Jane Koler/land Use & Property Law, Pllc, Apps V. City Of Black Diamond, Et Ano., Resps

THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
JANE KOLER/LAND USE & PROPERTY No. 82119-9-I
LAW, PLLC, a Washington Professional (consolidated with No. 82161-0-I)
Limited Liability Company, ANNE
BREMNER/FREY BUCK, P.S., a DIVISION ONE
Washington Professional Service
Corporation, and DANIEL GLENN/GLENN PUBLISHED OPINION
& ASSOCIATES, P.S., a Washington
Professional Service Corporation,
Appellants,
v.
CITY OF BLACK DIAMOND, a
Washington municipal corporation, and
CAROL BENSON, a married woman,
Respondents.
ANDRUS, A.C.J. — Attorneys Jane Koler, Daniel Glenn and Anne Bremner,
and their affiliated law firms, appeal the dismissal of their contract action against
the City of Black Diamond (the City) and its mayor, Carol Benson. The attorneys
brought suit to collect unpaid legal fees incurred under contracts executed by
former city councilmembers. The trial court held the mayor had the exclusive
authority to appoint a city attorney under RCW 35A.12.090 and the
councilmembers lacked the authority to retain additional legal services at public
No. 82119-9-I/2
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expense under State ex rel. Steilacoom v. Volkmer, 73 Wn. App. 89, 867 P.2d 678(1994). It concluded that the legal services agreements with all three law firms
were invalid.
We hold that the mayor did not have the authority to appoint a city attorney
under RCW 35A.12.090 because the city council had not passed an ordinance
making the position an “appointive officer” as required by RCW 35A.12.020. The
City obtained legal services by “reasonable contractual arrangement” authorized
by RCW 35A.12.020, and the legislature has placed the power to enter into such
contracts, under RCW 35A.11.010, with the city council, not the mayor. The city
council had the authority to execute legal services contracts with these law firms
and the mayor lacked veto power to reject the council’s decision. We therefore
reverse the trial court’s order granting summary judgment in favor of the City.
FACTUAL BACKGROUND
In March 2014, the City of Black Diamond contracted for municipal legal
services with Carol Morris and her law firm. The city council passed Resolution
No. 14-933, recognizing that the mayor had “appointed” Morris and her law firm “to
the position of City Attorney” and confirmed the mayor’s “appointment.” By
Resolution No. 14-934, the council authorized the mayor to enter into a
professional services agreement with Morris. The then mayor, Dave Gordon,
executed the contract with Morris the following day.
The scope of work attached to the contract identified Morris as “the City
Attorney.” It tasked her with “performing routine legal work for the City,” including
preparing draft ordinances, agreements, resolutions, and other legal documents
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requested by the City, and providing legal advice to the mayor and
councilmembers.
In April 2016, a majority of the five-member city council—former
councilmembers Pat Pepper, Erika Morgan, and Brian Weber—expressed
dissatisfaction with Morris’s legal advice and passed a resolution terminating her
contract. Mayor Carol Benson stamped this resolution “denied” and noted that
“[t]he Council does not have the authority to terminate [a] contract [for] legal
services.” According to the mayor, Morris chose to resign shortly thereafter.
In May 2016, the city councilmembers sought a legal opinion regarding the
competing claims of authority to contract for city attorney services from the law firm
of Talmadge, Fitzpatrick and Tribe. Attorneys Talmadge and Fitzpatrick opined
that under chapter 35A.12 RCW, the city could retain legal counsel through one of
two means—by “appointment” of a full-time or part-time city attorney or by any
reasonable contractual arrangement. But the power to make an appointment, they
concluded, had to be conveyed to a mayor by charter or ordinance, neither of which
existed. They further opined that the power to contract and to terminate contracts
rested with the council.
In June 2016, Mayor Benson selected David Linehan of the law firm,
Kenyon Disend, PLLC, to serve as city attorney. The city council twice voted down
the Kenyon Disend contract the following month, and, on October 6, 2016, passed
a motion stating that Kenyon Disend “is not recognized as the city attorney.” Mayor
Benson refused to recognize these decisions as valid and instead entered into a
series of contracts with Kenyon Disend for legal services as city attorney.
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In December 2016, the council passed a resolution stating that the “serial
contracts by the Mayor for professional services without Council approval are
prohibited.” Nonetheless, Mayor Benson thereafter entered into another series of
legal services agreements with Kenyon Disend, dated January 1, 2017, January
10, 2017, February 14, 2017, and May 1, 2017. Each agreement was capped at
$15,000.
On May 18, 2017, the city council passed Resolution No. 17-1171,
authorizing the retention of Jane Koler of Land Use & Property Law, PLLC (Koler)
and Dan Glenn of Glenn & Associates, P.S. (Glenn) to provide “interim legal
services for the City.” Mayor Benson informed Koler and Glenn that they would
not be paid for any legal services they provided and refused to endorse the
resolution. She added a handwritten notation on the resolution indicating it was
invalid because the council president and mayor pro tem have “no authority to
contract for legal services.”
Despite Mayor Benson’s rejection of Resolution No. 17-1171, on June 17,
2017, the city council passed a resolution discharging Kenyon Disend. Pat
Pepper, the city council president, and Erika Morgan, another councilmember,
acting in her capacity as mayor pro tem, then executed contracts with Koler and
Glenn to provide legal services to the City. The contracts were identical to the one
the council had previously approved for Morris.
On July 6, 2017, the city council authorized litigation to enforce the legal
services contracts it had signed. A month later, the council passed Resolution 17-
1182, authorizing a contract with attorney Anne Bremner. Bremner’s contract
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required her to “provide legal services to the City Council” and “shall be principally
responsible for performing services related to actions beyond the scope of Mayor
Benson’s lawful authority and associated actions or failure to act.” Once again,
Mayor Benson rejected this resolution, noting that the “council has no contracting
authority.”
In October 2017, Bremner filed a lawsuit in King County Superior Court on
behalf of the city council against Mayor Benson seeking to compel her to honor the
council’s contracts with Koler and Glenn. 1
The following month, the City held elections for mayor and two council
positions. Mayor Benson was reelected and two new councilmembers, generally
aligned with Benson, were elected. In January 2018, the new city council voted to
repudiate the Koler, Glenn, and Bremner contracts and instructed Bremner to
withdraw the case against Benson. The case was voluntarily dismissed with
prejudice.
To date, Koler, Glenn, and Bremner have not been paid by the City for any
work performed pursuant to their contracts.
In April 2019, Koler, Glenn, and Bremner filed this lawsuit seeking injunctive
and declaratory relief as well as monetary damages for the City’s breach of their
contracts. The trial court granted the City’s motion for summary judgment,
concluding that Mayor Benson had the power to appoint a city attorney, and the
city council had no authority to contract for additional legal services. It dismissed
1 City Council of Black Diamond v. Carol Benson, No. 17 - 2-26654-0-KNT.
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the attorneys’ lawsuit against the City and awarded attorney fees to the City. The
attorneys appeal.
ANALYSIS
Appellate courts review a summary judgment order de novo and perform
the same inquiry as the trial court. Borton & Sons, Inc. v. Burbank Props., LLC,
196 Wn.2d 199, 205, 471 P.3d 871 (2020). A moving party is entitled to summary
judgment “if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact.” CR 56(c). This court views all facts and reasonable
inferences in the light most favorable to the nonmoving party. Owen v. Burlington
N. and Santa Fe R.R. Co., 153 Wn.2d 780, 787, 108 P.3d 1220 (2005).
This dispute concerns the power of a mayor and city councilmembers to
hire and fire city attorneys. We conclude that the mayor lacked the authority to
“appoint” a city attorney under RCW 35A.12.090 because the city council had not
passed an ordinance making the city attorney an “appointive officer” under RCW
35A.12.020. As a result, the city council had the authority under RCW 35A.11.010
to terminate Kenyon Disend’s contract and to hire Koler and Glenn. We further
conclude the city council had the implied authority to retain the services of special
counsel to litigate the validity of the mayor’s actions.
A. The Black Diamond City Attorney is Not an “Appointive Officer”
The City contends the mayor has exclusive authority to determine who will
act as the city attorney because she has the power of appointment under RCW
35.12.090. We reject this argument because the mayor only has this power if the
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city council has granted it to her by ordinance. No such grant of authority exists
here.
The City of Black Diamond is a “noncharter code city” with a “mayor-council
plan of government.” Black Diamond Municipal Code (BDMC) § 1.08.010.
Noncharter code cities are subject to the provisions of the Optional Municipal
Code, Title 35A RCW. RCW 35A.01.020. Chapter 35A.12 RCW sets out the
powers of city mayors and councils.
RCW 35A.12.190, entitled “powers of council,” provides that a city council
under a mayor-council plan of government “shall have the powers and authority
granted to the legislative bodies of cities governed by this title, as more particularly
described in chapter 35A.11 RCW.” RCW 35A.11.010 expressly grants to a city’s
“legislative body” the power to “contract and be contracted with.” RCW 35A.11.020
further provides that the “legislative body” has “all powers possible for a city or
town to have under the Constitution of this state, and not specifically denied to
code cities by law,” and may “organize and regulate its internal affairs.” The City’s
“legislative body” is its five-member elected council. RCW 35A.12.010.
RCW 35A.12.020 requires a city to provide for “appointive officers” through
charter or ordinance. It separately authorizes a city to provide legal services
through one of two ways:
Provision shall be made for obtaining legal counsel for the city, either
by appointment of a city attorney on a full-time or part-time basis, or
by any reasonable contractual arrangement for such professional
services.
If a city council has chosen to make the city attorney an “appointive officer,”
then RCW 35A.12.090 gives the mayor the power to hire and fire such officers:
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The mayor shall have the power of appointment and removal of all
appointive officers and employees subject to any applicable law,
rule, or regulation relating to civil service . . . . Confirmation by the
city council of appointments of officers and employees shall be
required only when the city charter, or the council by ordinance,
provides for confirmation of such appointments. Confirmation of
mayoral appointments by the council may be required by the council
in any instance where qualifications for the office or position have not
been established by ordinance or charter provision.
In other words, if an ordinance or charter provision gives the mayor the power to
appoint this officer, then the mayor may do so. If, however, no ordinance or charter
provision gives the power of appointment to the mayor, then the city may provide
for legal services of a city attorney through “any reasonable contractual
arrangement.”
This reading of RCW 35A.12.020 and 35A.12.090 is consistent with AGO
1997 No. 7, which opined that “if the city charter or a city ordinance provides for
the appointment of a city attorney, then the mayor has authority to choose the city
attorney.” 1997 Op. of the Att’y Gen. No. 7. 2 If, however, the city council has not
made the city attorney an “appointive officer,” then it is the council who retains the
authority to make a “‘reasonable contractual arrangement’” for such professional
services. See Id.
The City argues that its city attorney is an “appointive officer” under RCW
35A.12.020. We disagree for three reasons. First, the City, a noncharter city, has
not passed an ordinance making the city attorney an appointive officer. Although
the city council had, prior to 2019, passed ordinances referring to the duties to be
performed by a city attorney, none actually created the position as an appointive
2 Available here: https://www.atg.wa.gov/ago-opinions/cities-and-towns-lawyers-manner-which-
optional-municipal-code-city-provides-legal.
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officer. 3 In contrast, the city council passed ordinances explicitly creating the office
of the city administrator and the office of the police chief, appointed by and subject
to the control of the mayor. BDMC §§ 2.10.010, 2.16.010. No similar ordinance
exists creating the office of city attorney. The 2019 city council conceded as much
when, in passing Ordinance No. 19-1124, it recognized that “the Black Diamond
Municipal Code currently lacks any provisions governing the process for selecting
and retaining a City Attorney.” 4
Second, the Black Diamond code requires appointive officers to receive a
salary and sets a maximum term of one year for such officers; these provisions
conflict with the terms of the attorneys’ contracts. Under Chapter 2.08, entitled
“Appointive Officers and Employees Generally,” appointive officers “shall receive
such salaries as may be provided from time to time by ordinance.” BDMC §
2.08.060. An appointive officer receiving such a salary “shall hold office for a term
of one year or until his successor is appointed and qualified.” BDMC § 2.08.030.
None of the legal services agreements signed by Morris, Kenyon Disend, Koler,
Glenn, or Bremner provided for the payment of a salary or set a term consistent
3 The City cites to BDMC §§ 1.12.010(C) (giving “the city attorney” discretion to treat code violations
as civil violations); 2.62.019 (setting rates for “city staff time” for processing development proposals,
including “city attorney”); 2.66.020 (providing that legal defense of City officials “shall be provided
by the office of the city attorney” unless a conflict requires retention of outside counsel, in which
case the City will indemnify the official but not in excess of the “hourly rate of the city attorney”);
17.20.010(H) (giving “the city attorney” authority to approve title insurance policies submitted for
subdivision plats); and 19.24.080(B) (“Conservation easements shall be on a form approved by the
Black Diamond City Attorney”). None of these provisions designated the city attorney as an
appointive city officer; they merely describe duties that anyone retained in that position will perform.
4 In August 2019, the City passed an ordinance stating that “The city attorney shall be selected by
the mayor with confirmation by the council, and shall serve at the pleasure and under the primary
direction of the mayor.” BDMC § 2.14.020. Prior to that date, the BDMC lacked any provisions
governing the process of selecting a city attorney.
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with BDMC § 2.08.030. All of the agreements were terminable at will on either 30
or 60 days’ notice.
Finally, the terms of the legal services agreements that the mayor signed
before this dispute arose are more consistent with RCW 35A.12.020’s
contemplated alternative method of obtaining legal advice through a “reasonable
contractual arrangement for such professional services,” than with the notion that
they served as an appointed city officer. For example, the legal services
agreement executed by Morris identified her as an “independent contractor.” Her
law firm, as well as Linehan’s firm, was required to bill the city on an hourly basis,
to indemnify and hold the City harmless from their negligence, and to maintain
professional liability insurance. The indemnification provisions in the legal services
agreements directly conflict with BDMC § 2.66.020 in which the City assumes the
duty of indemnifying its employees and appointed officers for claims against them.
None of these agreements identified Morris or Linehan as an appointed city officer.
Because the city council did not, by ordinance, provide that the city attorney
is an appointive officer, RCW 35A.12.090 did not confer on Mayor Benson the
exclusive authority to contract for legal services.
B. The City Council Had the Authority to Terminate Linehan and Hire Koler and
Glenn as City Attorney
The attorneys maintain that if RCW 35A.12.090 does not apply, the city
council had the primary authority to contract for legal services and to terminate
Linehan’s firm and retain Koler and Glenn. We agree.
First, a mayor’s power to contract on behalf of a city is limited to the authority
given to her by the city council. RCW 35A.12.100 provides:
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The mayor shall be the chief executive and administrative officer of
the city, in charge of all departments and employees . . . . He or she
shall see that all laws and ordinances are faithfully enforced and that
law and order is maintained in the city, and shall have general
supervision of the administration of city government and all city
interests . . . . He or she shall see that all contracts and agreements
made with the city or for its use and benefit are faithfully kept and
performed.
While this statute gives the mayor the authority to supervise city contracts, it does
not confer the authority to enter into contracts on behalf of the city in the absence
of a charter provision or ordinance delegating such authority to her. The mayor’s
authority is limited to ensuring the contracts are performed.
In this case, the Black Diamond City Council has delegated some
contracting authority to its mayor through BDMC § 2.90.010(B), which allows the
mayor to execute professional services contracts for $15,000 or less, “if there is
money to cover cost of services and the services are specifically included as a line
item in the city’s budget.” Mayor Benson clearly relied on this authority when she
executed contracts with Kenyon Disend beginning in June 2016, because each
contract provided that “[t]otal compensation for services associated with this
agreement shall not exceed $15,000.” But the mayor’s limited contracting authority
is derivative of and subordinate to the council’s primary authority to enter into
contracts granted under RCW 35A.11.010.
Because the city council had primary authority to enter into contracts on
behalf of the City, it also has the authority to specify a contract’s duration and the
right to terminate it. The legal services agreement with Kenyon Disend provided
that “[e]ach party shall have the right to terminate this Agreement, with or without
cause, upon sixty days’ written notice.” The “parties” to the agreements were
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identified as “the City,” (not the mayor) and Kenyon Disend. The city council, acting
on behalf of the City, had the statutory power to pass resolutions in June 2017
discharging Kenyon Disend and hiring Koler and Glenn.
Although Mayor Benson purported to invalidate these resolutions, the City
does not dispute that she lacks the statutory authority to veto resolutions passed
by the city council or contracts the council had the authority to execute. 5 Under
RCW 35A.12.100, the mayor possesses the authority to veto “ordinances” passed
by the City council; that power does not extend to resolutions. 6 A majority of
councilmembers passed resolutions ending the Kenyon Disend agreement and
authorizing the execution of agreements with Koler and Glenn. Their decision to
terminate Linehan’s services and to hire Koler and Glenn and to do so via
resolution was not subject to the mayoral veto power.
We thus conclude that the city council’s resolution terminating the legal
services of Kenyon Disend was valid and after taking this action, nothing prevented
the council from contracting with Koler and Glenn to fill the city attorney position.
C. The Councilmembers Had the Legal Authority to Retain Special Counsel to
Litigate the Validity of the Mayor’s Actions
The City contends that because it had a valid contract with Kenyon Disend
for city attorney services, the council could not contract for additional legal services
to challenge the mayor’s conduct. But because Mayor Benson lacked the authority
5 At summary judgment, the City’s attorney conceded that the mayor did not have the authority to
veto resolutions or contracts.
6 RCW 35A.12.100 states: “The mayor shall have the power to veto ordinances passed by the
council and submitted to him or her as provided in RCW 35A.12.130 but such veto may be
overridden by the vote of a majority of all councilmembers plus one more vote.” No provision of
the Optional Municipal Code or BDMC provides that the mayor possesses similar authority to veto
resolutions.
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to reject the City’s valid contracts with Koler and Glenn, we conclude that the
councilmembers were justified in seeking additional legal services.
“As a general rule, when a municipal corporation has legal counsel charged
with a duty of conducting the legal business of a government agency, contracts
with other attorneys for additional or extra legal services are void.” Volkmer, 73
Wn. App. at 94. But Washington courts have recognized exceptions to this general
rule. In Wiley v. City of Seattle, 7 Wash. 576, 35 P. 415 (1894), the city’s legislative
body passed an ordinance authorizing the issuance of illegal bonds based on the
advice of the city attorney. Id. at 577. When the mayor vetoed the ordinance, the
legislative body overcame the veto with a unanimous vote based on the city
attorney’s advice and then obtained a writ of mandamus requiring the mayor to
sign the bonds. Id. When the city attorney refused to defend the mayor in the
mandamus action, the mayor hired outside counsel and successfully established
the illegality of the bonds. Id. The city then refused to pay the legal fees of the
mayor’s counsel. Id.
The Supreme Court recognized the case demonstrated “an emergency in
the affairs of a municipal corporation” and in such emergencies, “where both the
legislative and the judicial departments of the city [were] arrayed against its chief
executive, to compel him to perform an illegal and unconstitutional act,” the mayor
had the authority to hire outside counsel to resist these illegal acts. Id. at 578-79.
The court reasoned:
The mayor was then in this position: The constitution, the statute law,
and the charter itself forbade him to sign the bonds, or do anything
towards putting them in circulation, and, under the solemnity of his
official oath, he was bound to obey; but, on the other hand, the
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ordinance passed over his veto by unanimous votes, and the
alternative writ of mandamus from the court commanded him to
proceed. It was a most important case, involving the city’s liability
for more than $700,000, which no man in official position ought to be
required to submit to a court without legal assistance.
Id. at 578. The Supreme Court said “the city’s business [] was in jeopardy,” and
the mayor was bound to employ counsel and bound to pay for the reasonable value
of the legal services he obtained. Id. at 579. “That he was so bound we consider
to be demonstrated by the success of the defense, which proved the correctness
of his position, and saves the city from an immense apparent liability.” Id.
In City of Tukwila v. Todd, 17 Wn. App. 401, 563 P.2d 223 (1977), the
Tukwila City Council sued the mayor, Frank Todd, to enjoin him from setting
employee salaries above the level specified in the city’s annual budget. Id. at 402.
Because the council believed the city attorney to be biased in favor of Todd, it hired
special counsel to file the lawsuit. Id. at 403. The court concluded that Todd’s
actions were illegal under the statutory framework in effect at the time. Id. at 405.
Based on the trial court’s finding that the sitting city attorney was biased on behalf
of the executive branch, and its conclusion that the mayor lacked authority for his
actions, the court concluded the city council was justified in hiring independent
legal counsel at public expense. Id. at 406-07.
More recently, in Volkmer, Division Two of this court described the two
exceptions recognized in Wiley and Todd in this way:
One, if the council hires outside counsel to represent it, and it prevails
on the substantive issue to the benefit of the town, a court may direct
the town to pay the reasonable fees and costs of outside counsel.
Two, if extraordinary circumstances exist, such that the mayor and/or
town council is incapacitated, or the town attorney refuses to act or
is incapable of acting or is disqualified from acting, a court may
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determine that a contract with outside counsel is both appropriate
and necessary.
73 Wn. App. at 95. In that case, the Steilacoom town council passed a resolution
finding that it needed to retain independent legal counsel to render advice
regarding the mayor’s authority to schedule a public hearing on a variance request
for the town’s improvements to “First Street.” Id. at 91-92. It also passed a
resolution hiring outside counsel and authorizing the payment of the attorney’s
services with public funds. Id. The mayor refused to sign the resolution,
concluding it was illegal. Id. at 93. The counsel then initiated a mandamus action
to force the mayor to sign the resolution. Id. The council contended that the mayor
had a nondiscretionary duty to sign the resolution and that, in light of the mayor’s
failure to fulfill that duty, the council had the implied authority to retain private
counsel in its dispute with the mayor because of its perception that the town’s
attorney could not provide impartial advice. Id.
The court rejected the council’s argument that the mayor was obligated to
sign any resolution, holding that “[w]hile we agree that the Mayor has a ministerial
duty to sign valid ordinances passed by the Council, that duty does not apply to
invalid ordinances.” Id. It then concluded that neither Wiley nor Todd applied to
Steilamcoom because “[i]n both of these cases, the underlying substantive issue
was resolved in favor of the party soliciting outside counsel before the court
approved the expenditure of public funds for outside counsel.” Id. at 96. In
Volkmer, the court said, the council did not seek a judicial resolution of its plenary
authority over street improvements or a judicial determination that an emergency
existed justifying the retention of outside counsel. Id. at 96-97. Volkmer thus
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limited the two exceptions to circumstances in which the underlying legal dispute
is resolved in favor of the party retaining special counsel.
The City argues that under Volkmer, it cannot be held liable for Bremner’s
legal fees because the lawsuit she initiated on behalf of the city council was
dismissed with prejudice without a ruling in the council’s favor. But we have
concluded that the mayor lacked the legal authority to reject the council’s
resolutions discharging Kenyon Disend and approving the contracts with Koler and
Glenn. The lawsuit Bremner was hired to initiate was not dismissed on its merits
but was withdrawn at the request of a newly elected city council. Had that matter
proceeded to a decision on the merits, the city council would have prevailed.
We conclude that this case is analogous to Todd, in which a court was
asked to determine whether the mayor acted illegally and whether the conflict
between the executive and legislative branches justified the retention of private
legal counsel to adjudicate the validity of the mayor’s actions. Todd, 17 Wn. App.
at 405-07. Here, the city council hired Bremner to challenge Mayor Benson’s
power to reject City contracts for legal services. And it seems apparent to us that
the city council had a basis for seeking independent counsel because the dispute
directly involved Mayor Benson’s authority to retain the attorney she selected as
city attorney. Linehan clearly supported the mayor’s actions, but also recognized
in a 2016 email to the city councilmembers that their dispute with the mayor
probably justified hiring special counsel to litigate the matter. He wrote:
[A] reasonable argument exists that the circumstances currently
confronting the City of Black Diamond may well fall into the narrow
category of situations recognized by Washington courts wherein the
City Council may enter into separate contracts for independent legal
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counsel on a particular matter. Specifically, where the Council and
the Mayor disagree over the legal validity of certain actions or
practices, I believe most (but not all) courts would likely recognize a
sufficient need for an independent counsel to be retained to advise
the Council, and for the City to pay this expense.
Because there were clear disputes between the mayor and city council
regarding the legality of the mayor’s conduct and the city council would have
prevailed in the lawsuit initiated by Bremner had it proceeded to final resolution,
we conclude the council had the authority to contract with Bremner under
Volkmer. 7 We reverse the trial court’s order granting summary judgment for the
City and remand for further proceedings consistent with this opinion. 8
WE CONCUR:
7 We decline to reach the City’s alternative arguments that the attorneys’ failure to obtain a city
business license constitutes a material breach and renders the contracts illegal. The trial court did
not decide this issue and, on this record, we cannot conclude as a matter of law that any of the
attorneys materially breached their contracts by failing to obtain a city business license.
8 The trial court awarded attorney fees and costs to the City under the prevailing party fee provision
in the attorneys’ contracts. Because we reverse the trial court’s order granting summary judgment
for the City, we also reverse the award of fees and costs.
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