Wichita — The city has lost its fight to keep a sculpture erroneously included in an auction of surplus property last year.
The stainless steel "Upright Form V" is a 1981 work by New York minimalist sculptor James Rosati. Two of the four pieces that make up the artwork were unintentionally mixed in with items being disposed of at the auction held last Oct. 2, city officials said.
Wichita resident Matthew Cuellar bid $45 at the auction and obtained the two pieces. He then made a successful bid of $233 for the other two parts of the sculpture, but by then the city realized its mistake, wouldn't accept the bid and refused to turn them over.
Cuellar sued the city, and Sedgwick Country District Judge Mark Vining ruled in his favor Wednesday after a one-day trial. Vining said Wichita must give Cuellar the pieces of the sculpture in return for the $233 that he offered.
Wichita is thinking about an appeal, city attorney Gary Rebenstorf said.
"We're very disappointed with the judge's decision," he said. "We don't agree with it. The sculpture belongs to the city of Wichita, it belongs to the people of Wichita, not Mr. Cuellar. He should have never been in possession of it."
Kurt Harper, who represented Cuellar and an associate, Jason Rogers, said Cuellar planned to pay the money and take possession, but he did not know what he will do with the sculpture.
"The conclusion generally was that the city had the opportunity to know what was being offered at auction, that it was there for everyone to see, my client identified the property he was interested in, he presented the highest bid, the bidding was closed and it was announced as sold," Harper said. "That constituted a sale."
The sculpture has not been appraised recently, but officials have said it could be worth as much as $30,000.
Dora Timmerman, who was on the public art advisory board when the sculpture was purchased, said she was disappointed with both the city for making the mistake and Cuellar for taking advantage of it.
"I appreciate that he probably was on legal grounds, but I think the moral ground, the ethics of it, would suggest that he be gracious enough and generous enough to say, 'I understand it was a mistake' and give it back," she said.
Timmerman had hoped the sculpture would be displayed near another Rosati work, "Tripodal," outside Century II.