Sanders Lawsuit: 'A Deal Is a Deal'
Family attorney argues city's rejection of settlement was breach of contract
By Jordan Smith, Fri., Sept. 24, 2010
Did the city of Austin break a legally binding agreement to settle a civil rights suit over the police shooting death of Nathaniel Sanders II? And was the provision of that agreement requiring City Council approval of an offer to pay the family $750,000 actually nothing more than a sham clause?
If you ask Adam Loewy, the attorney representing the Sanders family in the suit against the officer who shot Sanders in May 2009, the answer to both those questions is an unequivocal yes.
As such, Loewy last week filed a second lawsuit against the city and former Austin Police Officer Leonardo Quintana, arguing that when council members voted on July 29 to reject the settlement, they turned their backs on a binding settlement they had authorized that was negotiated during a 10-day mediation beginning in late June. "This sort of behavior by City leadership is shameful and despicable," Loewy wrote in the breach of contract lawsuit filed in state civil district court Sept. 15. "They unquestionably authorized their lawyers to enter into a settlement agreement on their behalf ... and then – due to political pressure that had nothing to do with the actual lawsuit – breached the settlement. In Texas, however, a deal is a deal," the lawsuit continues. "The City of Austin had no valid legal justification for breaching the settlement agreement."
Roughly a month after Quintana shot Sanders in the parking lot of an East Austin apartment complex, Loewy filed in federal court a civil rights suit against the city and Quintana. According to Loewy, after the city was dismissed from the suit and only Quintana remained as a defendant (leaving the city only attached to the suit through its agreement to indemnify the officer), the city sought to settle the case. In fact, Assistant City Attorney Christopher Coppola "repeatedly told me that the city wanted it settled," Loewy said during a press conference last week. And when the two sides met at mediation, he said, Coppola set the tone by offering a "straight-up" apology to the Sanders family, telling them the city – represented by Coppola, city litigation chief Anne Morgan, and Assistant City Manager Michael McDonald, among others – was "there to settle."
When the Sanders family accepted the city's $750,000 offer, the deal was done, said Loewy. In the days following the agreement, he says, he received four e-mails from city officials acknowledging that the deal was finalized, plus a voice mail from Robert Icenhauer-Ramirez, who was hired by the city to represent Quintana, acknowledging that a settlement had been reached, and on July 13, he says, McDonald inked his name on the agreement "confirming that the City of Austin and Quintana agreed to settle." The next day, the federal court was notified, and the case was pulled from the jury docket.
But on July 29, says Loewy, City Council suddenly reversed course, voting 4-3 to reject the agreement, over the pointed disagreement of several council members, including Sheryl Cole, who said from the dais that she believed walking away from a settlement that the council had "instructed staff to go and negotiate" was a breach of the council direction to negotiate "in good faith." Piggybacking that logic, Loewy is now suing, asking that the court award the Sanders family the $750,000 originally negotiated, along with Loewy's fees.
But Icenhauer-Ramirez says this latest lawsuit from Loewy is "completely absurd." He did indeed call Loewy after the settlement had been negotiated, in an attempt to be courteous to a colleague now that the case was drawing to a close, but, legally, he says, it was meaningless. Moreover, he notes that neither he nor his client ever signed any settlement paperwork. Most importantly, he says, there's nothing legally binding about the negotiated settlement until the council votes to accept it; that contingency is part of the contract, meaning the city was well within its rights to reject the final offer, and Loewy has no legal leg to stand on. "An agent" – that is, the city's lawyers – "cannot bind a city government," he says. Without council approval, he says, "it is not binding."
But Loewy contends that the caveat that council must approve any settlement is nothing more than a sham clause: He says he was told repeatedly during mediation by city officials that "City Council approval was a 'rubber stamp' and a 'formality,' that they had a binding settlement agreement and that [the] case was 'over,'" Loewy wrote in his new lawsuit. That's ridiculous, says Icenhauer-Ramirez: "Can you imagine a lawyer saying, 'My client is just a rubber stamp'?"
In fact, city officials have argued that if anyone screwed the pooch on the settlement, it was actually Loewy, who, after the mediation was over, came out to say that the settlement was the city's way of acknowledging wrongdoing. That clearly ticked off the folks at City Hall – most settlements have a no-fault caveat attached. Loewy contends that he spoke before McDonald inked the final paperwork and thus his speech was in no way constrained; still, that doesn't mean it was the best decision he's made during the more than yearlong legal wrangling.
Indeed, it does seem that Loewy would have a tough time proving the council's final approval was irrelevant to the deal. But the process of getting to any conclusion might prove costly. Whether the city will be able to defend this case – now that plenty of folks in city legal are, essentially, fact witnesses in the case – or whether it will have to contract with outside counsel remains to be seen. On that note, whether Loewy, also now a fact witness in this latest suit, can remain the attorney on the case would also be in question.
For now, the city is holding its tongue: "Clearly, Mr. Loewy would like to try these issues through the media, which we are not going to do," city spokesman Doug Matthews said in a written statement. "In short, we do not believe the lawsuit has any merit. We'll take a look at the filing, consult with the Council and legal staff, and respond through the appropriate legal channels."
Meanwhile, the federal civil rights suit is still pending and has been placed on the jury docket for November 2011.
Key Events in Sanders Case
May 11, 2009: Nathaniel Sanders II is fatally shot by APD Officer Leonardo Quintana; APD begins criminal and administrative investigations.
June 2, 2009: Sanders' family files federal civil rights lawsuit against the city and Quintana.
Aug. 5, 2009: Travis County grand jury declines to indict Quintana.
Aug. 19, 2009: Citizen Review Panel asks for outside review of APD's internal investigation; two days later, city hires KeyPoint Government Solutions.
Sept. 30, 2009: KeyPoint submits its findings to the city.
Oct. 5, 2009: City releases heavily redacted version of KeyPoint report.
May 6: Quintana is fired over a January charge of driving while intoxicated.
May 7: An anonymous source provides the Chronicle with an unredacted copy of KeyPoint report, concluding that Quintana engaged in potentially criminal "reckless" behavior in relation to the Sanders shooting.
May 19: City Attorney David Smith is forced into early retirement over handling of KeyPoint report.
July 9: News is leaked of a proposed $750,000 settlement between Sanders family and the city. Sanders family attorney Adam Loewy says, "The city and APD have finally taken responsibility for this unjustified shooting."
July 29: Citing Loewy's remarks, City Council narrowly rejects settlement.
Aug. 2: U.S. District Judge Sam Sparks sets a November 2011 trial date for the Sanders civil rights suit and, furious over the city's late cancellation of the settlement, orders all members of the council to be involved in further settlement discussions.
Sept. 15: Sanders family files second lawsuit against the city and Quintana.
The breach-of-contract lawsuit is available with this story here.
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