter." I did not
receive a copy of the title policy at the time of closing on May 16, 2008. Buyers ordinarily do
not receive copies of the title policy at the time of the closing. Closings are predicated on the
title commitment. ·Title companies customarily provide a final title policy four to six weeks after
a closing. In fact, I'm not sure when I first saw a copy of my title policy, but it was long after
closing. Also, the title company is not stating that the easement shown on the General Warranty
Deed with Vendor's Lien (dated May 16, 2008) from the Gutzkes is invalid.

F.      lndependentSurvey

        9.     In early 2008, my wife and I engaged an independent surveyor, Registered
Professional Surveyor No. 1935 Gearld A Carter, to survey the property we pl~ed to purchase
at 1601 Van Zandt County Road 2319 and to confirm the property's boundaries as is customary.
After he perfonned his work, Mr. Carter provided us and the title company with a survey, field
notes, and diagrams. True and correct copies of this survey, field notes, and diagrams are at
Tab A. Although I am not an expert at reading technical surveys or diagrams, I understand that
the documents at Tab A likewise confirm and docwnent this easement. I had this understanding
in 2008, as well, when we had our General .Warranty Deed witli Vendor's Lien and our Deed of
Trust recorded in VanZandt County's public land records.

G.      We (the Petruskas) bought 1601 VanZandt County Road 2319.

        10.     On April 24, 2008, my wife and I, on the one band, and the Gutzkes, on the other
hand, signed an amendment to the real-estate contract for the property, chiefly to make me
(David Petruska) a party-buyer to the contract A true and correct copy of the amendment is at
Tab D. At the time, the title company recommended that the parties obtain documentation of the
easement signed by the Lytles. Exhibit A to the amendment stated, "Closing is conditioned upon
conveyance of easement acceptable to buyers allowing access to said property from private
driveway owned by Ms. Lytle." In April or May 2008, my wife called Thomas Lytle about
signing a paper to meet the title com~any's suggestion. She told me that Thomas Lytle had said
that he didn't want to spend money on an attorney to confirm an easement that was clear or
obvious that residents of 1601 Van Zandt Co\mty Road 2319 bad possessed and used for years. I
repeat this to help explain my conclusion, discussed belo_w, 'that we had        easement to use
the driveway when we bought our property and why ''relied on the                      of the
Affidavit of David C. Petruska                                                               - Page3




                                                                                     RECORD 26
easement we bad and why we didn't obtain further documentation of the easement.

        11.    On or about May 16,2008, my wife and I, relying in part, on the representations
in the General Warranty Deed as well as the representations of 'rom Lytle in his phone
conversation with Sandy, purchased the real property consisting of just over 25 acres ofland,
with a house and other buildings, at 160 I Van Zandt County Road 2319, being described in that
General Warranty Deed with Vendor's Lien dated May 16,2008, from Helmuth Gutzke and
Zackiann Outzke, recorded with Document Number 2008-004602 of the deed records of Van
Zandt County, Texas. A true and correct copy of the warranty deed is at Tab C.

        12.     On May 16, 2008, my wife miQ I, on the one hand, and the Gutzkes, on the other
hand, signed another amendment, which stated, in part, "Seller and Buyer agree to waive the
condition of the contract relating to obtaining an easement from Thomas M. or Ellen Lytle." A
true and correct copy of this amendment is at Tab E. I believed that we did not need any
additional documentation of the easement. First, our general warranty deed (dated May 26,
2008) set out the easement Second, an independent surveyor confirmed the easement in April
2008. Third, I believed that the Gutzkes had used and driven vehicles on the driveway or
roadway for years before May 16,2008. Fourth, my wife, Sandy, bad reported to me that
Thomas Lytle had acknowledged the easement in his phone conversation with her.

        13.     The Gutzkes stated that they owned fee simple title to the property, including the
easement, at the time we purchased it By the terms of the General Warranty Deed, the Outzkes
warranted the title conveyed to us including the easement In part, the Deed stated, "All that
certam lot, tract or parcel ofland . . . of the called 5.753 acre first tract and all of the called 20.00
acre second tract .. . together with an Easement for Roadway si~ in VanZandt County,
State ofTexas, 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
. .. and part of the called 1.10 acre tract conveyed to Thomas M. Lytle and Ellen Lytle ... ."
The Gutzlces executed and delivered the General Warranty Deed to us pursuant to a purchase
agreement and in consideration of the purchase price paid that we paid to the Gutzkes including
purchase of the easement My wife and I .have performed or met all of our material obligations
under the purchase agreement.

       14.     On or about May 16, 2008, my wife and I also signed a Deed ofTrost, which
contained the same property description and easement language as the General Warranty Deed
with Vendor's Lien, as part of securing a loan from Compass Bank. A true and correct copy of
the Deed of Trust is at Tab B.

         15.    Between May 16,2008 and February 2014, my wife and I used and drove on the
driveway on the Lytles' property without complaint. Both properties shared a single mail-box
post at the corner of the county road and the driveway or roadway. Before February 2014, I gave
Thomas Lytle a check for what Coun\y Commissioner Virgil Melton told me was one-half of the
cost of repairing the culvert and entranceway from the county road to the driveway or roadway,
and Lytle cashed the check.                                                   ·

Affidavit or David C Petruska                                                                     -Page4




                                                  Tab 1
                                                                                          RECORD 27
H.      We had a valid easement.on May 16, 2008.

        16.    I have been a licensed attorney in Texas (No. 15853200) since September 1982. I
have a solo practice, Petruska & Associates, PLLC. I chiefly practice municipal fmance law.

         17.    Although I am not a real-estate attorney, ifs my opinion that my wife and I had or
acquired a valid easement, attached to our property, to use and drive vehicles on the driveway or
roadway located on 1603 VanZandt County Road 2319, on May 16,2008. First, our general
warranty deed (dated May 26, 2008) set out the easement. Second, an independent surveyor
confirmed the easement in April2008. Third, I believed, based on conversations with the
Gutzkes, that the Gutzkes·had used and driven vehicles on the driveway or roadway for years
before May 16,2008. Fourth, my wife's conversation with Thomas Lytle indicated that
Mr. Lytle confirmed the easement. Fifth, the two properties shared one mail-box post at the
comer of the driveway and Van Zandt County Road 2319 when we bought the property.
Moreover, my belief was con:finned l?Y my and my wife's experience in using and driving
vehicles on the drive-Way between May 2008 and February 2014 without complaint from the
Lytles or anyone else. Mr. Lytle's later acceptance and cashing of my check for what I was told
by Commissioner Melton was one-half of the cost to replace the culvert and repair the affected
part of the driveway also confirmed my belief.

I.      We committed no fraud.

        18.     Our information as of ~y 16, 2008, including that set out in paragraph 17, shows
that my wife and I did not commit any fraud, including fraud under section 12.002 of the Civil
Practice & Remedies Code. We had a valid easement and documentation to support this                  .j
conclusion. My wife and I did not prepare, or participate i:o the preparation of, the General
Warranty Deed with Vendor's Lien (May 16, 2008), Tab C, from the Gutzkes to us, and the deed
described the easement. My wife and I did not prepare, or participate in the preparation of
(beyond signing), the Deed of Trust (May 16, 2008), Tab B, for Compass Bank, which contained
the same description of the easement. Given the documentation I had, including the
independent survey and the general warranty deed, I did not search the deed records to see what
might or might not be reflected in the Lytles' deed or deeds. Moreover, the Gutzkes said that
they had used the driveway to access the property and house for years. The Gutzkes said, in the
warranty deed, that they had an easement to sell us. Our surveyor independently confirmed the
easement. No one-including persons from our title company, the real-estate agents, Compass
Bank, and our surveyor-ever suggested that the easement was :invalid or that the General
Warranty Deed with Vendor's Lien or the Deed of Trust were fraudulent or contained any
materially false information. I never had any intention of causing a fraudulent document to be
filed of public record in conjunction with our purchase of 1601 Van Zandt County Road nor



J.
                                     .
were any fraudulent documents filed in conjunction with such purchase. I never used the deeds
with an intent to cause anyone, including the Lytle's financial injury or emotional distress.
                                                              .

        I did not assert our rights to the easement with an assault rifle.

        19.    In paragraph 21 of Plaintiff's   Mo1nnamft;R..._. •.u.u.-u;
Oct. 29, 2014), the Lytles wrote, ''The


Affidavit of David C. Petruska                                                             -PageS


                                                                                    RECORD 28
easement, U)cluding coming on to Plaintiffs' properly and threatening Plaintiff: Thomas Lytle,
with an ns:mult rifle." This is false. I never came on to the LyUes' property with an assault dfle.
On February 15, 2014, I had an unloaded assault rifle on my gator and was driving on my own
property. I had my rifle because Thomus Lytle had threatened to shoot me and three other
wol'kers, while we were working on a fence on our pt'Opet1y. I never threatened Thomas Lytle
with my rifle. Also, my driving with the rifle in my gator had no connection to the disputed
easement. Again, my wife and I drove on the drive~y located on the Lytles' property between
May 2008 and February 2014 without complaint fiom lhe Lytles.

K.     Moreover, we released the easement before the Lytles filed suii.

         20.    On February 28, 2(}14, the Lytles, attorney, Emily Jones Dunn, wrote my wife
and me a letter and asserted that we didn~t have a recorded easement to use the driveway or
roadway on the Lytles' property which create~) a Cloud on their tille. Sbe offered, "I am
requesting that you execute the enclosed release stating thai there is no easement Jfl do not
receive n p1·opedy executed release within 30 days fi'om the date of this Jetter, I am prepared to
littgate." A tn1e and correct copy of this Jetter is at TabG.

        21.      1 believed that the t)t1orney was incon·ect for sevGral reasons. First, our geoet·at
warranty docd (doted May 16, 200R) reflected the easement. Second, nn independent sun;eyor
confirme.d lh~ easement in April 200ft. Third, 1 believed thnt the re~;idenls of1601 VanZandt
County Road 231911ad used and drivon vehicle~; on the drivewuy or roadway fer mnny years and
my wife and 1 had. used the dl'ivewny between May 2008 and Febnmry 2014 without complaint.
Nonetheless, in an effort to uvoid litigation ~ll1d ftlrther problems, my wife an(' 1 accepted the
LytJes' offel' and signed the relea.-;(: of easement and returned it to the Lytlc~s' attorney on
March 26, 2014. A true and correct copy of our !'etum letter anclthe J'elease of easement is aL
TnbH. I would no! hove signed the relense of casement or returned it, unless the Lytles hud
agreed, in ret.mn, not lo sue my wife und tnc over th<~ t~t!iement.

        22.     Again, my wife and l fully pertorrued all of our material duties tmde.r our contract
with the Lytles, under which the.:~ Lytles agreed JIOt to sueur. over !he easement in exchange for a
signed release or casement. ln contl'ast, the Lytles materinlly breached the contracl by (a) filing
1his luwstiit on July 9, 2014, (b) filing a motion for s.ttmmary judgment on October 29, 2014, nnd
(c) continuing th.is lawsuit. The Lytle:;' material breaches have proximately caused, and contimm
to cause, LIS damages.• including attomey's fees and litigation expenses.

      23.   1 swear or affi.rm to these facts withiu the meaning of section 312.0 11{1) of lhe
Texas Government Code.
Date: December 1, 201 4.
                                                     /        ..J . · · '(
                                                    1.•        ~·~:··.   .., ;,   .




                                    ,                                                  RECORD 29
                                  /,              j)
            Before me, _.....;(.....;,~~.:;...=:..·_.....;·./~~.N<-_..:...1_.····~~'-----·• on this day personally appeared David C.

Petruska, who established his.identify with his Texas driver's license, to be the person whose

name is subscribed as a witness to the foregoing instrument. David C. Petruska swore to the

statements in the above affidavit before Ill;e, and I am officially certifying this document under
                         I
my seal of office 'under section 312;011 (1) of the Texas Govamnenf Code. I run a notary public,

and Texas law authorizes a notary public to administer an oath and certify the fact of a person

making an oath. in section 602.002(5) of the Texas Government Code.



     / "\
   {t,._._ l.;J,,.;t(
Notary Public




Affidavit of David C. Petruslc~                                                                                             · -Page 7




                                                                                                                    RECORD 30
                                                 FIELD NOTES

SANDRA L. PETRUSKA                                                                     M. V. LOUT SURVEY
24.020 ACRES                                                                             ABSTRACT NO. 468

                                      VANZANDT COUNTY, TEXAS

        All that certain lot, tract or parcel ofland situated in VanZandt County, State ofTexas, on theM.
V. Lout Survey, A-468, and being all of    the  residue of the called 5.753 acre frrst tract and all ofthe called
20.00 acre second tract conveyed to Helmuth K. Gutzke and wife, Zackiann Gutzk:e, by A. D. Ward, a
single man, by Warranty Deed with Vendor's Lien dated July 30, 1990, and recorded in Volume 1207,
Page 390, of the VanZandt County Real Records. Said lot, tract or parcel of land being more particularly
described by metes and bounds as follows:

        BEGINNING at a Y:." iron rod found for corner at the Southeast corner of the called 20.00 acre
second tract, at the Southwest comer of the Arthur C. Werden tract recorded in Volume 2028, Page 309,
of the VanZandt County Real Records, and in the Northeast line of the Thomas M. Lytle 68.78 acre tract
recorded in Volume 1771, Page 609, of the VanZandt County Real Records, from WHENCE a fence
corner found bears North 78 degrees 05 minutes 37 seconds West 2.58 feet;

        THENCE NORTH 44 degrees 40 minutes 21 seconds West 648.90 feet to a 5/8" iron rod set for
corner at the South comer ofthe Thomas M. Lytle 1.622 acre tract recorded in Volume 2188, Page 463,
of the VanZandt County Real Records;

       THENCE NORTH 43 degrees 59 minutes 44 seconds East 105.86 feet to a Y:!" iron rod found for
comer at the East comer of the said 1.622 acre tract;

         THENCE NORTH45 degrees 25 minutes qo seconds West 668.07 feet to a W' iron rod found for
corner at the North corner of the called 1.622 acre tract, in the original Northwest line of the called 5.753
acre ftrst tract, and in the Southeast line ofthe Thomas M. Lytle l.lO acre tract recorded in Volume 1771,
Page 629, of the VanZandt County Real Records;

        THENCE NORTH 44 degrees 05 minutes 12 seconds East 1152.76 feet to a railroad spike set for
corner in County Road No. 2319, at the North corner of the called 20.00 acre second tract, from
WHENCE a 60d nail found at the East corner of the said Thomas M. Lytle 1.10 acre tract bears North 44
degrees 05 minutes 12 seconds East 2.65 feet and a Yz" iron rod found in the South right of way of the
said county road bears South 38 degrees 58 minutes 47 seconds West 23.09 feet;

         THENCE SOUTH 81 degrees 39 minutes 33 seconds East along the said county road and the
North line of the called 20.00 acre second tract, 322.19 feet to a railroad spike set for corner in the South
line of the B. W. Ward 106.60 acre frrst tract recorded in Volume 1654, Page 588, of the Van Zandt
County Real Records, at the Northwest corner of the said Arthur C. Werden tract and at the Northeast
corner of the called 20.00 acre second tract, from WHENCE a 5/8" iron rod set in the South right of way
line of the said county road bears South 08 degrees 20 minutes 49 seconds West 19.00 feet and a 48"
Pecan tree found marked X with two hacks above and below the X bears North 62 degrees 57 minutes
East 60.40 feet;                      li'


        THENCE SOUTH 08 degrees 20 minutes 49 """''"'ll'!.;lv•.•                  East line of the called 20.00
acre second tract and the West line of the said                                       98 feet to the place of
beginning and containing 24.020 acres of land.




                                                                                             RECORD 31
                                         SURVEYOR'S CERTIFICATE
..
             I, Gearld A. Carter, Registered Professional Land Surveyor No. 1935, do hereby certify that I
     directed the survey of the above described tract of land and prepared the above field notes descn'bmg the
     boundaries of same just as they were found and surveyed upon the ground, and this survey is made in
     accordance with the STANDARDS FOR LAND SURVEYS of the TEXAS BOARD OF
     PROFESSIONAL LAND SURVEYING, as revised in November, 29J).7">-~nd will meet the accu.racy .
     requirements as set out in RULE 663.15C as defined therein.         .....-;;~~;::;::: .
                                                                            --~
                                                                           ~''··"
                                                                                  '"
                                                                                         ~
                                                                                                  ff' ;
                                                                                                   (~!
                                                                                                          -~"
                                                                                    ..

             WITNESS my band and seal at Athens, Texas, this 2-..rn v""'"""··"·~cr~~i~: _
                                                                                             ..

                                                                                                          t. ·,_·.
                                                                                                            j\',.




                                                                    ~~~·L)
                                                                         " ..;,....... ~ . ~               -1       ~   •• •   4"':-:;9'~__..




                                                       Tab A
                                                                                                                                RECORD 32
                                                                                                  COV. CONC. PORCH


                                                                    CONC. DR.



           24.020 ACRE$
  ACTUAL BEARING AND DISTANCE
                                       CALLS
NUMBER DIRECTION        DISTANCE                          COV. CDNC, IJALK
                                                                      CONe. PORCH
1      N 44.40'21' 'W   648.90'    BRG. N4S•03''W                    .BRICK PA TI!] .....__..,......__..
2      N 43.59'44' E 105.86' .     N46.49'34"'E 105.78'                              HOT TUB
3      N 45.25'00' VI  668.07'     N42•39'17''W 668.07'                      INSET SCALE 1'        = 40'
4       N 44.05'12' E  1152.76'    BRG. N44.34'E
5       S 81.39'33' E 322.19'      $81.16'E 319.61'                                                              Scnle• 1'   = 200'
6      s o8·co'49' 'W 1806.98'     so8·44''W 1804.58'.
        0.448 ACRE EASEMENT
   ACTUAL BEARI~ AND DISTANCE
NUMBER DIRECTION        DISTANCE        CALLS
7        s 84 ·55'25' E 21.41'     S82.08'20'E 21.37'
8        s 85.03'04' E  14.94'     S82.08'20'E 14.92'
9        S 44.05'12' VI 674.24'    BRG. $44.34'\Y
10       N 45.54'48" VI 30.71'
11       N 44.18'18' E  651.34'




                                                                                                                               RECORD 33
                                                                                                                        CALL 20.00 AC
                                                                                                                       2ND TR. 1207/390
                                                                                                                           V.Z.C.R.R.
                                                                                                                                               ,f'lm
                                                                                                                                           $5
                                                                                                                                           oJ)


                                                                                                                                          ~
                                                                                                                   M.V. LOUT SUR. A-468   N
                                                                                                                                          [)
                                                                                                                                          ;o
                                                                                                                                          ;o




                                   PLAT OF SURVEY
      LEGAL DESCRIM10N OF LAND: All th.at rulllliD lot, tract or par.:elufland situated iA Vu
      Zalldt Collllty, Stare of Texas, oa ttf M. V. [Aut ~ey, A-468, ud hda~ all or the residue of the
      ralltd 5.753 aero fll8t traet ud au or the a~Ued lD.OO acre &eeond tntet conveyed to Helmuth K.
      Gultke a11d wtl'C, Zuklann Gu!Zke, by A. D.·W21'11, a tlntl• mu, by WerTIInty Dnd wltb Vendor's
      Uen dated Jul)' JO, 19?0, and nocorded in Volume 1107, Pa.. 3!10, ofUe Vaa Zlmdt Conly Real
      Recorda and all tbat certain lot, trad er parcel of land sitated ia Vu ZDIIdt County, State o(
      Tau, on I be 1\L V. Loat Survey, A-468, ud bela:: a pilrt of die celled 68.78 acre Ired conveyed to
1-"'j Tllomu M. Lytle ud Ellen Lytle, by Ricky 1M Hadley, by Geaenl Warnaty Deed ncorded Ia
~ Volame 1771, Pageli09, oftbe Van Z..adt Cauaty Rtal Recordl, ud a part of die calJed Ullacre
>     tract coll'l'eytd to Thom.u M. Lytle aad Ellen Lytle, by rudcy Lee lladlcy, by General Warranty
      Deed recorded in VolU>•l771, Page Iilli, of tb'l Van Zaadt County Real hcords. Said lot, tract or
      parul of11111d hala& more particularly described by motu and ltoaada attadaad ..reto;

    PROPERTY ADDRESS
    1601 VZCR 2319
    CANTON, TEXAS 75103

            I, Gtarld A. Car:er, Recbtered Protesoloaal Land 5ui"Yeyor No. 1935, do btreloy certify to
    Sndra L. Pl!lruska, buyer, IAaDIOarce Real Estate Loau,lender ud Elliott and Waldron ntJe
    Co•paay, tbat the plat shown hereon accllraUiy repreMDls tile reoalta of u oa lila p-oaad aarvey
    made under my dindioa and saperrislon oa .April 13.1008, and aU mo11uments were fouad or        ••t
    ud actually aat ud tbe location aad dNCriplioa are comedy doow., tbe boii.Odariolo, dimensions
    and other detalb •b.-a llereoa are truo and c:Grrect u determined by survey, there are no Yblble
    encroacbmeats on the property or protrulou tberafrom, euept u sbftra bn-eoa, there an no
    visible discnpoaae., c:oaWcta, sborta&B!. areas or boaadary Uae coii1Jicta, except aa ollowa
    bereen, tbe lin, location ud type oflmpronmeats are as sbowa boreoll aad all are located witbln
    tbe boundaries oft be property, except .. obowa bereoa, ud Ibis sarvcy b made Ia accordance
    "itll THE STANDARDS FOR LAND SURVEYS oftbe TEXAS BOARD OF PROFJ:SSlONAL
    LAND SURVEYING as revised In Nonmber :ZOO?, and will mat the acCIU'IIcy reqolrelllleutJ liS set
    oat In R          .15C, ,... dermed therein.
                                                                                                            . ,.

    SURVEY FORI SANDRA L. PETRUSKA                         M. V. LOUT SURVEY, A-4ti8
    GF#080l58                                            VANZANDT COUNTY, TEXAS

    GEARLD A- CARTER AND ASSOCIATES1 LAND SURVEYORS
    P.O. BOX 1445,
    ATHENS, TEXAS 75751
    903-675-7346


                                                                                                                                                       RECORD 34
                                                                                                                    ··.· ···.·




After recording please mail to:

Compass Bank
401 West Valley Avenue
Homewood, AL 35209
Marie Yamane

   - - - - - - ' - - - - - - - - - [ S p a c e Above Thill Line For RecordiasData] _ _ _ _ _ _ _ _ __

  NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON,
  YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING
. INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN
  REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN mE PUBLIC RECORDS:
   YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER.

                                           DEED OF TRUST
                                                                                               Loan # *private*
 DEFINITIONS

 Words used in multiple sections of this document are defmed below and other words are defmed in Sections 3, 11,
 13, 18,20 and 21. Certain rules regarding the usage of words used in this document are also provided in SeE:tion
 16.
                                           .          .
 (A)      "Security Instrument" means this document, which is dated May 16, 2008, together with all Riders to
 this document.

 (B)     "Borrower" is David C. Petruska and wife, Sandra L. Petruska. Borrower is the grantor under this
 Security Instrument.

 (C)   "Lender" i11 Compass Bank . Lender is a state bank organized and existing under the laws of
 Alabama. Lender's address is PO Box 13345 Birmingham, AL 35202. Lender is the beneficiary under this
 ~ty Instrument.


 (D)     "Trustee" is Jon Mu1kin . Trustee's address is 401 West Valley Avenue, Homewood, AL 35209.

 (E)      "Note" means the promissory note signed by Borrower and dated May 16, 2008. The Note states that
 Borrower owes Lender Two Hundred Seventy Four Thousand Five Hundred and 00/100 Dollars (U.S.
 $274,500.00) plus interest. Borrower has promised to pay this debt in regular Periodic Payments and to pay the
 debt in full not later than June 1, 2038.

 (F)      "Property" means the property that is described below under the heading "Transfer of Rights. in the
 Property."

 (G)      "Loan" means the debt evidenced by the Note, plua interest, any prepayment charges and late charges due
 under the Note, and all smns due under this Security Instrument, plus interest.
                                              *
 (H)      "Riders" means all Riders to this Security Instrument that are executed by Borrower.
 Texas Deed •fTrust.sloaJe Family•Faonle Mat/Freddie Mac UNIFORM
 INSTRUMENT




                                                          TabB
                                                                                                 RECORD 35
RidciS are to be executed by Borrower [check box as applicable]:                                                           ....  ,
                                                                                                                            ··:-..
                                                                                                                           ·..,
liJ A<(justable Rate Rider              D   Condominium Rider                         Iii   Second Home Rider
0 Balloon Rider                         0   Planned Unit Development Rider            0     Biweekly Payment Rider
0 14 Family Rider                       0   Rate Improvement Rider                    0     Graduated Payment Rider
0   VA Loan Rider                       0   Manufactured Home Rider                   liJ   Other(s): ARM, JDterest Only

 (I)    "'Applicable Law" m~s all controlling applicable · federal, state and local statutes, regulations,
ordinances and administrative rules and orders (that have the effect of law} as well as all applicable final, non-
appealable judicial opinions.

(J)      "Community Association Dues, Fees, and Assessments'' means all dues, fees, assessments and other
charges that are imposed on Borrower or the Property by a condominium association, homeowners association or
similar organization.

(K)       "Electronic Funds Transferrt means any transfer of funds, other than a transaction originated by check,
draft, or similar paper instromcnt, which is initiated through an electronic terminal, telephonic instrument,
computer, or magnetic tape so as to order, instruct, or authorize a financial institution to debit or credit an account.
 Such term includes, but is not limited to, point-of-sale transfers, automated teller machine transactions, transfers
initiated by telephone, wire transfers, and automated clearinghouse transfers.

(L)       "Escrow Items" means those items that are described in Section 3.

(M)      "Miscellaneous Proceeds" means any compensation, settlement, award of damages, or proceeds paid by
any third party (other than insurance proceeds paid under the coverages described in Section 5) for: (i) damage to,
or destruction of, the Property; (ii) condemnation or other taking of all or any part of the Property; (iii) conveyance
in lieu of condemnation; or (iv) misrepresentations of, or omissions as to, the value and/or condition of the
Property.

(N)       "Mortgage Insurance" means insurance protecting Lender against the nonpayment of, or default on, the
Loan.

(0}      "Periodic Payment" means the regularLy scheduled amount due for (i} principal and interest under the
Note, plus (ii} any amounts under Section 3 of this Security Instrument.

(P)      "RESPA" means the Real Estate Settlement Procedures Act (12 U.S.C. '2601 et seq.) and its
implementing regulation, Regulation X (24 C.F.R. Part 3500}, as they might be amended from time to time, or any
additional or successor legislation or regulation that governs the same subject matter. As used in this Security
Instrument, "RESPA" refers to all requirements and restrictions that are imposed in regard to a "federally related
mortgage loan" even if the Loan does not qualify as a "federally related mortgage loan" under RESPA.

(Q)      "Suceessor in Interest of Borrower" means any party that has taken title to the Property, whether or not
that party has asswned Borrower's obligations under the Note and/or this Security Instrument

TRANSFER OF RIGHTS IN mE PROPERTY

This Security Instrument secures to Lender: (i) the repayment of the Loan, imd aiJ renewals, extensions and
modifications of the Note; and (ii) the performance of Borrower's covenants and agreements under this Security
 Tuu Deed ofTriLSt-8111Bie Family-ftaDAit Mat/Freddie Mae UNIFORM
 INSTRUMENT
                                                           2




                                                          TabB
                                                                                                       RECORD 36
                                                                                                                        . ...·····.
                                                                                                                              '~ .....:: ~
                                                                                                                             .. .       ~,




Instrument and the Note. For this purpose, Borrower ixrevocably grants and conveys to Trustee, in trust, with
power of sale, the following descn'bed property located in the County [Type of Reccrding Jurisdiction} of VanZandt
[Namo ofRcc:o~g Jurisdiction):

All that certain lot, tract or parcel of land situated in Van Zandt County, State of Texas, on theM. V. Lout
Survey, A-468, and beJng all of the residue of the called 5.753 acre first tract and all of the called 20.00 acre
second tract conveyed to Helmuth K. Gutzke and wife, Zackiann Guttke, by A. D. Ward, a single man, by
Warranty Deed with Vendor's Lien dated Jnly 3G, 1990, and recorded in Volume 1207 Page 390, of the Van
Zaodt County Real Records, together with an Easement tor Roadway situated in VanZandt County, State of
Texas, on theM. V. Lout Survey, A-468 aad 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 and said lot; tract and pareel ofland being more particularly
described by metes and bounds in Exhibit ''A" attached hereto and made a part hereof.

which currently bas the address of

                                              1601 VZ County Road 2319
                                                 Canton, Texas 75103
                                                  (''Property Address"]

         TOGETHER WITH all the improvements now· or hereafter erected on the property, and all easements,
appurtenances, and fixtures now or hereafter a part of the property. All replacements and additions shaU also be
coveted by this Security Instrument. All of the foregoing is referred to in this Security Instrument as the
''Property."       BORROWER COVENANTS that Borrower is lawfully seised of the estate hereby conveyed and
has the right .to grant and convey the Property and that the Property is unencumbered, except for encumbrances of
record. Borrower warrants and will defend generally the title to the Property against all claims and demands,
subject to any encumbrances ofrei:ord.
          TIDS SECURITY INSTRUMENT combines uniform covenants for national use and non-uniform
covenants with limited variations by jurisdiction to constitute a uniform security instrument covering real property.

            UNIFORM COVENANTS. Borrower and Lender covenant and agree as follows:
            1.       Payment of Principal, Interest, Escrow Items, Prepa'yment Charges, and Late Charges.
  Borrower shall pay when due the principal of, and interest on, the debt evidenced by the Note and any prepayment
  charges and late charges due under the Note. Borrower shall also pay funds for Escrow Items pursuant to Section
  3. Payments due under the Note and this Security Instrument shall be made in U.S. currency. However, if any
  checlc or other instrument received by Lender as payment under the Note or this Security Instrument is returned to
  Lender unpaid, Lender may require that any or all subsequent payments due under the Note and this Security
  Instrument be made .in one or more of the following fonns, as selected by Lender: (a) cash; (b) money order;
  (c) certified check, bank check, treasurer's check or cashiers check, provided any such check is drawn upon an
  institution whose deposits are insured by a federal agency, instrumentality, or entity; or (d) Electronic Funds
  Transfer.
            Payments are deemed received by Lender when received at the location designated in the Note or at such
  other location as may be designated by Lender in accordance with the notice provisions in Section 15. Lender may
  return any payment or partial payment if the payment or partial payments are insufficient to bring the Loan
  current. Lender may accept any payment or partial payment insufficient to bring the Loan current, without waiver
  of any rights hereunder or prejudice to i~ rights to refuse such payment or partial payments in the future, but
· Lender is not obligated to apply such payments at the time such payments are accepted. If each Periodic Payment

 Texas Deed Gf Trust-single Famlly-Fanni~t Mat/Freddie Mac UNIFORM
 INSTRUMENT
                                                            3




                                                           TabB
                                                                                                    RECORD 37
                                                                                                                                                      I

                                                                                                                                                      I'
                                                                                                                       0       ••   :   .   :.=.~~.

is applied as of its scheduled due date, then Lender need not pay interest on unapplied funds. Lender may hold             '            . :·
such unapplied funds until Boll'Ower makes payment to bring the Loan current. If Borrower does not do so within
a reasonable period of time, Lender shan either apply such funds or retwn them to Borrower. If not applied
earlier, such funds will be applied to the oubltanding principal balance Wlder the Note inunediately prior to
foreclosure. No offset or claim which Botrower might have now or in the future against Lender shall relieve
Borrower from making payments due Wider the Note and this Security Instrument or performing the covenants and
agreements secured by this Security Instrument
          2.        AppUcaUon of Payments or Proceeds. Except as otherwise described in this Section 2, all
payments accepted and applied by Lender shan be applied in the following order of priority: (a) interest due under
the Note; (b) principal due under the Note; (c) amounts due under Section 3. Such payments shall be applied to
each Periodic Payment in the order in w~ch it became due. Any remaining amounts shall be applied first to late
charges, second to any other amounts due under this Security Instrument, and then to reduce the principal balance
oftheNote.
          If Lender receives a payment from Borrower for a delinquent Periodic Payment which includes a sufficient
amount to pay any late charge due, the payment may be applied to the delinquent payment and the late charge. If
more than one Periodic Payment is outstanding, Lender may apply any payment received from Borrower to the
repayment of the Periodic Payments if, and to the extent that, each payment can be paid in full. To the extent that
any excess exists after the payment is applied to the full payment of one or more Periodic Payments, such excess
may be applied to any late charges due. Voluntary prepayments shall be applied first to any prepayment charges
and then as descnoed in the Note.
          Any application of payments, insurance proceeds, or Miscellaneous Proceeds to principal due under the
Note shall not extend or postpone the due date, or change the amount, of the Periodic Payments.
          3.        Funds for Estrow Items. Borrower shall pay to Lender on the day Periodic Payments are· d11e
under the Note, until the Note is paid in full, a sum (the "Funds") to provide for payment of amounts due for: (a)
taxes and assessments and other items which can attain priority over this Security Instrument as a lien or
encumbrance on the Property; (b) leasehold payments or ground rents on the Property, if any; (c) premiums for any
 and all insurance required by Lender under SectionS; and (d) Mortgage Insurance premiums, if any, or any sums
payable by Borrower to Lender in lieu of the payment of Mortgage Insurance premiums in accordance with the
provisions of Section 10. These items are called "Escrow Items." At origination or at any time during the term of
 the Loan, Lender may require that Community Association Dues, Fees, and Assessments, if any, be escrowed by
 Borrower, and such dues, fees and assessments shall be an Escrow Item. Borrower shall promptly furnish to
 Lender all notices of amounts to be paid under this Section. Borrower shall pay Lender the Funds for Escrow
 Items unless Lender waives Borrower's obligation to pay the Funds for any or all Escrow Items. Lender may waive
 Borrower's Obligation to pay to Lender Funds for   any  or all Escrow Items at any time. Any such waiver may only
 be in writing. In the event of such waiver, Borrower shall pay directly, when and where payable, the amounts due
 for any Escrow Items for which payment of Funds has been waived by Lender and, if Lender requires, shalJ furnish
  to Lender receipts evidencing such payment within such time period as Lender may require. Borrower's obligation
  to make such payments and to provide receipts shall for all purposes be deemed to be a covenant and agreement
  contained in this Security Instrmnent, as the phrase "covenant and agreement" is used in Section 9. If Borrower is
 obligated to pay Escrow Items directly, pursuant to a waiver, and Borrower fails to pay the amount due for an
  Escrow Item, Lender may exercise its rights under Section 9 and pay such amount and Borrower shall then be
  obligated under Section 9 to repay to Lender any such amount. Lender may revoke the waiver as tO any or all
  Escrow Items at any time by a notice given in accordance with Section 15 and, upon such revocation, Borrower
  shall pay to Lender all Funds, and in such amounts, that are then required under this Section 3. ·
           Lender may, at any time, coJiect and hold Funds in an amount (a) sufficient to pennit Lender to apply the
  Fuuds at the time specified under RBSPA, and (b) not to exceed the maximum amount a lender can roquire under
  RESPA. Lender shall estimate the amount of Funds due on the basis of current data and reasonable estimates of
  expenditures of future Escrow Items or othe~e in accordance with Applicable Law.
           The Funds shall be held in an institution whose deposits are insured by a federal agency!. i11s~~ntality,
                                                                                                  ...       .-..
Texu Deed ofTnJ$t.Single 11amlly•Faoole Ma&'Jlreddle Mac UNIFORM
 INSTRUMENT
                                                       4




                                                           TabB
                                                                                                   RECORD 38
or entity (including Lender, if Lender is an institution whose deposits are so insured) or in any Federal Honie Loan
Bank. Lender shall apply the Funds to pay the Escrow Items no later than the time specified under RESPA. ·._
Lender shall not charge Borrower for holding and applying the Funds, annually analYLing the escrow accOUnt, or
verifYing the Escrow Items, unless Lender pays Borrower interest on the Funds and Applicable Law pennits ··
Lender to make such a charge. Unless an agreement is made in writing or Applicable Law requires inter~t to be
paid on the Funds, Lender shall not be required to pay Borrower any interest or earnings on the Funds. Borrower
and Lender can agree in writing, however, that interest shall be paid on the Fu_nds. Lender shall give to Borrower,
without charge, an annual accounting of the Funds as required by RESPA.                 _
          If there is a surplus of Funds held in escrow, as defined under RESPA, Lender shall account to Borrower
for the excess funds in accordance with RESPA. If there is a shortage of Funds held in ·escrow, as defined under
RESPA, Lender shall notify Borrower as required by RESPA, and Borrower shall pay to Lender the amoWlt
necessary to make up the shortage in accordance with RESPA, but in no more than 12 monthly payments. If there
is a deficiency of Funds held in escrow, as detined under RESP A., Lender shall notify Borrower as required by
RESPA, and Borrower shall pay to Lender the amount necessary to make up the deficiency in accordance with
RESPA, but in no more than 12 monthly payments.
          Upon payment in full of all sums secured by this Security Instrwnent, Lender shall promptly refund to
Borrower any Funds held by Lender.
          4.        Charges; Uens. Borrower shall pay all taxes, assessments, charges, fines, and impositions
attributable to the Property which can attain priority over this Security Instrument, leasehold payments or ground
rents on the Property, if any, and Community Association Dues, Fees, and Assessments, if any. To the extent that
these items are Escrow Items, Borrower shall pay them in the inanner provided in Section 3.
          Borrower shall promptly discharge any lien which has priority over this Security Instrument unless
Borrower: (a) agrees in writing to the payment of the obligation secured by the lien in a manner acceptable to
Lender, but only so long as Borrower is performing such agreement; (b) contests the lien in good faith by, or
defends against enforcement of the lien in, legal proceedings which in Lender's opinion operate to prevent the
 enforcement of the lien while those proceedings are pending, but only until such proceedings are concluded; or (c)
secures from the holder of the lien an agreement satisfactory to Lender subordinating the lien to this Security
 Instrument. If Lender determines that any part of the Property is subject to a lien which can attain priority over
this Security Instrument, Lender may give Borrower a notice identifying the lien. Within 10 days of the date on
 which that notice is given, Borrower shall satisfy the lien or take one or more of the actions set forth above in this
 Section 4.
           Lender may require Borrower to pay a one-time charge for a real estate tax verification and/or reporting
 service used by Lender in connection with this Loan.
           5.       Property Insurance. Borrower·shall keep the improvements now existing or hereafter erected
 on the Property insured against loss by fire, hazards included within the tenn "extended coverage", and any other
 hazards including, but not limited to, earthquakes and floods, for which Lender requires insurance. This insurance
 shall be maintained in the amounts (including deductible levels) and for the periods that Lender requires. What
 Lender requires pursuant to the preceding sentences can change during the term of the Loan. The insurance carrier
  providing the. insurance shall be chosen by Borrower subject to Lender's right to disapprove Borrower's choice,
 which right shall not be exercised unreasonably. Lender may require Borrower to pay, in connection with this
 Loan, either: (a) a one--time charge for flood zone determination, certification and tracking services; or (b) a one-
  time charge for flood zone determination and certification services and subsequent charges each time remappings
  or similar changes occur which reasonably might affect sucb determination or certification. Borrower shall also be
  responsible for the payment of any fees imposed by the Federal Emergency Management Agency in connection
  with the review of any flood zone determination resulting from an objection by Bonower,
         Jf fWQ;QDiG~ r~lJ~ ~0 maiDfiliD ODII o\ tpo ~;~ouO'IIIao•• J• ..:t'1 ·J· · I I              1• ~ ~
         HHarrower atls 0 mam!am aw ol' the covemges escrtbecl above, Lender may                     obtam msurance
coverage, at Lender's option and Borrower's expense. Lender is under no obligation to purchase any particular
type or amount of coverage. Therefore, such coverage shall cover Lender, but might or
Borrower, Borrower's equity in the Property, or the contents of the Ptoperty, against any
 Texas Deed oCTrust.Single Famlly.Faanie Mae/Freddie M•c UNIFORM
 INSTRUMENT
                                                        5




                                                         TabB
                                                                                                     RECORD 39
                                                                                                                             ..... ··.;
                                                                                                                                . . ·.
                                                                                                                                   ~




 and might provide greater or lesser covetage than was previously in effect. Borrower acknowledges that the cost of .
 the insurance coverage so obtained might significandy exceed the cost of insurance that Borrower could have .
 obtained. Any amounts disbursed by Lender under this Section 5 shall become additional debt of Borrower secured."
 by this Security Instrument. These amounts shall bear interest at the Note rate from the date of disbursement and
 shall be payable, with such interest, upon notice from Lender to Bonower requesting payment
           A~ insurance policies required by Lender and renewals of such policies shall be subject to Lender's right
 to disapprove such policies, shall include a standard mortgage clause, and shall name Lender as mortgagee and/or
 as an additional loss payee. Lender shall have the right to hold the policies and renewal certificates. If Lender
 requires, Borrower shall promptly give to· Lender all receipt! of paid premiums and renewal notices. If Borrower
 obtains any form of insurance coverage, not. otherwise required by Lender, for damage to, or destruction of, 1he
 Property, such policy shall include a standard mortgage clause and shall name Lender as mortgagee and/or as an
 additional loss payee.
           In the event of Joss, Borrower shall give prompt notice to the insurance carrier and Lender. Lender may
 make proof of loss if not made promptly by Borrower. Unless Lender and Borrower otherwise agree in writing,
 any insurance proceeds, whether or not the underlying insurance was required by Lender, shall be applied to
 restoration or repair of the Property, if the restoration or repair is economically feasible and Lender's security is not
 lessened. During such repair and restoration period, Lender shall have the right to hold soch insurance proceeds
 until Lender has had an opportunity to inspect such Property to ensure the work has been completed to Lender's
 satisfaction, provided that such inspection shall be undertaken promptly. Lender may disburse proceeds for the
 repairs and restoration in a single payment or in a series of progress payments as the work is completed. Unless an
 agreement is made in writing or Applicable Law requires interest to be paid on such insurance proceeds, Lender
 shall not be required to pay Borrower any interest or earnings on such proceeds. Fees for public adjusters, or other
  third parties, retained by Borrower shall not be paid out of the insurance proceeds and shall be the sole obligation
 of Borrower. If the restoration or repair is not economically feasible or Lender's security would be lessened, the
  insurance proceeds shall be applied to the sums secured by this Security Instrument, whether or not then due, with
  the excess, if any, paid to Borrower. Such insurance proceeds shall be applied in the order provided for in Section
 2.
           If Borrower abandons the Property, Lender may file, negotiate and settle any available insurance claim
  and related matters. If Borrower does not respond within 30 days to a notice from Lender that the insurance
  carrier bas offered to settle a claim, then Lender may negotiate and setde the claim. The 30-day period will begin
  when the notice is given. In either event, or if Lender acquires the Property under Section 22 or otherwise,
  Borrower hereby assigns to Lender (a) Borrower's rights to any insurance proceeds in an amount not to exceed the
  amounts unpaid under the Note or this Security Instrument, and (b) any other ofBOIIower's rights (other than the
  right to any refund of unearned premiums paid by Borrower) under all insurance policies covering the Property,
· insofar as such rights are applicable to the coverage of the Pro~rty. Lender may use the insurance proceeds either
  to repair or restore the Property or to pay amounts unpaid under the Note or this SeC\Jrity Instrument, whether or
  not then due.
           6.        Occupancy. Borrower shall occupy, establish, and use the Property as Borrower's principal
  residence within 60 days after the execution of this Security Instrument and shall continue to occupy the Property
  as B01rower's principal residence for at least one year after the date of occupancy, unless Lender otherwise agrees
  in writing, which consent shall not be Ulll'C8Sonably withheld, or unless extenuating circumstances exist which are
  beyond Borrower's control.
           7.        Preservation, Maintenance and Protection of tbe Property; Inspections. Borrower shall not
  destroy, damage or impair the Property, allow the Property to deteriorate or commit waste on the Property.
  Whether or not Borrower is residing in the Property, Borrower shall maintain the Property in order to prevent the
  Property from deteriorating or decreasing in value due to its condition. Unless it is detennined pursuant to Section
  5 that repair or restoration is not economically feasible, Borrower shall promptly repair the Property if damaged to
  avoid further deterioration or damage. If inkurance or condemnation proceeds are paid in connection with damage
  to, or the taking of; the Property, Borrower shall be responsible for repairing or restoring the P~rty only if
 T1101 Deed •fTrult..S.Iagle FamUy.:Pannle Mae/Freddie Mac UNIFORM
 INSTRUMENT
                                                            6




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                                                                                                       RECORD 40
                                                                                                                           =· ·.




Lender bas released proceeds for such purposes. Lender may disburse proceeds for the repairs and restoration in a
single payment or in a series of progress payments as the work is completed. If the insurance or condemnation
proceeds are not sufficient to repair or restore the Property, BoiTOwer is not relieved of Borrower's obligation for
the completion of such repair or restoration.
           Lender or its agent may make reasonable entries upon and inspectiotlB of the Property. If it bas reasonable
cause, Lender may inspect the interior of the improvements on the Property. Lender shall give Borrower notice at
the tune of or prior to such an interior inspection specifYing such reasonable cause.
           s.        Borrower's Loan Application. Borrower shall be in default U: during the Loan application
process, Borrower or any persons or entities acting at the direction of Borrower or with Borrowers knowledge or
consent gave materially false, misleading, or inaccurate information or statements to Lender (or failed to provide
Lender with material information) in connection with the Loan. Material representations include, but are not
limited to, representations concerning Borrower's occupancy of the Property as Borrower's principal residence.
           9.        Protection of Lender's Interest in the Property and Rights Under this Security Instrument.
If (a) Borrower fails to perfonn the covenants and agreements contained in this Security Instrument, (b) there is a
legal proceeding that might significantly affect Lender's interest in the Property and/or rights under this Security
Instrument (such as a proceeding· in bankruptcy, probate, for condemnation or forfeiture, for enforcement of a lien
which may auain priority over this Security Instrument or to enforce laws or regulations), or (c) Borrower has
 abandoned the Property, then Lender may do and pay for whatever is reasonable or appropriare to protect Lender's
 interest in the Property and rights under this Security Instrument, including protecting and/or assessing the value
 of the Property, and securing and/or repairing the Property. Lender's actions can include, but are not limited to:
 (a} paying any sums secured by a lien which baa priority over this Security Instrument; (b) appearing in COUTti and
 (c) paying reasonable attorneys' fees to protect its interest in the Property and/or rights under this Security
 Instrument, including its secured position in a bankruptcy proceeding. Securing the Property includes, but is not
 limited to, entering the Property to make repairs, change locks, replace or board up doors and windows, drain
 water from pipes, eliminate building or other code violations or dangerous conditions, and have utilities turned on
 or off. Although Lender may take action under this Section 9, Lender does not have to do so and is not under any
 duty or obligation to do so. It is agreed that Lender incurs no liability for not taking any or all actions authorized
 onder this Section 9.
           Any amounts disbursed by Lender under this Section 9 shall become additional debt of Borrower secured
 by this Security Instrument. These amounts shall bear interest at the Note rate from the date of disbursement and
 shall be payable, with such interest, upon notice from Lender to Borrower requesting payment.
            If this Security Instrument is on a leasehold, &ttower shall comply with all the provisions of the lease. If
 Borrower acquires fee title to the Property, the leasehold and the fee title shall not merge unless Lender agrees to
  the merger in writing.
            10.       Mortgage Insurance. If Lender required Mortgage Insurance as a condition of making the
  Loan, Borrower shall pay the premiums required to maintain the Mortgage Insurance in effect. If. for any reason,
  the Mortgage Insurance coverage required by Lender ceases to be available from the mortgage insurer that
  previously provided such insurance and Borrower was required to make separately designated payments toward the
  premiums for Mortgage Insurance, Borrower shall pay the premiums required to obtain coverage substantially
  equivalent to the Mortgage Insnrance previously in effect, at a cost substantially equivalent to the cost to Borrower
  of the Mortgage Insurance previously in effect, from an alternate mortgage insurer selected by Lender. If
  substantially equivalent Mortgage Insurance coverage is not available, Borrower shall continue to pay to Lender
  the amount of the separately designated payments that were due when the insurance coverage ceased to be in effect
   Lender will accept, use and retain these payments as a non-refundable loss reserve in lieu of Mortgage Insurance.
  Such loss reserve shall be non-refundable, notwithstanding the fact that the Loan is ultimately paid in full, and
  Lender shall not be required to pay Borrower any interest or earnings on such loss reserve. Lender can no longer
  require loss reserve payments if Mortgage Insurance coverage (in the amount and for the period that Lender
  requires) provided by an insurer selected ~y Lender again becomes available, is obtained, and Lender requires
  separately designated payments toward the premiums for Mortgage l118urance. If Lender required Mortgage
Tuu Deed .CTrut-SID&Ie Famlly-Fannlt MafiFreddle Mae UNIFORM
 INSTRUMENT
                                                       7




                                                           TabB
                                                                                                     RECORD 41
                                                                                                                                                    ...

                                                                                                                                 ;~~.                                         '

Insurance as a condition of making the Loan and B0110wer was required to make separately designated paYJi1ents : .            ·::-::;~f.~~
toward  tm: premiums for   Mo~de  ge Insurance, Borrower shall pay the premiums required to maintain MOrtgage: . . . .·.·.
lnsurance m effect. or to proVl a non-refundable loss reserve, until Lender's requirement for Mortgage I':iisurance.
                                                                                                                                ~- ;: · .~- _, ~_, .'_!.-_ .· !>.\ ~:-.~.:f
                                                                                                                                ~-:::
ends in accordance with any written agr-eement between Borrower and Lender providing for such termination or                ...,_.:.::
until termination is required by Applicable Law. Nothing in this Section 10 affects Borrower's obligation to pay          · · )·
interest at the rate provided in the Note.                                                                      ·
          Mortgage Insunmce reimbwses Lender (or any entity that purchases the Note) for certain losses it may
incur ifBorrower does not repay tbe Loan as agreed. Borrower is not a party to the Mortgage Insurance.
          Mortgage insurers evaluate their total risk on all such insurance in force from time to time, and may enter
into agreements with other parties that share or modify their risk, or reduce losses. These agreements are on tenns
and conditions that are satisfactory to the mortgage insurer and the other party (or parties) to these agreements.
These.agreements may require the mortgage insurer to make payments using any source of funds that the mortgage
insurer may have available (which may include funds obtained from Mortgage Insurance premiums).
          As a result of these agreements, Lender, any purchaser of the Note, another insurer, any reinsurer, any .
other entity, or any affiliate of any of the foregoing, may receive (directly or indlrectly) amounts that derive from
(or might be characterized as) a portion of Borrowers payments for Mortgage Insurance, in exchange for sharing
or modifying the mortgage insurer's risk. or reducing losses. If such agreement provides that an affiliate of Lender
takes a share of the insurers risk in exchange for a share of the premiums paid to the insurer, the arrangement is
often termed ttcaptive reinsurance." Further.
          (a)       Any such agreements will not affect the amounts that Borrower has agreed to pay for
M&rtgage Insurance, or any other terms of tbe Loan. Such agreements will not increase the amount
Borrower will owe for Mortgage Iuurance, and they will not entitle Borrower to any refund.
           (b)      Any such agreements will not affect the rights Borrower has- if any~ with respect to the
Mortgage Insurance under the Homeowners Protection Act of 1998 or any other law. These rights may
include the right to receJve certain disclosures, to request and obtain cancellation of the Mortgage Insurance,
 to have the Mortga2e Insurance terminated automatically, and/or to receive a refund of any Mortgage
 Insurance premJums that were unearned at the time of such cancellation or termination.
           11.      Assignment of Miscellaneous Proceeds; Forfeiture. All Miscellaneous Proceeds are hereby
 assigned to and shall be paid to Lender.
           If the Property is damaged, such Miscellaneous Proceeds shall be applied to restoration or repair of the
 Property, if the restoration or repair is economically feasible and Lender's security is not lessened. During such
 repair and restoration period, Lender shall have the right to hold such Miscellaneous Proceeds until Lender has
 had an opportunity to inspect such Property to ensure the work has been completed to Lender's satisfaction,
 provided that such inspection shall be undertaken promptly. Lender may pay fur the repairs and restoration in a
 aingle disbursement or in a series of progress payments as the work is completed. Unless an agreement is made in
 writing or Applicable Law requires interest to be paid on such Miscellaneous Proceeds, Lender shall not be
 required to pay Borrower any interest or eanrings on such Miscellaneous Proceeds. If the restoration or repair is
 not economically feasible or Lender's security would be lessened, the Miscellaneous Proceeds shall be applied to
 the sums secured by this Security Instrument, whether or not then due, with the excess, if any, paid to Borrower.
 Such Miscellaneous Proceeds shall be applied in the order provided for in Section 2.
           In the event of a total taking, destruction, or loss in varuc of the Property, the Miscellaneous Proceeds
 shall be applied to the sums secured by this Security Instrument, whether or not then due, with the excess, if any,
 paid to Borrower.
           In the event of a partial taking, destruction, or loss in value of the Property in which the fair market value
 of the Property immediately before the partial taking, destruction, or loss in value is equal to or greater than the
  amount of the sums secured by this Security Instrument immediately before the partial taking, destruction, or loss
  in value, unless Borrower and Lender otherwise agree in writing, the sums secured by this Security Instrument ·
  shall be reduced by the amount of the Milcellaneous Proceeds multiplied by the following fraction:              the total
  amount of the swns secured immediately before the partial taking, destruction, or loss in                         (b) the

Texu Deed ofTrua.Slaale Family-Fannie Mae/Freddie Mac UNIFORM
INSTRUMENT
                                                       8




                                                         TabB
                                                                                                       RECORD 42
fair marlcet value of the Property immediately before the partial taking. destruction, or loss in value. Any balance ·
shall be paid to Borrower.
           In the event of a partial taking. destruction, or loss in value of the Property in which the fair market value
of the Property immediately before the partial taking, destruction, or toss in value is less than the amount of the
sums secured immediately before the partial taking, destruction, or loss in value, unless Bonower and Lender
otherwise agree in writing, the Miscellaneous Proceeds shall be applied to the swns secured by this Security
Instrument whether or not the sums arc then due.
          If the Property is abandoned by Borrower, or if, after notice by Lender to Borrower that the Opposing
Party (aa defined in the next sentence) offers to make an award to settle a claim for damages, Borrower fails to
respond to Lender within 30 days after the date the notice is given, Lender is authorized to collect and apply the
Miscellaneous Proceeds either to restoration or repair of the Property or to the sums secured by this Security
Instrument, whether or not then due. "Opposing Party" means the third party that owes Borrower Miscellaneous
Proceeds or the party against whom Borrower has a right of action in regard to Miscellaneous Proceeds.
           Borrower shall be in default if any action or proceeding, whether civil or criminal, is begun that, in
Lender's judgment, could result in forfeiture of the Property or other material impairment of Lender's interest in
the Property or rights under this Security Instrument. Borrower can cure such a default and, if acceleration has
occurred, reinstate as provided in Section 19, by causing the action or proceeding to be dismissed with a ruling
that, in Lender's judgment. precludes forfeiture of the Property or other material impairment of Lender's interest in
the Property or rights under this Security Instrument The proceeds of any award or claim for damages that are
attributable to the impairinent of Lender's interest in the Property are hereby assigned and shall be paid to Lender,
           All Miscellaneous Proceeds that are not applied tD restoration or 1epair of the Property shall be applied in
tbe order provided for in Section 2.
           12.      Borrower Not Released; Forbearance By Lender Not a Waiver. Extension of the time for
payment or modification of amortization of the sums secured by this Security Instrument granted by Lender to
Borrower or any Successor in Interest of Borrower shall not operate to release the liability of Borrower or any
 Successors in Interest of Borrower. Lender shall not be required to commence proceedings against any Successor
 in Interest of Borrow~r or to refuse to extend time for payment or otherwise modify amortization of the sums
 secured by this Security Instnunent by reason of any demand made by the original Borrower or any Successors in
 Interest of Borrower. Any forbearance by Lender in exercising any right or remedy including, without limitation,
 Lender's acceptance of payments from third persons, entities or Successors in Interest of Borrower or in amounts
 less than the amount then due, shaU not be a waiver of or preclude the exercise of any right or remedy.
           13.      Joint and Several LlablJity; Co-signers; Successors and Assigns Bound. Borrower covenants
 and agrees that Borrower's obligations and liability shall be joint and seYClral. However, any Borrower who co-
 signs this Security Instrument but does not exeeute the Note (a "co-signer"): (a) is co-signing this Security
 Instrument only to mortgage, grant and convey the co-signer's interest in the Property under the terms of this
 Security Instrument; (b) is not personally obligated to pay the sums secured by this Security Instrument; and (c)
 agrees that Lender and any other Borrower can agree to extend, modify, forbear or make any accommodations with
 regard to the terms of this Security Instrument or the Note without the co-signet's consent.
           Subject to the provisions of Section 18, any Successor in Interest of Borrower who assumes Borrower's
 obligations under this Security Instrument in writing, and is approved by Lender, shall obtain all of Borrower's
 rights and benefits under this Security Instrument. Borrower shall not be released from Borrower's obligations and
 liability under this Security Instrument unless Lender agrees to such release in writing. The covenants and
 agreements of this Security Instrument shall bind (except as provided in Section 20) and benefit the successors and
 assigns of Lender.
            14.     Loan Charges. Lender may charge Borrower fees for services performed in connection with
  Borrower's default, for the purpose of protecting Lender's interest in the Property and rights under this Security
  Instrument, including, but not limited to, attorneys' fees, property inspection and valuation fees. In regard to any
  other fees, the absence of express authoritY in this Security Instrument to charge a specific fee to Borrower shall
  not be construed as a prohibition on the charging of such fee. Lender may not charge fees that are expre~sly
Tent Deed of"l'nlllt-Blttllt Famfly..llanwle MJiflll'reddle Mae UN1FORM
INSTRUMENT




                                                               TabB
                                                                                                      RECORD 43
prohibited by this Security Instrwnent or by Applicable Law.
           If the Loan is subject to a law which sets maximum loan charges, and that law is finally interpreted. so that
the interest or other loan charges collected or to be collected in connection with the Loan exceed the permitted ·
limits, then: (a) any such loan charge shall be reduced by the amount necessary to reduce the charge to the
permitted limit; and (b) any sums already collected from Borrower which exceeded permitted limits will be
refunded to Borrower. Lender may choose to make this refund by reducing the principal owed under the Note or
by making a direct payment to Borrower. If a refund reduces principal, the reduction will be treated as a partial
prepayment without any prepayment charge· (whether or not a prepayment charge is provided for under the Note).
Borrower's acceptance of any such refund made by direct payment to Borrower will constitute a waiver of any right
of action Borrower might have arising out of such overoharge.
           15.       Notices. All notices given by Borrower or Lender in coJUlection with this Security Instrument
must be in writing. Any notice to Borrower in connection with this Security Instrument shall be deemed to have
been given to Borrower when mailed by first class mail or when actually delivered to Borrowers notice address if
sent by other means. Notice to any one Borrower shall constitute notice to all Borrowers unless Applicable Law
expressly requires otherwise. The notice address shall be the Property Address unless Borrower has designated a
substitute notice address by notice to Lender. Borrower shall promptly notify Lender of Borrower's Change of
address. If Lender specifies a procedure for reporting Borrower's change of address, then Borrower shall only
report a change of address through that specified procedure. There may be only one designated notice address
under this Security Instrument at any one time. Any notice to Lender shall be given by delivering it or by mailing
it by fll'st class mail to Lender's address stated herein unless Lender has designated another address by notice to
Borrower. Any notice in connection with this Security Instrument shall not be deemed to have been given to
Lender until actually received by Lender. If any notice required by this Security Instnunent is also ~quired under
Applicable Law, the Applicable Law requirement will satisfy the corresponding requirement under this Security
Instrument.
           16.       Governing Law; Severability; Rules of Construction. This Security Instrument shaU be
governed by federal law and the law of the jurisdiction in which the Prope_rty is located. AU rights and obligations
contained in this Security Instrument are subject to any requirements and limitations of Applicable Law.
Applicable Law might explicitly or implicitly allow the parties to agree by contract or it might be silent, but such
silence shall not be construed as a prohibition against agreement by contract In the event that any provision or
clause of this Security Instrument or the Note conflicts with Applicable Law, such conflict shall not affect other
provisions of this Security Instrument or the Note which can be given effect without the conflicting provision.
           As used in this Security Instrument: (a) words of the masculine gender shall mean and include
 corresponding neuter words or words of the feminine gender; (b) words in the singular shall mean and include the
 plural and viu versa; and (c) the word "may" gives· sole discretion without any obligation to take any action.
           17.       Borrower's Copy. Borrower shall be given one copy of the Note and of this Security lmtrument.
           18. . Transfer of the Property or a Beneficial Interest in Borrower. As used in this Section 18,
 ~Interest in the Property" means any legal or beneficial interest in the Property, including, but not limited to; those
 beneficial interests transferred in a bond for deed, contract for deed, installment sales contract or escrow
 agreement, the intent ofwbich is the transfer of title by Borrower at a future date to a purchaser.
           If all or any part of the Property or any Interest in the Property is sold or transferred (or if Borrower is not
 a natural person and a beneficial interest in Borrower is sold or transferred) without Lender's prior written consent,
 Lender may require immediate payment in full of all sums secured by this Security Instrument However, this
 option shall not be exercised by Lender if such exercise is prohibited by Applicable Law.
    ~       If Lender exercises this option, Lender shall give Borrower notice of acceleration. The notice shall
 provide a period of not less than 30 days from the date the notice is given in accordance with Section 15 within
 which Borrower must pay all sums secured by this Security Instrument. If Borrower fails to pay these sums prior to
 the expiration of this period, Lender may invoke any remedies permitted by this Security Instrument without
 further notice or demand on Borrower. - '
            19.       Borrower's Right to Reinstate After Acceleration.
Texas Deed ofTruat...Slo11e Family-.Fannle Mat/Freddie Mat: UNIFORM
INSTRUMENT
                                                             10




                                                            TabB
                                                                                                         RECORD 44
                                                                                                                                     ··.   '.:·::. ~~
                                                                                                                                            · .·

                                                                                                                              ·.
            Borrower shall have the right to have enforcement of this Security Instrument discontinued at any time prior to the ·
            earliest of: (a) five days before sale of the Property pursuant to any power of sale contained in this Security . _
            lnslrument; (b) such other period as Applicable Law might specifY for the tennination of Borrower's right to' ·
            reinstate; or (c) entry of a judgment enforcing this Security Instrument. Those conditions are that Borrower: (a)
            pays Lender all sums which then would be due under this Security Instrument and the Note as if no accoleration
            had occurred; (b) cures any default of any other covenants or agreements; (c) pays all expenses incurred in
            enforcing this Security Instrument, including, but not limited to, reasonable attorneys' fees, property inspection and
            valuation fees, and other fees incurred for the purpose of protecting Lenders interest in the Property and rights
            under this Security Instrument; and (d) takes such action as Lender may reasonably require to assure that Lender's
            interest in the Property and rights under this Security Instrument, and Borrower's obligation to pay the sums
            secured by this Security Instrument, shall continue unchanged. Lender may require that Borrower pay such
            reinstatement sums and expenses in one or more of the following forms, as selected by Lender: (a) cash; (b) money
            order; (c) certified check, bank check, treasurer's cbeck or cashier's check, provided any such check is drawn upon
             an institution whose deposits are insured by a federal agency, instnunentality or entity; or (d) Electronic Funds
             Transfer. Upon reinstatement by Borrower, this Security Instrument and obligations secured hereby shall remain
             fully effuctive as if no acceleration had occurred. However, this right to reinstate shall not apply in the case of
             acceleration uDder Section 18.
                      20.       Sale or Note; Change of Loan Servicer; Notice of Grievance. The Note or a partial interest in
             the Note (together with Ibis Security Instrument) can be sold one or more times without prior notice to Borrower. A
             sale might result in a change in the entity (known as the "Loan Servicer") that collects Periodic Payments due
             under the Note and this Security Instrument and performs other mortgage loan servicing obligations under the
             Note, this Security Instrument, and Applicable Law. There also might be one or more changes of the Loan
             Servicer wuelated to a sale of the Note. If there is a change of the Loan Servicer, Borrower will be given written
             notice of the change which will state the name and address of the new Loan Servicer, the address to which
             payments should be made and any other information RESPA requires in connection with a notice of transfer of
             servicing. If the Note is sold and thereafter the Loan is serviced by a Loan Servicer other than the purchaser of the
             Note, the mortgage loan servicing obligations to Borrower will remain with the Loan Servicer or be transferred to a
             successor Loan Servicer and are not assumed by the Note purchaser unless otherwise provided by the Note
            ~er.                                                              .
                       Neither Borrower nor Lender may commence, join, or be joined to any judicial action (as either an
             individual litigant or the member of a class) that arises from the other party's actions pursuant to this Security
             Instrument or that alleges that the other party has breached any provision o~ or any duty owed by reason of, this
             Security Instrument, until such Borrower or Lender has notified the other party (with such notice given in
             compliance with the requirements of Section 15) of such aJleged breach and afforded the other party hereto a
             reasonable period after the giving of such notice to take corrective action. If Applicable Law provides a time
             period which must elapse before certain action can be taken, that time period will be deemed to be reasonable for
             purposes of this paragraph. The notice of acceleration and opportunity to cure given to Borrower pursuant to
             Section 22 and the notice of acceleration given to Borrower purnuant to Section 18 shall be deemed to satisfy the
             notice and opportunity to take corrective action provisions of this Section 20.
                       21.      Hazardous Substances. As used in this Section 21: (a) "Hazardous Substances" are those
             substances defined as toxic or hazardous substances, pollutants, or was«:s by Environmental Law and the following
             substances: gasoline, kerosene, other flammable or toxic petroleum products, toxic pesticides and herbicides,
  .. ·...
·... : ·.     votatile solvents, materials containing asbestos or· formaldehyde, and radioactive materials; (b) "Environmental
...           Law" means federal laws and laws of the jurisdiction where tbe Property is located that rela~ to health, safety or
 ·~  . ·.     environmenau protection; (c) "Environmental Cleanup" includes any response action, remedial action, or removal
              action, as defined in Environmental Law; and (d) an "Environmental Condition" means a condition that can cause,
              contnbute to, or otherwise trigger an Environntental Cleanup.
                        Borrower shall not cause or permit the presence, use, disposaJ, storage, or release of any Hazardous
              Substances, or threaten to release any Hazardous Substances, on or .in the Property. Borrower shall not do, nor
             TguDeed otTnlt..Single Fam111'-F11Anle Mac/Freddie Mac UNIFORM
             INSTRUMENT
                                                                  11




                                                                       TabB
                                                                                                                 RECORD 45
allow anyone else to do, anything affecting the Property (a) that is in violation of any Environmental' Law;
(b) which creates an Environmental Condition, or (c) which, due to the presence, use, or release of a Hazardous
Substance, creates a condition that adversely affects the value of the Property. The preceding two sentences shall:
not apply to the presence, use, or storage on the Property of small quantities of Hazardous Substances that are
generally recognized to be appropriate to normal residential uses and to maintenance of the Property (including,
but not limited to, hazardous substances in consumer products).
          BOlTower shall promptly give Lender written notice of (a} any investigation, claim, demand, lawsuit or
other action by any governmental or regulatory agency or private party involving the Property and any Hazardous
Substance or Environmental Law of which Borrower has actual knowledge, (b) any Environmental Condition,
including but not limited to, any spilling, leaking, discharge, . release or threat of release of any Hazanlous
Substance, and (c) any condition caused by the presence, use or release of a Hazardous Substance which adversely
affects the value of the Property. If Borrower loams, or is notified by any govenunental or regulatory authority, or
any private party, that any removal or other remediation of any Hazardous Substance affecting the Property is
necessary, Borrower shall promptly take all necessary remedial actions in accordance with Environmental Law.
Nothing herein shall create any obligation on Lender for an Environmental Cleanup.

         NON-UNIFORM COVENANTS. Borrower and Lender further covenant and agree as follows:
           22.      Acceleration; Remedies. Lender shaD give notice to Borrower prior to acceleration
 following Borrower's breach of any covenant or agreement in this Security Instrument (but not prior to
 acceleration under Section 18 unless Applicable Law provides otherwise). The notice shall specify: (a) the
 default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice
 is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before
 the date specified in the notice wUI result in aceeleration of the sums secured by this Security Instrument and
 sale of the Property. The notice shall further inform Borrower of the right to reinstate after acceleration
 and the right to bring a court action to assert the non-existence of a default or any other defense of Borrower
 to acceleration and sale. If the default Is not cured on or before the date specified in the notice, Lender at Its
 option may require Immediate payment in full of all sums secured by this Security Instrument without
 further demand and may invoke the power of sale and any other remedies permitted by Applicable Law.
'Lender shaU be entitled to coiled aU expenses incurred in pursuing the remedies provided in this Section 22,
 including, but not limited to, reasonable attorneys' fees and costs of title evidence. For the purposes of this
 Section :ZZ, the term "Lender" includes any holder of the Note who is entitled to receive payments under the
 Note.
           If Lender invokes the power of sale, Lender or Trustee shall give notice of the time, place and terms
  of sale by posting and filing the notice at least 21 days prior to sale as provided by Applicable Law. Lender
 shall mail a copy of the notice to Borrower in the manner prescribed by Appllcable Law. Sale shall be made
  at public venue. The sale must begin at the time stated in the notice of sale or not later than three hours
  after that time and between the hours of 10 a.m. and 4 p.m. on the first Tuesday of tbe mouth. Borrower
  authorizes Trustee to sell the Property to the highest bidder for cash In one or more pareels and in any order
  Trustee determines. Lender or Its designee may purchase the Property at any sale.
           T1'11Btee shall deliver to the purchaser Trustee's deed conveying Indefeasible title to the Property
  with covenants of genenl warranty from Borrower. Borrower covenants and agrees to defend generalty the
  purchaser's title to the Property against all claims and demands. The recitals in the Trustee's deed shall be
  prima facie evidence of the truth of the statements made therein. Trustee shall apply the proceeds of the sale
  In the following order. (a) to all expenses of the sale, Including, but not limited to, reasonable Trustee's and
  attorneys' fees; (b) to aU sums secured by this Security Instrument; and (c) any excess to the person or
  persons legally entitled to it.
           If the Property is sold pursuant to this Section 22, Borrower or any person holding possession of the
  Property through Borrower shall immedfateJy surrender possession of the Property to the purchaser at that
  sale. If possession is not surrendered, Borrower or such person shall be a tenant at sufferance and may be
 TeuaiHcd oCTrust..Siagle Famlly-Faanle Mae/Freddie Mac UNIFORM
 INSTRUMENT




                                                        TabB
                                                                                                    RECORD 46
                                                                                                                            ·--
                                                                                                                             '




  removed by writ of possession or other court proceeding.
            13.      Release. Upon payment of all sums secured by this Security Instrument, Lender shall provide a
  release of this Security Instrument to Borrower or Borrower's designated agent in accordance with Applicable Law.
   Borrower shalJ pay any recordation costs. Lender may charge Borrower a fee for releasing this Security
  Instrument, but only if the fee is paid to a third party for services rendered and the charging of the fee is petmittcd
  under Applicable Law.
           24.       Substitute Trustee; Trustee Liability. All rights, remedies and duties of Trustee under this
  Security Instrument may be exercised or performed by one or more trustees acting alone or together. Lender, at its
  option and with or without cause, may from time to time, by power of attomey or otherwise, remove or substitute
  any trustee, add one or more trustees, or appoint a successor trustee to any Trustee without the necessity of any
  formality other than a designation by Lender in writing. Without any further act or conveyance of the Property the
  substitute, additional or successor tJustee shall become vested with the title, rights, remedies, powers and duties
  conferred upon Trustee herein and by Applicable Law.
           Trustee shall not be liable if acting upon any notice, request, consent, demand, statement or other
  document believed by Trustee to be correct. Trustee shall not be liable for any act or omission unless such act or
  omission is willful.
            25.      Subrogation. Any of the proceeds of the Note used to take up outstanding liens against all or
  any part of the Property have been advanced by Lender at Borrower's request and upon Borrower's representation
· that such amounts are due and are secured by valid liens against the Property. Lender shall be subrogated to any
  and all rights, superior titles, liens and equities owned or claimed by any owner or holder of any outstanding liens
  and debts, regardless of whether said liens or debts are acquired by Lender by assignment or are released by the
  holder thereof upon payment.                                       ·
            26.      Partial Invalidity. In the event any portion of the sums intended to be secured by this Security
  Instrument cannot be lawfully secured hereby, payments in reduction of such sums shall be applied first to those
  portions not secured hereby.
            27.      Purchase Money; Owelty of Partition; Renewal and Extension of Liens Against Property;
  Acknowledgment of Cash Advanced Against Non-Homestead Property. Check box as appUcable:
 IKI      Purchase Money.
          The funds advanced to Borrower under the Note were used to pay all or part of the purchase price of the
 Property. The Note also is primarily secured by the vendor's lien retained in the deed of even date with this
 Security Instrument conveying the Property to Borrower, which vendors lien bas been assigned to Lender, this
 Security Instrument being additional security for such vendor's Uen.
 0        Owelty of Partition.
          The Note represents funds advanced by Lender at the special instance and request of Borrower for the
 pUipOSe of acquiring the entire fee simple title to the Property aDd the existence of an owelty of partition imposed
 against the entirety of the Property by a court order or by a written agreement of the parties to the partition to
 secure the payment of the Note is expressly acknowledged, confessed and granted.
 0         Renewal and Extension ot Liens Against Property.
           The Note is in renewal and extension, but not in extinguishment, of the indebtedness described on the
 attached Renewal and Exte~on Exhibit which is incorporated by reference, Lender is expres&ly subrogated to all
 rights, liens and remedies securing the original holder of a note evidencing Borrower's indebtedness and the
 original Hens securing the indebtedness are renewed and extended to the date of maturity of the Note in renewal
 and extension of the indebtedness.
 0       Acknowledgment of Cash Advanced Against Non-Homestead Property.
         The Note represents funds advanced to Borrower on this day at Borrower's request and Borrower
 acknowledges receipt of such funds. Borro'ler states that Borrower does not now and does not intend ever to reside
 on, use in any manner, or claim the Property secured by this Security Instrument as a business or residential
 homestead. Borrower disclaims all homestead rights, interests and exemptions related to the Property.           ·
 TellU Deed ofTrust.Singlc FamUy-Fanaie Mae/F~dle Mae UNIFORM
  INSTRUMENT
                                                        lJ




                                                             TabB
                                                                                                       RECORD 47
                                                                                                    .           .
        28.      Loan Not a Home Equity Loan. The Loan evidenced by the Note is not an enemion of .
credit" as defmed by Sedion 50(a)(6) or Section 50(a)(7), Artide XVI, of the Texas Constitution. If the
Property Is used as Borrower's resideace, then BorroWer agreeS that Borrower wiD receive no cash from the               -... -
Loan evidenced by the Note and that any advances not necessary to purchase the Property, extinguish an
owelty lien, complete construction, or renew and extend a prior Hell against the Property, will be used to
reduce the balance evidenced by the Note or sueb Loan wiU be modified to evidence the correct Loan
balance, at Lender's option. Borrower agrees to execute any documentation necessary to comply wftb this
Seetlon 28.
BY SIGNING BELOW, Borrower accepts and agrees to the terms and covenants contained in this Security
Instrument and in any Rider executed by Bonowcr and recorded with it.

WITNESS THE HAND(S) AND SEAL(S) OF Tiffi UNDERSIGNED.

                                                              ~
                                                              ~                    /1
                                                             ,..s~
                                                                      u...o<.v. urtffl-...k
                                                                                ./{£_ ·- ,.
                                             ••
David C. Petruska                                             Sandra L. Petruska
                                                                                                (Sign Orfglnals Only}




~~FO~EXAS Van {MdJ                                                   f;v
The foregoing instrument was acknowledged before me this        ~day             AJ/i J I     , 2J._ by David
~·            and~ I.. Petruska                                                  ~
                                                                            of
       u




T - Deed ef'Tnllt.Sia&le r-11)'-JI'uaale M•~Wredcl.. MIIC UNIPORM
INSTltUMINT
                                                        14




                                                             TabB

                                                                                                 RECORD 48
                                       Document No. 2008-004602

            GENERAL WARRANTY DEED WITH VENDOR'S LIEN


Partil!s:        GUTZKE
                 ···---···-· ·-.- ..HELMUTH
                                    -. . ... ·-. ··--···K.........
                                      ~·
                                                           ET_._UX. --- .......

                 to




                                                 FILED .-\."'\)) RECORDED
                                                     RE:\L RECORDS
                                                On: 05/2012008 at 03:01 PM
                                           I

                                   Docum.:nt ~ umh~r:                   2008..004602
                                                Rt..!cl!ipt :\o.:20086954
                                                     .-\mount: $ 24.00

                                                              By: esmith
                                               Charlotte: Bl~.!dsol!. County Clerk
                                                  \'an Znndl County. Tl!xas
                                                                4 Pages

 ...,.,*DO ~OT R.t:\·10\-'~: TillS PAGF- IT IS A PART OF THIS INSTRlli\U:NT~**



                      $T,\ TE OF TEXAS
                      COt':'~TY UF \'.-\:"i lA'\!DT
                                I hcr~br cc:rtit)' thal this mstrumc:nl was f•l~c.ll'O the: dat..: and time: ~tamped hereon by
                      m..: and was uuly rec~1rdc:d under the: f:lt.>cument i'ium~r :itampt..od h.:reon of the Oflicial Public
                      Records of Van landt County




 Rl!t..'t>rd and Rl!turn To:


    DAVID C. PETRUSKA
    I 1264 RUSSWOOD CIRCLE

    DALLAS, TX 75229                                                                                                        1111111111111
                                                                    TabC
                                                                                                             RECORD 49
     AFfER RECORDING RETURN TO:
     David C. Petruska
     11264 Russwood Circle
     Dallas, TX 75229

            -----------[Space Above This Unel'or Recording 0 1 1 . 1 1 1 ] - - - - - - - - - -
     NOTICE OF CONFIDENTIAUTY RIGHTS: IF YOU ARE A NATURAL PERSON,
     YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING
     INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN
     REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBUC RECORDS:
      YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER.

                           General Warranty Deed with Vend or's Lien
     Date:  Executed on the date set forth in the acknowledgement herein, but to be effective the Sixteenth day of
     May, 2008.

     Gl1Ultor:          Helmuth K. Gutzke an~i~e, Zackiann Gutzke
     Gl1Ultor's Mailing   Address:~ rrN j///3{/'J                   in .
                                   .        ' /2.1-y 7"1     7577 (
     Grantee:           David C. Petruska and wife, Sandra L. Petruska

     Gra~tce's   Mailing Address:           11264 Russwood Circle
                                            Dallas, TX 75229

     Consideration:
             Ten Dollars ($10.00) and other good and valuable consideration paid to Grantor by Grantee and a
             note of even date in the principal amount of Two Hundred Seventy Four Thousand Five Hundred
             and 00/100 Dollars - ($274,500.00) made by Grantee payable to the order of Compass Bank ,
             "Lender" herein, as consideration for the amount paid to Grantor. The note is secured by a
             vendor's lien retained In favor of Lender in this .deed and by a deed of trust or even date from
             Grantee to Jon Mulkin , Trustee.                                                         ·

     Property (including any improvements):
              All that certain lot, tract or parcel of land si't uated in VanZandt County, State of Tens, on theM.
              V. Lout S1irvey, A-468, and being all of the residue of the called 5.753 acre first tract and all of the
             called 20.00 acre second tract conveyed to Helmuth K. Gutzke and wife, Zackiann Gntzke, by A. D.
             Ward, a single man, by Warranty Deed with Vendor's Lien dated July 30, 1990, and recorded in
             Volume 1207 Page 390; of the Van Zandt County Real Records, together with an Easement for
             Roadway situated in VanZandt County, State of Tens, on theM. 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, or the VanZandt County
              Real Records and a part of tile called 1.10 acre tract conveyed to Thomas M. Lytle and Ellen Lytle,
              by RJcky Lee Hadley, by General Warranty Deed recorded in Volume 1771, Page 629, of the Van
             Zandt County Real Records and said lot, tract and parcel of land being more particularly described
     General WaJTanty Deed witll Yeador's Lien




                                                                                                    RECORD 50
-~----~---~·--
          by metes and bounds in Exhibit "Au attaebed hereto and made a part hereof.

          The above described property also includes any and all of Grantor's right, title, and/or interest in
          any and aU system memberships and/or owoersbip certificates In any non-municipal water and/or
          sewer systems now or in the future serving said property.

Reservations from and Exteptions to Conveyance and Warranty:
        This conveyance is given and accepted subject to any and aU restrictions, reservations, covenants,
        conditions, rights of way, easements, municipal or other governmental zoning laws, regulations and
        ordinances, if any, affecting tbe herein described property.

          Grantee herein assumes tbe taxes for the current year.

Grantor, for the consideration and subject to the reservations from and exceptions to conveyance and warranty,
grants, sells, and conveys to Grantee the property, together with all and singular the rights and appurteDIUlces
thereto in any wise belonging, to have and hold it to Grantee, Grantee's heirs, executors, administrators,
successors, or assigns forever. Grantor binds Grantor and Grantor's heirs, executors, administrators, and
successors to warrant and forever defend all and singular the property to Grantee and Grantee's heirs, executors,
administrators, successors, and assigns against every person whomsoever lawfully claiming or to claim the same or
any part thereof, except as to the reserv11tions from and exceptions tD conveyance and warranty. The vendor's lien
(to the extent of the consideration paid by Grantee to Grantor) against and superior title to the property are retained
until each note descnbed is fully paid according to its tenns, at which time this deed shall become absolute. The
vendor's lien and superior title retained in this deed are transferred tD Lender, without recourse on Grantor. When
the context requires, singular nouns and pronouns include the pluraL When executed by a corporation the words
"heirs and assigns" shall be construed to mean "Successors and assigns".




=Po~~ tl}.r!J                                                        hJ
The for oing
 e nth
               i.ns~entt
             utzke
                           was aelm:rwled before me this
                              Zackiann Gu
                                                                 Iff...!!:_ day of ~j J I /
                                                                                 ~
                                                                                                  ,   2$   by


                '         ··f )6             I




                                             f




  !dum/;;                                              Tab C


                                         '
                                                             )

      •         ..   '   ,0    "
                                                                                                      RECORD 51
----------------~~--~------------------~------------~~-




                                            Exhibit .A"


               All that certain lot, tract or parcel of land situated in VanZandt County, State of
      Texas, on the M. V. Lout Survey, A-468, and being all of the residue of the called 5. 753
      acre first tract and all ofthe called 20.00 acre second tract conveyed to Helmuth K.
      Gutzke and wife; Zackiann Gutzke, by A. D. Ward, a single man, by Warranty Deed
      with Vendor's Lien dated July 30, 1990, and recorded in Volume 1207, Page 390, of the
      VanZandt County Real Records. Said Jot, tract or parcel of land being more particularly
      described by metes and bounds as follows:
               BEGINNING at a%" iron rod found for corner at the Southeast comer of the
      called 20.00 acre second tract, at the Southwest corner of the Arthur C. Werden tract
      recorded in Volume 2028, Page 309. of the Van Zandt County Real Records, and in the
      Northeast line of the Thomas M. Lytle 68.78 acre tract recorded in Volume 1771, Page
      609, of the Van Zandt County Real Records, from WHENCE a fence comer found
      bears North 78 degrees 05 minutes 37 seconds West 2.58 feet;
               THENCE NORTH 44 degrees 40 minutes 21 seconds West 648.90 feet to a 5/8"
      iron rod set for comer at the South comer of the Thomas M. Lytle 1.622 acre tract
      recorded in Volume 2188, Page 463, of the Van Zandt County Real Records;
               THENCE NORTH 43 degrees 59 minutes 44 seconds East 105.86 feet to a %"
      iron rod found for corner at the East corner of the said 1.622 acre tract;
               THENCE NORTH 45 degrees 25 minutes 00 seconds West 668.07 feet to a W'
      iron rod found for comer at the North corner of the called 1.622 acre tract, in the original
      Northwest line· of the called 5. 753 acre first tract, and in the Southeast line of the
      Thomas M. Lytle 1.10 acre tract recorded in Volume 1771, Page 629, of the VanZandt
      County Real Records;
               THENCE NORTH 44 degrees 05 minutes 12 seconds East 1152.76 feet to a
      railroad spike set for corner in County Road No. 23 19, at the North comer of the called
      20.00 acre second tract, from WHENCE a 60d nail found at the East corner of the said
      Thomas M. Lytle 1.10 acre tract bears North 44 degrees 05 minutes 12 seconds East
       2.65 feet and a %" iron rod found in the South right of way of the said county road bears
       South 38 degrees 58 minutes 47 seconds West 23.09 feet;
             . THENCE SOUTH 81 degrees 39 minutes 33 seconds East along the said county
      road and the North line of the called 20.00 acre second tract, 322.19 feet to a railroad
      spike set for comer in the South line of the B. W. Ward 106.60 acre first tract recorded
      in Volume 1654, Page 588, of the Van Zandt County Real Records, at the Northwest
      comer of the said Arthur C. Werden tract and at the Northeast comer of the called .
      20.00 acre second tract, from WHENCE a 5/8" iron rod set in the South right of way line
      of the said county road bears South 08 degrees 20 minutes 49 seconds West 19.00
      feet and a 48" Pecan tree found marked X with two hacks above and below the X bears
      North 62 degrees 57 minutes East 60.40 feet~             ·
           . THENCE SOUTH 08 dedrees 20 minutes 49 seconds West along the East line
      of the called 20.00 acre second tract and the West line of the said Arthur C. Werden.......iil
                                                                                                   · ....,._.,.
      tract 1806.98 feet to the place of beginning and containing 24.020 acres of land.
                                                                                                                  ... :




                                                   Tab C
                                                                                          RECORD 52
~~·x_,.;·~> ·,?    ,




~ ·.:·:-.:




                                                                                                                     ·.. .. .
                                                                                                                          ~



                                                                                                   . . ·..
                                                                                                    ...
,.                '"
                         .   .   ~
                                                  ••   • •••   0   ...




                       ''i:i(:;, :~~~~ :~ ,~~t..;~ :~~..·.. ~·is :Ch~~ e;,:
I
!
                                                                                                                                ' )b"-·_   _.
                        0(4) -m.t· ~ 1ft Pilragralph 12A(t)(b) of t:no C»ntrJac;t; J$·Q1angect ~ $ _ _ _ _ _ _ ___.
                           Ccs~ ~ Q:iSt of leil1dcr rii~if.:Dm.:l tepains .nc:r trautmcnt, a~ lllemlzed on tt¥t a~ ll&t, wur be pe~
                       . :. ·.:, : :::· lli~fcilltnifs: f "·:· · '·' ·,:         by seDer; f ... ·                   bV Buyer.
                           CJt~) suye~ bits·pelcl 'i!;;Mior•n additional non-t'l!"'rsdio'ble Option ~c or$                    l'ot' tlln
                                     e~n~iGn           .' of . t~Ct" unl'e$fricced rlght to t:crmfnate the c:ona:rac;t ol\ or
                                 b$rdiier :< .' ·                                        • 2o.    ·· Thl~ addfticmcll Opdon Fee Cl wtQ 0 wm not
                                 be ~--1:0 the Qalcc Price.                                                            .           : .
                        J!f('7) B\wet" weives the ..m.-,~ right~ "mrtnlnat:e the ~ttl!lc:t C'vr whlc:h the Option Flie .,..... pald.
                        0(8) Tbe chile far 8uysr tD give written ncf:\ce w Sellar that 8"V8r QJnnot abta•ra fttlandi"'Q appraval
                               . as . set. fal'1h in the 'Third Pwtv Plnandng Condftton Addendum Is Changed
                                 tcf ·.......,..: ' ... ::.::·.:.·:· ·•· '· . ·. . .2o·.       ·~             .          .  .            .
                        .2((9) ·~~~~~! c~n~~., tettuaJ ctaternents ond bu5lnes'oetaliiZ o~iJ~bre"'                              tttl!ffri...·l fC
                         .:~-~~~"~Z~~~~-~-
                             · ~~;. ~·p~:.'~· ~· ~ ..··~~J';..A'k.~~t;'"". ~r...d'7i..,.)
                         . ·.. .           ·. .. ..                ':.=. ·• of       ~·            ., ,      .      ........     FiLL IN TilE




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·:
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                                                                         ·.. .   .    .



             ::~:,;<:, J:":;:i:l;~i;,~\Jtt'L~:,;;i;i;~::11;i.~~it~!&;;;'{}(t;,i~,\lli~0x:_,,,;'; ~\:'Eli;~-;~;.·· :i!;i:l~;~{\RECORD
                                                                                                                              .      53
                                                                                                                    . ";;/j.f.

                                                                                                                   ·~··




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                                                            . ... ' .   ·.
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bi~~?~;;i~:i,~~~il:iib},\i:f,'itcll;i~li0¥;;V:Hri;~:):\\ii81®i\i~~.):'i::s;i:[{\;:i{ ·.·•.··. •. . . .        RECORD
                                                                                                           '.: .
                                                                                                               .·..
                                                                                                                     54 :~,.
                                                                                                                                                                                ·...
                                                                                                                                       \   .   ·.
                                                                                                     ,_,._.. __·~·,_,_,·, ~~~ii~t;,~·~c,~}. · ;_·
                                                                         l:i·:j.;"'·,;;·++;,i;;.t:            .:·::>:·:: :. : : :                   : ·. ·. .
                                                                                                     .        Cilisiri"g·::.-;.:~:.-.;~..... ;..'••• :....... $._.__   _.__.:...._~-
                                                                                                     .·~ i.:::·.~~~.:J .:.-.~   .............................. $._______
                                                                                           :. : .•.-~~~:;~-:·;;.;·,:.;;~·.-. ·,;,,,,,,,,,u.~•••••••••••••• $_     _.._____
                                                                                           ott1erwrs~e· requl'red                      by the contract,         Seller, at seller's
'jl: :. ·....                                                                  ;.;..,.;.;;;;,;.;;- iirid.;Watments:
 )
 i
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·:.
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                                       '   ·.


                     ·   0(~)' ~~-~~t~ 1~ ~~-r~~~~-~~    ·9·6fthe contract IS changed to                                   20._ __
                         0(4) The amount In Paragraph 12A{l)(b) of the contract Is ch~nged to $ - - - - - - - - - - - '
                         0(5) The cost of lender required repairs and treatment, as lt~mt:zed on the attached list, will be paid
                                as follows: $                                by Seller; $                               by Buyer.
                         0(6) Buyer hes paid Seller an additional Option Fee of$                               for an extension of the
                                unrestricted right to terminate the contract on or before - - - - - - - - - - - - - : - - - -
                                20       . . • This addlt)onal Option Fee Cl will CJ will not be credited to the Sales Price. ·
                         I:J(7) Buyer waives the unrestrlc~d right to terminate the contract for which the Option Fee was paid.
                         0(8) Tlie· date: tor Buyer to' give written notice to Seller that Buyer cannot obtain Financing Approval
                                                                                                                                                                                       ".':


                                as set roitti'ln the Third Party Financing Cohdltlon Addendum Is changed to _ _ _ _ _ ___,

                         J{c9~-- ~;-~~. ~~~-~~~~l~ns:' (!nsert only ~ctuat Statements 'end business .details applicable to·tnls s11le.)
                          If   .S~t.t:6~: ·· ~,t      du Ytr~ 14~.teel.! ro IAIJflnle' +h'o. aAJ,{,'f,.,., (!Jot!
~                        ··: ·>4~:\<ii/i)ii~-'-ii.~·if.·.'·.. !fi:t.Aiott: TO 08TA,-AIIIV~ R IV Ell-S~,.,_.~
t.K\\~~ :J : : ·,: ~                  <         .••   "   : ··:   ·.:?~{:tff;~: t~F4.f·i~~                                                 ·
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1·:{:_:·..:·. ; ·;                                                                                        ~~~~~~..----
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                                                                                                                                                            RECORD 55
                                                                                                  r.VV I IV IV


     ,.. . . ..'---··
..
                          ELLIOTT & WALDRON ABSTRACT & TITLE COMPANY
                                       OF CANTON, TEXAS
                                                          OWNED BY
                                              A.A.A. ..WSTRACI' COMPANIES, INC.
                                                 681 W. DALLAS. P.O. BOX 760
                                                      CANTON, TEXAS 75103

                                                  TELEPHONE (9D3) !167-4127
                                                      PAX (9t3) 567·1757




      AprillO, 2008

                             ·•
      Briggs Freeman
      Attn: Doug Shelton
      5600        w:
               Lovers, Ste. 225                                                   '   .
      Dallas, Texas 7S209 ·

     RB: GF# 080258
     Buyer: David and Sandra Petruska I Seller: Helmuth and Zackiann Gutzk:e

     Dear Mr. Shelton:

     Enclosed are the following:

                          [X] Commitment
                                                                                                                 i
                          lXJ Privacy folicy Notice                                                              !
                                                                                                                 i.I
     Please caref\llly review the requirements on Schedule C of the Commitment. We can not close
     or issue a policy Wltil all ~equirements ha~e been met.
                                                                                                                 I

     Your flle will be professionally handled in our offi~e·by Pamala Neal, Closer.

     We look forward to working with you. lfyou have any que-Stions at this time, please do not
     hesitate to call.


     Sincerely,

                        & WALDRON J\BSTRACT

                        czr;;;t;~N
        isa Overton                       ·
     Examiner

     LO/cw




                                                          TabF

                                                                                          RECORD 56
VAfl I II..CUUD     IU.II&O                                                                                              r.VU41UI U




                                               COMMITMENT FOR TITLE INSURANCE

                                                               SCHEDULE A

 Effective Date: April9, ZOOS, 7:00 am                                                                    G.F. No. or File No. 080258
 Commitment No.                                    ismcd: AprU 10, 2008, 7:00 am
 (if applicable)
 1.        The policy or policies to be iasucd are:
           (a)     OWNER POLICY OF TITLE INSURANCE (Form T~l)
                   (Not applicable for improved one·t~four family residential real estate)
                   Policy Amount:          .
                   PROPOSED INSURED:
           (b)     TEXAS RESIDENTIAL OWNER POLICY OF TITLE INSURANCE-
                   ONE-TO-FOUR FAMILY RESIDENCES (Form T-lR)
                   Policy.Amount:                   $305,000.00
                   PROPOSED INSURED:                David C. Petruska and Sandra L. Petruska
           (c)     MORTGAGEE POLICY OF 1TILB INSURANCE {Form T-2)
                    Policy Amount:                   $274,500,00
                    PROPOSED .INSURED:               To Be Determined
                    Proposed Bottower:               David c. Petruska and Sandra L. Petruska
           (d)      TEXAS SHORT FORM RESIDENTIAL MORTGAGEE POLICY OF TITLE INSURANCE (form T-2R)
                    Policy Amount:                                             ·
                    PROPOSED INSURED:
                    Proposed Bono'Yer:
           (e)      MORTGAGEE TITLE POLICY BINDER ON INTERIM CONSTRUCTION LOAN (Form T-13)
                    Binder Amount:
                    PROPOSED INSURED:
                    Proposed Borrower:
           (t)      OTHER
                    Policy Amount:
                    PROPOSED INSURED:
2.         The intereSt in the land covcr~d by this Commltment is: Fee Simple Estate

3.         Record title to the land on the Effective Date appears to be vested in:


4.
                              ..
           Helmuth. K. Gutzke ·and wife, Zacldann Gutzk~

           Legal description of the land:
           22 ACRES, MORE OR LESS, TO DE SURVEYED OUT OF THE FOLLOWING:

          FJRST TRACT:

                  AD that certain lot, tract or parcel of land situated in VanZandt County, Texas, on theM. V. LOUT
          SURVEY, A-468, and beioe a part oftbe 91.65 acre tract conveyed to Clota MaeShelton by Bettie Joan Westberry
          by deed recorded Jn Volume 720, Page 453, of the VanZandt County Deed Recorda. Said lot, tract or parcel of land
          being more particularly described by metes and bounds as foUows;

                  BE~INNING at ·an iron pin In the Southwest Une of the 91.6S acre traet, South 45 degrees 03 minutes East
          30.00 feet froin the West corner of same and being the South corner of the Second Tract recorded in Volume 6951
          page 159, of the VanZandt County Deed Records;

                   TlllCNCE North 44 degrees 34 minutes East 831.10.feet to an iron pin at the West Northwest comer of a
           20.00 acre tract surveyed this date In the Southeast line of tbe Second Tract; WITNESS: 16' Post Oak North 20
         · degrees East 76.3 feet, 18" Post Oak North 40 degrees West 30.9 teet;

                   THENCE South 8 degrees 44 minutes West 1030.23 feet to an iron pin at the So,utlJtlresr'l::aa:.r\ft
          acre tract in the so~tbwest line of the 91.65 acre tract;

     Old Republic National Title Insurance Company



                                                                   TabF

                                                                                                            RECORD 57
                                                . ·-~-- .
                                                                                  ··r
U ..l l II&.UUO       IU ...O                                ,. ,..                 r
       '          '


                                                                                   I.
                                                                                   I
                                                                                   !
                                                                                   i




                      WARNING!                              WARNING!

           DO NOT USE LEGAL DESCRIPTION ON TITLE
           COMMITMENT FOR YOUR DOCUMENTS IFA
           NEWSURVEYHAS BEEJVREQUIRBDIII


           TmS TITLE COMMITMENT HAS BEEN PREPARED WITHOUT RECEIPT
           OF NEW SURVEY.



           TmS LEGAL DESCRIPTION WILL NOT MATCH THE NEW SURVEY. .



           UPON RECEIPT OF NEW SURVEY, TITLE COMMITMENT WILL BE
           AMENDED.



           WB WlLL NQTBE RE$PONSIBLB FOR DOCUlJ.:IENTS iJRA WN USING
           THIS L'BGA.L DESQRIPTION!II



           IF YOU HAVE ANY QUESTIONS, PLEASE CONTACT OUR OFFICE.




                                         TabF
                                                                      RECORD 58
      --· ..,.....,..,..
                ..':::~~;.
                              ·~·~
                             \' '':.
                                                                                            (FAX)                              P.004J010




        iiitA                                             . . 0Uo.080~8 ·
  :. ·..;~;:st;.;·.>:};;c{:::/'\'diiNCE North 45 dearees 03 minutes West 603.14 feet to the place of beginning and eontaining 5.753
:: .>·~0~~~H~'\I~}::.~~~t!~f.~~X\\
:5~\:/'~!::::·; ':·~;'?(~,\~:j~*'frilct One In Warranty Deed with Vendor's Lien dated July 30, 1990 from A. D. Ward, a single mao
})-~<:. · i. :: ·.:: tO;Iielli\ti~· K. ~tzke and wife, Zacldann Gutzke, recorded In Volume 1107, Page 393, Real Records of Van Zandt

;;,}:~~'<::~:::. ~;:-                  .
 . : .. ·.        IiftSS'AfW QCJPT;
                        . . BEING a 1.612 acre tract and being all that certain lot, tractor parcel of land situated In the M.V. Lout
                 Slir\iey;.Amtraet No. 468, VanZandt County, Tuas, and being part of a called 5.753 acre tract and part of a called
                 lO.OO:·acretraet described as First Tract aad Second Tract, retpectively In a deed from A.D. Ward to Helmuth K.
                 Gittzk.e and wife, Zacldann Gutzke as reeorded In Volume ll07, Page 390, Van Zandt County Real Records, and
                 bt~fnr more particularly described as follows:

                        · BE<aNNING at a 1/2 Jncb Iron rod found at tbe west corner of said 5.753 acre tract and at an inside corner
                 of a called 1.10 acre tract described In a deed to Lytle as recorded fa Volume 1771, Page 629, V.Z.C.R.R., for a
                 comer;

                          'OIENCE N 46°49134" E the northwest line of said 5.753 acre tract and an Ea&t line of said 1.10 acre tract a
                 distance of 105.78 feet to a 1/2 Inch Iron rod set for a corner;

                          THENCE S 42°39'17" E across said 5.753 and Into said 20.00 acre tract a distance or 668.07 feet to a 1/2
                 inch iron rod iC!t for a eorner;

                         THENCE S 46°49134" W a distance of 105.78 feet to a 1/llnch Iron rod set on the soutbweat llne of said
                 20.00 aero tract for a corner, said point being on the northeast line of a called 35.02 acre tract described as Tract
                 Two In a deed to Hadley as recorded ln Volume 1583, Page 19~, V.ZC.R.R.;

                           THENCE N 42°39'1711 W along the southweat line of said 20.00 acre tract and said 5.753 acre tract and the
                 northeast line of spid 35,02 acre tract and an eut Une of said 1.10 acre tract passing the west corner of said 20.00
               . acre tract and ~e south corner of said S.753 acre tract at a distance of 64.16 feet and passing a 1/2 Inch tron rod
                 found at the.ealt corner of taid 1.10 acre tract at a distance of 357.98 feet and condnulng a total distance of 668.07
                 feet to tbc POINT OF BEGINNING and eontalnincl.622 acres ofland.

                       Being the same land Ia General Warranty Deed dated October 17, 2006 from Helmuth Gut2ke and
                Zacldann Gutzke to Thomas M. Lytle and Ellen G. Lytle, recorded In Volume 2188, Page 463, Real Reeor~s of Van
                Zandt County, Texas.


                SICPND TRACT:
                        All1hat certain lot, tract or parcel of land situated In VanZandt County, Texas, on the H. V. LOUT
                SURVEY, A-468, and b.elng a part of the 91.65 acre tract conveyed to Clota Mae Shelton by Bettie Joan Wcmberry
                by deed ~eorded in Volume 720, Page 453 or the Van Zandt County Deed Records. Said lot, tr"act or parcel of laud
                being ~llre particularly d~crfbed by metes and bounds as follows:

                         BEGINNING at a point In the North line or tbe 91.65 acre tract In the middle of a county road, North 81           ......
                degreea l6 minutes.West 788.75 feet from tJ.& N ortheaat corner of same and at the Northwest corner of a 20.00 acre
                tract surveyed this date; WITNESS:.     · Iron pin In fence. South 8 degrees 44 minutes· West 19.00 feet, 26" Pe(:an
                North 62 degree~ 57 minutes Eatt 60.40 ieet;                  ·




        Old Republic National Title Insurance Company



                                                                        TabF
                                                                                                                      RECORD 59
                                                                                 .·.·.         .   .


V ..l I IILVUD   IU ...:;II                                                                                        r . UV4H'VIV




 Continuation of Schedule A                                            G.F. No. 080258

                  THENCE South 8 degrees 44 minutes Weat 1804.58 feet to an iron pin Jn the Southwest line ofthe .91.65
          acre tract at the Southwest corner of the 20 acre tract;

                  THENCE North 45 deP'ees OJ minutes West 712.47 feet to an .Iron pin in the Southwest Une of the 9l.6S
          acre tract at the South corner or a 5.753 acre tract surveyed this date;

                  THENCE North 8 de&reet 44 minutes East 1030.23 feet to an iron pin In the Southeast Une or the Tract No,
         2 recorded In Volume 695. page 159; WITNESS; 16" Post Oak North 10 degrees East 76.3 feet, 18" Post Oak North
         40 degrees West 30.9 feet;

                   TIIENCE North 44 degreea 34 minutes East 435.90 feet to an Iron pin at the Northeast corner of the Second
         tract In the North line of the 91.65 acre tract; WITNESS: Iron pln for corner. South 44 degrees 34 minutes West
         24.!5 feet;                        ·

                 THENCE South 81 degrees 16 minutes East 319.61 feet to tbe place of beginning and containing 20.00 acres
         or lando! which 0.146 acres lies within a county road, leavin& a net of 19.854 acres,

                  Being Tract Two In Warranty Deed with Vendor' a Lien dated .July 30, 1990 from A. D. Ward, a alngle man
         to Helmuth K. Gutzke and wife, Zackiann GutJ:ke. recorded In Volume 1107, Page 393, Real Records of VanZandt
         CountY,, Texas.

         NOTE: The Co"'pany 11 prohibited from insuring the area or quantity of the land described herein. Any statement
         In the above legal description of the ~rea or·quantity otland Is not a representation that 1ueb area or quantitY~·-···-·   ··
         correct, but is made only for Informational and/or ldentiOca~on purposes and does not override Item l or Schedule
         B hereof.                                                                                                      •




 Old Republlc National Title Insurance Company



                                                            TabF

                                                                                                       RECORD 60
 V'tlllloii:VVO        IU.;JV                                                                                                      r   .VVUI"' IV




                                                  COMMITMENT FOR TITLE INSURANCE

                                                                    SCHEDULED

                                                       EXCEPTIONS FROM COVERAGE

 .In addition to the Exclusions and Conditions and Stipulations, your Policy will not cover Joss, costs, attorneys' foes, and expenses
  .resulting from:

 1.        'AO teUewJBg ree&rietft'i' eeYeiUIBfe &f'Niilefd iteadm::ed 'belew (We IRH6t eithef iBs.t spesifie reeenliBg data er eelete this
           &JteepfteR)!

 2.        Any discrepancioa, conflicts. or shortages in area or boundary linea, or any oncroacllments or protrusions, or any
           overlapping of lmprovemcmts.

 3.        Homestead or community property or survivorship rights, if any, of my spouse of any insured. (Applies to tho Owner
           Policy ouly).

4.         Any titles or rights asserted by anyone, including, but not llinitod to, persons, the public, corporations, govemmcmts or other
           entities,

           a.      to tidelands, or lands comprising tho shores or beds of navigable or perennial rivers and streams, lakes, bays, gulfs
                   or oceans, or

           b.      to lands beyond the line ofbaibor or bulkhead Jines as established or changed by any government, or

           c.      to filled-in lands, or llrtifioial islands, or

           d.      to statutory water rights, including rlparlan rights, or

           c.      to the area extending from the line of mean low tide to the line of vegetation. or the rights of access to that area or
                   easement along and across that area.

           (Applies to the Owner Policy only.)

S.        Standby fees, taxes and asses!llllmlts by any taxing authority for the year :ZOOS, and subsequent years; and subsequent taxes
          and assess~ts by any taxtDg authority for prior y~ars du.e to chaDge in land usage or ownership, but not those taxes or
          assessments for prior years because of an exemption granted to a p~ous owner of the property under Section 11.13,
          TBJWs Tax Code, or because of improvemcmts not assessed for a previous tax year. (IfTexas Short Form :Residential
          Mortgagee Policy (T-2R) is issued, that policy will mbstitute "which become due and payable snbsequent to Date of
          Policy" in lieu of "for the year _ _ and ari.bsequent years.")

6.        The terms and conditions of tho documents creating your interest in the land.

1.        Materials furnished or labor performed in connection with planned construction before signing and delivering the lien
          document described in Schedule A. if the land is part of the hoD'lllstead of the owner. (AppUea to the Mortgagee Title
          Policy Binder on Interim Construction Loan only, and may be deleted if satisfltctory evidence ia .fumfshed to us before a
          binder is issued.)                                                                 . ·                          .

8.        Liens and leases that affect the title to the land, but that are subordinate to the lien oftbe insured moft8agc. {Applies to
          Mortgagee Policy (T-2) only.)

9.        The Bxocptions from Coverage and ExpreatilnSUlllDCC in Schedule B of the Texas Short Form Residential Mortgagee
          Policy (T-2R). (Applies to Texas Short Form Residential Mortgagee Policy (T-2R) only. Separate exceptions 1 through 8
          of tbis Schedule B do not apply to the ·Texas Short Form Residential Mortgagee Policy (T-2R).       ..




     Old Republic National TltJo Insura.-et~ Company




                                                                      TabF

                                                                                                                     RECORD 61
                                                                                                                          r.uunvt v
U ../1 II""VUO




  Continuation of Schedule B                                                G.F. No. 080258

 10.      Tbe following matters and alJ tenns of the docwnents creating or offBring evidence of the matters (We must insert matters
          or delete this exception.):
                    Easements or clafnu of eatementt which may or may not be recorded in the public records of Van Zand t,
                    County, Teras.

                   Any portion of aubjcct property lying within the boundaries of a pubUc or private roadway whether
                   dedicated or not

          c.       There Is expressly excluded from coverage hereunder, and tbls company does not Insure title to ofl, gas and
                   other minerals of every kind and character, Jn, and on and under the property herein cJescrJbcd.

                   Right of Way In certiOed copy of Judgment to DELID GAS PIPELINE CO. from CLOT.A MAE SHELTON
                   in Instrument dated .August 3, 197Z, recorded in Volume 783, Page 749, of the·DEED Records of VanZandt
                   County, Texas.           ·

          e.       Item 3b of any T-l91ssued will be deleted.

          r.       Rights of parties in possession. (Owner's Pol~cy Only}

          g.       Terms, conditions and stipulations as wUI be set out in Warranty Deed from SeDer to Buyer given In
                   connection berewfth.

         h.        Protrusioa(s), encroachment(s), easement(a) as shown on any plat that may be furnished by approved
                   surveyor in connection wltb this tran•acHon.




 Old RepubUc National Title Insurance Company



                                                               TabF

                                                                                                             RECORD 62
  U411     u~uuo       Ju;:u                                                                                                            r".UUDIU IV




                                                         COMMITMENT FOR TITLE INSURANCE

                                                                     SCHEDULEC

      Your Policy will not cover loss, coats, attorneys' fees, and expenses resulting from the following requirements that will appear as
      Exceptions in Schedule B of the Policy, unless you dispose of these matters to our satisfaction, before the date the Policy ia issued:

      1.       DoCUlii(Ints creating your title or Interest must be approved by us and must be signed, notlllUed and filed for record.

      2.      Satisfactory evidence must be provided that:

               a.       no peraon occupying the· land claims any interest in that l~nd againat the persons narm:d in paragraph 3 of Schedule
                        1\,
              b.        all standby fees, tax.cs, assesamcnbl and charges agaiUBt the property have been paid,

              c.        an improvements or repairs to the property are completed and accepted by the owner, and that all contractors,
                        subcontractors, laborers and suppliers have been fully paid, and that no mechanic's. laborer's or materialmen's liens
                        have attached to the property,

                        there is legal right of access to and from the land,

              e.        (on a Mortgagee Policy only) restrictions have not been and will not be violated that affect the validity and priority
                        of the insured mortgage. ·

  3.          You must pay the seDer or borrower the agreed amo!;Jllt for your property or interest.

  4.          Any defect. lien or other·matter that may affect title to the land or interest insured, that arises or is filed after the effective
              date of this Connnitment

 5.          Payment of any and all taxes now due and payable up to and lncludjng the year 2007.

 6.          We require "GOOD FUNDS" In aecorda_n ce with Procedural Rule P-27 which requires that "Good Funds., be
             received and deposited before a Title Agent may dlsburac from ltB trust fund account. "Good Funds" means: 1) Cash
             or wire tran~fers; :Z) CertJOed Cheeks, Cashier's Checks and Teller's Checks; 3} UncertlOed funds In amounts less tbat
             $1,500.00 including checks, traveler's c:hec:lc.t, money orders and negotiable orders of withdrawal; provided multiple
             Items ahall not be used to avoid tbe $1,500.00 limitation; 4) Uncertified funds In the amount of $1,500,00 or more,
             drafts and any other Items when collected by the financiallnatitution; 5) State of Texas Warrant&; 6) United States
             Treasury Checks; 7) Cbecks drawn on a bank or savinga and loan association, Insured by tbe FDIC or :VSLIC and for
             whlclt a transaction code ba& been issued pursuant to, and In compUance with, a fuUy executed Inunediately Available
             Fund Procedure Agreement (Form T-37) with such bank or saving1rand loan association; 8) Checks by city and eounty
             governments located in the State of Texas.

 7.          We require an Affidavit of Debts and Liens to be signed by the SeDer.

 8.          W~ reqplre      a Waiver ofln1pec:tion to be 1igned by the Purchaser.

 9.          We ·require a release of Deed of Trust dated August 18,2003 from HELMUTH K. GUTZKE AND WIFE, ZACKIANN
             GUTZKE.to DENNIS P. SCHWARTZ, Trustee, securing a note for $77,000.001 payable to FIRST NATIONAL BANK
             OF CANTON, recorded In Volume 1851, Paae 183 of the REAL Record• of VanZandt County, Texa1.
                              .      ..
10.          We require a Warranty Deed from HELMUTH K. GUTZKE AND WIFE, ZACKIANN GUTZKE to DAVID C.
             PETRUSKA AND SANDRA L. PETRUSkA, with vendor's lien retained in favor of LENDER, repreaenting part o{
             the· purchase prlc:e and being jn the amount of$274,500.00.

11.         We require a Deed of Trust and Note in the amount of$274,500.00 fromDAVID C.
            SANDRA L . PETRUSKA to Tnlatee, for the benefit of LENDER.


      Old Republic: National Title Insurance Company



                                                                         TabF

                                                                                                                          RECORD 63
              ..
 Uotl l llol.UUU   eu.ill                                                                                                r ,yy;;,IV " '




   Continuation ofSchedule C                                                G.P. No. 080258


ll.        We require a Survey according to terms and conditions aet forth In the contract and to determine exact size and
           location ofaubjeet property,

13.        H closing in our omce, we reqllire all closJng document& and fl&ures be In our office at least Z4 hours prior to closing,
           or c108inl date and tfme will be changed.




  Old Republic National Title Insurance Company



                                                                TabF

                                                                                                             RECORD 64
.··:::·                                                                                                                       r .u   111.11\1 IV
 U'IIIII~UUO              IU,;t~
                  >
                      ,
              I




                                               COMMITMENT FOR TITLE INSURANCE

                                                               SCHEDULED


  G.F. No, or File No. 080258                                                                      Effective Date: April 9, l008, 7:00 am

  Pursuant to the requirements of Rule P-21, Basic Manual of Rules, Rates and Fonns for the writing of Title Insurance in the State of
  Texas, the following disclosures are made:

  1.      The following individuals are directors ~dlor officers, as indicated. of the Title Insurance Company issuing this Commitment

                                   DIRECTORS OF OLD REPUBUC NATIONAL TITLE INSURANCE COMPANY

          HARRINGTON BISCHOF                           JOHN M. DOXON                                 STEVER. WALKER
          JOHNW.POPP                                   ARNOLD L. STEINER                             A.C.ZUCARO

                                   OFFICERS OF OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY

          RANDE E. YEAGER, President & Chief Operating Officer             STEPHEN C. Wll.SON, Executive Vice President
          GARY 1. HORN, Senior Vice Prcaidont & CFO                        DANIEL M. WOLD, Vice President, Sectetaiy & Senior
          MIKE TARPEY, Vice Preaident and Treasurer                        Cos.potate Counsel



 2.                                            TITLE INSURANCE AGENCY

          OFFICERS:                                                        DIRBCI'ORS & SHAREHOLDERS:
          Ivan Alexander, Jr., Pres.                                       lvan Alexander, Jr.
          CoDStance H. Alexander, VP                                       Constance H. :Alexander
          Goorgo Ivan Alexander, VP                                        George Ivan Alexander
          Philip DeWitt Alexander, Sec. & Tres.                            Philip DeWitt Alexander
                                                                           Lisa Alexandria Mitchell

 3        You arc entitled to receive advance disclosure of .settlement charges in connection with the proposed transaction to which this
          commitmont relates. Upon your request, such discloSW'c will be made to you. Additionally, the natnc of any person, finn or
          oo.rporstion receiving any sum from the settlement of this transaction will be disclosed on the closing or settlement statement.

          You are further advised that the estimated title premium' is:
                    Owners Policy                                    51,9~8.00
                   Mortgagee Policy                                     $100,00
                   Total                                             $2,038.00

          Of this total amount; lS% will bo paid to tQc: policy issuing Tide Insurance Company. 85% will bo retained by the issuing Title
          Insurance Agent; and the remainder of the estimated premiwn will be paid to other parties as foUoW&:

                  Amount                    To,Wbom                                          For Secrices


              .. 1'he estimated premium is baaed upon lnfonnation furnished to us as of the date of this Commitment for Title
                                      of
l118urance. · Final dotcrrirlnation the amount of the premium will be made at closing in accordance with the Rules and Regulations
adoptod by tho State Board of Insurance.
                                                       •
This conuni~ont is invalid unless the insuring provisions and Schedules A, B, and C are attached




     Old Republic N*tlonal Title Insurance Company



                                                                   Tab F
                                                                                                                 RECORD 65
                                                                                                      !
                                                                                                      i


[-)11)
DUNN AND DUNN, PC                         ATroRNEYSAND COUNSELORS AT LAW
                                                                                                      I,.
                                                                                                      i.
                                                                                                      !
                                                                                                      I
                                                                                                      I
      171 S. BUFFALO Sf. CANTON, TEXAS 75103          PHONE (903) 567-1111     FAX (903) 567-5101     ~!.
                         MATTHEWL. DUNN                EMILY DUNN
                                                                                                       ~·



      February 28, 2014

      Mr. and Mrs. David Petruska
      11264 Russwood Circle
      Dallas, Texas 75229

      Re: Easement situated in VanZandt County, Texas

      Mr. and Mrs. Petruska:

               This finn has been retained by Mr. and Mrs. Tom Lytle concerning the recent
      dispute regarding use of their driveway. While my clients have graciously pennitted you
      to utilize their driveway with the understanding that you would be building your own
      soon, no easement   was  ever filed and recorded in the real property records ofVan Zandt
      County regarding your use of this property. All parties were aware that no easement
      existed at the time of your purchase, as both of you requested that my clients sign an
     ·easement prior to your closing date. Mr. and Mrs. Lytle did not sign an easement at that
      time, nor have they executed anything resembling an easement since.

               The deed executed for the purchase of your land and filed on May 20, 2008
      contains language reference "an Easement for Roadway"; thus causing a cloud on the
      title of my client's land. I am requesting that you execute the enclosed release stating that
      there is no easement. Ifi do no receive a properly executed release within 30 days from
      the date of this letter, I am prepared to litigate this matter.

            Thank you for your time and consideration of this matter. If you have any
     questions, please do not hesitate to contact my office at (903) 567-1111.


                                                            Sincerely,01··
                                                     · ·-~yJ~esy~
     EJD/hj
     Enclosure
     CC: Compass Bank (CMRRR)
           401 West Valley Avenue
           Homewood. Alabama 35209

              Marie Yamane (CMRRR)
              Compass Bank
              401 West Valley Avenue
              Homewood. Alabama 3520Q
                                                 TabG

                                                                                          RECORD 66
                                                             .. ~~--~--~
~--------~~~~--~~-------------------------------------~~~.~.,~




              Petruska & Associates (CMRRR)
              5944 Luther Lane, Suite 450
              Dallas, Texas 75225-5978

              Mrs. Petruska (CMRRR)
              Briggs Freeman Sotheby's
              5600 West Lovers Lane, Suite 224
              Dallas, TX 75209




                                                      RECORD 67
                                                                                                PET 1\ liS K .I
                                                                                                         &
                                                                                           A sso         r    I .\ T   rs

                                                                                                          A
                                                                                        I' II   l I I I \ \ I 1 > 1'.     .I I
                                                                                  I.   I M I I I· I>      L I.\ Ill I I I Y
                                                                                                C   ll \I J> .\   1'. Y


                                        March 26, 2014                            :      . ' SH!I hnber tine
                                                                                   .      . .· . Suhe450
                                                                                       ·: Dal!ai, T-7s:US
                                                                                          Phonil: 214.353.0141
                                                                                           Cell: 214.762.<%11
Emily Jones Dunn, Esq.                                                                                E-mai~
Dunn and Dunn, PC                                                                      ~­
                                                                                       ... Fa: ll.f.J61.3935
171 S. Buffalo Street
Canton, Texas 75103

CERTIFIED MAIL NO. 7012 2920 0002 2647 4268
RETURN RECEIPT REQUESTED

Dear Ms. Dunn:

       Enclosed herewith please find the document you requested which you say will remove
the cloud from the Lytle's title. We are signing this even though we believe and have been
advised by others that we have a valid easement conveyed by the sellers to us. Having said that~
   Is
life too short to deal with petty matters.

       As you may know we commenced work on a separate entrance to our home before we
received your letter of February 28th. You may check with Commissioner Melton regarding the
date. Said entrance Is now completed.

       We ask that you please instruct the Lytle's to refrain from screaming obscenities at us
and threatening our property by yelling that they will be there when we are not.

        We hope this puts the matter to rest.

                                                                         Very truly yours,




                                                Tab H

                                                                                       RECORD 68
                              ·-:.--·




                                             RELEASE OF EASEMENT

      On        jYl?.rc   b db Jh, 2014, we, David C. Petruska and wife, Sandra L. Petruska,
hereby release the easement that is listed in the one certain General Warranty Deed with

Vendor's Lien of record dated May 16, 2008 from Helmuth K. Gutzke and wife, Zackiann

Gutzke to David C. Petruska and wife, Sandra L. Petruska and being recorded in Van Zandt

County under Document Number: 2008-004602.



                                                    DAVID C. PETRUSKA .


                                                     4.4-£~
                                                   SANDRA L. PETRUSKA


      This instrument was acknowledged before me            i?vrJv.lf/Ji/{~ kr on by DAVID
C. PETRUSKA.

     .-. ....




     · This instrument was acknowledged before me            ~ I( If//~ /1q           on by

SANDRA L. PETRUSKA.




~ ~· RAimALL
~
             SCOTT WIUBANIS ~
                   ~
          Commialioft bpjre              1
4   ~~.                October 1, 2016




                                                  TabH

                                                                              RECORD 69
                                                                                                                                                                                                                                  ..
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      RECORD 71
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RECORD 72
                                        NO. 14-00172

THOMAS LYTLE ANn ELLEN                      §          IN THE DISTRICT COURT
LYTLE,                                      §
                                            §
v.                                          §
                                            §
DAVlD C. PETRUSKA, SANDRA L.                §          294th JUDICIAL DISTRICT
PETRUSKA, COMPASS BANK,                     §
HELMUTH K. OUTZKE, and                      §
ZACKIANN GUTZKE ·                           §          VANZANDT COUNTY TEXAS


                            AFFIDAVIT OF SANDRA L. PETRUSKA

        1.      My name is Sandra L. Petruska. I am one of the defendants in this case. My
husband is David C. Petruska, who is another defendant. I am competent to make this affidavit.
My personal knowledge is based on my first-hand experience in buying, with my husband, the
property at 1601 VanZandt "county Road 2319 in May 2008; my experience in driving on the
disputed driveway between January 2008 and February 2014 with no protest from Thomas or
Ellen Lytle; my experiences in living on or visiting ~he property regularly between May 2008
and the present; my personal review ofthe General Warranty Deed with Vendor's Lien we
received from Helmuth and Zackiann Gutzke, the Deed of Trust we signed with Compass Bank,
the release of easement I signed and returned to the Lytles' attorney in March 2014, and the
Lytles' original petition, which is in the Court's file; my personal conversations with the
Gutzkes, the Lytles, representatives of Compass Bank, and Registered Professional Land
Surveyor No. 1935 Gearld A. Carter, as discussed below; and my personal review of other
documents and photographs as discussed below. The facts I discuss are within my personal
knowledge and are true and correct.

A.   · Property: 1601 VanZandt County Road 2319

        2.    My husband, David, and I own the property at 1601 VanZandt County
Road 2319, Canton, Texas. The property lies just south of VanZandt County Road 2319, which
nms roughly east and west. A house sits on the property back from the driveway on the
neighboring property. To the best of my knowledge the house was on the property since some
time in 1997when it was built.

B.      Neighboring Property: 1603 VanZandt County Road 2319

       3.    Thomas and Ellen Lytle claim to own the neighboring property at 1603 Van
Zandt County Road 2319, which alS<flies south of the county road.



Affidavit of Sandra L. Petruska




                                                TAB2

                                                                                   RECORD 73
C.     Driveway or Roadway

       4.       The properties at 1601 and 1603 VanZandt County Road 2319 are contiguous
along a boundary on the west side of 1601 (or the east side of 1603) running southwest from Van
Zandt County Road 2319. A driveway or roadway, located on 1603 Van Zandt County Road
2319, runs southwest from the county road along the boundary line towards the houses on both
properties. For years, there has been a turn off from this driveway or roadway that connects to a
bam or other fann building and, later since 1997, the house on 1601 VanZandt County Road and
a separate turn off from the driveway that connects to the house on 1603 Van Zandt County
Road

        5.     True and correct diagran:is of the properties are at Tab A. True and correct
photographs of the properties are at Tab J. These photographs depict the properties, including
the disputed driveway with its turn offs that lead to the houses on each parcel, as they existed
after we bought the property in May 2008 and before ~e Lytles first disputed our use of the
driveway in February 2014.

D.      Easement

        6.      The photos of the road at Tab J show that the persons living in the house on 1601
VanZandt County Road 2319 used and drove vehicles on the driveway or roadway on 1603 Van
Zandt County 2319 for access to and from the house to the county road. The driveway or
roadway was there when my husband and I bought 1601 VanZandt County Road in May 2008,
and it was obvious from the driveway and its wear, tear, and tracks, by then, that the driveway
had been heavily used by both properties. For example, the driveway had a separate and well-
worn split off leading to the house on 1601 VanZandt County Road by May 2008. Both
properties, 1601 and 1603 VanZandt County Road 2319, shared ohe mail-box post at the comer
of the driveway and the county road between May 2008 and February 2014.

E.      Title Company

        7.     On or about April 10, 2008, our title company- Elliott & Waldron Abstract &
Title Company of Canton, Texas- wrote us a letter. A true and correct copy of the letter is at
Tab F. Schedule B of the accompanying Commitment for Title Insurance "'Exceptions from
Coverage," states; in part, "In addition to the Exclusion and Conditions and Stipulations, your
Policy will not cover loss, costs, attorneys' fees, and expenses resulting from .. . 10. Easements
or claims of easements which may or may not be recorded in the public records of Zandt County,
Texas." At the time of the purchase I believed that this exclusion from our title policy was
standard language. I did not believe that this language referred to the easement set out in the
General Warranty Deed with Vendor's Lien from the Gutzkes. Also, I don't believe that the title
company was telling us that the easement to use the neighboring driveway was invalid or non-
existent. I understood the company tt be saying that it just didn't insure easements. Also, no
one from the title company told us that the easement identified in the General Warranty
was not valid. In fact, no one at all, including the title company personnel, the bank
the Gutzkes, or anyone else, ever suggested that the easement identified in the
Affidavit of Sandra L. Petruska




                                               TAB2

                                                                                       RECORD 74
                                                                                                     i

                                                                                                     !.
Deed was not valid and Tom Lytle stated to me on the telephone that he thought the easement
existed. During the times we visited the property to make our purchase decision, we drove our
vehicle on the driveway on 1603 VanZandt County Road 2319 to access the property. So did
the realtors and others involved in our purchase. No one, including the Lytles, complained about
this.

        8.      As Exhibit B(l) to Plaintiff's Motion for Summary Judgment on Liability (filed
Oct. 29, 2014), the Lytles attached a copy of our title policy for the property. Schedule B
(Exceptions) states, in part, "We do not cover loss, costs, attorneys' fees and expenses resulting
from: ... 6(1) We do not insure access via the roadway shown on property owned Lytle adjacent
to NW line of property shown on survey dated April 23, 2008 by Gerald A. Carter." I did not
receive a copy of the title policy at the time of closing on May 16,2008. Buyers ordinarily do
not receive copies of the title policy at the time of the closing. Closings are predicated on the
title commitment. Title companies customarily provide a final title policy four to six weeks after
a closing. In fact, I'm not sure when I first saw a copy of my title policy, but it was long after
closing. Also, the title company is not stating that the easement shown on the General Warranty
Deed with Vendor's Lien (dated May 16, 2008) from the Gutzkes is invalid.

F.     Independent Survey

       9.       In early 2008, my husband and I engaged an independent surveyor, Registered
Professional Surveyor No. 193 5 Gearld A. Carter, to survey the property we planned to purchase
at 1601 VanZandt County Road 2319 and to confirm the property's boundaries as is customary.
After he performed his work, Mr. Carter provided us with a survey, field notes, and diagrams.
True and correct copies of this survey, field notes, and diagrams are at Tab A. Although I am not
an expert at reading technical surveys or diagrams, I personally spoke with Mr. Carter and he
confirmed and described the property's easement. I understand that the documents at Tab A
likewise confirm and document this easement. I had this understanding in 2008, as well, when
we had our General Warranty Deed with Vendor's Lien and our Deed ofTrust recorded in Van
Zandt County's public land records.

G.     We (the Petruskas) bought 1601 Van Zandt County Road 2319.
                                                      I


        10.     On April 24, 2008, my husband and I, on the one hand, and the Gutzkes, on the
other hand, signed an amendment to the real-estate contract for the property, chiefly to make my
husband, David, a party-buyer to the contract. A true and correct copy of the amendment is at
Tab D. At the time, the title company recommended that the parties obtain documentation of the
easement signed by the Lytles. Exhibit A to the amendment stated, "Closing is conditioned upon
conveyance of easement acceptable to buyer~ allowing access to said property from private
driveway owned by Ms. Lytle." In April or May 2008, I personally called and talked to Thomas
Lytle about signing a paper to meet the title company's suggestion. Mr. Lytle said that he didn't
want to spend money on an attorney lo confirm an easement that was clear or obvious that
residents of 1601 VanZandt County Road 2319 had possessed and used for years.
~is statement in paragraph 4 of his declaration (signed Oct. 24, 2014), Mr. Lytl~
''that we [the Lytles] would not sign or grant an easement to use the driveway'"
Amdavit of Sandra L. Petruska




                                               TAB2

                                                                                      RECORD 75
didn't want to sign additional documentation of an easement that it was obvious had been used
for years. I told this ~nformation to my husband Based, in part, on this conversation, I believed
that our property had an easement that allowed us to use the neighboring driveway for access
between our property and house and Van Zandt County Road 2319.

       11.     On or about May 16, 2008, my husband and I, relying in part, on the
representations in the General Warranty Deed as well as the representations ofTom Lylte per our
phone conversation, purchased the real property consisting of just over 25 acres of land, with a
house and other buildings, at 1601 Van Zandt County Road 2319, being described in that
General Warranty Deed with Vendor's Lien dated May 16,2008, from Helmuth Gutzke and
Zackiann Gutzk.e, recorded with Document Number 2008-004602 of the deed records ofVan
Zandt County, Texas. A true and correct copy ofthe warranty deed is at Tab·C.

        12.     On May 16, 2008, my husband and I, on the one hand, and the Gutzkes, on the
other hand, signed another amendment, which stated, in part, "Seller and Buyer agree to waive
the condition of the contract relating to obtaining an easement from Thomas M. or Ellen Lytle."
A true and correct copy of this amendment is at Tab E. I believed that we did not need
additional documentation of the easement. First, our general warranty deed (dated May 26,
2008) set out the easement. Second, an independent surveyor confirmed the easement in April
2008. Third, I believed that the Gutzkes had used and driven vehicles on the driveway or
roadway for years before May 16, 2008. Fourth, Thomas Lytle had acknowledged the easement
to me in our phone conversation in April or May 2008.

         13.    The Gutzkes stated that they owned fee simple title to the property, including the
 easement, at the time we purchased it. By the terms of the General Warranty Deed, the Gutzkes
 warranted the title conveyed to us. In part, the Deed stated, "All that certain lot, tract or parcel of
 land ... ofthe called 5.753 acre first tract and all of the called 20.00 acre second tract .. .
 together with an Easement for Roadway situated in VanZandt C01mty, 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 ... and part of the
 called 1.10 acre tract conveyed to Thomas M: Lytle and Ellen Lytle .. . ." The Gutzkes exec_uted
 and delivered the General Warranty Deed to us pursuant to a purchase agreement and in
 consideration of the purchase price paid that we paid to the Gutzkes. My husband and I have
 performed or met all of our material obligations under the purchase agreement

         14.     On or about May 16, 2008, my husband and I also signed a Deed of Trust, which
  contained the same property description and easement language as the General Warranty Deed
. with Vendor's Lien, as part of securing a loan from Compass Bank. A true and correct copy of
  the Deed of Trust is at Tab B.

   .     15.    Between May 16,2008 and February 2014, my husband and I used and drove on
 the driveway on the Lytles' property ~ithout complaint. Both properties shared a single mail-
 box post at the comer of the county road and the driveway or roadway. Before            2014,
 my husband gave Thomas Lytle a check for what County Commissioner Virgil "" ..''tO'ti~~~'>"

 Affidavit or Sandra L. Petruska




                                                  TAB2

                                                                                          RECORD 76
 one-half of the cost of repairing the culvert and entranceway from the county road to the
 driveway or roadway, and Mr. Lytle cashed the check.
       '
 H.        We had a valid easement on May 16,2008.

         16.    I have worked in real estate in Dallas since 1985. I am currently a licensed real-
 estate agent with Briggs Freeman Sotbeby's International Realty in Dallas.

         17.     Although I am not an attorney, it's my opinion that my husband and I had or
 acquired a valid easement, attached to our property, to use and drive vehicles on the driveway or
 roadway located on 1603 VanZandt County Road 2319, on May 16, 2008. First, our general
 warranty deed (dated May 26, 2008) set out the easement. Second, an independent surveyor
 confirmed the easement in April2008. Third, I believed, based on conversations with the
 Gutzkes, that the Gutzkoo had used and driven vehicles on the driveway or roadway for years
 before May 16, 2008. Fourth, Thomas Lytle confirmed the easement in our phone conversation
 in April or May 2008 (before we purchased the property). Fifth, the two properties shared one
 mail box or mail-box post at the comer of the driveway and Van Zandt County Road 2319 when
 we bought the property. Moreover, my belief was confirmed by my and my husband's
 experience in using and driving vehicles on the driveway between May 2008 and February 2014
 without complaint from the Lytles or anyone else. Mr. Lytle's later acceptance and cashing of
 our check for what he said was one~half of the cost to replace the culvert and repair the affected
 part of the driveway also confirmed my belief.

 I.        We committed no fraud.

          18.     Our information as of May 16, 2008, including that set out in paragraph 17, shows
  that my husband and I did not commit any fraud, including fraud under section 12.002 of the
  Civil Practice & Remedies Code. We had a valid easement and documentation to support this
  conclusion. My husband and I did not prepare, or participate in the preparation of, the General
  Warranty Deed with Vendor's Lien (May 16, 2008), Tab C, from the Gutzk.es to us, and the deed
  described the easement. My husband and I did not prepare, or participate in the preparation of
· (beyond signing), the Deed ofTrust (May 16, 2008), Tab B, for Compass Bank, which contained
  the same description of the easement. Given the documentation I had, including the
  independent survey and the general warranty deed, I did not search the deed records to see what
  might or might not be reflected in the Lytles' deed or deeds. Moreover, the Gutzkes said that
  they had used the driveway to access the property and house for years. The Gutzkes said, in the
  warranty deed, that they had an easement to sell us. Our surveyor independently confirmed the
  easement. No one--including persons from our title company, the real-estate agents, Compass
  Bank, and our surveyor-ever suggested that the easement was invalid or that the General
  Warranty Deed with Vendor's Lien or the Deed of Trust were fraudulent or contained any
  materially false information. I never had any intention of causing a fraudulent document to be
  filed of public record in conjunction ~th our purchase of 1601 VanZandt County Road nor
  were any fraudulent documents filed in conjunction with such purchase. I never us~~ei~dt;t~h~;e~~mm
  with an intent to cause anyone, including the Lytle's financial injury or emotional d

 Affidavit of Sandra L. Petrus Ita




                                                TAB2

                                                                                       RECORD 77
J.      Mo1·covea·, W()     relc~lscd   the ensement befoa·c the Lytles filed suit.

         l9.    On February 28,2014, the Lytles' attomey, Emily Jones Dunn, wrote my husband
and me a letter and asserted that we didn't have a t·eoorded easement to use 1he ddveway or
roadway on the Lytlos' prope1ty which placed a cloud on their title. She offered, ••1 am
requesting that you execute the enclosed release stating that there is no easement. Tf I do not
receive a properly executed release within 30 days from the date of this letter, I um prepared to
litigate." A true an~ correct copy of this lett~r is at Tab G.

        20.     I believed that the attorney was incorrect for severul reasons. First, our general
wammty deed (dated May 16, 2008) reflected the easement. Second, an independent surveyor
confirmed th.e easement in Aptil 2008. Thil'd, I believed thnt the residents of 160.1 VanZandt
County Road 2319 hnd used and cll'iven vehiCles on the driveway or roadway fot' many yenrs and
my husband und I had used the driveway between May 2008 and February 2014 without
complaint. Nonetheless, in 1111 efil.)rt to avoid litigation and further problems, my husband <md l
accepted the_Lytles' offer nnd signed the rclem~e of easen1ent and returned it to the Lytles'
attomey un Murch 26, 2014. A tme and conect copy of our return J(~lter and the release of
easement is nt Tab H. I would not have signed the release of ea!;l"nient or returned it, unless the
Lytles hfld ogreed, in return, not to Rue us ovet' the cnsemenl.

       21.      Again, my husband and I full)' performed all of our materiol duties under our
contract with the Lytles, under which lhe Lylles agreed not !o sue us over the en~emenl in
exchnngc fot· a signed release of easement ln contrast, the Lytles materinlly hreached the
contract by (n) :filing this lawsuit ou July 9, 2014, (b) filiug a motio11 for :mmmury judgment on
October 29,2014, and (c) continuing this Juwsuit. The.Lytles' material breacheR hnve
proximatdy caused, and continue to cause, 11s dumages, including nttomcy's fees and litigation
expenses.

         22.      I swear or oftlrm to the~e fm:ts within the meaning of section 31:2..011(1) ortllr:
Texan Government Code.


Date:    Del~mber     1, 2014.




Affi<lnvil n1'·3unch-n L. l"eh·uglw




                                                      TAB2

                                                                                         RECORD 78
                                                          f)
        Before me, ~L. :.:.:(>.: .·~-~!: :-=·=-·_"!.,_t.~:L: ;·"=: :X: . .~"I!!:S?~·-=·=--~_-__, on this day personally appeared David C.

Petruska, who established his identify with -his Texas driver's license, to be the person whose

name is subscribed as a witness to the foregoing instrument. David C. Petruska swore t<? tile

statements in the above affidavit before me, and Lam officially certifying this document under

my seal of office under section 312.011 (1) of the Texas Govemment Code, I am a notary public,

and Texas law authorizes a notary public to administer an oath and certify the fact of a person

making an oath, in section 602.002(5) .o f the Texas Government Code.




Affidnvit of SanciJ"a L. Petruska




                                                                 TAB2

                                                                                                                          RECORD 79
                                              FIELD NOTES

SANDRA L. PETRUSKA                                                                   M. V. LOUT SURVEY
24.020 ACRES                                                                          ABSTRACT NO. 468

                                     VANZANDT COUNTY, TEXAS

        All that certain lot, tract or parcel ofland situated in VanZandt County, State ofTexas, on theM.
V. Lout Survey, A-468, and being all of the residue of the called 5.753 acre first tract and all of the called
20.00 acre second tract conveyed to Helmuth K. Gutzke and wife, Zackiann Gutzke, by A D. Ward, a
single man, by Warranty Deed with Vendor's Lien dated July 30, 1990, and recorded in Volume 1207,
Page 390, of the Van Zandt County Real Records. Said lot, tract or parcel of land being more particularly
described by ~etes and bounds as follows:

        BEGINNING at a ~., iron rod found for corner at the Southeast comer of the called 20.00 acre
second tract, at the Southwest corner of the Arthur C. Werden tract recorded in Volume 2028, Page 309,
ofthe VanZandt County Real Records, and in the Northeast line of the Thomas M. Lytle 68.78 acre tract
recorded in Volume 1771, Page 609, of the VanZandt County Real Records, from WHENCE a fence
corner found bears North 78 degrees 05 minutes '37.seconds West 2.58 feet;

        THENCE NORTH 44 degrees 40 minutes 21 seconds West 648.90 feet to a S/8" iron rod set for
corner at the South corner of the Thomas M. Lytle 1.622 acre tract recorded in Volume 2188, Page 463,
of the VanZandt County Real Records;

       THENCE NORTH 43 degrees 59 minutes 44 seconds Bast 105.86 feet to a W' iron rod found for
comer at the East comer of the said 1.622 acre tract;

         THENCE NORTH 45 degrees 25 minutes 00 seconds West 668.07 feet to a W' iron rod found for
comer at the North corner of the called 1.622 acre tract, in the original Northwest line of the caUed 5.753
acre first tract, and in the Southeast line ofthe Thomas M. Lytle 1.10 acre tract recorded in Volume 1771,
Page 629, of the VanZandt CouJtty Real Records;

        THENCE NORTH 44 degrees OS minutes 12 seconds East 1152.76 feet to a railroad spike set for
corner in County Road No. 2319, at the North corner of the called 20.00 acre second tract, :from
WHENCE a 60d nail found at the East corner of the said Thomas M. Lytle 1.10 acre tract bears North 44
degrees 05 minutes 12 seconds East 2.65 feet and a W' iron rod found in the South right of way of the
said county road bears South 38 degrees 58 minutes 47 seconds West 23.09 feet;

         THENCE SOUTH 81 degrees 39 minutes 33 seconds East along the said county road and the
North line of the called 20.00 acre second tract, 322.19 feet to a railroad spike set for corner in the South
line of the B. W. Ward 106.60 acre ftrst tract recorded in Volume 1654, Page 588, of the VanZandt
County Real Records, at the Northwest comer of the said Arthur C. Werden tract and at the Northeast
corner ofthe called 20.00 acre second tract, from WHENCE a 5/8" iron rod set in the South right of way
line of the said county road bears South 08 degrees 20 minutes 49 seconds West 19.00 feet and a 48"
Pecan tree found marked X with two hacks above and below the X bears North 62 degrees 57 minutes
East 60.40 feet;                      ""

        THENCE SOUTH 08 degrees 20 minutes 49 seconds West along the East line of the called
acre second tract and the West line of the said Arthur C. Werden tract 1806.98 feet to th~~~~61~!!~
beginning and containing 24.020 acres of land.




                                                 Tab A

                                                                                             RECORD 80
                                   SURVEYOR'S CERTIFICATE

        I, Gearld A. Carter, Registered Professional Land Surveyor No. 1935, do hereby certify tbat I
directed the survey of the above described tract of land and prepared the above field notes describing the
boundaries of same just as they were found and surveyed upon the ground, and this survey is made in
accordance with the STANDARDS FOR LAND SURVEYS of the TEXAS BOARD OF
PROFESSIONAL LAND SURVEYING, as revised in November, 2Q0-7">-,and will meet the accuracy
requirements as set out in RULE 663.15C as defined therein.        -;;.;~)F'.·"_~:~;::· .                  ·
                                                                    ....-tC:.        '·
                                                                         _'"I,.--:. ~ • •   J
                                                                                                rt-, '-'•, \
                                                                                                 (,'     ,, \



        WITNESS my hand and s~l at Athens, Texas, this 2
                                                                 ..y-.·~rl~'i-1'1
                                                                       .....,, i.:·.. ::·~ A' 0
                                                                                     ~: .'                      .··.
                                                                                                                        .
                                                                                                                       ~~~--




                                      •




                                                 Tab A

                                                                                                                        RECORD 81
                                                                                                    CIJV. CONC. PORCH



                                                                       c~c.    DR.


           24.020 ACRES
  ACTUAL BEARING AND DISTANCE
                                           CALLS
NUMBER DIRECTION        DISTANCE                              CDV. CONC. 'w'ALK
                                                                          CDNC. PORCH
1      N 44.40'21' 'W   648.90'       BRG. N4s•03''W                      BRICK PATID ..___..,........__.
2      N 43.59'44' E 105.86' .        N46.49'34'E 105.78'                             HOT TUB
       N 45.25'00' 'W 668.07'         N42•39'1 JI'W 668.07'                     INSET SCALE 1' = 40'
3
4       N 44.05'1~ E    1152.76'      BRG. N44.34'E
5       S 81•39'33' E   322.19'       S81•16'E 319.61'                                                              Sco.l~1   1' = 200'
6       s o8·2o'49' "' 1806.98'       so9• 44''W 1804.58'.
        0.448 ACRE EASEMENT
   ACTUAL BEARING AND DISTANCE
NUMBER DIRECTION           DISTANCE        CALLS
7        S 84.55'25'    E  21.41'     S82.08'20'E 21.37'
8        S 85.03'04' E 14.94'         SB2•08'20'E 14.92'
9       s   44 ·os'l2' 'W  674.24'    BRG. S44.34'W'
10       N  45.54'48'   VI 30.71'
11       N 44.18'18' E     651.34'    BRG. N4]+05'23'£




                                                                                                                                  RECORD 82
                                                                                                                              CALL 20.00 AC
                                                                                                                            2ND TR. 12071390
                                                                                                                                 v.z.c.R.R.


                                                                                                                         M.V. LOUT SUR. A-468




                                    PLAT OF SURVEY
     LEGAL DESCRIPTION OF LAND: All that cerlllio lot. tract or pan:el of land sltaared io Vaa
     ZaiiCit Coaly, State ofTeua, oa ~ M. V. Lont Sarvey,A-461, and bel~ all oftbe residue of the
     called 5.753 IIC're fll'lt tnet and an of the called 20.00 .acre secoud tnoct conveyed to Helm•lh K.                                                   . ·.:
     Glltzke aod wife, Z..ckiau Gatzke, by A. D. W:ml, a siDClt IIWI, by Wamm11 Deed wllb Vendor'I
     Uen dated July 30, 1!190, and nconMd ill Volume 1207, Pege 390, of tbe Vu .Z...dt Coaaty Rnl
     Records n11cl all that certailllot, tract or pan:elor                m
                                                             laud sitaated Vu Zamdt C.uty, State or
     Texas, on theM. V. Lo111 Sarvey, A-468,ud bei~~ga part oftlleaolled 68.78 acre tract coaveyed to
.._, Thomas M. Lytle ud EDen Lytle, by Ricky Lee lb4Mr, by Geaeral W&n'IUI11 Deed nca.rded ia
g.   Vol•me 1771, Paae 619, of tltt Vaa Zalldt CDIIaty Real Records, ud a part of tile called 1.19 acre
     tract ceawyed to Tbomu M. Lytle and :EUe:a Lytle, by Rlcky Ue lbdley, by Geaeral WU'rlully
>    Deed recorded in Volume 1771, Pac:elil9, of Che v .... Z..Ddt Conal)' Real Records. S:lid lot, tract or
     p:arc:el ofbmd beiag mon: psrticalarly deseribed by metes and boaads attached hereto:

     PROPERTY ADDRESS
     1601 IIZCR 2319
     CANTON, TEXAS 75103

             1, Gearld A. Car~er. Registered Professional Land S.rnyor No. 1935, do hereby certify to
     Saadra L. Petruska, buyer, Loataso~~n:e Real .Estate Loans, kuder aDd Elliott ad Waklroll Title
     Compo~lr:f, tllat the plat tllowa bereo11 ac:curately represoals tile raahs of u oa lhe creaad sarvey
     mllde uDder my direc:ti011 aad saperwisioa oa Aprilll, 2008, aad aD JDDDDments were f<Hnul or set
     and actually at ud tile location aad deseriptioa an coneet1y sloowla, the bo..daries, dimeanaas
     and otlaer details thDWII herooa are tnse and correct as ddenlrilled by sarvey, tloere an no 'risible
     cncroacbmeala on the property or protrulou tbertilum, -pc.u • ....., IMftDa, tlaere are 110
     Y!sible dlscRpudes, eonllidJ. siH>rtllps Ia areas or boondary Uaa cenOictt, a:eept u sllowa
     henea, tile size, loealio11 ud type efimpro"""'eDtt an as '"""" hereoa -d all are located within
     the be>Qndaries Dftlae property, except u tbown bereoa, ud this sarYI:)' is made in acconluee
     .,.itb THE STA.NDARDS FOR. LAND SURVEYS oftM TEXAS BOAIID OF PROFESSIONAL
     LAND SURVEVlNG as rerised iD Noftlllber 2067, and will mee1 the ....,.,...c:y reqa....,.eau as set
     o"t ia R            .lSC, as ddiooed tlaeniD.
                                                                                                                 .....

                                                                                                               . ·....
     SURVEY FOR: SANDRA L. PETRUS.KA                            M. V. LOUf SURVEY, A-468
     GF#080258                                               VANZANDT COUNTY, TEXAS

     GEARLD A. CARTER AND ASSOCIATES, LAND SURVEYORS
     P.O. BOX 1445,
     ATHENS, TEXAS 75751
     903-675-7346



                                                                                                                                                RECORD 83
                                                                                                                    ··. ·::...




After recording please mail to:

Compass Bank
401 West Valley Avenue
Homewood, AL 35209
Marte Yamane

  - - - - - - - - - - - - [ S p a c e Above This Line For Recording Data] _ _ _ _ _ _ _ _ __

NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON,
YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING
INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN
REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS:
 YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER.

                                            DEED OF TRUST
                                                                                               Loan # "private*
DEFINITIONS

Words used in multiple sections of this document are defined below and other words are defined in Sections 3, 11,
13, 18,20 and 21. Certain rules regarding the usage of words used in this document are also provided in Section
16.

(A)      "Security Instrument" means this document, which is dated May 16, 2008, together with all Riders to
this document.

(B)      ''Borrower" is David C. Petruska and wtfe, Sandra L. Petruska. Borrower is the grantor ~nder this
Security Instrument.

(C)      "Lender" is Compass Bank . Lender is a state bank organized and existing under the laws of
Alabama. Lender's address is PO Box 13345 Blrmlngham,· AL 35202. Lender is the beneficiary under this
Security Instnunent.

(D)      "Trustee" is Jon Mulkln . Trustee's address is 401 West Valley Avenue, Homewood, AL 35209.

(E)      "Note" means the promissory note signed by Borrower and dated May 16, 2008. The Note states that
Borrower owes Lender Two Hundred Seventy Four Thousand Ftve Hundred and 00/100 Dollars (U.S.
$274,500.00) plus interest. Borrower bas promised to pay this debt in regular Periodic Payments and to pay the
debt in full not later than June 1, 2038.

(F)      "Property' means the property that is described below under the beading "Transfer of Rights in the
Property."

(G)      "Loan" means the debt evidenced by the Note, plus interest, any prepayment charges and hde charges due
                                               ,.
under the Note, and all sums due under this Security Instrument, plus interest.

(H)      "Riders.. means all Riders to thls Security Instrument that are executed by Borrower. The following
Texas Deed ofTrult-Sioale Jl'amlly-Janole Mat/F'reddle Mac UNIFORM
INSTRUMENT




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                                                                                                  RECORD 84
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                                                                                                                                      i·
                                                                                                                                      I
                                                                                                                                      !
Riders are to be executed by Borrower [check box as applicable]:                                                            ....  ,
                                                                                                                            ·...,..
                                                                                                                               ·~




1iJ Adjustable Rate Rider              0   Condominium Rider                           liJ Second Home Rider
0 Balloon Rider                        0   Planned Unit Development Rider              0   Biweekly Payment Rider
0 1-4 Family Rider                     0   Rate Improvement Rider                      0   Graduated Payment Rider
0     VA Loan Rider                    0   Manufactured Homo Rider                     liJ Other(s): ARM, luterest Only

 (I)    "Applicable Law'' means all controlling applicable · federal, state and local statutes, regulations,
ordinances and administrative rules and orders (that have the effect of law) as well as all applicable final, non-
appealable judicial opinions.

(J)      "Community Association Dues, Fees, and Assessments" means all dues, fees, assessments and other
charges that are imposed on Borrower or the Property by a condominium association, homeowners association or
similar organization.     '

(K)       "Electronic Funds Transfer" means any transfer of funds, other than a transaction originated by check,
draft, or similar paper instrument, which is initiated through an electronic tenninal, telephonic inslnlment,
computer, or magnetic tape so as to order, itisttuct, or authorize a financial institution to debit or credit an account.
 Such term includes, but is not limited to, point-of-sale transfers, automated teller machine transactions, transfers
initiated by telephone, wire transfers, and automated clearinghouse transfers.

(L)        "Escrow Items" means those items that are described in Section 3.

(M)       "Miscellaneous Proceeds" means any compensation, settlement, award of damages, or proceeds paid by
any third party (other than insurance proceeds paid under the coverages described in Section 5) for: (i) damage to,
or destruction of, the Property; (ii) condemnation or other taking of all or any part of the Property; (iii) conveyance
in lieu· of condemnation; or (iv) misrepresentations of, or omissions as to, the value and/or condition of the
Property.

(N)        "Mortgage Insurance" means insurance protecting Londcr against the nonpayment of, or default on, the
Loan.

(0)      "Periodic Payment" means the regularly scheduled amount due for (i) principal and interest under the
Note, plus (ii) any amounts under Section 3 of this Security Instrument.

(P)      "RESPA" means the Real Estate Settlement Procedures Act (12 U.S.C. •2601 et seq.) and its
implementing regulation, Regulation X (24 C.F .R. Part 3500), as they might be amended from time to time, or any
additional or successor legislation or regulation that governs the same subject matter. As used in this Security
InstrUment, "RESPA" refers to all requirements and restrictions that are imposed in regard to a "federally related
mortgage loan" even if the Loan does not qualify as a "federally related mortgage loan" under RESPA.
                            I
(Q)      "Suet:essor In Interest of Borrower" means any party that has taken title to the Property, whether or not
that party has assumed Borrower's obligations under the Note and/or this Security Instrument.

TRANSFER OF RIGHTS IN THE PROPERTY

This Security Instrument secures to Lender: (i) the repayment of the Loan, and all renewals, extensions and
modifications of the Note; and (ii) the performance of Borrower's covenants and agreements under
 Texu Deed orTruJt..Single FamUy-Fannle Mae/Freddie Mac: UNIFORM
 INSTRUMENT
                                                        2




                                                            TabB
                                                                                                         RECORD 85
                                                                                                                             ·.. '!.':: ..
                                                                                                                         .    ·····.




 Instrument and the Note. For this purpose, Borrower irrevocably grants and conveys to Trustee, in trust, with
 power of sale, the following descn'bed property located in the County [Type of Recordins Jurisdiction) of Van Zandt
 (Namo of Recording Jurisdiction):

All that certain lot, tract or parcel of land situated in Van Zandt County, State of Texas, on the M. V. Lout
Survey, A-468, and being all of the residue of the called 5.753 acre first trad and all of the called 20.00 acre
second tract conveyed to Helmuth K. Gutzke and wife, Zackiann Gutzke, by A. D. Ward, a single man, by
Warranty Deed with Vendor's Lien dated July 30, 1990, and recorded in Volume 1207 Page 390, of the Van
Zandt County Real Records, together with an Easement for Roadway situated In VanZandt County, State of
Texas, on theM. V. Lout Survey, A-468 and being a part of tbe called 68.78 acre tract conveyed to Thomai
M. Lytle and Ellen Lytle, by Ricky Lee Hadley, by General Warranty Deed recorded in Volume 1771, Page
609, of the VanZandt 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 and said lot, tract and parcel of land being more particularly
described by metes and bounds in Exhibit "A" attached hereto and made a part hereof,

 which currently has the address of

                                                1601 VZCounty Road 1319
                                                   Canton, Texas 75103
                                                    r'Property Address"}

           TOGETHER WITH aU the improvements now or hereafter erected on the property, and all easements,
 appurtenances, and fixtures now or hereafter a part of the property. All replacements and additions shall also be
 covered by this Security Instrument. All of the foregoing is referred to in this Security Instrument as the
 ''Property."      BORROWER COVENANTS that Borrower is lawfully seised of the estate hereby conveyed and
 has the right to grant and convey the Property and that the Property is unencumbered, except for encumbrances of
 record. Borrower warrants and will defend generally the title to the Property against all claims and demands,
 subject to any encumbrances of record.
           THIS SECURI1Y INSTRUMENT combines unifonn covenants for national use and non-unifonn
 covenants with limited variations by jurisdiction to constitute a unifonn security instrument covering real property.

           UNIFORM COVENANTS. Borrower and Lender covenant and agree as follows:
           1.
                                                                                 •
                    Payment of Principal, Interest, Escrow Items, Prepayment Charges, and Late Charges.
 Borrower shall pay when due the principal of, and interest on, the debt evidenced by tho Note and any prepayment
 charges and late charges due under the Note. Borrower shall also pay funds for Escrow Items pursuant to Section
 3. Payments due under the Note and this Security Instrument shall be made in U.S. currency. However, if any
 chcclc or other instrument received by Lender as payment under the Note or this Security Instrument is returned to
 Lender unpaid, Lender may require that any or all subsequent payments due under the Note and this Security
 Instrument be made .in one or more of the following fonns, as selected by Lender: (a) cash; (b) money order;
 (c) certified check, bank check, treasurer's check or cashier's check, provided any such check is drawn upon an
 institution whose deposits are insured by a federal agency, instrumentality, or entity; or (d) Electronic Funds
 Transfer.
           Payments are deemed received by Lender when received at the location designated in the Note or at such
 other location as may be designated by Lender in accordance with the notice provisions in Section 15. Lender may
 return any payment or partial payment if the payment or partial payments are insufficient to bring the Loan
 current. Lender may accept any payment or partial payntent insufficient to bring the Loan current, without waiver
 of any rights hereunder or prejudice to it&» rights to refuse such payment or partial payments in the future, but
 Lender is not obligated to apply such payments at the time such payments are accepted. If each Periodic "'"''mf'nt

· Texas Deed of'l'ruat..Single Famlly-Fannie Mae/Freddie Mac UNIFORM
• INSTRUMENT
                                                           3




                                                               TabB
                                                                                                     RECORD 86
                                                                                      .·


is applied as of its scheduled due date, then Lender need not pay interest on unapplied funds. Lender may hold        . ':·
such unapplied funds until Borrower makes payment to bring the Loan current. If Borrower does not do so within
a reasonable period of time, Lender shall either apply such funds or return them to Borrower. If not applied
earlier, such funds will be applied to the outstanding principal balance under the Note immediately prior to
foreclosure. No offset or claim which Borrower might have now or in the future against Lender shall relieve
Borrower from making payments due under the Note and this Security Instrument or performing the covenants and
agreements aecW'ed by this Security Instrument.
          2.       Applfc:atlon of Payments or Proceeds. Except as otherwise described in this Section 2, all
payments accepted and applied by Lender shall be applied in the following order of priority: (a) interest due under
the Note; (b) principal due under the Note; (c) amounts due under Section 3. Such payments shall be applied to
each Periodic Payment in the order in which it became due. Any remaining amounts shall be applied ftrst to late
charges, second to any other amounts due under this Security Instrument, and then to reduce the principal balance
of the Note.
          If Lender receives a payment from Borrower for a delinquent Periodic Payment which includes a sufficient
amount to pay any late charge due, the payment may be applied to the delinquent payment and the late charge. If
more than one Periodic Payment is outstanding, Lender may apply any payment received from Borrower to the
repayment of the Periodic Payments if, and to tho extent that, each payment can bo paid mfull. To the extent that
any excess exists after the payment is applied to the full payment of one or more Periodic Payments, such excess
may be applied to any late charges due. Voluntary prepayments shall be applied first to any prepayment charges
and then as described in the Note.
          Any application of payments, insurance proceeds, or Miscellaneous Proceeds to principal due under the
Note shall not extend or postpone the due date, or change the amount, of the Periodic Payments.               ·
          3.       Funds for Escrow Items. Borrower shall pay to Lender on the day Periodic Payments are·due
under tho Note, until the Note is paid in full, a sum (tho "Funds") to provide for payment of amounts due for: (a)
taxes and assessments and other items which can attain priority over this Security Instrument as a lien or
encumbrance on the Property; (b) leasehold payments or ground rents on the Property, if any; (c) premiums for any
and all insurance required by Lender under Section 5; and (d) Mortgage Insurance premiums, if lmy, or any sums
payable by Borrower to Lender in lieu of the payment of Mortgage Insurance premiums in accordance with the
provisions of Section 10. These items are called "Escrow Items." At origination or at any time during the term of
the Loan, Lender may require that Community Association Dues, Fees, and Assessments, if ail.y, be escrowed by
Borrower, and such dues, fees and assessments shall be an Escrow Item. Borrower shall promptly furnish to
Lender all notices of ammmts to be paid under this Section. Borrower shall pay Lender the Funds for Escrow
 Items unless Lender waives Borrower's obligation to pay the Funds for any or all Escrow Items. Lender may waive
Borrower's obligation to pay to Lender Funds for any or all Escrow Items at any time. Any such waiver may only
bo in writing. In the event of such waiver, Borrower shall pay directly, when and where payable, the amounts due
 for any Escrow Items for which payment of Funds has been waived by Lender and, if Lender requires, shall furnish
 to Lender receipts evidencing such payment within such time period as Lender may require. Borrower's obligation
 to make such payments and to provide receipts shall for all purposes be deemed to be a covenant and agreement
 contained in this Security Instrumen~ as the phrase "covenant and agreement•• is used in Section 9. If Borrower is
 obligated to pay Escrow Items directly, pursuant to a waiver, and Borrower fails to pay the amount due for an
 Escrow Item, Lender may exercise its rights under Section 9 and pay such amount and Borrower shall then be
 obligated under Section 9 to repay to Lender any such amounl Lender may revoke the waiver as to any or all
 Escrow Items at any time by a notice given in accordance with Section 15 and, upon such revocation, Borrower
 shall pay to Lender all Funds, and in such amounts, that are then required under this Section 3.
      1
          Lender may, at any time, collect and hold Funds in an amount (a) sufficient to permit Lender to apply the
 Funds at the time specified under RBSPA, and (b) not to exceed the maximum amount a lender can require under
 RESPA. Lender shall estimate the amount of Funds due on the basis of current data and reasonable estimates of
 expenditmes of future Escrow Items or othert..ise in accordance with Applicable Law.
          The Funds shall be held in an institution whose deposits are insured by a fe~eralu~ca~~~
Texa1 Deed o!Trust.Single Famll)'-Fannlc Mat/Freddie Mac: UNIFORM
INSTRUMENT




                                                           TabB
                                                                                                   RECORD 87
                                                                                                                           .. ~. !.~:·:~k::.":.:


~.:~ty=d:~ ~~is:;:·::.':;::..~. ::~h=~>.:."''P-=!~..!~~ '. )·:._~-.:~ '·.r: ~.· -;.:· .
Lender shall not charge Borrower for holding and applying tho Funds, annually analyzing tho escrow accoiuit, or
verifYing the Escrow Items, unless Lender pay& Borrower interest on the Funds and Applicable Law pennits ··
                                                                                                                                      . ,
                                                                                                                                       :.
Lender to make such a charge. Unless an agreement is made in writing or Applicable Law requires inter~t to be                  · ··
paid on the Funds, Lender shall not be required to pay Borrower any interest or earnings on the Funds. Borrower
and Lender can aSt-ee in writing, however, that interest shall be paid on the Funds. Lender shall give to Borrower,
without charge, an annual accounting of the Funds as required by RESPA.
          If there is a surplus of Funds held in escrow, as defined under RESPA, Lender shall account to Borrower
for the excess funds in accordance with RESPA. If there is a shortage of Funds held in escrow, as defined under
RBSPA, Lender shall notify Borrower as required by RBSPA, and Borrower shall pay to Lender the amount
necessary to make up the shortage in accordance with RESPA, but in no more than 12 monthly payments. If there
is a deficiency of Funds held in escrow, as defmed under RBSPA, Lender shall notify Borrower as required by
RESPA, and Borrower shall pay to Lender the amount necessary to make up the deficiency in accordance with
RESPA, but in no more than 12 monthly payments.
          Upon payment in full of all sums secured by this Security Instrument, Lender shall promptly refund to
Borrower any Funds held by Lender.
          4.        Charges; Liens. Borrower shall pay all taxes, assessments, charges, fines, and impositions
attributable to the Property which can attain priority over this Security Instmmont, leasehold payments or ground
rents on the Property, if any, and Community Association Dues, Fees, and Assessments, if any. To the extent that
these items are Escrow Items, Borrower shaH pay them in the manner provided in Section 3.
          Borrower shall promptly discharge any lien which has priority over this Security Instrument unless
Borrower: (a) agrees in writing to the payment of the obligation secured by the lien in a manner acceptable to
Lender, but only so long as Borrower is performing such agreement; (b) contests the lien in good faith by, or
defends against enforcement of the lien in, legal proceedings which in Lender's opinion opemte to prevent the
 enforcement of the lien while those proceedings are pending, but only until such proceedings are concluded; or (c)
secures from the holder of the lien an agrecmcilt satisfactory to Lendor subordinating tho lien to this Security
 Instrument. If Lender determines that any part of the Property is subject to a lien which can attain priority over
 this Security Instrument, Lender may give Borrower a notice identifying the lien. Within I0 days of the date on
 which that notice i& given, Borrower shall satisfy the lien or tllke one or more of the actions set forth above in this
 Section 4.
           Lender may require Borrower to pay a one-time charge for a real estate tax verification and/or reporting
 service used by Lender in connection with this Loan.
           5.       Property Insurance. Borrower' shall keep the improvements now existing or hereafter erected
 on the Property insured against loss by fire, hazards included within the tenn "extended coverage", and any other
 hazards including, but not limited to, earthquakes and floods, for which Lender requires insurance. This insurance
 shall be maintained in the amounts (including deductible levels) and for the periods that Lender requires. What
 Lender requires pursuant to the preceding sentences can change during the tenn of the Loan. The insurance carrier
 providing the. insurance shall \le chosen by Borrower subject to Lender's right to disapprove Borrower's choice,
 which right shall not be exercised unreasonably. Lender may require Borrower to pay, in connection with this
 Loan, either: (a) a ono-time charge for flood zone detcnnination, certification and tracking services; or (b) a one-
  time charge for flood zone determination and certification services and subsequent charges each time remapping&
  or sbnilar changes occur which reasonably might affect such detennination or certification. Borrower shall also be
 reaponsible for the payment of any fees imposed by the Fedeml Emergency Management Agency in connection
 with the review of any flood zone determination resulting from an objectiQn by Borrower.
              UQQ;Qlll~~ f~il6   fo malnf.!!u oJJu o~ f~o   oou011•oou   1''""lt'1 ·(·
                                                                                   1 1           1• ~ ~
         IfH6trower ia~s o mamiam alby fue coverages
                                                  ol'                    descn
                                                                        ed above, Lender may obtam tnsurance
coverage, at Lender's option and Borrower's expense. Lender is under no obligation to purchase any pllrticulsr
type or amount of coverage. Therefore, such coverage shall cover Lender, but might or might not protect
Borrower, Borrower's equity in the !lroperty, or the contents of the Property, against any risk.
 Texaa Deed orTrutt-81ngle Famlly..FaaniG Mae/Freddie Mae UNIPORM
 INSTRUMENT
                                                            s


                                                            TabB
                                                                                                      RECORD 88
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                                                                                                                                 .. ·.
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                                                                                                                                      ··.;




and might provide greater or lesser coverage than was previously in effect. Borrower acknowledges that the cost of
the insurance coverage so obtained might significantly exceed the cost of insurance that Borrower could have .
obtained. Any amounts disbursed by Lender under this Section 5 shall become additional debt of Borrower secured·
by this Security Instrument. These amounts shall bear interest at the Note rate from the date of disbursement and
shall be payable, with such interest, upon notice from Lender to Bonower requesting payment.
          AI' insurance policies required by Lender and renewals of such policies shall be subject to Lender's right
to disapprove such policies, shall include a standard mortgage clause, and shalt name Lender as mortgagee and/or
as an additional loss payee. Lender shall have the right to hold the policies and renewal certificates. If Lender
requires, Borrower shall promptly give to Lender all receipts of paid premiums and renewal notices. If Borrower
obtains any form of insurance coverage, not otherwise required by Lender, for damage to, or destruction of, the
Property, such policy shall include a standard mortgage clause and shall name Lender as mortgagee and/or as an
additional loss payee.                                             '
          In the event of loss, Borrower shall give prompt notice to the insurance carrier and Lender. Lender may
make proof of loss if not made promptly by Borrower. Unless Lender and Borrower otherwise agree in writing,
any insurance proceeds, whether or not the underlying insurance was required by Lender, shall be applied to
restoration or repair of the Property, if the restoration or repair is economically feasible and Lender's security is not
lessened. During such repair and restoration period, Lender shall have the right to hold such insurance proceeds
until Lender has had an opportunity to inspect such Property to ensure the work has been completed to Lender's
satisfaction, provided that such inspection shall be undertaken promptly. Lender may disburse proceeds for the
repairs and restoration in a single payment or in a series of progress payments as the work is completed. Unless an
agreement is made in writing or Applicable Law requires interest to be paid on such insurance proceeds, Lender
shall not be required to pay Borrower any interest or earnings on such proceeds. Fees for public adjusters, or other
third parties, retained by Borrower shall not be paid out of the insurance proceeds and shall be the sole obligation
of Borrower. If the restoration or repair is not economically feasible or Lender's security would be lessened, the
insurance proceeds shall be applied to the sums secured by this Security Instrument. whether or not then due, with
the excess, if any, paid to Borrower. Such insurance proceeds shall be applied in the order provided for in Section
 2.
          If Borrower abandons the Property, Lender may file, negotiate and settle any available insurance claim
 and related matters. If Borrower does not respond within 30 days to a notice from Lender that the insurance
 carrier has offered to settle a claim, then Lender may negotiate and settle the claim. The 30-day period will begin
 when the notice is given. In either event, or if Lender acquires the Property under Section 22 or otherwise,
 Borrower hereby assigns to Lender (a) Borrower's rights to any insurance proceeds in an amount not to exceed the
 amounts unpaid under the Note or this Security Instrument, and (b) any othc:r of Borrower's rights (other than the
 right to any refund of unearned premiums paid by Borrower) under all insurance policies covering the Property,
 insofar as such rights are applicable to the coverage of the Property. Lender may use the insurance proceeds either
 to repair or restore the Property or to pay amounts unpaid under the Note or this Security Instrument, whether or
 not then due.
          6.        Occupancy. Borrower shaU occupy, establish, and use the Property as Borrower's principal
 residence within 60 days after the execution of thiS Security Instrument and shall continue to occupy the Property
 as Borrower's principal residence for at least one year after the date of occupancy, unless Lender otherwise agrees
 in writing, which consent shall not be unreasonably withheld, or unless extenuating circumstances exist which are
 beyon~ Borrower's control.
          7.        Preservation, Maintenance and Protection of the Property; Inspections. Borrower shall not
 destroy, damage or impair the Property, allow the Property to deteriorate or conunit waste on the Property.
 Whether or not Borrower is residing in the Property, Borrower shall maintain the Property in order to prevent the
 Property from deteriorating or decreasing in value due to its condition. Unless it is determined pursuant to Section
 5 that repair or restoration is not economically feasible, Borrower shall promptly repair the Property if damaged to
 avoid further deterioration or damage. If durance or condemnation proceeds are paid in connection with damage
 to, or the taking of, the Property, Borrower shaU be responsible for repairing or restoring the Property               if
Tu.u Deed ofTrult.Single Family·F'annle Mu/Freddle Mac UNIFORM
INSTRUMENT
                                                        6




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                                                                                                        RECORD 89
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                                                                                                                           :·   ·.



Lender has released proceeds for such purposes. Lender may disburse proceeds for the repairs and restoration in a
single payment or in a aeries of progress payments as the work is completed. If the insurance or condemnation
proceeds are not sufficient to repair or restore the Property, Borrower is not relieved of Borrower's obligation for
the completion of such repair or restoration.
          Lender or its agent may make reasonable entries upon and inspections of the Property. If it has reasonable
cause, Lender may inspect the interior of the improvements on the Property. Lender shall give Borrower notice at
the time of or prior to such an interior inspection specifying such reasonable cause.
          8.        Borrower's Loan Application. Borrower shall be in default if, during the Loan application
process, Borrower or any persons or entities acting at the direction of Borrower or with Borrower's knowledge or
consent gave materially false, misleading, or inaccurate information or statements to Lender (or failed to provide
Lender with material information) in connection with the Loan. Material representations include, but are not
limited to, representations concerning Borrower's occupancy of the Property as Borrower's principal residence.
          9.        Protection of Lender's Interest in the Property and Rights Under this Security Instrument.
If (a) Borrower fails to perfonn the covenants and agreements contained in this Security Instrument, (b) there is a
legal proceeding that might significantly affect Lender's interest in the Property and/or rights under this Security
Instrument (such as a proceeding· in bankruptcy, probate, for condemnation or forfeiture, for enforcement of a lien
which may attain priority over this Security Instrument or to enforce laws or regulations), or (c) Borrower has
abandoned the Property, then Lender may do and pay for whatever is reasonable or appropriate to protect Lcndex's
interest in the Property and rights under this Security Instrument, including protecting and/or assessing the value
 of the Property, and securing and/or repairing the Property. Lender's actions can include, but are not limited to:
(a) paying any sums secured by a lien which has priority over this Security Instrument; (b) appearing in court; and
(c) paying reasonable attorneys' fees to protect its interest in the Property and/or rights under this Security
 Instrument, including its secured position in a bankruptcy proceeding. Securing the Property tncludes, but is not
 limited to, entering the Property to make repairs, change locks, replace or board up doors and windows, drain
 water from pipes, eliminate building or other code violations or dangerous conditions, and have utilities turned on
 or off. Although Lender may take action under this Section 9, Lender does not have to do so and is not under any
 duty or obligation to do so. It is agreed that Lender incurs no liabiUty for not taking any or all actions authorized
 nnder this Section 9.
          Any amounts disbursed by Lender under this Section 9 shall become additional debt of Borrower sccrired
 by this Security Instrument. These amounts shall bear interest at the Note rate from the date of disbursement and
 shall be payable, with such interest, upon notice from Lender to Borrower requesting payment.
           If this Security Instrument is on a leasehold, Borrower shall comply with all the provisions of the lease. If
 Borrower acquires fee title to the Property, the leasehold and the fee title shall not merge unless Lender agrees to
 the merger in writing.                                      .
           10.       Mortgage Insurance. If Lender required Mortgage Insurance as a condition of making the
 Loan, Borrower shall pay the premiums required to maintain the Mortgage Insurance in effect. If, for any reason,
 the Mortgage Insurance coverage required by Lender ceases to be available from the mortgage insurer that
 previously provided such insurance and Borrower was required to make separately designated payments toward the
 premiums for Mortgage Insurance, Borrower shaH pay the premiums required to obtain coverage substantially
 equivalent to the Mortgage Insurance previously in effect. at a cost substantially equivalent to the cost to Borrower
 of the Mortgage Insurance pxovfously in effect, from an alternate mortgage insurer selected by Lender. If
 substantially equivalent Mortgage Insurance coverage is not available, Borrower shall continue to pay to Lender
 the amount of the separately designated payments that were due when the insurance coverage ceased to be in effect.
  Lender will accept, use and retain these payments as a non-refundable loss reserve in lieu of Mortgage Insurance.
 Such loss reserve shall be non-refundable, notwithstanding the fact that the Loan is ultimately paid in full, and
 Lender shall not bo required to pay Borrower any intereat or earnings on such toss reserve. Lender can no longer
 require loss reserve paymenta if Mortgage Insurance coverage (in the amount and for the period that Lender
 requires) provided by an insurer selected    'Y   Lender again becomes available, is obtained, and Lender requires
 separately designated payments toward the premiums for Mortgage Insurance. If Lender required Mortgage
                                                                                                            ~   •:
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             a
Insurance as condition of making the Loan and Borrower was required to make separately designated payrt.ents : ·
toward the premiums for Mortgage Insurance, Borrower shall pay the premiums required to maintain Mortgage:
Insurance in effect, or to provide a non-refundable loss reserve, until Lender's requirement for Mortgage lnsurance. · ·
ends in accordance with any written agreement between Borrower and Lender providing for such termination or
until termination is required by Applicable Law. Nothing in this Section tO affects Borrower's obligation to pay           ... .
                                                                                                                              -~~
interest at the rate provided in the Note.                                                                     ·
          Mortgage Insurance reimburses Lender (or any entity that purchases the Note) for certain losses it may
incur ifBorrower does not repay the Loan as agreed. Borrower is not a party to the Mortgage Insurance.
          Mortgage insurers evaluate their total risk on all such insurance in force from time to time, and may enter
into agreements with other parties that share or modify their risk, or reduce losses. These agreements are on terms
and conditions that are satisfactory to the mortgage insurer and the other party (or parties) to these agreements.
These agreements may require the mortgage insurer to make payments using any source of funds that the mortgage
insurer may have available (which may include funds obtained from Mortgage Insurance premiums).
          As a result of these agreements, Lender, any purchaser of the Note, another insurer, any reinsurer, any
other entity, or any affiliate of any of the foregoing, may receive (directly or indirectly) amounts that derive from
(or might be characterized as) a portion of Borrowers payments for Mortgage Insurance, in exchange for sharing
or modifying the mortgage insurer's risk. or reducing losses. If such agreement provides that an affiliate of Lender
takes a share of the insurer's risk in exchange for a share of the premiums paid to the insurer, the arrangement is
often termed "captive reinsurance." Further:
          (a)       Any such agreements will not affect the amounts that Borrower has agreed to pay for
Mortgage Insurance, or any other terms of the Loan. Such agreements will not increase the amount
Borrower will owe for Mortgage Insurance, and they wUI not entitle Borrower to any refund.
          (b)       Any such agreements will not affect the rights Borrower has • if any - with respect to the
Mortgage Insurance under the Homeowners Protootion Act of 1998 or any other law. These rights may
Include the right to receive certain disclosures, to request and obtain canceiJatlon of the Mortgage Insurance,
 to have the Mortgage Insurance terminated automatically, and/or to receive a refund of any Mortgage
 Insurance premiums that were unearned at the time of such cancellation or termination.
          11.       Assignment of Miscellaneous Proceeds; Forfeiture. All Miscellaneous Proceeds are hereby
 assigned to and shall be paid to Lender.
          If the Property is damaged, such Miscellaneous Proceeds shall be applied to restoration or repair of the
 Property, if the restoration or repair is economically feasible and Lender's security is not lessened. During such
 repair and restoration period, Lender shall have the right to bold such Miscellaneous Proceeds until Lender has
 had an opportunity to inspect such Property to ensure the work has been completed to Lender's satisfaction, ·
 provided that such inspection shall be undertaken promptly. Lender may pay for the repairs and restoration in a
 single disbursement or in a series of progress payments as the work is completed. Unless an agreement is made in
 writing or Applicable Law requires interest to be paid on such Miscellaneous Proceeds, Lender shall not be
 required to pay Borrower any interest or earnings on such Miscellaneous Proeoeds. If the restoration or repair is
 not economically feasible or Lender's security would be lessened, the Miscellaneous Proceeds shall he applied to
 the sums secured by this Security Instrument, whether or not then due, with the excess, if any, paid to Borrower.
 Such Miscellaneous Proceeds shall be applied in the order provided for in Section 2.
          In the event of a total taking, destruction, or loss in value of the Property, the Miscellaneous Proceeds
 shall be applied to the sums secured by this Security Instrument, whether or not then due, with the excess, if any,
 paid to Borrower.               \                                                           ·
          In the event of a partial taking, destruction, or loss in value of the Property in which the fair market value
 of the Property immediately before the partial taking, destruction, or loss in value is equal to or greater than the
 amount of the sums secured by this Security Instrument inunediately before the partial taking, destruction, or loss
 in value, unless Borrower and Lender otherwise agree in writing, the sums secured by this Security Instrument
 shall be reduced by the amount of the Milcellaneous Proceeds multiplied by the following fraction: (a) the total
 amount of the sums secured immediately before the partial taking, destruction, or loss in value divided by (b) the
Tuu Deed ofTrust..Slngle Famlly-Faonlc Mae/Freddie Mae UNIFORM
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                                                                                                    RECORD 91
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fair market value of the Property immediately before the partial taldng, destruction, or loss in value. Any balance ·
shall be paid to Borrower.
           In the event of a partial taking, destruction, or loss in value of the Property in which the fair market value
of the Property immediately before the partial taking, destruction, or loss in value is less than the amount of the
sums secured inuncdiately before the partial taking, destruction, or loss in value, unless Borrower and Lender
otherwise agree in writing, the Miscellaneous Proceeds shall be llpplied to the sums secured by this Security
Instrument whether or not the sums are then due.
           If the Property is abandoned by Botrower, or if, after notice by Lender to Borrower that the Opposing
Party (as defined in the next sentence) offers to make an award to settle a claim for damages, Borrower fails to
respond to Lender within 30 days after the date the notice is given, Lender is authorized to collect and apply the
Miscellaneous Proceeds either to restoration or repair of the Property or to the sums secured by this Security
Insttument, whether or not then due. "Opposing Party'' means the third party that owes Borrower Miscellaneous
Proceeds or the party against whom Borrower has ll right of action in regard to Miscellaneous Proceeds.
      · Borrower shall be in default if any action or proceeding, whether civil or criminal. is begun that, in
Lender's judgment, could result in forfeiture of the Property or other material irnpainnent of Lenders interest in
the Property or rights under this Security Instrument. Borrower can cure such a default and, if acceleration has
occurred, reinstate as provided in Section l9, ,by causing the action or proceeding to be dismissed with a ruling
that, in Lender's judgment, precludes forfeiture of the Property or other material impairment of Lender's interest in
the Property or rights under this Security Instrument. The proceeds of any award or claim for damages that are
attributable to the impairment of Lender's interest in the Property are hereby assigned and shall be paid to Lender.
           All Miscellaneous Proceeds that are not applied to restoration or repair of the Property shall be applied in
the order provided for in Section 2.
           12.      Borrower Not Released; Forbearance By Lender Not a Waiver. Extension of the time for
payment or modification of amortization of the sums secured by this Security Instrument granted by Lender to
Borrower ot any Successor in Interest of Borrower shall not operate to release the liability of Borrower or any
 Successors in Interest of Borrower. Lender shall not be required to commence proceedings against any Successor
in Interest of Borrower or to refuse to extend time for payment or otherwise modify amortization of the sums
 secured by this Security Instrument by reason of any demand made by the original Borrower or any Successors in
 Interest of Bonower. Any forbearance by Lender in exercising any right or remedy including, without limitation,
Lender's acceptance of payments from third persons, entities or Successors ~n Interest of Borrower or in amounts
 less than the amount then due, shall not be a waiver of or preclude the exercise of any right or remedy.
           13.      Joint and Several Liability; Co-signers; Successors and Assigns Bound. Borrower covenants
 and agrees that Borrower's obligations and liability shall be joint and sevC!faL However, any Borrower who co-
 signs this Security Instrument but does not execute the Note (a "co-signer''): (a) is co-signing this Security
 Instrument only to mortgage, grant and convey the co-signer's interest in the Property under the terms of this
 Security Instrwnent; (b) is not personally obligated to pay the sums secured by this Security Instrument; and (c)
 agrees that Lender and any other Borrower can agree to extend, modify, forbear or make any accommodations with
 regard to the terms of this Security Instrument or the Note without the co-signer's consent.
           Subject to tho provisions of Section 18, any Successor in Interest of Borrower who assumes Borrower's
 obligations under this Security Instrument in writing, and is approved by Lender, shall obtain all of Borrower's
 rights and benefits under this Security Instrument Borrower shall not be released from Borrower's obligations and
 liability under this Security Instrument unless Lender agrees to such release in · writing. The covenants and
 agreements of this Security Instrument shall bind (except as provided in Section 20) and benefit the successors and
 assigns ofLender.                                                              .
           14.      Loan Charges. Lender may charge Borrower fees for services performed in connection with
 Borrower's default, for the purpose of protecting Lender's interest in the Property and rights under this Security
 Instrument, including, but not limited to, attorneys' fees, property inspection and valuation fees. In regard to any
 other 'fees, the absence of express authoritf in this Security Instrument to charge a specific fee to Ho:!T.O,:~ICJ;1 ~l!Hll
 not be construed as a prohibition on ~e charging of such fee. Lender may not charge fees Jhat ·
Texas Deed of Trust-Bingle Famlly..Fanale MIW'Freddle Mae UNIFORM
INSTRUMENT




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                                                                                                                              I
prohibited by this Security Instmment or by Applicable Law.
          If the Loan is subject to a law which sets maximum loan charges, and that law is finally interprttedso that
the interest or other loan charges collected or to be collected in comtection with the Loan exceed the pennitted ·
limits, then: (a) any such loan charge shall be reduced by the amount necessary to reduce lhe charge to the
permitted limit; and (b) any sums already collected from Borrower which exceeded permitted limits will be
refunded to Borrower. Lender mlly choose to make this refund by reducing the principal owed under the Note or
by making a direct payment to Borrower. If a refund reduces principal, the reduction will be treated as a partial
prepayment without any prepayment charge (whether or not a prepayinent charge is provided for under the Note).
Borrower's acceptance of any such refund made by direct payment to Borrower will constitute a waiver of any right
of action Borrower might have arising out of such overcharge.
          IS.       Notices. All notices given by Borrower or Lender in connection with this Security Instrument
must be in writing. Any notice to Borrower in comtection with this Security Instrument shall be deemed to have
been given to Borrower when mailed by first class mail or when actually delivered to Borrower's notice address if
sent by other means. Notice to any one Borrower shall constitute notice to all Borrowers unless Applicable Law
expressly requires otherwise. The notice address shall be the Property Address unless Borrower has designated a
substitute notice address by notice to Lender. Borrower shall promptly notify Lender of Borrower's change of
address. If Lender specifies a procedure for reporting Borrowers change of address, then Borrower shall only
report a change of address through that specified procedure. There may be only one designated notice address
under this Security Instrument at any one time. Any notice to Lender shall be given by delivering it or by mailing
it by first class mail to Lender's address stated herein unless Lender has designated another address by notice to
Borrower. Any notice in connection with this Security Instrument shall not be deemed to have been given to
Lender until actually received by Lender. If any notice required by this Security Instrument is also required under
Applicable Law, the Applicable Law requirement wiii satisfy the corresponding requirement under this Security
Instrument
          16.        Governing Law; Severability; Rules of Construction. This Security Instrument shall be
governed by federal law and the law of the jurisdiction in which the Prop~rty is located. All rights and obligations
contained in this Security Instrument are subject to any requirements and limitations of Applicable Law.
Applicable Law might explicitly or implicitly allow the parties to agree by contract or it might be silent, but such
 silence shall not be construed as a prohibition against agreement by contract In the event that any provision or
 clause of this Security Instrument or the Note conflicts with Applicable Law, such conflict shall not affect other
provisions of this Security Instrument or the Note which can be given effect without the conflicting provision.
          As used in this Security I~trument: (a) words of the masculine gender shall mean and include
 corresponding neuter words or words of the feminine gender; (b) words in the singular shall mean and include the
 plural and vice versa; and (c) th6 word "may" gives· sole discretion without any obligation to take any action.
          17.        Borrower's Copy. Borrower shall be given one copy of the Note and ofthia Security Instrument.
          18.        Transfer of the Property or a Beneficial Interest In Borrower. As used in this Section 18,
 "Interest in the Property" means any legal or beneficial interest in the Property, including, but not limited to, those
 beneficial interests transferred in a bond for deed, ' contract for deed, installment sales contract or escrow
 agreement, the intent of which Is the transfer of title by Borrower at a future date to a purchaser.
          If all or llDY part of the Property or any Interest in the Property is sold or transferred (or if Borrower is not
 a natural person and a beneficial interest in Borrower is sold or transferred) without Lenders prior written consent,
 Lender may require immediate payment in full of all sums secured by this Security Instrument. However, this
 option shall not be exercised by Lender if such exercise is prohibited by Applicable Law.
           If Lender exercises thia option, Lender shall give Borrower notice of acceleration. The notice shall
 provide a period of not less than 30 days from the date the notice is given in accordance with Section 15 within
 which Borrower must pay aU sums secured by this Security Instrument. If Borrower fails to pay these sums prior to
 the expiration of this period, Lender may invoke any remedies permitted by this Security Instrument without
 further notice or demand on Borrower.          •
           19.
Tex.s Deed ofTrult-Siagle Famlly-Fannle Mae/Freddie Mae UNIFORM
 INSTRUMENT
                                                        10




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                                                                                                          RECORD 93
                                                                                                                                          .·. '_:·~·:.~~?
                                                                                                                                          ••• ·~ :1·. ~



                                                                                                                            .         .
                 Bonower shall have the right to have enforcement of this Security Instrument discontinued at any time prior to the-. ·
                 earliest of: (a) five days before sale of the Property pursuant to any power of sale contained in this Security ·..
                 Instrument; (b) such other period as Applicable Law might specifY for the termination of Borrower's right to' ·
                 reinstate; or {c) entry of a judgment enforcing this Security Instrument. Those conditions are that Borrower: (a)
                 pays Lender all sums which then would be due under this Security Instrument and the Note as if no acceleration
                 had occurred; (b) cures any default of any other covenants or agreements; (c) pays all expenses incurred fn
                 enforcing this Security Instrument, including, but not limited to, reasonable attorneys' fees, property inspection and
                 v.aluation fees, and other fees incurred for the purpose of protecting Lender's interest In the Property and rights
                 under this Security Instrument; and (d) takes such action as Lender may reasonably require to assure that Lender's
                 interest in the Property and rights under this Security Instrument, and Borrower's obligation to pay the sums
                 secured by this Security Instrument, shall continue unchanged. Lender may require that Borrower pay such
                 reinstatement sums and expenses in one or more of the foUowing forms, as selected by Lender: (a) cash; (b) money
                 order; (c) certified check, bank checkr treasurer's check or cashier's check, provided any such check is drawn upon
                 an institution whose deposits are insured by a federal agency, instrumentality or entity; or (d) Electronic Funds
                 Transfer. Upon reinstatement by Borrower, this Security Instrument and obligations secured hereby shall remain
                 fully effective as if no acceleration had occurred. However, this right to reinstate shall not apply in the case of
                 acceleration under Section 18.
                            20.      Sale of Note; Change of Loan Servicer; Notice of Grievance. The Note or a partial interest in
                 the Note (together with this Security Instrument) can be sold one or more times without prior notice to Borrower. A
                 sale might result in a change in the entity (known as the "Loan Scrvicer") that collects Periodic Payments due
                 under the Note and this Security Instrument and performs other mortgage loan servicing obligations under the
                 Note, this Security Instrument, and Applicable Law. There also might be one or more changes of the Loan
                  Servicer unrelated to a sale of the Note. If there is a change of the Loan Servicer, Borrower will be given written
                  notice of the change which will state the name and address of the new Loan Servicer, the address to which
                  payments should be made and any other infonnation RESPA requires in connection with a notice of transfer of
                  servicing. If the Note is sold and thereafter the Loan is serviced by a Loan Servicer other than the purchaser of the
                  Note, the mortgage loan servicing obligations to Borrower will remain with the Loan Servicer or be transferred to a
                  successor Loan Servicer and are not assumed by the Note purchaser unless otherwise provided by the Note
                  purchaser.
                            Neither Borrower nor Lender may commence, join, or be joined to any judicial action (as either an
                  individual litigant or the member of a class) that arises from the other party's actions plll'8Uant to this Security
                  Instrument or that alleges that the other party has breached any provision of, or any duty owed by reason of, this
                  Security Instrument, until such Borrower or Lender has notified the other party (with such notice given in
                  compliance with the requirements of Section 15) of such alleged breach and afforded the other party hereto a
                  reasonable period after the giving of such notice to take corre~tive action. If Applicable Law provides a time
                  period which must elapse before certain action can be taken, that time period will be deemed to be reasonable fbr
                  purposes of this paragraph. The notice of acceleration and opportunity to cure given to Borrower pursuant to
                  Section 22 and the notice of acceleration given to Borrower pursuant to Section 18 shall be deemed to satisfy the
                   notice and opportunity to take corrective action provisions of this Section 20.
                             21.      Hazardous Substances. As used in this Section 21 : (a) "Hazardous Substances" are those
                  substances defined as toxic or hazardous substances, pollutants, or wastes by Environmental Law and the following
   . . '·         substances: gasoline, kerosene, other flammable or toxic petroleum products, toxic pesticides and herbicides,
.•.....
      .            volatile solvents, materials containing asbestos or formaldehyde, and radioactive materials; (b) "Environmental
                   Lawft means federal laws and laws of the jurisdiction where the Property is located that relate to health, safety or
      .\.   ·.     environmental protection; (c) "Environmental Cleanup'' includes any response action, remedial action, or removal
                   action, as defined In Environmental Law; and (d) an "Environmental Condition" means a condition that can cause,
                   contribute to, or otherwise trigger an Environmental Cleanup.
··.                          Borrower shall not cause or pennil the presence, use, disposal, storage, or re]ease of any Hazardous
                   Substances, or threaten to release any Hazardous Substances, on or in the Property. Borrower shall not do, nor
                  Texas Deed orTruat.Single Flunlly·Fannle Mac/Freddie Mac UNIFORM
                  INSTRUMENT
                                                                            11




                                                                            TabB
                                                                                                                      RECORD 94
allow anyone else to do, anything affecting the Property (a) that is in violation of any Environmental" La:W;
(b) which creates an Environmental Condition, or (c) which, due to the presence, use, or release of a Hazardou~
Substance, cieates a condition that adversely affects the value of the Property. Tho preceding two sentences shall:
not apply to the presence, use, or storage on the Property of small quantities of Hazardous Substances that are
generally recognized to be appropriate to normal residential uses and to maintenance of the Property (including,
but not limited to, hazardous substances in consumer products),
          Borrower shall promptly give Lender written notice of (a) any investigation, claim, demand, lawruit or
other action by any governmental or regulatory agency or private party involving the Property and any Hazardous
Substance or Environmental Law of which Borrower has actual knowledge, (b) any Environmental Condition,
including but not limited to, any spilling, leaking, discharge, release or threat of release of any Hazardous
Substance, and (c) any condition caused by the presence, usc or release of a Hazardous Substance which adversely
affects the value of the Property. IfBorrowor learns, or is notified by any govenunental or regulatory authority, or
any private party, that any removal or other remediation of any Hazardous Substance affecting the Property is
necessary, Borrower shall promptly take all necessary remedial actions in accordance with Environmental Law.
Nothing herein shall create any obligation on Lender for an Environmental Cleanup.

        NON-UNIFORM COVENANTS. Borrower and Lender further covenant and agree as follows:
        22.   Acceleration; Remedies. Lender shall give notice to Borrower prior to acceleration
following Borrower's breach of any covenant or agreement in this Security Instrument (but not prior to
acceleration under Section 18 unle.ss Applicable Law provides otherwise). The notice shall specify: (a) the
default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice
Is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before
the date specified in the notice will result in acceleration of the sums secured by thls Security Instrument and
sale of the Property. The notice shall further inform Borrower of the rlght to reinstate after acceleration
and the right to bring a court action to assert the non-existence of a default or any other defense of Borrower
to acceleration and sale. If the default Is not cured on or before the date specified ln the notice, Lender at Its
option may require Immediate payment In full of            ansums secured by this Security Instrument without
further demand and may Invoke the power of sale and any other remedies permitted by Applicable Law.
Lender shall be entitled to collect aU expenses Incurred in pursuing the remedies provided in this Section 22,
including, but not limited to, reasonable attorneys' fees and costs of title evidence. For the purposes of this
Section 22, the term "Lender» includes any holder of the Note who Is entltl~d to ·receive payments under the
Note.
         If Lender invokes the power of sale. Lender or Trustee shall give notice ofthe time, place and terms
of sale by posting and filing the notice at least 21 days prior to sale as provided by Appllcuble Law. Lender
shall man a copy of the notice to Borrower in the manner pr.escrlbed by Applicable Law. Sale shall be made
 at public venue. The sale must begin at the time stated In the notice of sale or not later than three hours
 after that time and between the hours of 10 a.m. and 4 p.m. on the Ont Tuesday of the month. Borrower
 authorizes Trustee to sell the Property to the highest bidder for cash In one or more parcels and in any order
TrliStee determines. Lender or its designee may purchase the Property at any sale.
          Trustee shall deliver to the purchaser Trustee's deed conveying indefeasible title to the Property
 with covenants of general warranty from Borrower. Borrower covenants and agrees to defend generally the
 purchaser's title to the Property against all claims and demands. The recitals in the Trustee's deed shall be
 prima facie evidence of the truth of the statements made therein. Trustee shall apply the proceeds ortbe sale
in the following order: (a) to all expenses of the sale, including, but not limited to, reasonable Trustee's and
 attorneys' fees; (b) to all sums secured by this Security Instrument; and (c) any excess to the person or
 penons legally entitled to lt.
          If the Property Is sold pursuant to this Section 22, Borrower or any person holding possession of the
 Property through Borrower shall fmmedfately surrender possession of the Property to the purchaser at that
 sale, If possession Is not surrendered, Borrower or such person shall be a tenant at sufferance and may be

Ten• Deed ofTru1t..Slogle Famlly-F..nlc Mac/Freddie Mac: UNIFORM
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                                                                                                                            .....
                                                                                                                              '·


 removed by writ of possession or other court proceeding.
           23.      Release. Upon payment of all sums secured by this Securjty Instrument, Lender shall provide a
                                                                                                                           ,·;~
 release of this Security Instrument to Borrower or Borrower's designated agent in accordance with Applicable Law.           :··
· Borrower shall pay any recordation costs, Lender may charge Borrower a fee for releaaing this Security
 Instrument, but only if the fee is paid to a third party for services rendered and the charging of the fee is permitted
 under Applicable Law.
           24.      Substitute Trustee; Trustee LlabUlty. All rights, remedies and duties of Trustee under this
 Security Instrument may be exercised or performed by one or more trustees acting alone or together. Lender, at its
 option and with or without cause, may from time to time. by power of attorney or otherwise, remove or substitute
 any trustee, add one or more trustees, or appoint a successor trustee to any Trustee without the necessity of any
 formality other than a designation by Lender in writing. Without any further act or conveyance of the Property the
 substitute, additional or successor trustee shall become vested with the title, rights, remedies, powers and duties
 conferred upon Trustee herein and by Applicable Law.
           Trustee shall not be liabJe if acting upon any notice, request, consent, demand. statement or other
 document believed by Trustee to be correct. Trustee shall not be liable for any act or omission unless such act or
 omission is willful.
           25.      Subrogation. Any of the proceeds of the Note used to take up outstanding liens against all or
 any part of the Property have been advanced by Lender at Borrower's request and upon Borrower's representation
 that such amounts are due and are secured by valid liens against the Propc::rty. Lender shall be subrogated to any
 and all rights, superior titles, liens and equities owned or claimed by any owner or holder of any outstanding liens
 and debts, regardless of whether said liens or debts are acquired by Lender by assignment or are reJeased by the
 holder thereof upon payment.            .
           :Z6.     Partial Invalidity. In the event any portion of the sums intended to be secured by this Security
 Instrument caiUlot be lawfully secured hereby, payments in reduction of such sums shall be applied first to those
 portions not secured hereby.
           27.      Purchase Money; Owelty of Partidon; Renewal and Extension of Liens Against Property;
  Acknowledgment of Cash Advanced Against Non-Homestead Property. Check box as applicable:
lXI     .   Pu~haseMoney.
          The funds advanced to Borrower under the Note were used to pay all or part of the purchase price of the
 Property. The Note also is primarily secured by the vendor's lien retained in the deed of even date with this
 Security Instrument convoying tho Proporty to Borrower, which vendor's lien has been assigned to Lender, this
 Security Instrument being additional security for such vendor's lien.
0         Owelty of Partition.
          The Note represents funds advanced by Lender at the special instance and request of Borrower for the
 purpose of acquiring the entire fee simple title to the Property and the existence of an owelty of partition imposed
 against the entirety of the Property by a court order or by a written agreement of the parties to the partition to
 secure the payment of the Note is expressly acknowledged, confessed and granted.
D          Renewal and Extension of Liens Against Property.
           The Note is ·in renewal and extension, but not in extinguishment, of the indebtedness described on the
 attached Renewal and Exte~ion Exhibit which is incorporated by reference, Lender is expressly subrogated to all
 rights, liens and remedies securing the original holder of a note evidencing Borrower's indebtedness and the
 original liens securing the indebtedness are renewed and extended to the date of maturity of the Note in renewal
 and extension of the indebtedness.
 D       Acknowledgment of Cash Advanced Against Non-Homestead Property.
         The Note represents funds advanced to Borrower on this day at Borrower's request and Borrower
 acknowledges receipt of such funds. Borro~er states that Borrower does not now and does not intend ever to reside
 on, use in any manner, or claim the Property secured by this Security Instrument as a business or residential
 homestead. Borrower disclaims all homestead rights, interests and exemptions related to the PrCIP~Iil¥~~
 Texas Deed ofTrust-Single Famlly-Fanaie Mae/J'reddle Mac UNIFORM
 INSTRUMENT
                                                           13




                                                           TabB
                                                                                                       RECORD 96
                                                                                                                     0          0




        28.     Loan Not a Home Equity Loan. The Loan evidenced by the Note Is not an extension of .
credlt as defined by Section 50(a)(6) or Section SO(a)(7), Article XVI, of tbe Texas Constltutloa. IC the
                                                                                                                                        ···. :
Property Is used as Borrower's residence, then BorroWer agrees that Borrower wiD receive no cash from the
Loan evidenced by the Note and that any advances not necessary to purchase the Property, exdagulsh an
owelty lien, complete construction, or renew and e:s:tend .a prior lien against the Property, will be used to
reduce the balance evidenced by the Note or such Loan will be modified to evidence tbe correct Loan
balance, at Lender•s opUon. Borrower agrees to execute any documentation necessary to comply with this
Section 18.

BY SIGNING BELOW, Borrower accepts and agrees to the terms and covenants contained in this Security
Instroment and in any Rider executed by Borrower and recorded with it.

WITNESS TilE HAND(S) AND SEAL(S) OF TilE UNDERSIGNED.

                                                                   ~
                                                                    ~~w..X. ;&tt:k
                                                                                        -'1
                                               date              "Sip~IIIIO
David C. Petruska                                                  Sandra L. Petruska

                                                                                                                (Sign Originals Only]




~=FoF Von tANi1                                            f;v
The foregoing instrument was aclmowledged before me this ~day of AJfl JJ
           .....~ L.-..k",jl
                                                                         , 2 £ by David
c.                                                              ~

                                                                              e               PAMALANEAI.
                                                                                         Notary PtMa.SiateoiT8111S
                                                                                        My Comm. Ellplrea feb. 15, 2010




                                                   •
Texas l>eed efTtuat-8111gle Famii;)'-JlaaJIIe Mae/Jlredd'• Mac: UNIFORM
INSTRUMENT                     .       '
                                                             H




                                                                 TabB
                                                                                                                    RECORD 97
                                                                                                                                      . .·:..- ..




                                         Document No. 2008-004602

             GENERAL WARRANTY DEED WITH VENDOR'S LIEN


                   GUTZKE
                   ···-       HELMUTH
                        .................
                        -···~             .- . ----··.K--··--··
                                                        ET UX  ..... --- ..... ..

                   to




                                                  FILED A~D RECORDED
                                                     RE:\L RECORDS
                                                On: 05120/2008 at 03:01 PM
                                    Docum~nt        :\ umh.:r:     2008-004602
                                                Rl!cl!ipt :\o.:    20086954
                                                      .-\mount: $ -=2~4..::..:00:---

                                                               By: esmith
                                              Chari ott~ Bl\!dsol!. County Clerk.
                                                 \'an Zandt County. TI!Xas

                                                                 4 Pages

"""*DO ~OT          RE~·IO\-'l~        Til lS P.-\GE- IT IS·A PART OF TI-llS                                l~STRl!~IENT*"""




                      STXI'E OF TEXAS
                     <'Ol -~T Y  OF \'A:~ lA.\!DT
                               I her~by c~rut)• that this rn!ilrum~t wa:~ fll.:oJ (lO th.: dat~ nnc.l time :1tumpcd herl!on hr
                     nw and wa:> duly recl,rd~d und~r th~ Document 1\um~r a\Rmpl!d h.:rQlJ1 ot'thc <>fficial J>uhlic
                     Record.-; of Van lundt Countr
                                                                     <'hnrlouc Blc:dsoc. County C'h:rk




                                                   •
Ri!~o'ord   and R!!turn To:

   DAVID C. PETRUSKA
   11264 RUSSWOOD CIRCLE

   DALLAS, TX 75229                                                                 lll~llllllllllllllllll~llllllllllll
                                                                    TabC
                                                                                                                          RECORD 98
·:···




        AFTER RECORDING RETURN TO:
        David C. Petruska
        11264 Russwood Circ:Je
        Dall~s, TX 75229

                - - - - -- - - ---(Space Above This Line l'or Recording Dalal--- --                           - - --

        NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON,
        YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING
        INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN
        REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS:
         YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER.

                              General Warranty Deed with Vendor's Lien
        Date:      Executed on the date set forth in the acknowledgement herein, but to be effective the Sixteenth day of
        May,2008.

        Grantor:

        G<>nto<'o Mailing Add.e•"lit/f;
                                       ~ , .tZl
                                                     r
                            Helmuth K. Gutzke an~i~e, Zackfann Gutzke


                                                       I
                                                            f'/8£,-J,
                                                           Tj    7,5'7
                                                                        :41·
                                                                          I
        Grantee:            David C. Petruska and wife, Sandra L. Petruska

        Grantee's Mailing Address:              11264 Russwood Circle
                                                Dallas, TX 75229                                                                             I
                                                                                                                                             t.

        Considet·ation:
                Ten Dollars ($10.00) and other good and valuable consideration paid to Grantor by Grantee and 1'1
                 note of even date in the principal amount of Two Hundred Seventy Four Thousand Five Hundred
                 and 00/100 Dollars - ($274,500.00) made by Grantee payable to the order of Compass Bank ,
                 "Lender" herein, as consideration for the amount paid to Grantor. The note Is secured by a
                 vendor's lien retained in favor of Lender In this .deed and by a deed of trust of even date from
                Grantee to Jon Mulkln , Trustee.

        Property (including any improvements):
                 All that certain lot, tract or parcel of land situated in VanZandt County, State of Texas, on theM.
                 V. Lout Survey, A-468, and being all of the residue of the called 5.753 acre first tract and all of the
                called 20.00 acre second tract conveyed to Helmuth K. Gutzke and wife, Zackiann Gutzke, by A. D.
                Ward, a single man, by Warranty Deed with Vendor's Lien dated JuJy.30, 1990, and recorded in
                Volume 1207 Page 390, of the Van Zandt County Real Records, together with an Easement for
                Roadway situated in VanZandt County, State of Texas, on theM. 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 VanZandt 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 Genlral Warranty Deed recorded in Volume 1771, Page 629, of the Van
                Zandt County Real Records and said lot,                      of land being more particularly described
        General WIUTilllty Deed wllh Veodor'sl,lcn


                                                                               ,-~(:IPJ!IiiBonPo1~cl1!oan, UP.-Arlington, Te){a& 2004-lOOS
                                                                                                             [Doc ld 3479 Rev. 09.li.D7]




                                                                                                                      RECORD 99
             by metes and bounds in Exhibit "A" attached hereto and made a part hereof.

             The above described property also includes any and all of Grantor's right, title, and/or interest in
             any and all system memberships and/or O\mersbfp certificates in any non-municipal water and/or
             sewer systems now or In the future serving said property.

    Reservations from and Exceptions to Conveyance and Warranty:
            This conveyance is given and accepted subject to any and all restrictions, reservations, covenants,
            conditions, rights of way, easements, municipal or other governmental zoning laws, regulations and
            ordinances, If any, affecting tbe herein described property.

             Grantee herein assumes the taxes for the current year.

    Grantor, for the consideration and subject to the reservations from and exceptions to conveyance and warranty,
    grants, sells, and conveys to Grantee the property, together with all at:td singular the rights and appurtenances
    thereto in any wise belonging, to have and hold it to Grantee, Grantee's heirs, e~ecutors, administrators,
    successors, or assigns forever. Grantor binds Grantor and Grantor's heirs, executors, administrators, and
                                                                              to
    successors to walTant and forever defend all and singular the property Grantee and Grantee's heirs, executors,
    administrators, successors, and assigns against every person whomsoever lawfully claiming or to claim the same or
    any part thereof, except as to the reservations from and exceptions to conveyance and warranty. The vendor's lien
    (to the extent of the consideration paid by Grantee to Grantor) against and superior title to the property are retained
"   until each note described is fully paid according to its terms, at which time this deed shall become absolute. The
    vendor's lien and superior title retained in this deed are transferred to Lender, without recourse on Grantor. When
    the context requires, singular nouns and pronouns include the plural. When executed by a cotporation the words
    "heirs and assigns" shall be construed to mean "Successors and assigns".


    ~~ TIJE jND(S) ~D SBAI{S) OF TIJB ~?:NED:                                  ;       c?jf)/ .
                                                                                   4
                                              DMc             ~/r.S~~.~~~~~~--"~~--~~~
                                                                                 ~~--~0-~---
                                                          //    ~   klann Gutzke        l
                                                         L... . /                                        [Sfgn OriglnBfs Only]




    ~~P0~BXAS~ ~r/1
    'Ibe~or ins~entt
      e uth
            oing
                 utzke
                              was nclcnJjwiOO before mo !hi>
                              Zacklann Gut
                                                                    ~•Y .)J
                                                                          ~
                                                                            J i/ , Jfl                          by

            . ·-17~




                                                                                                         RECORD 100
        .-~·




                                 . Exhibit "A"


        All that certain lot, tract or parcel of land situated in VanZandt County, State of
Texas, on theM. V. Lout Survey, A-468, and being all of the residue of the called 5.753
acre first tract and all ofthe called 20.00 acre second tract conveyed to Helmuth K.
Gutzke and wife, Zackiann Gutzke, by A. D. Ward, a single man, by Warranty Deed
with Vendor's Lien dated July 30, 1990, and recorded in Volume 1207, Page 390, of the
VanZandt County Real Records. Said Jot, tract or parcel of land being more particularly
described by metes and bounds as follows:
        BEGINNING at a %• iron rod found for corner at the Southeast corner of the
called 20.00 acre second tract, at the Southwest corner of the Arthur C. Werden tract
recorded in Volume 2028, Page 309. of the Van Zandt County Real Records, and in the
Northeast line of the Thomas M. Lytle 68.78 acre tract recorded in Volume 1771, Page
609, of the Van Zandt County Real Records, from WHENCE a fence comer found
bears North 78 degrees 05 minutes 37 seconds West 2.58 feet;
        THENCE NORTH 44 degrees 40 minutes 21 seconds West 648.90 feet to a 5/8"
iron rod set for corner at the South corner of the Thomas M. Lytle 1.622 acre tract
recorded in Volume 2188, Page 463, of the Van Zandt County Real Records;
     . THENCE NORTH 43 degrees 59 minutes 44 seconds East 105.86 feet to a%"
iron rod found for corner at the East corner of the said 1.622 acre tract;
        THENCE NORTH 45 degrees 25 minutes 00 seconds West 668.07 feet to a %"
iron rod found for corner at the North corner of the called 1.622 acre tract, in the original
Northwest line of the called 5.753 acre first tract, and in the Southeast line of the
Thomas M. Lytle 1.10 acre tract recorded in Volume 1771, Page 629, of the VanZandt
County Real Records;
        THENCE NORTH 44 degrees 05 minutes 12 seconds East 1152.76 feet to a
railroad spike set for corner in County Road No. 23 19, at the North comer of the called
20.00 acre second tract, from WHENCE a 60d nail found at the East corner of the said
Thomas M. Lytle 1.1 0 acre tract bears North 44 degrees 05 minutes 12 seconds East
2.65 feet and a %" iron rod found In the South right of way of the said county road bears
South 38 degrees 58 minutes 47 seconds West 23.09 feet;
        THENCE SOUTH 81 degrees 39 minutes 33 seconds East along the said county
road and the North line of the called 20.00 acre second tract, 322.19 feet to a railroad
spike set for corner In the South Une of the B. W . Ward 106.60 acre first tract recorded
in Volume 1654, Page 588, of the VanZandt County Real Records, at the Northwest
corner of the said Arthur C. Werden tract and at the Northeast comer of the called
20.00 acre second tract, from WHENCE a 5/8" iron rod set in the South right of way line
of the s,ald county road bears South 08 degrees 20 minutes 49 seconds West 19.00
feet and a 48" Pecan tree found marked X with two hacks above and below the X bears
North 62 degrees 57 minutes East 60.40 feet;
        THENCE SOUTH 08 de!frees 20 minutes 49 seconds West along the East line
of the called 20.00 acre second tract and the West line of the said Arthur C. Werden
tract 1806.98 feet to the place of beginning and containing 24.020 acres of I~
                                     .                                       .. ~;~




                                           TabC
                                                                               RECORD 101
    ··:·,. ·.··




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                                                                                                                   :~




                                                                                 RECORD 102
             .....      0




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                                              .. .. ··. '·· .,, . ::. :·           :   ..... ·.
                                              .......
      :~···~·\:::·-..·:: !.::·_:: .~ ==·.:~·-::··    '· ·· ...: ·.
                                                                                                       •   l   ••




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                                                                                                       RECORD 103
           ·<·.·




                                                                                                                                                   . ·..
                                                                                                                                                               ·...




                                                                       tri:i"i:itnn-,·• nt'i.·.    ·.            i'ecjulred by the contract, Seller, at Seller's
                                                                   f r;!lriwln;;i":   tepairS' ari(ftf~atmelits:
                                    .   ·.

                   · 0(~)·. ~~-~-~t~ ~~ :~a·~~~a·~~ .9 6r the contract Is changed to _ _ _ _ _ _ _ _ __, 20._ __
                    Cl(4) The amount In Paragraph 12A{l)(b) of the contract Is ch~ged to . $ -- - - -- ---'
                    0(5) The cost of lender required repairs and treatment, as ft~mlzed on the attached list, will be paid
                          as follows: $                               · by Seller; $                                 by Buyer.
                    Cl(6) Buyer has paid Seller an additional Option Fee or$                                for an extension of the
                          unrestricted right to terminate the contract on or before - - - - - - - - - - - - - -
                          20         . . . This addlt.lonal Option Fee CJ will CJ will not be credited to the Sales Price. ·
                    Cl(7) Buyer waives the unrestrl~d right to ter~lnate the contract for which the Option Fee was paid.
                    Cl(S) 'The·date: fo~: Buyer to' give written notice to Seller that Buyer czmnot obtain Ananclng Approval
                           as ·set rottn·t;; the Third Party Flnancfng Cohdltion Addendum Is changed t o - - - - - - - - '

                    }(c91·· ~~~~.~~-~k~~,-~ns:' (!nsert only f~ctuat StatEillients ·~nd business details applicable to·thts sale.)
                      A .S~J.t."6~, ·- ~IJ! ~«Yd"~ A~.t<eef.! ro U/JIInle +h'~ (!(JAJIIf,'t,.,. aJ~
~               · :.:,~·~l~;{/(!)j;:;.i_:.:··:: '.= . .":-" tr~LI/1";'#~ ... 1"~ 04(11,-AII/11~ II~ EAS~I'Ie:lfl7
t:~\·\::;.::s<}    · ·· ··. . . ...             ,.·. ·
                                                   :.·;·~~ -~:\~~.:";_.:·:~*f·~·~.;·: : ~r-~i¥..-::_                  ·.
ltt::.;~:fj·, •·ti~~~i~~~~~~~~~·-~~~]~t=~-=~·r.~i:·>++~~~~E~~u~~~~to~~~rt:.~~~~             ....



r= ·.~· ·:... .
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1
I


l                     This fonn has be!en approved by the Texas Real Est21te Commission for use with                  approved              oi
                                                                                                                                          P!Jimf.!1!9il.l'W;'!:Ag
                      fonns. Such approval relates to this form only. TREC fonns ere lnM!nded for use only               trained real•'tl"'~'
                      representation Is made es to the legal validity or edequacy of any provision In l!lllY specific trarlSIIc:tlorJS.::"·I
                      complex transactions. Texas Real Estate Commission,. P.O. Box 12188, Austin, lX 78711-2188, l~BOOj~"5$11df?~
                      6544 (hltp:/fwww.trec.ml:e.tx.us) TREC No. 39-6. This form replaees TREC No. 39·5.



                                                                                                        .. . .   •,




                                                                                                                                         RECORD 104
     Ultl I IIC.UUO                111.1 ... 0                                                                       r.VVIIUIV


               ,... . -~···· · •
          .·
                                                  ELLIOTT & WALDRON ABSTRACT & TITLE COMPANY
                                                               OF CANTON, TEXAS
                                                                               OWNED BY
                                                                    A.A.A. ABSTRACJ' COMPANIES, INC.
                                                                       Ci81 W. DALLAS, P.O. BOX 7Ci0
                                                                          CANTON, TEXAS 75103

                                                                        TELEPHONE (903) 567-4ll7
                                                                           PAX (903) 5fl1·1757


..
         ·: . . AprillO; 2008 .·


                Briggs Freeman
                Attn: Doug Shelton
                5600 W. Lovers, Ste. 225
                Dallas, Texas 75209 ·                                                                  '   .


               RB: GF# 080258
               Buyer: David and Sandra Petruska I Seller: Helmuth and Zackiann Gutzkc

               Dear Mr. Shelton:

               Enclosed are the following:

                                                 [X] Commitment
                                                 [X] Privacy folicy Notice

               Please caref\llly review the requirements on Schedule C of the Commitment. We can not close
               or issue a policy until all requirements ha~e been met.

               Your file wi11 be professionally handled in our office· by Pamala Neal, Closer.

               We look forward to working with you. If you have any que5tions at· this time, please do not
               hesitate to call.


               Sincerely,

                                            & WALDRON ABSTRACT


                                          CTJ:;;b~N
                 sa Overton                                     ·
               Examiner

               LO/cw




                                                                                TabF

                                                                                                               RECORD 105
 U'fll 11-'UUO                                                                                                       r .vu.:.tu tu




                                                COMMITMENT FOR TITLE INSURANCE

                                                                SCHEDULE A

 Effective Date: April 9, :!008, 7:00 am                                                              G.F. No. or File No. 080258
 Commitment No.                                        issued: AprU 10,2008, 7:00am
 (if applicable)
 1.         The policy or policies to be issued are:
            (a)      OWNER POLICY OF TITLE INSURANCE (Form T-1)
                     {Not applicable for improved one-to-four family residential real estate)
                     Policy Amount:
                     PROPOSED INSURED:
            (b)      TEXAS RESIDENTIAL OWNER POLICY OF TITLE INSURANCE-
                     ONE-TO-FOUR FAMILY RESIDENCES (Form T-lR)
                     Polioy Amount:                  $305,000.00
                     PROPOSED INSURED:               David C. Petruska and Sandra L. Petruska
            (c)      MORTGAGEE POLICY OF TITLE INSURANCE (Form T-2)
                     Policy Amount:                  $274,500,00
                     PROPOSED INSURED:               To Be Determined
                     Proposed Borrower:              David C. Petruska and Sandra L. Petruska
           (d)       TEXAS SHORT FORM RESIDENTIAL MORTGAGEE POLICY OF TITLE INSURANCE (Form T-2R)
                     Policy Amount:
                     PROPOSED INSURED:
                     Proposed Borrower:
           (e)       MORTGAGEE TITLE POLICY BINDER ON INTERIM CONSTRUCTION LOAN (Form T-13)
                    Binder AmoWlt:
                    PROPOSED INSURED:
                    .Proposed Borrower:
           (t)      OTIIER
                    Policy Amount:
                    PROPOSED INSURED:
2.         The interest in the land cover~d by this Commitment is: Fee Simple Estate

3.         Record title to the land on the Effective Date appears to be vested in:
           Helmuth K. Gut.zke and wife, Zacldann Gutzke

4.         Legal description of the land:
           22 ACRES, MORE OR LESS, TO BE SURVEYED OUT OF THE FOLLOWING:

          FIRST TRACT:
                  All that certain lot, tract or parcel of land situated in Van Zandt County, Te:&:as, on theM. V. LOUT
          SURVEY, A-468, and being a part of the 91.65 acre tract conveyed to Clota Mae.Shelton by Bettie Joan Westberry
          by deed recorded in Volume 720, Page 453, of the VanZandt County Deed Records. Sald lot, tract or parcel of land
          being more parUeularly described by metes and bounds as follows:

                   BEGINNING at ·an iron pin in the Southwest line of the 91.65 acre tract, South 45 degrees 03 minutes East
          30.00 feet from tbe West corner olsame and being the South corner of the Second Tract recorded in Volume 695,
          page 159, of the VanZandt County Deed Records;

                   THJNCE North 44 degrees 34 rJlllinutes East 831.10 feet to an Iron pin at the West Northwest corner of a
           20.00 acre tract surveyed this date in the Southeast line of the Second Tract; WITNESS: 16' Post Oak North 20
         · degrees East 76.3 feet, 18" Post Oak North 40 degrees West 30.9 feet;                       ·

                  THENCE South 8 degrees 44 minutes West 1030,:!3 feet to an Iron pin at the Smllthw~~~t.
          acre tract in the southwest line of the 91.65 acre tract;

     Old Republic National Title Insurance Company



                                                                   Tab F
                                                                                                      RECORD 106
                                                                            ..   I

                                                                                 l
                                                                                 I
                                       ... ,...,            •   .vwwtY IV




                                                                                 i

                                                                                 '.
                                                                                 '




       WARNING!                    WARNING!
                                                                                 !.



DO NOT USE LEGAL DESCRIPTION ON TITLE
COMMITMENT FOR YOUR DOCUMENTS IF A
NEWSURVEYHAS BEEN REQUIRED/II


THIS TITLE COMMITMENT HAS BEEN PREPARED WITHOUT RECEIPT
OF NEW SURVEY.                                      .



THIS LEGAL DESCRIPTION WILL NOT MATCH THE NEW SURVEY. .



UPON RECEIPT OF NEW SURVE~ TITLE COMMITMENT WILL BE
AMENDED.


   .                                               .
WE WILL NQT BER£SPONSJBLI? FOR DOCUMENTS DRAWN USING
THISLEGALDESCR/PTION/11



IF YOU HAVE ANY QUESTIONS, PLEASE CONTACT OUR OFFICE.
                     "




                           TabF

                                                       RECORD 107
                                                                                  (FAX)                             P.0041010




                                                                      G.P. No. 080258


                                                                                                                                       .·




             . . BEING a 1.622 a:cre tract and being aU that certain lot, tractor parcel of land altuated In the M.V, Lout
      surVi;y;Abltraet No. 468, VanZandt County, Te:us, and being part of a called 5.753 acre tract and part of a called
      lO.~·acre' tract de1crlbed as  Flrlt Tract and Second Tract, respectively ln a deed from A.D. Ward to Helmuth K.
      Gatzke and wife, Zacldann Gutzke as recorded In Volume 1207, Page 390, VanZandt County Real Records, and
      b!llne more particularly described as follows:

             · BEGINNiNG at a l/2 inch Iron rod round at tbe west corner of said 5.753 acre tract and at an Inside corner
      of a called 1.10 acre tract described In a deed to Lytle as recorded In Volume 1771, Page 629, ~.Z.C.R.R., for a
      comer;

              THENCE N 46°49134 11 E the northwest Uno of said 5.753 acre tract and an East Une or said 1.10 acre tract a
      distanee of 105.78 fee~t to a 1/2 inch iron rod 1et for a corner;

               THENCE S 41"39'17" E across said 5.753 and Into said 20.00 acre tract a distance of 668.07 feet to a 117.
      Inch Iron· rod 1et for a corner;

             THENCE S 46°49'34" W a distance of 105.781eet to a· 1/2 inch iron rod set on the southwest line of said
     20.00 acre tract for a corner, said point being on the northeast Une or a called 35.02 acre tract described ali Traet
     Two in a deed to Hadley as recorded In Volume 1583, Page 19~, V.ZC.R.R,;

                THENCE N 42°39'17" W along the southwe&t Une or said 10.00 acre tract and said 5.753 acre tract and the
      northeast line of s~tld 35.02 acre tract and an ealt line of said 1.10 acre tract passing the west corner of slifd 20.00
    . acre tract and the south corner of said 5.753 acre tract at a distance of 64.16 feet and pamae a 1/7. Inch iron rod
      found at the.ea•t corner of said 1.10 acre tract at a distance of 357.98 feet and continuing a total distance of 668.07
      feet to the POINT OF BEGINNING and containing 1.622 acres ofland.

            Being the same land in General Warranty Deed dated October 27, 2006 from Helmuth Gutzke and
     Zackiaon Gutzke to Thomas M. Lytle and Ellen G. Lytle, recorded in Volume 2188, Page 463, Real Records of Van
     Zandt County, Texu.




              All that certain lot, tract or parcel of land situated In VanZandt County, Tuu, on the H. V. LOUT
     SURVEY, A ...68, and b.elng a part of the 91.65 acre traet conveyed to Clota Mae Shelton by Battle Joan Westberry
     by deed r~orded In Volume 710, Page 453 of the VanZandt County Deed Records. Said lot, tract or parcel of land
     b'etog ~n~e particularly d~cribed by metes and bounds as foUows:

              BEGJ:NNING at a point In the North line of the 91.65 acre tract in the middle or a county road, North 81           .·.
                                                                                                                                 ··'
     degren 16 minutes.West 788.75 feet from tJi\ Northeast corner of same 'and at the Northwest comer of a 10.00 acre
     tract surveyed this date; WITNESS:. -· Iron pin In fence, South i1 degrees 44 minutes West 19.00 feet. 16" Pe~:an
     North 62 degren 57 minutes East 60.40 teet;                  ·



Old Repuhlk National Title Insurance Company



                                                             TabF

                                                                                                        RECORD 108
                                                                                  CERTIFIED COpy
                   1\1 ...;:11
                                                                                                                           r   ,UVIJIU 1\1
\l'tll II.C:U\10




  Continuation of Schedule A                                                 O.F. No. 0802!58

                    THENCE South 8 degren 44 minutes West 1804.58 feet to an iron pin In the Southwest Une ofi the 91.65
            acre tract at the Southwest corner of the 20 a ere traet;

                   THENCE North 45 degrees 03 minutes Weat 712.47 feet to an iron pin In the Southwest Une of the 91.65
           acre tract at the South corner of a 5.753 acre tract surveyed this date;

                   THENCE North 8 de&reel 44 minutel East 1030.23 feet to an Iron pin In the Southeast tine of the Tract No,
           2 recorded In Volume 695, page 159; WITNESS: 16" Post Oak North 20 degrees East 76.3 feet,18" Post Oak North
           40 degrees West 30.9 feet;

                     THENCE North 44 degrees 34 minutes Ea11t 435.90 feet to an iron pin at the Nortbeast.corner of the Second
           tract In the North line or the 91.65 acre tract; WITNESS: Iron pin for comer, South 44 degrees 34 mlnute.s West
           24.5 feet;                         ·

                    THENCE South 81 deerees 16 minutes East 319.61 feet to the plaee of beginning and eontaining 20.00 acres
           of land o! wblch 0.146 aeres lies within a county road, leavin& a net of 19.854 acres,

                    Being Tra(:t Two In Warranty Deed with Vendor's Lien dated luly 30, 1990 from A. D. Ward, a aln&le ~an
           to Helmuth K. Gutzke and wife, Zacklann Guttke, recorded In Volume 1207, Page 393, Real Records of VanZandt
           Count)', Texas.

          NOTE: The Conwany bl prohlbJted from Jnsurlna the area or quantity of the land described bereln. luly statement
          In the above legal deaerlptlon of the ~rea or·quantlty of land Is not a representation that such area ot qu.antltjli-· -· ·- -· · ·
          eorrect, but Is made only for Informational and/or ldentlflcatioa purposes and does not override Item l of Schedule
          B hereof.




 Old RepubUc National Title Insurance Company



                                                                TabF

                                                                                                            RECORD 109
                                                                                                                                   r   ,V\1\IIV IV
 U ..P t ll.t:UUO   IU.OIU




                                                  COMMITMENT FOR TITLE INSURANCE

                                                                    SCHEDULED

                                                         EXCEPTIONS FROM COVERAGE

 .In addition to tho Exclusions and Condition& and Stipulations, your Policy will not cover loss, costs, attorneys' fees, and oxponses
 resulting from:

 1.         'Aie {eJie~ MSI.fieWfCI 88'/'UPh efMetJI'ti i:teRiilled eelew (We IIIIIR eUMr iBseft lpllaifie teeerttiag data 8f delete 'fhis
            eeepti&B)!                               .

 2.         A:o.y diacrepancici, conflicts, or shortages in area or boundary linea, or any cncroacllmants or protruaioDS, or any
            ovorlappbig of improvemt'lnts.                                         ·

 3.        Homostcad or conmnmity property or survivorship rights, if any, of any spouse of any insured. (Applies to the Owner
           Policy only).

 4,         Any titles or rights asserted by anyone. including. but not limited to, persons, the public, corporations, governments or other
            entities,

           a.       to tidelands, or lands comprising the shores or beds of navigable or perennial rivera and streams, lakes, bays, gulfs
                    or oceans, or

           b.       to lands beyond the line of harbor or bullchead linea as established or changed by any governtn~mt. or

           c.       to filled-in lands, or artificial islands, or

           d.       to statutory water right&, including riparian tight&, or

           e.       to the area extending .from the line of mean low tide to the line of vegetation. or the rights of access to that area or
                    easement along and across that area.

           (Applies to 1he Owner Policy only.)

s.        Standby fi::es, taxes and assessments by any taxing authority for the year 2008, and subsequent yeara; and wbsequent taxes
          and usossmcnt.s by any taxtDg authority for prior years due to change in land UBage or ownmbip, but not those taxes or
                                                                                                 of
          assessments for prior years because of an exemption granted to a previoUB owner the property under Section 11.13,
          Texas TG Cods, or because of improvements not auosscd for a previous tax year. (IfTexas Short Form Residential
          Mortgagee Policy (T-2R) is iuued, that policy will substitute "which become due and payable subsequent to Date of                          ;.
          Policy" in lieu of "for the year _ _ and sUbsequent years.11)

6.        The terms and conditions of the docurnimts creating your interest in the land.

7.        Materials ftunishod or labor pcrfonned in connection with planned construction before signing and delivering the lien
          document described in Schedule A, Jftlut land is part of the homestead of the QWIW', {Applies to the Mortgagoo Title
          Policy Binder on Interim Construction Loan only, and may be deleted if aatis:fllctory.evidence ia furnished to us before a
          binder is issued.)                                                                 ·

8.        Liens and leases that affect tho title to the land, but that arc subordinate to the lien of the insured mortgage. (Applies to
          Mortgagee Policy (T-2) only.)

9.        The Exceptions from Coverage and Exprcsltflnsurancc in Schedule B of tho Texas Short Form Residential Mortgagee
          Policy (T-2R). (Applies to Texas Short Fonn Residential Mortgagee Policy (f-2R) only. Separate cxocpti.Q.tw.ltl
          of this Schedule'S do not apply to the 'Texas Short Form Residential Mortgagee Policy (T-2R).




     Old Republic National Title Insura~cp Company




                                                                      TabF

                                                                                                                   RECORD 110
                                                                                                                              r.uunu1u
V"l/1   u.r.uug    IU,;,u




  Continuation of Schodulc B                                                   G.F. No, 080258

10.         ':fho following matters and all terms of the documents creating or offeri.nS evidence of the matters {We must insert matters
            or delete this exception.):

                      Easements or claims or ea1ement1 whleh may or may not be recorded in the pubUc records or Van Zandt,
                      County, Texas.                                                   '

                      Any portion ofsubjeet property lyiug within the boundarlea of a pubUe or private roadway whether
                      dedicated or not.

                     There is expressly excluded from coverage hereunder, and this c:ompany does notinsure title to oil, gas and
                     other minerals of enry kind and character, In, and on and under the property herein described.
                                                ..
                     RJ&bt of Way In certified copy of Judgment to DELID GAS PIPELINE CO. from CLOTA MAE SHELTON
                     in ln1trument dated Augult 3, 1971, recorded In Volume 783, Page 7491 of the. DEED Records ofVan Zandt
                     County, Texas.

            e.       Item 3b of any T-19 Issued wiD be deleted.

            r.       Rights or parties fn poas&~~Jon. (Owner's Po~cy Only)

           g.        Terms, conditions and stipulations as wUI be set out in Warranty Deed from Seller to Buyer given In
                     eonueetlou herewith.

           h.        Protrusion(t), eneroacbment(s), eaaement(s) aa shown on any plat that may be furnished by approved
                     surveyor In conneetlou with this transaction.




 Old RepubUe National Title Insurance Company



                                                                  TabF

                                                                                                               RECORD 111
  .. ·;·
                                                                                                                                           f',UUOIUIV
  UIJIIII.l::UUO




                                                           COMMITMENT FOR TITLE INSURANCE

                                                                        SCHEDULEC

      Your Policy will not cover loss, costs, attornoys' fees, and expanses resulting from the following requirements that wfll appear as
      Exceptions in Schedule B of the Policy, unless you dispoao of those matters to our satisfaction, before the date the Policy is issued:

      l.         Documents creating your title or interest must be approved by us and must be signed, notarized and filed for record.

      2.         Satisfactory evidence must be provided that:

                 a.       no person occupyiDg the·land claims any interest in 1hat l~nd agahlat the persons named in pamgraph 3 of Schedule
                         .J\,

                 b.       all standby fees, taxca, assessments and charges agaiOBt the proporty have been paid,

                 c.       aD improvements or repair& to 1he property are completed and accepted by .the owner, and that all contractors,
                          subcontractors. laborers and suppliers have been fully paid. and that no mechanic's. laborer's or materialmen's liens
                          have attached to the property.
 {\        ...... d.      there is legal right of access to and from the land,

                e.        (on a Mortgagee Policy only) restrictions have not been and will not be violated that affect the validity and priority
                          of the insured mortgage. ·

  3.            You must pay the seller or borrower the agreed amo!;Ult for your property or interest.

  4.            Any defect, lien or other ·matter that may affect title to the land or interest insured, that arises or is filed after the effective
                date of this Commitment

 5.            Payment of any and all taxes now due and payable up to and including the year 2007.

 6.            We require "GOOD FUNDS" In accordance with PrGCedural Rule P-27 which requires that "Good Funds" be
               received and deposited before a Title Agent may dlsburae from ltl trust fund aceount. "Good Funds" means: 1) Cash
               or wire tranlfers; 2) Certified Checkl, Calhler's Checks and Teller's Checks; 3) UneertfQed filnds In amounts less that
               $1,500.00 inducUng chedca, traveler's ebecks, money orders and ne11otJahle orden of withdrawal; pro"Yfded multiple
               items sbaU not be used to avoid tbe $1,500.00 limitation; 4) Uncertified funds In the amount of $1,500.00 or more,
               dratl:a and any other items when collected by the finauclallnstitution; 5) State ofTeus Warrant.; 6) Unltud States
               Treasury Cheeks; 7) Chec.kJ drawn on a bank of savings and loan aasociatlon, Insured by the FDIC or FSLIC and for
               which a transaction code bas been fsaued pursuant to, an~ In compliance with, a fuUy executed Immediately Available
               Fund Procedure Aareemeot (Form T-37) with sucb bank or sannp and loan auoclation; 8) Checks by city and county
               rovernmentllocated in the State of Texas.

 7.           We require an Affidavit of Debts and Liens ~o be slened by the SeDer.

 8.           We: reqplre a Waiver ofln~pectfon to be signed by the Purchaser.

 9.           We ·r equire a release of Deed of Trust dated A111ust 18, 2003 from HELMUTH K. GUTZKE AND WIFE, ZACia.ANN
              GUTZKEto DENNIS P. SCHWARTZ, Tru1tee, aecurinc a note for $77,000.00, payable to FIRST NATIONAL BANK
              OF CANTON, recorded In Volume 1851, Paee 283 of the REAL Recorda of Van Zandt County, Texas.           .
                                .      ..
10.           We require a Warranty Deed from HELMUTH K. GUTZKE AND WIFE, ZACKIANN GUTZKE to DAVID C.
              PETRUSKA AND SANDRA L PETRUSkA, with vendor's Hen retained In favor of LENDER., repreaenting part o(
              the· purchase prJee and being In the amount of $274,500.00.                                        ·

11.           We require a Deed of Trust and Note In the amount of $274,500.00 from DAVID C. PI!:TJtU:Sij:~~-~MJ$·~~~
              SANDRA L. PETRUSKA to Trustee, for tbe benefit of LENDER.


      Old Republic: National Title Insurance Company



                                                                           TabF

                                                                                                                          RECORD 112
 U'tt
               ..
        au ...uvu                                                                                                          r   eUU~IUIY




                    •

      Continuation of Schedule C                                              G.P. No. 080258


12.          We require a Survey accordlug to terms and condttiona set forth in the contract and to determine exaet size and
             location of aubjeet property.

13.          H closing in our omce, we require all dolling documents and ftgurea be In our office at least :Z4 hours prior to closing,
             or elolfn&: date and time will be cba02ed.




                                                                                   Countersigne
                                                                                   EUlott&      al
                                                                                   Canton
                                                                                          "··




  Old Republic National Title Insurance C ompany



                                                                  TabF

                                                                                                           RECORD 113
     U411 II"UUCI
                  . .,   JU,D"
                                                                                                                                 r.usututu




                                                   COMMITMENT FOR TITLE INSURANCE

                                                                    SCHEDULED


        G.F. No. or File No. 080258                                                                     Effective Date; April9, 2008, 7:00am

    · Pursuant to the requirements of Rule P-21, Basic Manual of Rules, Rates and Forms for the writing of Title Insurance in the State of
      Texu, the followiq disclosures are made:

     l.      Tho following individuals are directors and/or officers. aa indicated, of the Title Insurance Company issuing this Commitment

                                 DIRECTORS OF OLD REPUBUC NATIONAL TITLE INSURANCE COMPANY

              HARRINGTON BISCHOF                            JOHN M. DOXON                                 STEVER. WALKER
              JOHNW.POPP                                    ARNOLD L. STEINER                             A.C.ZUCARO

                                 OFFICERS OF OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY

              RANDE E. YEAGER, President & Chief Operating Officer             STEPHEN C. WILSON, Executive Vice President
              GARY J. HORN, Senior Vice President & CFO                        DANIEL M. WOLD, Vice Prcsidant, Secretary & Senior
              MIKE TARPEY, Vice President and Treasurer                        Corporate Counael



    2.                                             TITLE INSURANCE AGENCY

              OFFICERS: .                                                      DIRECTORS & SHAREHOLDERS:
              Ivan Alexander, Jr., Pres.                                       lvanAlexandar, Jr.
              Constance H. Alexander, VP                                       Constance H. Alexander
              George Ivan Alexander, VP                                        George Ivan Alexander
              Philip DeWitt Alexander, Sec. & Tres.                            Philip DeWitt Alexander                                          i
                                                                                                                                                i·
                                                                               Lisa Alexandria Mitchell
·   3         Y011 arc entitled to receive advance disclosure of settlement charges in connection with the proposed transaction to which this
              commitmcmt relates. Upon your request, such disclosure will be made to you. Additionally, the name of any parson, finn or
              corporation receiving any swn from the settlement of this transaction will be disclosed on the closing or settlement statement.

              You are further !ldviscd that the estimated title premium• ia:
                        Ownara Policy                                     Sl,9;J8.00
                        Mortgagee Policy                                    $100.00
                       Total                                              $2,038.00

             Of this total amount: 15% will be paid kl tQc policy issuing Title Insurance Company: 85% will be retained by the issuing Title
             Insurance Agent; and tho remainder of the estimated prcmiwn wiU be paid to other parties as follows: .

                     Amount                     ToW,hom                                            PorSexyioes


                 . . "The eJtimatcd premium is based upon information furnished to us as of the date of this Commi1ment for Tjde
                                      of
    Insurance. · Final dotcnmnitticm the amount of the premium will be made at closing in accordmce with the Rules and Regulations
    adopted by tho State Board oflnsurance,
                                                           •
    This commi~ont is invalid unless the insuring provisions and Schedules A, B, and C are attached




        Old RepubHc National Title Insurance Company



                                                                        TabF
                                                                                                                   RECORD 114
}/)1)
DUNN AND DUNN, PC                        ATroRNEYSAND COUNSELORS AT LAW
      171 S. BUFFALO Sf. CANI'ON, TEXAS 75103        PHONE (903) 567-1111     FAX (903) 567-5101
                         MAITHEW L. DUNN              EMILY DUNN


      February 28, 2014

      Mr. and Mrs. David Petruska
      11264 Russwood Circle
      Dallas. Texas 75229

      Re: Easement situated in VanZandt County, Texas

      Mr. and Mrs. Petruska:

              This flrm has been retained by Mr. and Mrs. Tom Lytle concerning the recent
     dispute regarding use of their driveway. While my clients have graciously permitted you
     to utilize their driveway with the understanding that you would be building your own
     soon, no easement was ever filed and recorded in the real property records ofVan Zandt
     County regarding your use of this property. All parties were aware that no easement
     exi~ted at the time ofyour purchase. as both of you requested.that my clients sign an
     easement prior to your closing date. Mr. and Mrs. Lytle did not sign an easement at that
     time, nor have they executed anything resembling an easement since.

              The deed executed for the purchase of your land and flied on May 20, 2008
     contains language reference "an Easement for Roadway"; thus causing a cloud on the
     title of my client's land. I am requesting that you execute the enclosed release stating that
     there is no easement. lfl do no receive a properly executed release within 30 days from
     the date of this letter, I am prepared to litigate this matter.

            Thank you for your time and consideration of this matter. If you have any
     questions, please do not hesitate to contact my office at (903) 567-1111.



                                                           Sincerely,~0


     EJD/hj
                                                    . ·-<4yJ{..esywm             o
     Enclosure
     CC:    Compass Bank (CMRRR)
            401 West Valley Avenue
            Homewood, Alabama 35209

            Marie Yamane (CMRRR)
            Compass Bank
            40 I West Valley Avenue
            Homewood, Alabama 35209

                                                TabG

                                                                                      RECORD 115
Petruska & Associates (CMRRR)
5944 Luther Lane, Suite 450
Dallas, Texas 75225-5978

Mrs. Petruska (CMRRR)
Briggs Freeman Sotheby's
5600 West Lovers Lane, Suite 224
Dallas, TX 75209




                                   TabG

                                          RECORD 116
                                                                                                             i
                                                                                                             I
                                                                                                             I.
                                                                                                             I


                                        March 26, 2014

                                                                                    ·• ·EWJar. Tecu 752lS
                                                                                      Phone: 214.JSl.OI-41
                                                                                       Cell: 114.762.-4611
Emily Jones Dunn, Esq.                                                                       Eoflllil:
Dunn and Dunn, PC                                                                   ~~
                                                                                    .. •Fax: l14~U9l5
171 S. Buffalo Street
Canton, Texas 75103

CERTIFIED MAIL NO. 7012 2920 0002 2647 4268
RETURN RECEIPT REQUESTED

Dear Ms. Dunn:

          Enclosed herewith please find the document you requested which you say will remove
the cloud from the Lytle's title. We are signing this even though we believe and have been
advised by others that we have a valid easement conveyed by the sellers to us. Having said that,
life is too short to deal with petty matters.

       As you may know we commenced work on a separate entrance to our home before we
received your letter of February 28th. You may check with Commissioner Melton regarding the
date. Said entrance Is now completed.

       We ask that you please instruct the Lytle's to refrain from screaming obscenities at us
and threatening our property by yelling that they will be there when we are not.

       We hope this puts the matter to rest.

                                                                         Very truly yours,




                                               TabH
                                                                                  RECORD 117
               .                              RELEASE OF EASEMENT

        On   JVlt:.rch db             Jh. 2014, we, David C. Petruska and wife, Sandra L. Petruska,
hereby release the easement that is listed in the one certain General Warranty Deed with

Vendor's Lien of record dated May 16, 2008 from Helmuth K. Gutzke and wife, Zackiann

Gutzke to David C. Petruska and wife, Sandra L. Petruska and being recorded in Van Zandt

County under Document ~umber:                 2008~004602.




                                                      DAVID C. PETRUSKA


                                                        ~)(~
                                                      SANDRA L. PETRUSKA


        This instrument was acknowledged before me           /2vrvf.v.lf/JiJ/~ Jr on by DAVID
C. PETRUSKA.



                   RANDALL SCOTT WILLBANICS
                     My comm,..,_ Ellpiraa
                            Oc:tofltrt,20t8




        This instrument was acknowledged before me

SANDRA L. PETRUSKA.



              --    .....



    ®-
                                                      No
              RAIIJALL SCOTT WIUIANKS :
                Mr Commlallon Explraa
~                  Oc~rt.20t6
     ...
    -



                                                    TabH

                                                                                  RECORD 118
                                                                                                                            ······ ..

                                                                                                                           903 675 9469 .




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                                                                                                            Tab I

                                                                                                                                              RECORD 119
.
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         RECORD 120
             ~.




RECORD 121
                                        No. 14-00172

 THOMAS LYTLE and                             §
 ELLEN LYTLE                                  §      IN THE DISTRICT COURT
                                              §
 v.                                           §
                                              §
 DAVID C. PETRUSKA, SANDRA                    §      29411! JUDICIAL DISTRICT
 L. PETRUSKA, COMPASS BANK,                   §
 HELMUTH K. OUTZKE, s.nd                      §
 ZACKlANN GUTZKE                              §      VANZANDT COUNTY, TEXAS

    THOMAS AND ELLEN LYTLE'S OBJECTIONS AND RESPONSES TO
DAVID C. AND SANDRA L. PETRUSKA'S FIRST REQUEST FOR ADMISSION TO
                    THOMAS AND ELLEN LYTLE

       TO: Defendant David C. Petruska. and Sandra L. Petruska, by and through counsel,
       Pezzulli Barnes, LLP, I7300 Preston Road, Suite 220, Dallas, TX 75252.

       Come now, Plaintiffs, Thomas Lytle and Ellen Lytle, s.nd pursuant to Tex. R. Civ.
Proc. 198, serve their responses to the David C. and Sandra L. Petruska's First Request for
Admissions to Thomas and Ellen Lytle.

Request for Admission No. l : 'Please admit that David Petruska and Sandra Petruska signed
the Release of Easement attached here at Tab 1 on or about March 26, 20I4.

Response: Admitted


Reguest for Admissjoo No.2: Please admit that Thomas Lytle, Ellen Lytle, or one of their
attorneys or other agents recorded the Release of Easement at Tab I here, in the public records
for VanZandt County before July 1, 2014.

Response: Admitted


ReQuest for Admission No.3: Please admit that David Petruska and Sandra Petruska had a
new driveway from County Road 2319 to the house on their property at 1601 Van Zandt
County Road built before July 1,.2014.

Response: Plaintiffs admit that David Petruska and Sandra Petruska had a new driveway
from County Road 23I9 to the house on their property at 160 I Van Zandt County Road built,
but Plaintiffs are unable to recall whether the driveway was completed before or after July 1,
2014.




                                                                                  RECORD 122
                                             Respectfully submitted,




                                                           ARA 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 PLAINTIFFS,
                                             THOMAS LYTLE AND ELLEN LYTLE

                               CERTIFICATE OF SERVICE

       The undersigned certifies that a true and correct copy of foregoing has been forwarded
to all counsel via eservice, email and certified mail, return receipt requested on the 6th day of
November, 2014 as provided below.

Willian1 P. Huttenbach                            Michael F. Pezzulli
Hirsch & Westheimer, P.C.                         M. Ellen Skinner
1415 Louisiana, 36th Floor                        Christopher L. Barnes
Houston, TX 77002-2728                            Pezzulli Barnes, LLP
(713) 220-9184 Telephone                          17300 Preston Road, Suite 220
phuttenbach@hirschwest.com                        Dallas, TX 75252-5476
                                                  (972) 713-1300 Telephone
                                                  michae1@courtroom.com
                                                  Ellen@courtroom.com
                                                  Chris@courtroom.com
Ralph E. Allen
Attorney and Counselor at Law
100 East Ferguson, Suite 901
Tyler, Texas 75702
(903) 593-9727 Telephone
rallen@tyler.net




                                                                                   RECORD 123
                                                                                            Filed 2/12/2015 11 :41 :54 AM
                                                                                                         Karen L. Wilson
                                                                                                            District Clerk.
                                                                                               Van Zand~~Ps'1tyc~~~~~

                                                                                                     Holly Spindle

                                                CAUSE NO. 14-00172

THOMAS LYTLE AND ELLEN LYTLE                             §       IN THE DISTRICT COURT
                                                         §
v.                                                       §
                                                         §
DAVID C. PETRUSKA, SANDRA L.                             §       294TH JUDICIAL DISTRICT
PETRUSKA, COMPASS BANK,                                  §
HELMUTH K. GUTZKE AND                                    §
ZACKIANN GUTZKE                                          §     VAN ZANDT COUNTY, TEXAS


                               PLAINTIFFS' FIRST AMENDED PETITION

TO THE HONORABLE JUDGE OF SAID COURT:

         NOW COME Thomas Lytle and Ellen Lytle, hereinafter called Plaintiffs, and file

Plaintiffs' First Amended Petition, complaining of and about David C. Petruska, Sandra L.

Petmska, Helmuth K. Gutzke, and Zackiarm Gutzke, hereinafter called Defendants, and for cause

of action would show unto the Court the following:

                                  DISCOVERY CONTROL PLAN LEVEL

          1.       Plaintiffs intend that discovery be conducted under Discovery Level2.

                                               PARTIES AND SERVICE

          2.       Plaintiff, Thomas Lytle, is an individual whose address is 1603 VanZandt County

Road 2319, Canton, Texas 75103.

          3.       Plaintiff, Ellen Lytle, is an individual whose address is 1603 Van Zandt County

Road 2319,Canton, Texas 75103 .

          4.       Defendant David C. Petruska has appeared in this case and no service of process

is necessary at this time.

          5.       Defendant Sandra L. Petmska has appeaTed in this case and no service of proc~_ss ....

is necessary at this time.



PLAINTIFFS' FIRST Ai\1ENDED PETITION
\\Bdnt-fs I \wpprolaw\3 19! .002\267954.docx



                                                                                    RECORD 124
         6.      Defendant Helmuth K.. Gutzke has appeared in this case and no service of process

is necessary at this time.

        7.       Defendant Zackiann Gutzke has appeared in this case and no service of process is

necessary at this time.

                                      JURISDICTION AND VENUE

         8.      The court has jurisdiction over this action to quiet title pursuant to Article V,

Section 8 of the Texas Constitution and Section 26.043(8) of the Texas Government Code.

         9.      Venue in VanZandt County is proper in this cause under Section 15.011 of the

Texas Civil Practice and Remedies Code because this action involves real property located in

VanZandt County.

         10.     The damages sought herein are within the jurisdictional limits of this Court.

         11 .    This suit seeks monetary relief of $100,000 or less and non-monetary relief.

                                               FACTS

         12.     This is an action to quiet title on real property, hereafter referred to as "the

Property", and for damages for a fraudulent claim filed against real property in violation of

Texas Civ. Prac. & Rem. Code§ 12.002. The Property is 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 1.1 0 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.

         13.     Plaintiffs are the rightful owners, entitled to possession of the Property by virtue



Real Property Records of VanZandt County, Texas.


PLAINTIFFS' FIRST AMENDED PETITION
\\Bdnt-fsl\wpprolaw\3191.002\267954.docx
                                                                                  RECORD 125
         14.      On May 16, 2008, Plaintiffs were wrongfully dispossessed of the Property when a

General Warranty Deed with Vendor's Lien was executed by Helmuth K. Gutzke and Zackiann

Gutzke (collectively, "Gutzke") purporting to convey to David C. Petruska and Sandra L.

Petruska (collectively, "Petruska") an easement on the Property (the "Deed"). Said easement

never existed and was never granted by the Plaintiffs or their predecessors-in-interest.

         15.      The Deed was filed of record May 20, 2008, as Document No. 2008-004602 in

the Real Property Records ofVan Zandt County, Texas.

         16.      On May 16, 2008, Plaintiffs were further wrongfully dispossessed of the Property

when Petruska executed a Deed of Trust which purported to convey the easement for the benefit

of Compass Bank. That Deed of Trust was filed of record May 20, 2008 as Document No. 2008-

004603 in the Real Property Records of VanZandt County, Texas.

         17.      Defendants Petruska purport to have an adverse claim or interest in the Property

that operates as a cloud on Plaintiffs' title to the Property and through pleadings before this Court

continue to assert that on May 16, 2008 they acquired an interest in the Property. The nature of

the interest asserted by Petruska in the Property is an easement on Plaintiffs Property.

         18.      The claim or interest purportedly conveyed to Petruska is invalid, unenforceable

or without right against Plaintiffs because no easement ever existed. Gutzke did not have any

easement or rights to convey. The Deed of Trust signed by Petruska lists an easement that never

existed and was never granted. In order for Plaintiffs to enjoy title to the Property, the adverse

estate or interest claimed and still claimed by Petruska and as set forth in the Deed and Deed of

Trust must be removed.




PLAINTIFFS' FIRST AMENDED PETITION
\\Bdnt-fsl\wpprolaw\3191 .002\267954.docx
                                                                                  RECORD 126
         19.      At the time of the conveyance from the Defendants Gutzke to Defendants

Petruska, all parties to the transaction knew no such easement existed and knowingly created a

false and fraudulent interest in the Property of Plaintiffs.

         20.      At the time of the conveyance in the Deed of Trust for the benefit of Defendant

Compass Bank, Petruska knew no such easement existed and knowingly created a false and

fraudulent interest in the Property of Plaintiffs.

         21.      In executing and causing to have the Deed and the Deed of Trust to be filed,

Defendants knowingly participated in creating a false claim in the Property with the intent to

cause Plaintiffs financial injury by imposing burdens and encumbrances on the real property of

Plaintiffs.

         22.      Any claim that an easement in the Property existed at any time is invalid and

unenforceable. In order for Plaintiffs to enjoy title to the Property, any claim that an easement

existed or was conveyed by the Deed and Deed of Trust must be removed and declared null and

void.

         23.      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. Plaintiffs have been

forced to retain an attorney who sent a demand for release of any claim for an easement to

Petruska and Compass Bank. While Petruska refused to consent, Compass Bank ultimately

executed a Release of Easement and Petruska continues to seek a declaration that he held a valid

easement and conveyed a valid easement under the Deed of Trust. Plaintiffs have been forced to

incur the cost and expense of seeking to clear title to their property.




PLAINTIFFS' FIRST AMENDED PETITION
\\Bdnt-fs 1\wpprolaw\3191 .002\267954.docx
                                                                                 RECORD 127
                                        DECLARATORY JUDGMENT

         24.       Pursuant to Section 37.001 et seq. of the Texas Civil Practice and Remedies Code,

Plaintiffs request a declaratory judgment that Plaintiffs are the sole and rightful owners of the

Property and declaring all claims to an easement at any time or currently are null and void.


         25.       Plaintiffs further request that Defendants be required to execute a correction deed

for the General Warranty Deed with Vendor's Lien and Deed of Trust, and file it with the Real

Property Records in Van Zandt County.

                                              CLAIM FOR DAMAGES

         26.       The alleged conveyance of the easement was a fraudulent interest in Plaintiffs'

Property.

         27.      Pursuant to Section 12.002(b) of the Texas Civil Practice and & Remedies Code,

Plaintiffs seek recovery of damages, court costs and attorneys ' fees.

                                               ATTORNEYS' FEES

         28.       Pursuant to Section 37.001 et seq. of the Texas Civil Practice & Remedies Code,

Plaintiffs seek recovery of court costs and attorneys' fees as are equitable and just.



                                                   PRAYER

         WHEREFORE, PREMISES CONSIDERED, Plaintiffs, Thomas Lytle and Ellen

Lytle, respectfully requests that Defendants be cited to appear and answer, and that on the final

trial, the court grant Plaintiffs judgment quieting title to the Property and removing cloud on

Plaintiffs' title; declaratory judgment; damages; attorney fees; award of costs, and any other relief

at law or in equity to which Plaintiffs are entitled.




PLAINTIFFS' FIRST AMENDED PETITION
\\Bdnt-fs l \wpprolaw\3 191.002\267954.docx
                                                                                    RECORD 128
                                              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 PLAINTIFFS,
                                              THOMAS LYTLE AND ELLEN LYTLE


                                      CERTIFICATE OF SERVICE

        The undersigned certifies that a true and correct copy of foregoing has been forwarded to
all counsel via eservice and email on the 12th day of February, 2015 as provided below.

Ralph E. Allen                                      Michael F. Pezzulli
Attorney and Counselor at Law                       M. Ellen Skinner
100 East Ferguson, Suite 901                        Christopher L. Barnes
Tyler, Texas 75702                                  Pezzulli Barnes, LLP
(903) 593-9727 Telephone                            17300 Preston Road, Suite 220
rallen@tyler .net                                   Dallas, TX 75252-5476
                                                    (972) 713-1300 Telephone
                                                    michael@courtroom.com
                                                    Ellen@courtroom.com
                                                    Chris@courtroom.com




                                              Barbara L. Emerson




PLAINTIFFS' FIRST AMENDED PEIDION
\\Bdnt-fsl\wpprolaw\3191.002\267954.docx
                                                                               RECORD 129
                                           ~.
                                           ~8
                                            (.:)



                                            ~ ~
                                                   ~
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                                                           ~.?·
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                                                                       ..._.-,


                                                   ~~



                       TERESA                          A~    DRUM
                                    DISTRICT JUDGE
                               294th Judicial District Court
. Pam Kellv               121 East Dallas Street, Room 301
 Court Coordinator           Canton, Texas 75103-1465
                          Tel: (903) 567-4422 Fax: (903) 567-5652

                                             July 20,2015

 Han. Barbara L. Emerson, Esq.               Via email: bemerson@bd-law.com
 Attorney for Plaintiffs, Thomas & Ellen Lytle

 Han. Ralph !\!lent, Esq.                  Via email: rallcn@tyler.net
 Attorney for Defendants, Helmuth & Zaciann Gutzke
                                                       1
 Han. Michael Pezzulli, Esq.               Via email: Michael@courtroorn .com
 Attorney for Defendants, David & Sandra Petruska


                        NOTICE OF TRIAL SETTING
  The Court finds this matter is ripe for trial and sets this matter in a trial before the Court on:


 DECEMBER 1st, 2015@ 9:00AM (jury selection)
 EVIDENCE TO BEGIN IMMEDIATELY AFTER
        A scheduling conference has been set tor thi s case on


 JULY 31, 2015 @ 1:30PM for scheduling conference
 the following will be discussed:

 1.     All pending motions
 2.     All facts which have been stipulated and admitted and require no proof;
 3.     Probable length of trial ;
 4.     Availability of witnesses, including out-of-state witnesses;




                                                                                   RECORD 130
5.   Proposed special issues, including instructions and definitions
6.   Exhibits: Each counsel/party will bring a list of exhibits to be offered and will make all
     such exhibits available for examination by opposing counsel. This rule does not apply to
     rebuttal exhibits which cannot be anticipated.
        a. Any objections to admissibility of exhibits must, where possible, be made at the
             pre-trial conference.
         b. The offering party will bring and have marked their own exhibits
7.   Mediation completed/Mediator agreed upon
8.   Social Study completed
9.   Scheduling Order

     IF YOU DO NOT APPEAR AT THE SCHEDULING CONFERENCE,
THE COURT SHALL PRESUME THAT YOU HAVE NO FURTHER INTEREST IN
EITHER PURSUING OR DEFENDING THE MATTER AND WILL, THEREFORE,
ENTER APPROPRIATE ORDERS PURSUANT TO RULES 165 AND/OR l65A OF THE
TEXAS RULES OF COURT.

    IF THE ATTORNEYS SUBMIT AN AGREED SCHEDULING ORDER, THIS
HEARING MAY BE PASSED BY AGREEMENT.



                                                  HON. TERESA A. DRUM
                                                  294TH DISTRlCT COURT




                                                                            RECORD 131
                                                                                    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


                                                                           RECORD 132
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


                                                                                 RECORD 133
                                        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


                                                                           RECORD 134
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~~<!"'

such "substantial and irreparable prejudice" if the action proceeds. Each ~mi~Q.e:;~~~1J4"


Motion to Stay


                                                                           RECORD 135
Defendant asserts the Fifth Amendment privilege, which would occur

continuously throughout these proceedings, his credibility would be subject to

negative inferences. See, e.g., Gebhardt v. Gallardo, 891 S.W.2d 327, 331 (Tex.

App.-San Antonio 1995. no writ); Baxter v. Palmigiano, 425 U.S. 308, 318 (1976).

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 Defendant's constitutional right and does not unduly

prejudice either of the parties. See, e.g., Texas Department of Public Safety

Officers Association v. Denton, 897 S.W.2d 757, 763 (Tex. 1995) ("the trial court

should weigh options for delaying civil proceedings during the pendency of

criminal investigations or parallel proceedings"). A temporary judicial stay is one

such remedy. See, e:g., Librado v. MS. Carriers, Inc., C.A. No. 3:02-CV-20950,

2002 WL 31495988, at *1 (N.D. Tex. Nov. 5, 2002) (finding that a partial stay was

appropriate until such time as a verdict of not guilty has been returned or

sentencing has been completed in the criminal action against defendant).



Under Texas law, a trial court may stay a pending case at its discretion. Myer v.

Tunks, 360 S.W .2d 518, 522-23 (Tex. 1962); Space Master Jnt'/, Inc. v. Porta-

Kamp Mfg. Co., 794 S.W.2d 944, 946 (Tex. App .-Houston [1st Dist.l1990, no




Motion to Stay


                                                                         RECORD 136
similarity of issues between the criminal matter and the civil litigation. See

Jackson    v. Smith Sec. Serv., Inc.. 786 S.W.2d 787, 788-89 ITex. App.-Houston
[1st Dist]1990, no writ) (where the court using its discretionary power stayed the ·

plaintiffs appeal of her civil case "until the Court o~ 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 cMI proceeding. When

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

parties, courts generally weigh several factors, including: (1) 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. See, e.g., Ubrado. 2002 WL

31495988 at *1; Fierson v. City of Terrell, C .A. No. 3:02 CV 2340-H, 2003 WL

21355969, at *3 (N.D. Tex. June 6, 2003); Trostees of Plumbers and Pipefltters
                                                                                        1
Nat'/ Pension Fund v. Transworld Mech .. Inc.. 886. F. Supp. 1134. 1139 (S.D.N.Y.       1


1995). Each of these factors support staying this case pending resolution of the        i
                                                                                        I
                                                                                        i
parallel-criminal proceeding against the Defendant.                                     i
                                                         .

       The most important factor to be considered in determining w~ether to
                                                                                        iI
                                                                                       ·I
grant a stay "is the degree to which the civil issues overlap with the criminal         l
issues. Frierson, 2003 WL 21355969, at *3 (finding that the overlap between the
       D




issues in parallel civil and criminal sexual haraSsment suits justified a civil


Motion to Stay


                                                                          RECORD 137
                                      '
 In this case, the subject matter of the civil suit and the criminal indictment is

 virtually 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 because of the threat of incrimination."

 United states v. Melchor Moreno. 536 F.2d 1042. 1049 (5th Cir. 1976) (citing

 United States v. Gomez-Roias, 507 F.2d 1213, 1220 (5th Cir. 1975} (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. See

 also Kmart Corporation v. Arends, C.A No. H-96-1212 (S.D. Tex. Dec. 11 , 1996)

 (~[TJhe   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 saine matter. • /d.

 at 5) (citing, SEC v. Dresser Industries. Inc., 628 F.2d 1368, 1375-76 (D.C. Cir.),

 cert denied, 449 U.S. 993 (1980)).

        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.... j . 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 prMleges by potential witnesses and concerns about


 Motion to Stay


                                                                            RECORD 138
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 (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 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.




Motion to Stay


                                                                           RECORD 139
        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." Javier H. v. Garcia-Botello, 218 F.R.D. 72. 75

(W.O.N.Y. 2003). 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) .

   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. " Texas Department of Public

Safety Officers Association v. Denton, 897 S.W.2d 757, 764 (Tex. 1995)                             .•.                 .       7''·~,·
                                                                                              l    .     , ,, , .
                                                                                                s-1i r- • ·c '6 .
                                                                                           " ..$;.:. ,
                                                                                                                      n•cr          ,,,,r·-.
                                                                                                                    II · II .. · 11 , /•'t'l'~


{Gonzalez, J ., concurring). As "the scope of discovery allowed      in a civil ~rial ft.~~'<) ·.····· ·· ···.?& ·.~· ..
                                                                                     r, g ~.,_./ : -,.(}.. x _···/A.fo. .
                                                                                          . -!:1 .           ~\//?'                        . '•,•q
Motion t o Stay                                                                   t! ;~u{ .----~~,\~«~·- J~~
                                                                                 i;                  ... ·. v          --...;·~~..:ifR.!:,~.
                                                                                  :<li''... · . _. ~· ~, ••• ~ ::.. I S >}l "'.'~.~~~')'
                                                                             RECORD 140
                                                                          ('~~
                                                                             7'/"'t.
                                                                                     ~·-·           -/ t· •.. ' ... -~~' J
                                                                                                    ' ~/ Afl v"' · .. •• ••~!';~:· .. ~
                                                                                 ~"<n             ; ,///,, <"4NO\ "Y·.;.~~
                                                                                         ~J            ~\i/f!b.W.HV.9.~\.T
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." /d. 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. ld. at 760-61. If by 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." /d. at 763 (citing, Wehling

v. Columbia. Broadcasting Sys., 608 F .2d 1084 (5th Cir. 1979)).


   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




                                                                           RECORD 141
32 L. Ed. 2d 212 (1972). Generally, the exercise of the privilege should not be

penalized. Spevack v. Klein. 385 U.S. 511. 515. 87 S.Ct. 625, 628. 17 L. Ed. 2d

574 {1967); Malloyv. Hogan. 378 U.S. 1. 7. 84 S.Ct. 1489. 1493. 12 L. Ed. 2d .

653 {1964) .... 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.

/d. at 760.

                              E; Conclusion and Praver for Relief

The Defendant, David Petruska, respectfully submits this Motion and Brief in support of the

Granting of a Stay of the Civil Litigation and requests that this Court stay all trial proceedings,

including but not limited to the deposition of the Defendant and his wife, in this case pending

the outcome of the related criminal matter. Defendant also seeks all other relief to which he

may show himself justly entitled.




Motion to Stay


                                                                          RECORD 142
                 Respectfully submitted,
                 Holmes Firm PC


                 By Michael F. Pezzulli
                 Michael Pezzulli
                 SBN# 15881900
                 14911 Quorum Drive, su·ite 340
                 Dallas, Texas 75254
                 Direct: 469-316-3428
                 Main#: 4699167700 Ext. 104
                 michael@cou rtroom .com




                 Rothwell B. Pool
                 SBN# 16120500
                 408 W . Nash St.
                 Terrell, Tx. 75160-2502
                 Phone: 972-524-7585
                 RB@rbpoollaw. com


                 Counsel for Defendants, David C. Petruska and
                 Sandra L. Petruska




Motion to Stay


                                            RECORD 143
                              CERTIFICATE OF CONFERENCE
I hereby certify that an email conference was had with opposing counsel and no agreement
could be reached.



                                                Is/Michael F. Pezzulli
                                                   Michael Pezzulli




                                 CERTIFICATE OF SERVICE


  I hereby certify that a true and correct copy of the above document ·was em ailed to opposing
      counsel, Ms. Barbara Emerson and Mr. Ralph Allen this the 3rc1 day of August, 2015.



                                                /s/ Michael F. Pezzul/i
                                                   Michael Pezzulli




Motion to Stay


                                                                         RECORD 144
Fl4t>Ol20

CauseNo.            C/(tt{~ 00/85                                                                                                     1l ,.
                                                                                                                                      '--' ..... I .
                                                                                                                                             ·• .,   ...•;-   (•   .
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.




                                                                                                                                           RECORD 145
                                                                                                                                     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.,_.·




                                                                                                                        RECORD 146
                                                                                                 Filed 8/14/2015 6:41:45 PM
                                                                                                           Karen L. Wilson
                                                                                                              District Clerk
                                                                                                  Van   Zan<l$1~llhl~

                                                                                                   Kimberly Knowles

                                                CAUSE NO. 14-00172

THOMAS LYTLE AND ELLEN LYTLE                                    §       IN THE DISTRICT COURT
                                                                §
v.                                                              §
                                                                §
DAVID C. PETRUSKA, SANDRA L.                                    §       294™ JUDICIAL DISTRICT
PETRUSKA, COMPASS BANK,                                         §
HELMUTH K. GUTZKE AND                                           §
ZACKIANN GUTZKE                                                 §      VANZANDT COUNTY, TEXAS


                        PLAINTIFFS' OPPOSITION TO DEFENDANT
                DAVID C. PETRUSKA'S MOTION TO STAY ALL PROCEEDINGS

TO THE HONORABLE JUDGE OF SAID COURT:

           COME NOW, Plaintiffs Thomas Lytle and Ellen Lytle and file this their Opposition to

Defendant David C. Petruska's Motion to Stay All Proceedings ("Motion to Stay") and in

opposition to the motion would show the Court as follows:

                                         PROCEDURAL BACKGROUND

           This suit was filed on July 9, 2014 against Defendant David Petruska and others as an

action seeking a declaratory judgment regarding an alleged easement on Plaintiffs' real property.

In addition, Plaintiffs sought damages pursuant to TEx. CIV. PRAC. & REM. CODE § 12.002(b) for

the filing and claim of a fraudulent encumbrance on Plaintiffs' real property. Included in the

Original Petition is the following factual allegation:

                    Petruska has taken actions to assert his rights to the easement, including
                    coming on to Plaintiffs' property and threatening Thomas Lytle with an
                    assault rifle. 1

           On February 12, 2015 Plaintiffs filed Plaintiffs ' First Amended Petition. The above

factual allegation remains in the Amended Petition and has not been expanded.




1
     Plaintiffi' Original Petition filed July 9, 2014, paragraph 24.

PLAINTIFFS' OPPOSITION TO DEFENDANT DAVID C. PE1RUSKA' S
MOTION TO STAY ALL PROCEEDINGS
\\Bdnt-fs l \wpprolaw\3 19 1.002\274205 .doex

                                                                                      RECORD 147
       Prior to suit being filed, on or about April21, 2015, David Petruska was indicted by a

Van Zandt County Grand Jury (not by Plaintiff Thomas Lytle) for this assault with a deadly

weapon.

       Defendant David Petruska h~ previously alleged that the assault identified by Plaintiffs

"had no connection to the disputed easement"2 While Defendant David Pe1ruska now contends

these civil proceedings will undermine Defendant's Fifth Amendment privilege; Defendant has

waived that privilege. By an Affidavit flled with this Court on December 1, 2014, an exhibit to

Defendants David C. and Sandra L. Petruska's Response to Plaintiff's Motion for Summary

Judgment on Liability; Subject to Their Motion for Continuance, Defendant testified as follows:

              In paragraph 21 of Plaintiffs Motion for Summary Judgment on Liability
              (filed October 29, 2014), the Lytles wrote, ..The Pe1ruskas have taken
              actions to assert their rights to the easement, including coming on to
              Plaintiffs' property and threatening Plaintiff, Thomas Lytle, with an
              assault rifle." This is false. I never came on to the Lytles' property with
              an ·asSault rifle. On February 15, 2014, I had an Ull.loaded assault rifle on
              my gator and was driving on my own property. I had my rifle because
              Thomas Lytle had threatened to shoot me and three other workers, while
              we were working on a fence on our property. I never threatened Thomas
              Lytle with my rifle. Also, my driving with the rifle in my gator had no
              connection to the ~isputed easement
                                                    3



       Even if this Court were to find there is no waiver of Defendant's Fifth Amendment

privilege, there are no grounds to stay proceedings in this action. The alleged risk to Defendant

is one of his own making.      As this Court is aware, Defendant David Petruska's criminal

proceeding has been set for pretrial hearing eight times. In each instance the proceedings have

been continued at Defendant's request.




                                                                                 RECORD 148
                                             LEGAL ARGUMENT

         The Courts have repeatedly held Defendant has no constitutional right to a stay of the

civil proceedings. "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, No. 4:09-CV-256-A, 2011 WL 4398443 *2 (N.D. Tex. Sept. 20, 2011);

SEC v. First Financial Group, 659 F.2d 660, 666 (5th Cir. 1981). There is no constitutional or

statutory provision allowing a party "the 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).

         Defendant's request is an extraordinary remedy which acts as a blanket assertion of the

Fifth Amendment. Blank assertions of the Fifth Amendment are improper. SEC v. Kiselak Cap.

Group, LLC, 2011 WL 4398443 *2; United States v. Godwin, 625 F.2d 693, 701 (5th Cir. 1980);

Gebhardt, 891 S.W.2d at 330. It is ''the rule rather than the exception" that civil and criminal

proceedings move forward contemporaneously. Alcala v. Texas Webb County, 625 F.Supp.2d

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

         In determining whether a stay is appropriate, the "first and most important factor is the

degree to which the civil issues overlap with the criminal issues." SEC v. Kiselak Cap. Group,

2011 WL 4398443 *2. In this instance, as admitted by Defendant David Petruska, the facts

surrounding his assault on Thomas Lytle are related but tangential to whether Defendants

claimed an easement and whether there was fraud under TEX. CIV. PRAC. & REM. CODE

§ 12.002(b).      To justily a stay, David Petruska must make a strong showing that "the two




PLAINTIFFS' OPPOSITION TO DEFENDANT DAVID C. PETRUSKA'S
MOTION TO STAY ALL PROCEEDINGS
\\Bdnt-fsl \wpprolaw\3191.002\274205 .docx

                                                                                  RECORD 149
and civil cases] is impossible." Alcala, 625 F. Supp. 2d at 401. As in Alcala, the facts of the

proceedings do not overlap. The criminal proceedings involved the actions of Defendant on one

particular day: his threat to shoot and kill Plaintiff Thomas Lytle with an assault rifle. The

conduct which forms the basis of this suit is ''at least one step removed." Liability is based on

actions taken years before David Petruska's assault and relate to property rights. As stated by

the court in Alcala, any alleged overlap is further reduced when private parties are involved in

the civil suit. Id. Private party plaintiffs have interests distinct from those of the government

         As there is little overlap, Defendant David Petruska has the ability to defend both actions

and rely on this Fifth Amendment rights (to the extent not already waived). If he is questioned

regarding the assault, he can repeat his earlier testimony, testify anew ?r invoke his Fifth

Amendment right not to incriminate himself.

         On the other hand, to invoke the extraordinary remedy of a stay would violate Plaint:iff's
                                                                 .         .
rights under Article 1, Section 13 of the Texas Constitution. In re: Gore, 251 S.W.3d 696, 699
                                                                                                          I.
                                                                                                          I
(fex. App.-San Antonio, 2007). To stay the case will violate the "open courts" provisions of

the Texas Constitution. Gebhardt, 891 S.W.2d at 332.                 Plaintiffs are entitled to their

constitutional right of access to the courts. As part of that right they are entitled to full discovery

within a reasonable time, to develop claims and have their case tried. In re: Gore, 251 S.W.3d at

699. In Gore the court identified repeated holdings by various Texas Courts of Appeal, finding

an abuse of discretion when civil proceedings are stayed during the pendency of criminal

proceedings.

         To the extent Defendant's rights later become an issue the Court can fashion remedies




PLAINTIFFS' OPPOSffiON TO DEFENDANT DAVID C. PETRUSKA'S
MOTION TO STAY ALL PROCEEDINGS
\\Bdnt-fsl\wpprolaw\3191.002\274205.docx

                                                                                      RECORD 150
trial. Defendant has not shown any factual basis to support the extraordinary relief sought

Defendant's entire argument is that there is a criminal proceeding pending so the civil action

should be stayed. That simply is not the law.

         Defendant David Petruska has not established special circumstances which would

warrant such extraordinary relief. To grant this relief would deny Plaintiffs their constitutional

right of access to the courts. Defendants' Motion to Stay should be denied.

         WHEREFORE, for the reasons stated above, Plaintiffs Thomas Lytle and Ellen Lytle

respectfully request that the Court deny the Motion to Stay.

                                             Respectfully submitted,

                                             BELLINGER & SUBERG, LL.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 PLAINTIFFS,
                                             THOMAS LYTLE AND ELLEN LYTLE




PLAINTIFFS' OPPOSffiON TO DEFENDANT DAYID C. PETRUSKA'S
MOTION TO STAY ALL PROCEEDINGS
\\Bdnt-fsl\wpprolaw\3191.002\27420S.docx

                                                                                 RECORD 151
                                     CERTIFICATE OF SERVICE

        The undersigned certifies that a true and correct copy of foregoing has been forwarded to

all counsel via eservice and email on the 14th day of August, 2015 as provided below.


Ralph E. Allen                                    Michael F. Pezzulli
Attorney and Counselor at Law                     Holmes Finn PC
100 East Ferguson, Suite 901                      14911 Quorum Drive, Suite 340
Tyler, Texas 75702                                Dallas, Texas 75254
(903) 593-9727 Telephone                          (469) 916-7700
rallen@tyler.net                                  Michael@courtroorn.com




                                             Barbara L. Emerson




PLAINTIFFS' OPPOSffiON TO DEFENDANT DAVID C. PETRUSKA'S
MOTION TO STAY ALL PROCEEDINGS
\\Bdnt-fsl\wpprolaw\3191.002\27420S.docx

                                                                                 RECORD 152
 ! 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


                                                                                                                        RECORD 153
RECORD 154
