Brannan & Guy, PC v. City of Montgomery

• Decision Date: 01 March 2002
• Parties: BRANNAN & GUY, P.C., and Gunter Guy, Jr. v. CITY OF MONTGOMERY.
• Court: Alabama Supreme Court

828 So.2d 914

BRANNAN & GUY, P.C., and Gunter Guy, Jr. v. CITY OF MONTGOMERY.

1002092.

Supreme Court of Alabama.

March 1, 2002.

J. Bernard Brannan, Jr., of Brannan & Guy, P.C., Montgomery, for appellants.

Wesley Romine and Roger S. Morrow of Morrow, Romine & Pearson, P.C., Montgomery, for appellee.

HARWOOD, Justice.

Brannan & Guy, P.C., and Gunter Guy, Jr. (hereinafter jointly referred to as "the defendants" and individually referred to as "the firm" and "Guy"), appeal the trial court's summary judgment for the City of Montgomery (hereinafter referred to as "the City"). We affirm.

On November 13, 2000, the City filed a complaint seeking a judgment declaring what amount, if any, the City was due to be reimbursed for payments made to the defendants for legal services performed by them, and declaring what rate the defendants were entitled to receive from the City for legal services in pending cases in which the defendants were involved.¹ The City's complaint alleged that the City had retained the defendants before April 2000 to perform legal services at a rate of $95 per hour for out-of-court work and $120 per hour for in-court work; that on or about April 2000, the defendants began submitting bills to the City reflecting an hourly rate of $175; and that the City did not discover that it had been overcharged by the defendants until approximately September 2000. The City further alleged that the defendants had unilaterally increased their legal fees without the authorization or consent of the City and without notifying the City of their intent to do so; that upon discovering its overpayment to the defendants, the City had notified the defendants that it was entitled to be reimbursed and that it intended to use that reimbursement to offset future charges; and that the defendants had responded by writing letters to the City arguing that they were entitled to the fees based on the $175 hourly rate.

On January 5, 2001, the defendants filed an answer stating that on or about February 20, 2000, Guy had withdrawn as counsel for the City in all the cases he was handling for it and for various city officials, with the exception that he would continue to represent three former employees of the City: former Mayor Emory Folmar, former Fire Chief Wayne Grier, and former Deputy Fire Chief J.L. Fulmer. The defendants stated that those former employees had requested that Guy continue to represent them in cases naming them as defendants in their individual capacities based upon a conflict of interest the former employees believed to exist between them and the current administration; that the City was obligated to defend and indemnify the three former employees; and that Guy had made the City aware of the former employees' request and had filed notices of appearance to represent them in their individual capacities. The defendants further stated that, upon their information and belief, the City had employed two attorneys to represent it at hourly rates of $175 and $200; that when Guy filed notices of appearance for the three former employees, he informed Tim McCollum, who then served as city attorney, that his billing rate in those cases would be $175 per hour; that McCollum never objected to this rate and the City paid this rate for services billed on six occasions from March 2000 to August 2000; and that the City therefore had notice of the $175 per hour rate before August 2000 and was obligated to pay outstanding bills submitted at that rate.

On April 24, 2001, the defendants filed a motion for a summary judgment; attached to the motion were affidavits by McCollum and Guy and a supporting brief. The defendants argued that, pursuant to § 11-47-24, Ala.Code 1975, the City was obligated to defend and indemnify the three former employees in ongoing litigation arising out of their official duties; that a unilateral contract came into existence when Guy made an offer to McCollum to represent the former employees at a rate of $175 per hour, the lower of the two rates the City was paying attorneys to represent it in the same litigation in which former Mayor Folmar was involved; that there was an acceptance of the offer, evidenced by McCollum's allowing the defendants to represent the former employees and the City's paying for services billed on six occasions; and, in the alternative, that the defendants were due to be paid an amount of $39,943.08, on the theory of quantum meruit, or the City would be unjustly enriched.

On May 18, 2001, the City filed a cross-motion for a summary judgment and a memorandum of law with supporting affidavits and exhibits.² The City argued that McCollum did not have the authority to accept Guy's offer to represent the three former employees at an increased rate of $175 per hour and that this authority belonged solely to Mayor Bobby Bright; that upon taking office, Mayor Bright had set the approved hourly rate for legal services at $90 for out-of-court time and $120 for in-court time, with the exception of two attorneys for whom then Mayor Folmar had authorized a higher rate before he left office, and that in those suits involving those two attorneys, Folmar, before leaving office, had authorized Guy to be paid only $95 per hour; that a letter dated February 18, 2000, was sent to Guy stating Mayor Bright's authorized rate of $90 per hour, but the firm began billing at the $175 per hour rate in March 2000. The City further asserted that McCollum never brought Guy's request to charge a fee that exceeded the authorized amount to the attention of Mayor Bright, and that the City's risk manager, Jeff Downes, became aware of the unauthorized charges only when he found that the City had been charged significant legal fees in certain cases and requested copies of bills that had been submitted to RSKCO Claims Services, Inc., the administrator of the City's self-insured liability program. The City stated that it thereafter applied the alleged overcharges against monthly bills received from the firm, and it contended that the defendants owed the City a balance of $4,607.63. On May 23, 2001, the City filed a response to the defendants' motion for a summary judgment; in its response it adopted the statement of facts, memorandum of law, and exhibits filed with its cross-motion for a summary judgment.

On July 31, 2001, the trial court entered an order that stated, in pertinent part:

"The question presented to this Court for decision involves an attorney's fee dispute between the City of Montgomery, Brannan & Guy, P.C., and Gunter Guy. The core issue for decision by this Court is whether Gunter Guy, a member of Brannan & Guy, P.C., was legally authorized to perform legal services for the City of Montgomery at an hourly rate of $175.00 per hour, commencing in March of 2000, for his representation of three former employees of the City of Montgomery in various lawsuits, or whether Brannan & Guy, P.C., and Gunter Guy were authorized to only charge $90.00 per hour out of court and $120.00 per hour in court as expressly authorized in writing by the City of Montgomery and/or as ordered and directed by the Mayor for the City of Montgomery. In making its decision, the Court has read and studied the affidavits and evidentiary submissions and the briefs and legal authorities cited by the parties to this action and has considered the oral arguments made on said motions.

"After careful review of the facts and evidence, the Court finds that it is undisputed from the evidence that, at all times material to this lawsuit, only the Mayor of the City of Montgomery had the authority to set the rates for attorneys who were performing services for not only the City of Montgomery, but also for agents and employees of the City of Montgomery for whom the City of Montgomery was providing a legal defense. The Court further finds that Defendants knew or should have known that only the Mayor of the City of Montgomery had the authority to set the hourly rates for attorneys representing the City of Montgomery and its agents or employees. The uncontraverted evidence makes clear that the Mayor of the City of Montgomery, at no time, approved, verbally, or in writing, the Defendants' hourly charge of $175.00 an hour.*

"The evidence presented to the Court establishes, moreover, that the only written authorization for the setting of attorney's fee rates was issued at the direction of the Mayor of the City of Montgomery expressly advising attorneys representing the City of Montgomery and its employees that the amount that would be paid for their representation would be at the rate of $90.00 per hour out of court. It is undisputed that Brannan & Guy, P.C., and Gunter Guy received a copy of that memorandum. The evidence is further undisputed that the Mayor of the City of Montgomery subsequently expressly authorized a $120.00 per hour rate for time spent by attorneys in court.

"Based on these uncontraverted facts, the Court finds that the Defendants were not authorized to change their hourly rate and increase it to $175.00 per hour, and that such action by the Defendants in increasing their charges without authority did not create a unilateral contract. The Court further finds that the City's having paid such sums for a period of time was done innocently and did not constitute ratification. The Court finds no merit in the Defendants' argument that the former City Attorney had `apparent' authority which would somehow bind the City of Montgomery to pay an increased hourly rate for Gunter Guy and Brannan & Guy, P.C.**

"The Court further finds that the City of Montgomery was justified, upon discovering the overcharge, to begin a process of recouping the overcharge by setting off the amount of the overcharge against subsequent bills submitted by Brannan & Guy, P.C. This being the case, and since substantially all the monies have been recouped by the City, the Court finds that the City has been substantially and adequately reimbursed for the amount of

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