in Re: Thomas Lytle and Ellen Lytle

• Court: Court of Appeals of Texas
• Decided: September 3, 2015
• Docket: 12-15-00216-CV
• Status: Published

Opinion

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 , •r· : ~ cy·.•• ~~ g (t:•. .... ·.... ::: UJ: ~ ..~~:;.~ () = -'• o::; . . ~~

.· ~· ~ t-- .· RECORD 2 ~. l ~/,r~lv l it , ·) . 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

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 · . ..:-'"''<$~···•:• ~; .'i~;;· " ~\_ •• ·· r: •· ~ f,' •• ~ - ~· -~~-~ • ;' '/'· ,::- tr; ." L,~"t . ··. :IJ.J:V . .. i - -J • . , ':u: '· -::. - .. '•. ~ · : ', t~---- ~ t-."f A, RECORD 5 .•• ~I' /, .' v lAN '1·:, ..... .tl 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 / ~"",;,'. ·<-:'/ ·, \ . ~ ~- . ; . $ 0. ;:·k · ~ a: ~ ~: . : .L:.---~J>·- ~0~ ·.. .... '; .~ r ~ • •• ~· r ~ ~ ~ ••••• RECORD 6 ·: . ~~~, Ai.r-.; Zp\ . 'llf: , ·•:!P\11 . 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 ., , .. . ~.:.~ ,:-·, .•••••••••• Oc;,· ' ~ :,_ ..;:- {("' .;:.tu•

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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 r :' .:::- Q:t ,t,. \ X ~·••,. ··._j, . ;/.,_;.? •.;· 41 ·; ft , v;., -, = =w •·...., \·' . . . s..• .>-...:·•· ~ -~ r·.,,;.·. ~- ...j • · ,.. ~(. :.'". ~ e.:'· ;;., (:,tit;:_ ~;-:·,. · ~ • - ;jl'' " •. -. ,'~J, ~ •• "WI ..::"/, ~ .r.;;.r; ,_,__ ~"~~,~~~~~A-~t)~ ~{~; RECORD 8 . ' 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;-

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.

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· ... .. ~ .... • • ~~ ....... .1>· . - ~,~ ·. _.:..1" Tab 1 ·. <:--.·· t, •• ? .,. . ... •) X ~ ~ ~~ ~ ~ .. • , , .,~•-~ ,. -,.....,",_ ,..., •...1/( - ~ .. '\ .~ \ /"·.: / ." ,j · ;J o( •. • 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

TabB 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_,.;·~> ·,? ,

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·.. .. . ~

. . ·.. ... ,. '" . . ~ •• • ••• 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

l·· ·..... :. ·: ~ i.

I

·.. . . .

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

·~··

1 f-_: •. ·.. ' t ••

·. . .. . ~ ··'':. : .. . . ... ' . ·. . ,·..

i ·1 • i 4·.

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 i ·:. \ ' ·.

· 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~:\

l! ·;'

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

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

'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; ·

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

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

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

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

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

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

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.

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

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

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RECORD 70 j. ·:· I

RECORD 71 I !·

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.

3. Thomas and Ellen Lytle claim to own the neighboring property at 1603 Van Zandt County Road 2319, which alS

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.

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.

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

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

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

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.

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

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

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

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

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

RECORD 79 FIELD NOTES

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

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 ~: .' .··. . ~~~--

•

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 frtllps 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 ··. ·::...

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

TabB RECORD 84 l ! 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 ...·"'·· .. ·. ~ ··.;

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

TabB RECORD 89 ...,. i I. :· ·.

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 ~ •: Texu Deed orT,..It·Sln&le Famlly-J!annl~ Mae/Freddie Mae UNlJ!ORM INSTRUMENT 7

TabB RECORD 90 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 INSTRUMENT 8

RECORD 91 .-

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

TabB RECORD 92 I

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

TabB 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 INSTRUMENT

TabB RECORD 95 ..... '·

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

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

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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RECORD 103 ·<·.·

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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++~~~~E~~u~~~~to~~~rt:.~~~~ ....

r= ·.~· ·:... . J 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

[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.

& WALDRON ABSTRACT

CTJ:;;b~N sa Overton · Examiner

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

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;

Tab F RECORD 106 .. I

l I ... ,..., • .vwwtY IV

'. '

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. "

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

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.

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

.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

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

RECORD 111 .. ·;· f',UUOIUIV UIJIIII.l::UUO

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.

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.

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

RECORD 113 U411 II"UUCI . ., JU,D" r.usututu

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

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

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

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

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

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

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

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.

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

-- .....

®- No RAIIJALL SCOTT WIUIANKS : Mr Commlallon Explraa ~ Oc~rt.20t6 ... -

RECORD 118 ······ ..

903 675 9469 .

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...., J••t. L .. W•r•• II•P•L••• M•• ...t•••••• , .. ••••• 1111•• n•• pf•• •••w-. ...., ,., '"' •., •h• •r•u•• _.... ••, ••• , ....... ttt• T .. ••• •••r• •t ,.,,., ••••• ,.!!', t. .... ....... , . , , ,,.., _.., .. ,:

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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.

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

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 ....

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

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,

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

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 (.:)

~ ~ ~ I ~.?· ~' ..._.-,

~~

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.

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]

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"

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

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

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

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.

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.!:,~. :}l "'.'~.~~~')' RECORD 140 ('~~ 7'/"'t. ~·-· -/ t· •.. ' ... -~~' J ' ~/ Afl v"' · .. •• ••~!';~:· .. ~ ~"

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.

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

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

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

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

Kimberly Knowles

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

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.

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

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

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