BY MAIRE O’NEILL
First Judicial District Judge Jason Lidyard has signed an order imposing sanctions against Los Alamos County and its retained attorneys Donald DeCandia and Terra Hittson of Hartline Barger LLP in the ongoing lawsuit filed by Prashant Jain, owner of Sirphey LLC in 2021 against former County Chief Building Official Michael Arellano.
Judge Lidyard had issued the verbal order during a Court hearing last April and asked Sirphey’s attorney Philip Dabney to prepare an order reflecting the Court’s findings and conclusions. See https://losalamosreporter.com/2022/04/29/judge-grants-request-for-sanctions-against-countys-attorney-in-sirphey-appeal-case/
The County’s attorneys subsequently filed an alternative order to be considered by Judge Lidyard because the County disagreed with the wording of the order prepared by Dabney. It appears the County has now also retained attorneys Randy S. Bartell and Troy Lawton of Montgomery & Andrews P.A in the case.
During an August 3 presentment hearing, Judge Lidyard said he had the opportunity to review both forms of the order.
“The Court finds that it seems that the County, based on the additions that are contained in (its proposed order and a deletion), is attempting to distort this Court’s words, manipulate them into a definition that they believe that they may be able to argue later on – that in some way, I ordered orally that there was insufficient evidence to sanction the County when in fact that was not what I said and that’s not what I intended my words to mean,’ Judge Lidyard said. “If there was any miscommunication. I wanted to understand better the practices of the County to see if in some way, or somehow I could avoid sanctioning the County and counsel before the Court, because there was sufficient evidence at the time to sanction them and it would have been the very first time that I as a judge in 4 ½ years that I’ve been a District Court judge, that I would be sanctioning an attorney and a party.”
He said he wanted to believe in his heart that the County and counsel were following some type of practice that must have been in place for some time regarding the lack of findings of fact.
“I therefore asked Mr. Dabney to see if he could find any information regarding any prior actions involving similar or the same proceedings and what types of order had been issued. There was vehement objection by counsel for the County to not allow that to happen. In fact there was a motion to reconsider. Unbeknown to me at the time of my request for discovery to maybe find a way to avoid sanctioning counsel and the party, the information I was looking for had been in my possession for two days prior to the hearing in which I requested the discovery,” Judge Lidyard said.
He said that information came in a supplemental briefing provided by counsel for the County in which an affidavit specifically stated by an individual that this was the first time ever that this type of proceeding had ever been conducted by the County. He said that was what he was hoping to avoid learning – “that while doing something for the very first time, the County would take such a baseless stance to the idea of what a finding is”.
“I assumed that there must have been some justification in history of custom or practice in the County that would justify these types of behaviors by counsel and the County. But it wasn’t true and the information that I was looking for in my request for discovery was already in my possession, so it wasn’t necessary for the discovery to be conducted and therefore the Court did not demand that it be done and ruled as it was prepared to do so even before requesting the discovery, that counsel and the County should be sanctioned for their practices,” Judge Lidyard said. ”I reviewed Mr. Dabney’s order: It appears almost identical to the things that I said in my ruling and therefore I’m adopting it as it accurately reflects what I ruled. I will sign the order and issue it today.”
The conflict between the County and Sirphey appears to be far from over. Judge Lidyard noted that he has several thousands of pages to read in the case despite having listened to some 25 hours of hearings in the case. He noted that he intends to read the transcripts to refresh his memory and follow along with the audio.
Meanwhile, Dabney, who noted at the August 3 hearing that there are issues related to “a big chunk of materials missing from the record, has filed a motion claiming the County has not submitted transcripts to the Court recordings of any other log or material from closed sessions between both the members of the County’s Board of Appeals and the County Council.
Sirphey, LLC filed a lawsuit against the County and others in June in federal court. See https://losalamosreporter.com/2022/06/30/sirphey-sues-los-alamos-county-others-in-u-s-district-court/