in Re: Thomas Lytle and Ellen Lytle

ACCEPTED
12-15-00216-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
9/3/2015 2:56:56 PM
Pam Estes
CLERK
NO. ________________________
FILED IN
12th COURT OF APPEALS
IN THE TYLER, TEXAS
COURT OF APPEALS 9/3/2015 2:56:56 PM
FOR THE PAM ESTES
TWELFTH DISTRICT OF TEXAS Clerk
IN RE THOMAS LYTLE AND ELLEN LYTLE,
Relators,
v.
THE HONORABLE TERESA DRUM, JUDGE
PRESIDING 294TH JUDICIAL DISTRICT
COURT OF VAN ZANDT COUNTY, TEXAS,
Respondent,
Real Parties in Interest:
David C. Petruska
Sandra L. Petruska
Helmuth K. Gutzke and
Zackiann Gutzke,
Defendants.
APPENDIX TO PETITION
FOR WRIT OF MANDAMUS
PART ONE
Barbara L. Emerson, Esq.
Texas State Bar No. 06599400
BELLINGER & SUBERG, LLP ORAL ARGUMENT REQUESTED
10,000 N. Central Expy., Suite 900
Dallas, TX 75231
214.954.9540 – Telephone
214.954.9541 – Facsimile
bemerson@bd-law.com
TO THE HONORABLE COURT OF APPEALS:
Pursuant to Tex. R. App. p. 52.3(f) attached hereto as an appendix to
Relators Thomas Lytle and Ellen Lytle’s Petition for Writ of Mandamus are true
and correct copies of the following:
TAB 1. Certified Copy of Order Staying Proceedings signed 001
August 21, 2015
TAB 2. Certified Copy of Defendant David C. Petruska’s 002
Motion to Stay All Proceedings With Legal Authorities
in Support, filed August 4, 2015
TAB 3. Certified Copy of Plaintiffs' Opposition to Defendant 017
David C. Petruska's Motion to Stay All Proceedings,
filed August 14, 2015
TAB 4. Certified Copy of Plaintiffs' First Amended Petition, 023
filed February 12, 2015
TAB 5. Relevant Caselaw cited in Relators’ Petition for Writ of 029
Mandamus with Excerpts Highlighted
U.S. v. Little Al, 712 F.2d 133, 136 (5th Cir. 1983) 029
Alcala v. Texas Webb County, 625 F. Supp. 2d 391, 034
397 (S.D.Tex. 2009)
In re Charles D. Messervey Trust, No. 04-00-00700- 053
CV, 2001 WL 55642 (Tex. App.—San Antonio
Jan. 24, 2001) (orig. proceeding)
In re Gore, 251 S.W.3d 696, 699 (Tex. App.—San 057
Antonio 2007) (orig. proceeding)
Gebhardt v. Gallardo, 891 S.W.2d 327, 331 (Tex. 063
App.—San Antonio 1995)
! l tol 0' &. If '" V 1 J1 1 V t .J _,, 1111
From: unknown Page: 212 Date: 8/211201510:42:15 AM
CAUSE N0.14-00172
THOMAS LYTLE & ELLEN LYTLE § IN THE DISTRICT COURT
§
v. § 294th JUDICIAL DISTRICT
§
DAVID C. PETRUSKA, ET. AL. § VANZANDT COUNTY, TEXAS
ORDER STAYING PROCEEDINGS
NOW on
~-:~o1Pt$ ·
the application for Stay of Proceedings filed in this matter on August 4,
2015 comes on for hearing. The Court having examined the application, the evidence and
counsels' argument, is of the opinion that the Motion should, in all things be granted.
THE COURT FINDS that the defendant, David C. Petruska, is the subject of a Felony
Indictment currently pending In the District Court of Van Zandt County, Texas and such
indictment contains factual allegations substantially similar to the allegations contained in the
instant matter.
THE COURT FURTHER FINDS that to continue these proceedings in this case would
create an impermissible jeopardy to the Defendant and would have the potential to cause the
Defendant to be forced to either forego his constitutional right against self-incrimination or be
forced to waive his constitutional right and suffer the consequences, If any, of such waiver.
THE COURT FURTHER FINDS that it is inappropriate in the Instant case to force the
. Defendant to choose between the assertion of or a waiver of his constitutional rights at this
. stage of this litigation.
IT IS THEREFORE ORDERED AND RENDERED that this proceeding is hereby stayed
for a period ending the earlier of six-months from the date of the Order, or the completion of
the trial level proceedings In the Van Zandt criminal action. In the event that the criminal
matter is not resolved within the six-month stay, the Defendant, David C. Petruska, has the
right to again move this Court for an additional stay and the Plaintiffs have the right to oppose
such stay should the Plaintiffs choose to make such opposition.
Signed this ~I day of August, 2015.
ORDeR STAYING PROCEEDINGS - page 1
TAB 1 APPENDIX 1
Filed 8/4/2015 10:45:22 AM
Karen L. Wilson
District Clerk
Van ZanGilblal~i~
K"mber1y Knowles
NO. 14-00172
THOMAS LYTLE AND ELLEN § IN Tiffi DIS'IRICT CO"QRT
LY1LE, §
§ I
!
v. § ! l
I
§
DAVID C. PETRUSKA, SANDRA L. § 294th JUDICIAL DISTRICT
PETRUSKA, CO:MPASS BANK, §
HELMUTII K. GUTZKE, and §
ZACKIANN GUTZKE § VANZANDT COUNTY TEXAS
PEFENDANT DAVID C. PETRUSKA'S MOTION TO
STAY ALL PROCEEDINGS WITH LEGAL AUTHORITIES IN
SUPPORT
TO THE COURT
COMES NOW, David C. Petruska, Defendant herein, by and through his att~mey of record,
Michael Pezzulli, and respectfully moves this Honorable Court for an Order staying all discovery
proceedings, on the following grounds and reasons:
FACTUAL BACKGROUND
Plaintiff's First Amended Petition seeks to inject state law claims of threat of bodily injury.
Specifically, Plaintiff claims that "Petruska has taken actions to assert his rights to the
easement, including coming onto Plaintiffs' property and threatening Plaintiff Thomas Lytle with
an assault rifle, and continuing to assert an easement existed in his pleadings before this
court.
Motion to Stay
APPENDIX 2
TAB 2
In essence, Plaintiff's suit papers mirrors the indictment that Plaintiff obtained against the
Defendant in Van Zandt County, Texas on April 21 , 2014. Specifically, the indictment1 alleges
that the Defendant, David Petruska, on or about February 15, 2014, did intentionally or
knowingly threaten Tom Lytle with imminent bodily injury and did there use or exhibit a deadly
weapon, to wit: a firearm, during the commission of said assault and said firearm in the manner
and means of use could have caused serious bodily injury or death to Tom Lytle.2
SUMMARY OF THE ARGUMENT
This requested stay involves weighing Mr. Petruska's fundamental constitutional right to a fair
trial in this civil threat of bodily injury case against a claim that somehow the Plaintiff will be
injured if he cannot maintain a parallel prosecution of the identical claims.
Discovery will obviously seek to elicit evidence from the defendant that he engaged in the
identical alleged illegal activity that is the subject of the State Indictment. The civil proceeding, if
not deferred, will undermine Defendants' Fifth Amendment privilege against self-incrimination,
expand rights of discovery beyond the limits of Texas Rule of Criminal Procedure and expose
the basis of the defense to the prosecution in advance of a criminal trial. A delay of this civil
proceeding will not seriously jeopardize the public interest.
1
A true and correct copy of the indictment is attached hereto as Exhibit 1.
2 Plaintiffs First Amended Complaint at Page 4, Paragraph 23.
Motion to Stay
APPENDIX 3
LEGAL ARGUMENT
A. When the court forces Relator to choose between waiving his Fifth
Amendment right or suffering an adverse inference in this civil case. an
abuse of discretion occurs.
Should this Court force the Defendant to answer civil discovery and forego his
constitutional right against self-incrimination while the option to stay the civil
proceedings is available, such order would be an abuse of discretion. In Wehling
v. Columbia Broadcasting System, Wehling invoked his Fifth Amendment right to
silence in the civil case while there was a competing grand jury proceeding, and
the district court ordered Wehling to answer the discovery requests or suffer
dismissal of his civil case. 608 F.2d 1084, 1086 (5th Cir. 1979), on reh'g, 611
F.2d 1026 (1980). Subsequently, the district court dismissed his case and
refused to g'rant a stay of civil discovery. /d. at 1086. On appeal and under an
abuse of discretion standard of review, the Wehling court reversed the dismissal ·
of Wehling's civil suit holding the district court's dismissal was "constitutionally
impermissible," for the U.S. Supreme Court has "disapproved of procedures l
I ;
which require a party to surrender one constitutional right in order to assert I
1.
,.
' .
I -
another." 608 F.2d at 1088 (noting that dismissal of the civil case is inappropriat$f'- !
!-,···.
where other, less burdensome remedies [such as a stay of civil discovery]
Motion to Stay
APPENDIX 4
available) (citing Simmons v. United States. 390 U.S. 377. 394 (1968)).
Therefore, when a court forces the Defendant to answer civil discovery and
forego his constitutional right to silence while the option to stay the civil
proceedings is available and the Defendant is under criminal indictment for the
same events, the refusal to stay the civil case is an abuse of discretion.
B. If ordered to give a civil deposition, Defendant will be unable to
adequately defend himself in both cases, thus violating his
constitutionaf·rights to due process and against self-incrimination.
Absent the requested stay, the Defendant will be unable to answer any questions
of substance in his civil deposition; therefore, he will be unable to make his
defense to the accusations asserted by the Plaintiff, Tom Lytle. This outcome is
an unconstitutional denial of David Petruska's right to due process in this case. A
fundamental precept of our judicial system is equal treatment under the law and
hamstringing David Petruska by the tactic of insisting on a premature deposition
to force assertion of the Fifth Amendment violates that premise. Once a
deposition occurs in this context, the harm is done, and the bell cannot be
unrung.
This trial court should stay the civil case when, as here, such a stay is necessary
to avoid "substantial and irreparable prejudice." United States v. Little AI. 712
F.2d 133. 136 (5th Cir. 1983) (citing SEC v. First Fin. Group of Tex.. Inc.. 659
F.2d 660.668 (5th Cir. 1981)). In this case, Defendanfs exposure to an adverse
inference from the invocation of the Fifth Amendment would similarly result i``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
APPENDIX 6
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
APPENDIX 7
'
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
APPENDIX 8
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
APPENDIX 9
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.!:,~.
:}l "'.'~.``~')'
('`` ~·-· APPENDIX-/ t· •.. 10 ... -``' J
'
7'/"'t. ' ~/ Afl v"' · .. •• ••~!';~:· .. ~
~"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
APPENDIX 12
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
APPENDIX 13
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
APPENDIX 14
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.
APPENDIX 15
i·.
T B :Z STAT B 0 F T B% AS
CU4-00185
PRECEPT TO SBRVJ!: DIDJ:CTMEHT
TO THE SHERIFF OF VAN ZANDT COONTY I SAID STATE I GREETING:
YOU ARE HEREBY COMMANDED to serve
DAVJ:D Clt\lJI.BS PB'l'lilUSKA 1 DOB: 5/11/1945
the defendant in Cause No. Ckl4-00185, wherein The State of Texas is
pla.intiff, and DAv.tD CHARLBS Pll'l'Rt1SltA , is defendant, in person, with
the accompanying certified copy of the original Bill of Lndictment now on
tile in 294th District Court, van Zandt County, Canton, Texas.
HEREIN FAIL NOT, but of this Writ make due return as the law directs.
Issued and given under my hand and seal of Office, this the 21st
Of April I 2014.
S H E R X F F' S RETURN
came to band on the _2='...,.C~ day ot _ ___.4u,:.«::-.:../.:../______, 2o.l!:f_,
by delivering to the within named
in my custody, in person, a
certified copy of the indictment mentioned within, and delivered to me with
this writ, on the 1.( day of --'~J,i'l'(';FII..:I:..r.•t_ _ _ __
,,_
Returned on the ---``~-- day of , - - - • 20..1!L.
-_.64~•1UC.:a~:J._·
L , R-4'{. Sheriff,
_.-;V.c~.W~DL..4o!,..>!C.IIII#.J..,-,;;.L._·- - - - county, Texas •
BY_ ~:#=-:'fn:;.r....l-----
___,_/tuc:u;Jw.,_.·
APPENDIX 16
Filed 8/14/2015 6:41:45 PM
Karen L. Wilson
District Clerk
Van Zan2011 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
APPENDIX 19
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
APPENDIX 20
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
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APPENDIX 21
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
APPENDIX 22