IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
TERRI BLOCK, as guardian of SARAH BLOCK, Appellant,

v. THE LAW OFFICES OF BEN F. BARCUS &ASSOCIATES, PLLC, a 

### Washington professional limited liability company; BEN F. BARCUS and JANE DOE BARCUS, individually and the 

### marital community comprised thereof; LEGGETT & KRAM, a Washington partnership; PETER KRAM and JANE DOE KRAM, individually and the marital community comprised thereof, Respondents. No. 71742-1-1 DIVISION ONE

UNPUBLISHED FILED: July 27, 2015



### Cox, J. — Terri Blockappeals the summaryjudgmentdismissal of her claims forbreach of fiduciary duty and legal malpractice against Ben F. Barcus, 

### Peter Kram,their respective marital communities, and the respective law firms with whicheach lawyer is associated. Her claims accrued more than three years before she commenced this action. The applicable statutes oflimitations were 

### not tolled. Andthere are no genuine issues of material fact regarding her equitable tollingand estoppel claims. We affirm.No. 71742-1-1/2 

### Terri Block broughtthis action as the guardian ofher daughter Sarah 

### Block. Sarah1 was severely injured in a September 12, 2005 car accident. That
same month, Terri entered into a fee agreement with Ben Barcus and his law firm (collectively "Barcus") to represent Sarah in litigation related to her car accident. Laterthat same month, Terri also entered into a fee agreement with Peter Kram 

### and his law firm (collectively "Kram") to serve as the attorney for Sarah's guardianship. Barcus introduced Kram to Block. 

### ByDecember2005, Barcus obtained substantial settlements on Sarah's behalffrom uninsured motorist claims against an insurer. InMarch 2006, the trial court entered an order approving a petition for disbursement offees from the 

### settlementfund. Early the following month, fees were disbursed to counsel based on this order. 

### Over seven years later, on May 3, 2013, Blockcommenced this action. She alleged four main claims. First, she soughtto voidthe 2005 fee agreement withBarcus on the basis that he allegedly breached fiduciary duties to Sarah. 

### Second, she sought a determination of the reasonableness of the attorney fees 

### paid to Barcus in 2006. Third, she sought forfeiture ordisgorgementof fees based on alleged misconduct ofBarcus and Kram. Fourth, she claimed legal malpractice based on Kram's alleged negligence inrepresentation. Both Barcus and Kram moved for summaryjudgmentdismissal on statute 

### oflimitations grounds. The courtgranted their motions and dismissed Block's claims in their entirety. The court also denied Block's motion for reconsideration. Block appeals. 

### 1Due to the similarity innames, we use firstnames for clarity. 2No. 71742-1-1/3
STATUTES OF LIMITATIONS Block argues thatthe trial court applied the wrong statutes oflimitations to her claims. We disagree. Summaryjudgment is appropriate when no genuine issue ofmaterial fact 

### exists and the moving party is entitled tojudgment as a matter oflaw.2 When reviewing a summaryjudgment decision, the court looks atthe facts inthe light 

### mostfavorable to the non-moving party.3 This court reviews de novo a grant ofsummaryjudgment.4 This court also reviews de novo whether a statute of limitations bars a claim.5 Block's First and Third Claims 

### Block argues that a six-year statute oflimitations applies to herfirst and third claims. She is wrong. 

### Claims against an attorney for breach of fiduciary duty fall under RCW 

### 4.16.080's three-year statute oflimitations.6 Block's first and third claims are for breach offiduciary duty.

2Camicia v. Howard S. Wright Constr. Co., 179 Wn.2d 684, 693, 317 P.3d 987(2014). 3 Ruvalcaba v. Kwanq Ho Baek. 175Wn.2d 1, 6, 282 P.3d 1083 (2012). 4 Camicia, 179 Wn.2d at 693. 5Bennett v. ComputerTask Grp.. Inc.. 112 Wn. App. 102, 106, 47 P.3d 594 (2002).6Mervhew v. Gillinqham. 77 Wn. App. 752, 755, 893 P.2d 692 (1995).No. 71742-1-1/4 

### Block's complaint labels her first claim as a claim for "voiding the 

### contingency fee agreement" entered intowith Barcus.7 Her complaintalleges that Barcus and Kram owed her fiduciary duties, including duties to disclose conflicts ofinterests. She alleges that Barcus and Kram violated their "duties of 

### disclosure to [Block] as required by RPC [Rules ofProfessional Conduct] 1.4 and 

### 1.5."8 She also alleges that Barcus and Kram violated RPCs 1.7 and 1.8. Based
on these violations, Block seeks to void herfee agreement with Barcus. Because Block's claim is based on alleged violations offiduciary and ethical duties, it is a claim for breach offiduciary duty. This court has recognized that a trial court may "properly consider[] the RPCs to determine whether [an 

### attorney] breached his fiduciary duty."9 Butthe relevant cause of action is for breach offiduciary duty, notfor violation ofthe RPCs. The fact that Block seeks voiding ofthe fee agreement as a remedy does not transform her breach of 

### fiduciary duty claim into something else. Accordingly, the three-year statute of limitations for breach offiduciary duty applies to this claim. 

### Block's complaint labels herthird claim as one for disgorgement offees. She alleges that Barcus and Kram violated multiple RPCs, and seeks disgorgement offees on that basis. This claim, like Block's first claim, is for a breach offiduciary duties. 

### "UnderWashington law, disgorgement offees is a remedy"—not a cause of

7Clerk's Papers at 11. 8id, at 12. 9Cotton v. Kronenberq. 111 Wn. App. 258, 266, 44 P.3d 878 (2002).No. 71742-1-1/5 

### action.10 And it is clear that hercause of actionsounds in the alleged breach of fiduciary duties underthe RPCs. Thus, Block's characterization ofthis claim as something other than a remedy is unpersuasive. Because Block seeks disgorgement as "sanctions for breaches offiduciary duty," the three-year statute of limitations for breach offiduciary duty applies. Here, the order approving the disbursement offunds to pay fees was entered in March 2006. That is when these claims accrued for purposes ofthe three-year statute. Yet, she did not commence this action until May 2013. Thus, Block's claims are barred as untimely. 

### Block argues that a six-year statute oflimitations applies to herfirst and 

### third claims because they are based on the breach of a written contract. Under RCW 4.16.040(1), parties have six years to commence "[a]n action upon a 

### contract in writing, or liability express or implied arising out of a written agreement." But this statute does not apply to Block's claims. This court has stated that RCW4.16.040 applies to "liabilities which are 

### eitherexpressly stated in a written agreementor whichfollow by natural and reasonable implication from the promissory language ofthe agreement, as 

### distinguished fromliabilities created byfictional processes of the law or imported 

### into the agreementfrom some external source."11

10 Bertelsen v. Harris, 537 F.3d 1047, 1057 (9th Cir. 2008) (emphasis added). 11 Davis v. Davis WrightTremaine. LLP, 103 Wn. App. 638, 651, 14 P.3d 146 

### (2000)(quoting Bicknell v. Garrett, 1 Wn.2d 564, 570-71, 96 P.2d. 592 (1939)).No. 71742-1-1/6 

### In this case, the "contractual terms" that Barcus allegedly violated do not 

### come from the terms of the fee agreement. Rather, as pleaded, they come from

an external source—the RPCs. 

### Blockargues that RPC 1.5's prohibition on charging an unreasonable fee 

### is "implied inliterally every attorney's fee agreement inWashington."12 Buteven ifwe believed that Block is correct, which we do not, the RPCs would be terms 

### "imported into the agreementfrom some external source."13 Thus, a claim for the 

### violations ofthe RPCs would not fall underthe six-year statute of limitations. Additionally, the RPCs apply to all attorney-client relationships, regardless ofwhetherthe attorney and client have a written contract.14 RCW 4.16.040 

### applies specifically to claims arising from written agreements.15 Forthese reasons, this argument is unpersuasive. Block also argues that her claims were timely underthe continuous representation rule. Underthis rule, clients' claims againsttheir attorneys are tolled "during the lawyer's representation ofthe client inthe same matterfrom 

### which the malpractice claim arose."16 Buteven if Block's argumentwere correct, which it is not, her claims would stillbe untimely under a three-year statute of limitations because more than three years passed between the end of Barcus's 12BriefofAppellantat26. 13 Davis. 103 Wn. App. at 651. 14 See RPC Scope [17]. 15 RCW 4.16.040. 16Janicki Logging & Const. Co. v. Schwabe. Williamson & Wvatt. P.C.. 109 Wn. App. 655, 664, 37 P.3d 309 (2001).

6No. 71742-1-1/7 representation and when Block commenced her suit. Barcus sent Block a letter 

### withdrawing from her representation on July 29, 2008. Block did not commence 

### her suit until May2013. Thus, we do not considerthis argument any further. Block's Second Claim 

### Block's second claim is for a "determination ofreasonableness ofattorney 

### fees under quantum meruit."17 This claim is dependent upon the voiding of the fee agreement underthe Block's first claim. Blockalleges that "[w]ith the voiding ofthe Barcus contingency fee agreement, Barcus' remedy for compensation is 

### underthe doctrine ofquantum meruit."18 Because Block's first claim is timebarred, we need not address her requestfor a determination of reasonable attorney fees. Additionally, to the extent that Block challenges the reasonableness of Barcus's fees, RCW 4.24.005 bars her claim. Under RCW4.24.005, a party has 45 days to challenge the reasonableness ofattorney fees in a tort case. That statute reads: "Any party 

### charged with the payment ofattorney's fees inany tort action may petition the court not laterthan forty-five days of receipt of a final billing or accounting for a 

### determination of the reasonableness ofthat party's attorneys' fees."19 This court

17 Clerk's Papers at 13. 18 id, 19 RCW 4.24.005.No. 71742-1-1/8 

### has held that this statute functions as a 45 day statute oflimitations on claims that an attorney charged an unreasonable fee.20 In this case, the guardianship court approved the fees Barcus and Kram 

### received in an orderentered March 31, 2006. At this time, Barcus presented an accounting ofthe fees and costs itcharged, and the fees it paid to others, 

### including Kram. But Block did not commence this action until May2013, over seven years later. Thus, she failed to timely challenge the reasonableness ofthe fees. Block's Fourth Claim 

### Block argues thatthe court incorrectly determined that her legal malpractice claim against Kram was barred by the three-year statute of limitations for legal malpractice. We disagree. "InWashington, the statute of limitations period for a legal malpractice 

### claim is three years."21 This period begins to run "when the plaintiffhas a right to seek legal relief," meaning thatthe plaintiff "know[s] the facts that give rise to that

cause ofaction."22 

### One elementof legal malpractice is an attorney-client relationship.23

20 Barrett v. Freise. 119 Wn. App. 823, 848-50, 82 P.3d 1179 (2003). 21 Cawdrev v. Hanson Baker Ludlow Drumheller. P.S.. 129 Wn. App. 810, 816, 120 P.3d 605 (2005). 22 id, at 816-17. 23 Schmidt v.Coogan. 181 Wn.2d 661, 665, 335 P.3d 424 (2014).
8No. 71742-1-1/9 

### Generally, theattorney-clientrelationship ends iftheclienthires a new attorney.24 Here, Block's fourth claim forreliefexpressly states that it isfor legal 

### malpractice. She acknowledges that thisclaim is subject to a three-year statute of limitations. 

### It is undisputed that Block replaced Kram with anotherattorney in 2008. After that point, Kram no longer had an attorney-client relationshipwith Block. Thus, after that point, Kram could no longer commit legal malpractice. Accordingly, the statute oflimitations began to run in November 2008, atthe latest. Because Block did not commence this action until 2013, she failed to timely bring this malpractice claim. Block argues that her claim against Kram was timely for two reasons. 

### First, Block argues that the statute oflimitations began to run in February 2012, when Kram filed a declaration in court opposing Block's suit against Barcus. In the alternative, Block argues that the statute of limitations began to run in November 2011, when Kram provided a copy of Block's file to Block's new attorney. Neither argument is persuasive. Block relies on RPC 1.9 to argue that Kram committed malpractice in 

### 2012. That rule sets forththe duties that lawyers owe to former clients.25 This argument fails for two reasons.

2416 David K. DeWolf& KellerW. Allen, Washington Practice: Tort Law And Practice § 16:29 at 719 (4th ed. 2013). 25 RPC 1.9.No. 71742-1-1/10 

### First, Washington's RPCs state that "principles ofsubstantive law external to these Rules determine whether a client-lawyer relationship exists."26 Thus, Block cannot use an RPC to establish that she still had an attorney-client relationship with Kram. Accordingly, her attorney-client relationship with Kram ended in 2008, when she hired substitute counsel. Second, our RPCs state that a "[violation of a [RPC] should not itselfgive rise to a cause of action against a lawyer nor should itcreate any presumption in 

### such a case that a legal duty has been breached."27 Thus, Block also cannot rely
on a violation ofthe RPCs as a cause of action against Kram. 

### Block also argues thatthe statute oflimitations on her claim did not begin to run until November 2011. Block argues that Kram refused to provide Block his file on her case until that date. But Block's citation to the record demonstrates 

### onlythat he refused to provide her a copy at his expenses, underthe terms of their retainer agreement. He offered to allow her to lookoverthe casefile or to make a copy at herexpenses. Thus, this argument is unpersuasive. TOLLING 

### Block next argues thatthe statutes of limitations on all ofherclaims were tolled undervarious doctrines. We disagree with all of her arguments. RCW 4.16.190 

### Blockargues that RCW4.16.190 indefinitelytolled all four of her claims. We disagree.
26 RPC Scope [17]. 27 id, at [20].
10No. 71742-1-1/11 

### RCW 4.16.190 tolls statutes oflimitations for a person who is "disabled to such a degree that he or she cannot understand the nature ofthe proceedings." 

### This tolling applies even ifthe person has a guardian.28 But this statute does not apply to actions under TEDRA (the Trust and Estate Dispute Resolution Act) ifthe person has a guardian. Under TEDRA: The tolling provisions of RCW 4.16.190 apply to this chapter [TEDRA] exceptthatthe running of a statute of limitations under subsection (1) or (2) ofthis section, or any other applicable statute of limitations for any matterthat is the subject of dispute underthis chapter, is nottolledas to an individual who hada guardian ad litem, limited or general guardian ofthe estate, or a special representative to represent the person during the probate or 

### dispute resolution proceeding.1291 Thus, when a person has a guardian ad litem or general guardian, his or her claims are not tolled for matters that are the subject ofdispute under TEDRA. 

### It is undisputed that Sarah is severely disabled. It is also 

### undisputed that a guardian represented her. Thus, ifthis case is a "matter that is the subject ofdispute under" TEDRA, Block's claims, brought on behalfof Sarah, were not tolled. But ifthe claims did notfall under TEDRA, her claims were tolled, and she timely filed this action, regardless 

### ofthe statute oflimitations. Thus, the dispositive question is whetherthis
matter falls under TEDRA.

28 Young v. Key Pharmaceuticals. Inc.. 112 Wn.2d 216, 220, 770 P.2d. 182 (1989).29 RCW 11.96A.070(4) (emphasis added).

11No. 71742-1-1/12 

### The purpose ofTEDRA "is to setforth generally applicable statutory provisions for the resolution ofdisputes and other matters involving trusts and estates."30 RCW 11.96A.030(2) states that underTEDRA, "'Matter' includes any issue, question, or dispute involving: . . . (c) The determination ofany 

### question arising inthe administration ofan estate or trust." This court has held that "[t]he plain words of this definition of 'matter' make clearthe 

### broad scope of this term."31 Here, we note that Block's complaint cites TEDRA. She expressly 

### alleges that subject matterjurisdiction exists "underthe statutes . . . 

### including but notlimited to, RCW 11.96A.020 and 11.96A.040."32 And we conclude that Block's claims fall under TEDRA's broad definition of "matter." This case involves the administration of Sarah Block's guardianship 

### estate and special needs trust. Block's complaint alleges that the 

### guardianship court did not properly approve Barcus's fee agreement. It also alleges that the guardian ad litem failed to properlyevaluate Barcus's fees. Similarly, the complaint alleges that the guardianship courtfailed to determine whether Barcus's fees were reasonable. The complaint also

30RCW11.96A.010. 31 Inre Estate ofBernard. 182 Wn. App. 692, 722, 332 P.3d 480, review denied. 339 P.3d 634 (2014). 32 Clerk's Papers at 3. 12No. 71742-1-1/13 

### alleges that Barcus improperly paid himselffees directly from a settlement instead of first placing the funds in Sarah's trust. 

### Thus, this case involves "questions] arising inthe administration of 

### Sarah Block'sguardianship estate and special needs trust. Accordingly, it is a "matter" under TEDRA's broad definition ofthat term. Additionally, Block's complaint cites TEDRA several times. She 

### cites TEDRA as one ground forjurisdiction and venue. And her complaint seeks attorney fees underTEDRA. Thus, while Block now claims that TEDRA does not apply to this case, that claim is inconsistent with her own assertions when she commenced this action. Block argues that TEDRA's exception to RCW4.16.190 does not apply to her case for several reasons. First, Block argues that her case does notfall underTEDRA because she did not allege a cause ofaction contained inTEDRA's RCW chapter. But as explained earlier, TEDRA has a broad scope, and this case falls within it. 

### Second, Block argues that no statute oflimitations contained in TEDRA controls inthis case. Thus, Block argues that TEDRA's tolling exemption does not apply to her case. 

### Butthe exemption—RCW 11.96A.070(4)—tolls "any other applicable 

### statute oflimitations."33 This plain language does not limit its application to statutes of limitation contained in TEDRA. Instead, if"any matter" is disputed

33RCW11.96A.070(4).
13No. 71742-1-1/14 

### underTEDRA, the tolling exception applies toanyapplicable statute of limitations. 

### Third, Blockargues that Sarah was not represented during a probate or dispute resolution proceeding, thus RCW 11.96A.070(4) does not apply. But RCW 11.96A.070(4) applies to "individual[s] who had a guardian ad litem,limited
or general guardian ofthe estate, ora specialrepresentative to representthe 

### person during theprobate ordispute resolutionproceeding."34 Because there is no comma after "special representative," the phrase "to representthe person during the probate or dispute resolution proceeding" modifies only that 

### term.35 Thus, the tolling exception applies whenever an individual is represented by a guardian ad litem or a general guardian—it is not necessary that the guardian representthe individual in a probate or dispute resolution proceeding. Block also argues that ifTEDRA prevents the tolling of her claims under RCW 4.16.190, then it is unconstitutional. She is mistaken. Block argues that nottolling her claims would be unconstitutional under article I, section 12 ofthe Washington constitution. That section prohibits granting "any citizen, class ofcitizens, or corporation otherthan municipal, 

### privileges or immunities which upon the same terms shall not equally belong to

34jd, (emphasis added). 35 Id.
14No. 71742-1-1/15 

### all citizens, or corporations."36 To supportthis claim, she relies on Schroederv. Weiqhall.37 Inthat case, the supreme court held that an exception to RCW4.16.190's 

### tolling was unconstitutional. Underthe exception at issue, medical malpractice 

### claims were not tolled under RCW 4.16.190.38 The supreme court held thatthis tollingexemption "place[d] a disproportionate burden on the childwhose parent
or guardian lacks the knowledge or incentive to pursue a claim on his or her behalf."39 The court also noted that itunconstitutionally granted a benefit— 

### limited liability—to medical malpractice defendants.40 The present case is distinguishable. First, TEDRA's tolling exception only 

### applies tothose "who had a guardian ad litem, limited orgeneral guardian of the estate, or a special representative."41 Thus, it onlyapplies to those whose 

### interests were represented. Accordingly, unlike Schroeder. the tolling exception 

### does not burden a "particularlyvulnerablepopulation."42 Second, TEDRA'stolling exception does not benefit any particularclass of defendants. InSchroeder, the exception singled out medical malpractice claims,

36 Const, art. I, § 12. 37179 Wn.2d 566, 316 P.3d 482 (2014). 38 RCW 4.16.190(2). 39Schroeder. 179 Wn.2d at 578-79. 40 id, at 573-74. 41 RCW11.96A.070(4). 42 Schroeder. 179 Wn.2d at 577.
15No. 71742-1-1/16 

### while tolling all otherclaims.43 Here, in contrast, the tolling exemption applies to all causes of action. 

### Thus, because TEDRA's tolling exception does not burden a vulnerable 

### population or confer a benefitto a particulargroup, Block's argument is not persuasive. In sum, we conclude that TEDRA applies to Block's claims. Accordingly, Block's claims were nottolled under RCW 4.16.190, and the
statutes of limitations for her claims have run. Equitable Doctrines Block argues that she raised genuine questions ofmaterial fact whether equitable doctrines tolled herclaims. Specifically, she argues that equitable tolling or equitable estoppel may apply in her case, depending on contested facts. We disagree. "Estoppel is appropriate to prohibit a defendantfrom raising a statute of limitations defense when a defendant has 'fraudulently or inequitably invited a plaintiff to delay commencing suit until the applicable statute of limitation has 

### expired.'"44 The three elements ofequitable estoppel are: First, "an admission, statement, or act inconsistentwith a claim afterward asserted; second, action by another in reasonable reliance on that act, statement, or admission; and third,

43 id, at 570. 44 Robinson v. City ofSeattle. 119 Wn.2d 34, 82, 830 P.2d 318 (1992) 

### (quoting Del Guzzi Constr. Co. v. Global Northwest. Ltd.. 105 Wn.2d 878, 885, 719 P.2d 120 (1986)).
16No. 71742-1-1/17 

### injury to the party who relied ifthe court allows the first party to contradict or repudiate the prior act, statement, or admission."45 

### Block's allegations fail to establish that she is entitled to equitable estoppel. She does not identify any "admission, statement, or act" ofthe 

### defendants' that is inconsistentwith their currentdefenses. Additionally, she has not shown reasonable reliance on her part. Accordingly, there are no genuine issues ofmaterial fact whether Block is entitled to equitable estoppel. Block also fails to allege facts indicating that equitable tolling applies in this case. "Equitable tolling is a remedy that permits a courtto allow an action to proceed whenjustice requires it, even though a statutory time period has 

### elapsed."46 This doctrine applies only in "narrow circumstances."47 Equitable tolling requires "bad faith, deception, or false assurances by the defendant and 

### the exercise of diligence by the plaintiff."48 Here, Block alleges that Barcus and Kram acted in bad faith by being 

### "instrumental ingetting court orders prohibiting herfrom [filing suit]." Block refers to a January 2009 orderthat denied Block's request for the trust to hire an 

### attorney. InDecember2008, Blocksoughtto have the trust pay a $10,000 retainerfor an attorney to investigate the reasonableness ofBarcus's fees. The trustee denied this request. InJanuary 2009, the guardianship courtthen denied

45 id, 46 In re Pers. Restraint of Bonds, 165Wn.2d 135, 141, 196 P.3d 672 (2008). 47 id, 48 id,
17No. 71742-1-1/18 

### Block's request to overrule the trustee's decision. Barcus appeared at the January 2009 hearing to oppose the trustfunding the litigation. Here, even assuming that the defendants acted in bad faith, Block did not act diligently. Block was aware ofthe potential issue with Barcus's fees since 2006. Inthat year, she wrote a letterto Barcus stating that she "w[ould] probably
never be at peace with the huge fees [Barcus] require[d]." Block also contacted
an attorney about investigating the reasonableness of Barcus's fees in 2008. Yet Block did not commence this action until 2013. 

### Additionally, although the guardianship courtdenied Block's requestfor the trust to fund the litigation against Barcus, the court noted that Block could 

### proceed ifshe retained counsel without using the trust's funds. Block ultimately did retain counsel at her own expense but not until July 2011. Thus, part of 

### Block's delay infiling the case was herdelay in retaining counsel, at her expense. Accordingly, Block did not actwith reasonable diligence and is not entitled to equitable tolling of her claims. 

### We affirmthe trial court's summaryjudgmentdismissal of Block's claims. 

# foxJ

WE CONCUR: 

# lf\Vk<^( "3~ •f

18