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Aziken v. District of Columbia

Court of Appeals of Columbia District

June 20, 2013

Smart Aziken, Appellant,
District of Columbia, Appellee.

Argued March 7, 2013.

Appeal from the Superior Court of the District of Columbia (CAB-321-10) (Hon. Craig Iscoe, Motion Judge).

Gregory L. Lattimer for appellant.

Bradley A. Sarnell, Assistant Attorney General, with whom Irvin B. Nathan, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Donna M. Murasky, Deputy Solicitor General, were on the brief, for appellee.

Before Thompson and McLeese, Associate Judges, and Ruiz, Senior Judge.

THOMPSON, Associate Judge:

Appellant Smart Aziken brought suit against the District of Columbia (the "District"), seeking damages for the alleged breach of a contract under which a so-called "reimbursable detail" of Metropolitan Police Department ("MPD") officers was assigned to provide police services on Friday and Saturday nights in the area around 9th and U Streets, N.W., where appellant's nightclub establishment was in operation. Appellant contends that the contract was breached when the officers assigned to the detail on January 20, 2007, went to the police station to process an arrest, leaving the assigned area without a police presence. As a result, appellant claims, the officers failed to deter a shooting that occurred at the nightclub and that led to its closure and revocation of its liquor license. The trial court granted summary judgment in favor of the District, concluding that "no reasonable person could have foreseen at the time of the contract formation that if the police were not present, a person would commit a criminal act inside the [nightclub] and that, at least partially as a result of that shooting, the [nightclub] would lose its liquor license."

Appellant contends that the trial court erred in granting summary judgment. The District defends the trial court's unforeseeability ruling, but it also argues that summary judgment was warranted on the alternative ground that appellant failed to present evidence of a "contract with terms that would be breached by the conduct he alleged." We agree with the District that summary judgment was warranted on that alternative ground. We therefore affirm the order of summary judgment.


The complaint alleges the following background facts: Appellant did business as Smarta Broadway 1919 Club, located at 1919 9th Street, N.W. In late 2006, appellant and other business owners doing business on 9th Street formed "The 9th Street Business Association" (the "Association"). The Association entered into an agreement with the MPD under which MPD was to provide two uniformed MPD officers in marked police cars to be stationed on 9th Street, near its intersection with U Street, N.W., on Friday and Saturday nights between the hours of 10:00 p.m. and 4:00 a.m., "as a deterrent." "As a member of the [A]ssociation, " appellant "contributed to the payment of the fee associated with the retention of the [officers]."

In the early morning hours of January 20, 2007, a young woman was ejected from appellant's club for smoking marijuana. Shortly thereafter, Jamel Mackabee, the young woman's boyfriend, seeking revenge, "entered [appellant's] establishment by brandishing a gun at the entrance, " which was "located at or near where the reimbursable detail would have been located had they been on duty." As Mackabee forced his way into the club, "a ruckus broke out that would have been seen by the members of the reimbursable detail had they been on duty." Mackabee shot at one of the club's security guards but, missing his intended target, fatally shot a 17-year-old named Taleisha Ford.[1] Immediately after the shooting, the Mayor "vowed to shut down [appellant's] establishment[.]" At 5:00 p.m. the same day, the Chief of Police closed down the club and sought the revocation of appellant's liquor license.[2] The sole count of the complaint asserts that "[a]s a result of the defendant[']s breach of contract, [appellant's] establishment has been shuttered and he has suffered actual and foreseeable damages []" of "no less than $5, 000, 000 for breach of contract and breach of the duty of good[]faith and fair dealing."

There is no dispute that, at the time of the shooting and the events leading up to it, the MPD reimbursable-detail officers were away from the 9th and U Streets location because, after arresting an individual just outside appellant's club (on a bench warrant for assault with intent to kill), they had gone to their police station to process the arrest. The complaint asserts that if the officers had remained on patrol in the assigned area, they "would have acted as a deterrent and would have been in a position to intervene as Mr. Mackabee attempted to force his way into" appellant's club.[3]

In a series of motions, the District sought summary judgment on several grounds, including that appellant had "failed to produce the purported contract" and failed to "establish the existence of a valid contract between himself and the District." In opposing summary judgment, appellant pointed to three documents as evidence of the contract. The first document is an unsigned MPD invoice for an "event" identified as the "9th Street Overtime Club" and a location identified as "9th & U ST NW." The invoice shows a "Date Received" of "Dec. 26, 2006" and lists the name of an "Event Organizer Advised of Estimated Cost of Police Services" ("Yeshiemebet Belay") for several dates (December 29 and 30, 2006, and January 5, 6, 12, 13, 19, and 20, 2007). Entries on the same lines as December 29, 2006, and December 30, 2006, show as "Times" the hours "2200-0400." No times are listed for the other dates, but a column labeled "# of Hours" contains the entry "6" for each of the listed dates. The invoice quotes a percentage of "grand total due immediately" and a "remainder balance due after the event."

The second document to which appellant pointed as evidence of the contract consists of transcript pages from testimony given by MPD Third District Commander Larry McCoy during the ABC Board proceedings. Commander McCoy agreed that "on the date of [the] shooting two persons from the [MPD] were to be stationed . . . in [the] block of 9th Street where [appellant's] club is located, " that "[t]here was a detail assigned to 9th Street over time, " and that merchants "were charged to have those two police officers in that location." The third document is a copy of a check dated January 5, 2007, drawn by appellant and made ...

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