IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

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RALPH HOWARD BLAKELY, 

### ) ) No 74765-7-I Appellant, 

### )

) DIVISION ONE v 

### )

) MICHAEL CHARLES KAHRS and 

### ) UNPUBLISHED OPINION KAHRS LAW FIRM TRUST ACCOUNT,) 

### ) FILED: April 24, 2017 Respondents. 

### ) _________________________________________________________________________________) BECKER, J.

— This is Ralph Blakely’s appeal of a summaryjudgment dismissing claims of legal malpractice and breach of fiduciary duty. Blakely fails
to show that his attorney was obligated to assist him with legal matters outside the scope of his representation as defined by a court order. We affirm. Appellant Ralph Blakely is incarcerated as a result of his conviction for solicitation of first degree murder. While incarcerated, Blakely contacted respondent Michael Kahrs, an attorney, seeking legal advice. According to Kahrs, Blakely wanted him to assist in pursuing post-conviction relief related to his conviction and in obtaining medical care. Kahrs said he agreed to assist him

on thesetwo matters. Blakely is the beneficiary ofa special needs trust in Spokane County Superior Court. On December 3, 2009, the court issued an orderapproving theNo. 74765-7-1/2

disbursement offunds from Blakely’s special needs trust. The courtfound that Blakelywas in need offunds forthe purposes of pursuing post-conviction relief and obtaining medical care. The courtfound that Blakely consented to the disbursement offunds forthese purposes in the amount of$35,000 total. The court ordered the trustee to disburse $35,000 to Kahrs, to be held by Kahrs “in an individual trust accountsolelyforthe benefit of Mr. Blakely.” Overthe next several years, Kahrs tookvarious actions aligned with the court’s order, investigating potential post-conviction reliefand medical care for Blakely. During this time, Blakely requested that Kahrs file various torts and civil rights complaints on his behalfagainstthe prison. Blakelywas alleging that prison officials assaulted and battered him, were deliberately indifferentto his pain and suffering, and seized his legal documents. Kahrs declined to file such complaints and explained thatthese complaintswere outside his representation
as outlined bythe Spokane County Superior Court’s order. Blakelyfiled his civil rights complaints pro se. Eventually, the attorney-client relationship broke down. In May 2015, Blakely, pro se, filed a complaintfor legal malpractice and breach offiduciary duty against Kahrs and his lawfirm. On January 25, 2016, the trial court dismissed all claims against Kahrs and his lawfirm with prejudice on summary judgment. Blakely appeals, pro se. Ifthe party moving forsummaryjudgment sustains the initial burden of showing thatthe case involves no genuine issue of material fact, the burden then

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shifts to the nonmoving partyto showthatthe case does indeed involve a genuine issue of material fact. Schaafv. Hiqhfield, 127Wn.2d 17, 896 P.2d 665 (1995). Ifthe nonmoving party cannot demonstrate a genuine issue of material fact, summaryjudgmentwill be granted. Our review ofa grant ofsummary judgment is de novo; we engage in the same analysis as the trial court. Mahoneyv. Shinpoch, 107Wn.2d 679, 732 P.2d 510 (1987). To prevail on a claim for legal malpractice, Blakely must prove, among otherthings, the existence ofan attorney-client relationship giving rise to a duty of care on the part ofthe attorneyto the client and an act oromission bythe attorney in breach ofthe duty ofcare. Hizeyv. Carpenter, 119 Wn.2d 251, 260- 61, 830 P.2d 646 (1992). Blakely alleges that Kahrs breached his duty of care by refusing to represent him in pursuing the civil rights complaints and that he suffered damages when he had to file these complaints pro Se. In moving forsummaryjudgment, Kahrs argued that his scope of representation was limited to representing Blakelyforthe two purposes identified bythe Spokane County Superior Court orderof December 3, 2009—pursuing post-conviction reliefand obtaining medical care. He submitted the relevant court order. He also submitted two general representation agreements dated January 9, 2009, and May 1, 2009. Blakely claims Kahrs manipulated or misled the trial court by refusing to provide a copy ofthe two general representation agreements. But as stated above, Kahrs did in fact submitthese agreements to the trial court. These agreements were signed only by Blakely, not by Kahrs. Kahrs contended that

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these representation agreements were superseded bythe Spokane County Superior Court order limiting his representation. Blakely contends the two general representation agreements raise an issue asto whetherthe scope of Kahrs’s representation was actually limited. They do not, because they are not signed by Kahrs. Blakely’s claim of legal malpracticewas properly dismissed because, given the limited scope ofthe attorney-client relationship, the duty of care Kahrs owed to Blakely did not include an obligation to pursue the civil rights complaints or any other matters outside the scope ofthe courtorder. To prevail on a claim of breach offiduciary duty, a plaintiff must show (1) existence ofa duty owed, (2) breach ofthat duty, (3) resulting injury, and (4) that the claimed breach proximately caused the injury. Micro Enhancement Int’l, Inc.
v. Coopers & Lybrand, LLP, 110 Wn. App. 412,433-34,40 P.3d 1206 (2002). Blakely alleged in his complaintthat he was billed $35,000 for services thatwere never received, that Kahrs took advantage ofthe factthat he was partially blind and vulnerable, and that Kahrs failed to return certain legal documents. In support ofthe motion for summaryjudgment on this claim, Kahrs submitted a declaration asserting that he submitted his billings for legal services
on Blakely’s behalfto the trustee forapproval and transferred the moneyfrom the trust account only after he received permission from the trustee. He stated that he always obtained the trustee’s approval before making paymentsfor medical and court records and for an investigator, medical experts, and other professionals. Kahrs declared that he returned all remaining trust accountfunds

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to Blakelywhen he ended the attorney-client relationship. He attached copies of the trust account ledger, his billing invoices, and the relevant letters to Blakely and the trustee. Kahrs also stated that he sent Blakely all the materials from his file that he requested. With these submissions, Kahrs sustained the initial burden ofshowing thatthe case involves no genuine issue of material fact as to whether he breached his fiduciary duty. Blakely did not produce any evidence that rebuts the evidence presented by Kahrs. The trial court properly dismissed the claim for breach offiduciary duty. Blakely next contends thatthe court erred by refusing to consider certain materials he submitted in his opposition to Kahrs’s motion forsummary judgment. In an orderdated January 25, 2016, the courtsaid itwould not consider materials submitted by Blakely in violation of CR 56(e). “A substantial portion ofthe materials submitted by Plaintiffwere not made on personal knowledge, did not setforth facts thatwould be admissible in evidence, and/or did not affirmatively showthe affiantwas competent to testifyto the matters stated therein. The courtfurther notes that laytestimony is not competentto opine on the legal standard ofcare.” Blakely gives us no reason to revisitthe trial court’s ruling on this issue. Blakely next contends thatthe trial court erred in denying his motions to compel discoveryfiled in Novemberand December2015. In a response dated December 19, 2015, Kahrs represented to the trial courtthat defendants had fully answered both Blakely’s complaint and his First Requestfor Interrogatories Combined with Requestfor Production of Documents. The record contains one

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court orderdenying a motion to compel discovery by Blakely, dated January 12, 2016. Blakely does not explain howthis orderwas erroneous. The gravamen of Blakely’s complaint about discovery is thatthe court granted summaryjudgment before the defendants had produced all the documents that he believed were required. The trial court granted Blakely’s requestfora 60-day extension oftime at the first scheduled summaryjudgment hearing on November 20, 2015. The court continued the hearing to January 22, 2016. Because there is no indication in the record that Blakely requested a furtherextension oftime, we conclude the court did not act unfairly in deciding the motion forsummaryjudgment afterthe January 22 hearing. Blakely next claims thatthe trustee of his special needs trustwas not lawfully appointed because he was never officially declared an “incapacitated person” underWashington law and a required guardian ad litem was not appointed. These issues are separate from Blakely’s complaints against Kahrs for legal malpractice and breach offiduciary duty and are not properly beforethe court in this appeal. Affirmed.

WE CONCUR: 

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