Monday, June 27, 2016 by Jo Clifton

Affidavit raises questions about Bastrop ruling

An observer at the trial involving a dispute between the developer of a proposed Bastrop subdivision and three units of government in Bastrop County has sworn that he witnessed the judge in the case talking behind a locked glass door with members of a property owners association as well as lawyers representing the city of Bastrop, Bastrop County and Bastrop Independent School District – several hours before the judge issued his ruling. The observer said that he could not hear the conversation but it appeared to be serious. He said no one from the defense side – the developer and members of another group of property owners – was present.

The judge in the case, 21st District Court Judge Carson Campbell, ruled in favor of the plaintiffs – the Bastrop governmental entities and one group of property owners – a few hours later. According to the Austin American-Statesman, which reported on the ruling last month, “Campbell surprised many when he nullified a real estate contract between three local governments and Pine Forest Investments Group LLC that would have placed houses, roads and utility lines on a swath of pines along Texas 71.”

One reason why many people were surprised by the ruling is that, as the defendants state in their motion for a new trial, the hearing was not to decide the validity of the contract between developer Robert Leffingwell and the various government entities. It was instead “to be solely limited to the filed Declaratory Relief sought by the intervenors,” relating to who controls the Pine Forest Property Owners Association. Leffingwell is the brother of former Austin Mayor Lee Leffingwell.

There was never any notice that there would be a trial on the merits of the case concerning Leffingwell’s contract with the Bastrop governments, according to the motion for new trial filed on June 6. The judge has not ruled on that motion and has not signed an order formalizing his oral ruling.

Austin attorney Bill Aleshire, who represents several intervening property owners in the suit, filed the affidavit, along with a letter to Campbell, on Friday.

Charles Bundren, one of the attorneys for Bastrop, has denied the allegation set forth in the affidavit in a conversation with the Austin Monitor. The judge was on vacation last week, according to his court administrator in Burleson County, and could not be reached for comment.

Paul Burt, a member of the Pine Forest Property Owners Association and a member of the association’s Architectural Control Committee, swore to and signed an affidavit stating that on the day the trial ended, Friday, May 6, he returned from lunch early to find “a locked foyer to the courtroom. Someone saw that I was attempting to gain entry and walked over and let me in. I could see the Judge Campbell and others talking (sic).

“It appeared to be of a serious nature as I saw no one smiling or being light or jovial. As soon as I entered the foyer conversation totally ceased, leading me to believe that the conversation was not intended to be heard by me.”

Burt named those present in addition to the judge as plaintiffs’ attorneys Charles Bundren and Gregory Cagle and plaintiffs Cliff Seidel, Drucilla Rogers, Cynthia Meyer and Brenda Winkler. He added, “I firmly believe that (Bastrop County) Judge (Paul) Pape and attorney Noe Reyes were also present, but cannot say with 100 percent certainty. No one from the defense was present.”

Burt’s affidavit continued, “My immediate thoughts were that the Defense just lost the case. It appeared that Judge Campbell was too close to the Plaintiffs and that this seemed highly improper for this group to be alone together with an ongoing trial case. In my mind I felt that the trial was over and that the Defense had lost their case. I was not surprised at the outcome.

“I understand this is a very serious charge to make and do not make it lightly,” the affidavit says.

In his letter to the judge, Aleshire states, “If the described private conversation occurred and involved the merits of the case pending before Your Honor, it could implicate both Judicial Conduct rules against ex parte communication and attorney misconduct rules.”

After quoting rules concerning the duties of the judge and attorneys to maintain a fair and impartial trial, Aleshire says, “As an officer of the court, I am not sure what to make of this information, but I believe it is necessary and appropriate to make you and the attorneys in the case aware of the affidavit. If, upon reflection and memory of the event described in the affidavit, you recall discussing matters of the merits of the case while the trial was still going on, and determine that the discussion would constitute a prohibited ex parte communication, this provides you an opportunity to decide what, if any, action would be appropriate to take sua sponte.”

Bundren represents the three Bastrop governmental entities in a complicated dispute with Leffingwell, Pine Forest Property Owners Association and several individual members of the property owners association. He has been paid nearly $250,000 for work on that case, according to city records.

The Monitor attempted to reach each of the plaintiffs and their lawyers but was only able to contact Bundren, who denied the allegation.

When the reporter began to explain what Burt said he saw and asked whether Pape or Reyes was present, Bundren said, “Not only were they not present, but there was never a meeting or any kind of conversation with (the plaintiffs). I don’t even think that Mr. Cagle was there. I was trying to help the court reporter get the exhibits together for her record, so somebody can see whatever they want to see. … My legal assistant was trying to help her.” However, he was referring to events after the ruling.

According to the motion for a new trial, Leffingwell “spent considerable sums, nearly $500,000, generating site-specific engineering and drainage studies that were timely tendered to Plaintiffs,” referring to the city of Bastrop, Bastrop County and Bastrop ISD.

If Leffingwell loses the case, apparently he will lose all of the funds he invested, plus $24,000 in earnest money he put down for the property. If the judge grants the motion for new trial, the question of the contract might not even come up again until there is a separate hearing.

However, if the judge does not grant the motion and the government entities do not want to settle, it seems likely that Leffingwell will appeal and the case could go on for quite a bit longer.

In the meantime, the 400 acres of pine trees Bastrop said it wanted to develop remain unavailable for development until the lawsuit is settled, and legal fees for all involved are likely to continue to mount.

Photo by Larry D. Moore, CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=609290

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Bastrop: Bastrop is a city and the county seat of Bastrop County. It's located about 30 miles southeast of Austin

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