               IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                                                                             ~

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MICHAEL CHARLES KAHRS and                                                        )   UNPUBLISHED OPINION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 summary judgment

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 these           two matters.

              Blakely is the beneficiary of a special needs trust in Spokane County

Superior Court. On December 3, 2009, the court issued an order approving the
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disbursement of funds from Blakely’s special needs trust. The court found that

Blakely was in need of funds for the purposes of pursuing post-conviction relief

and obtaining medical care. The court found that Blakely consented to the

disbursement of funds for these 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 account solely for the benefit of Mr. Blakely.”

       Over the next several years, Kahrs took various actions aligned with the

court’s order, investigating potential post-conviction relief and medical care for

Blakely. During this time, Blakely requested that Kahrs file various torts and civil

rights complaints on his behalf against the prison. Blakely was alleging that

prison officials assaulted and battered him, were deliberately indifferent to his

pain and suffering, and seized his legal documents. Kahrs declined to file such

complaints and explained that these complaints were outside his representation

as outlined by the Spokane County Superior Court’s order. Blakely filed his civil

rights complaints pro se.

       Eventually, the attorney-client relationship broke down. In May 2015,

Blakely, pro se, filed a complaint for legal malpractice and breach of fiduciary

duty against Kahrs and his law firm. On January 25, 2016, the trial court

dismissed all claims against Kahrs and his law firm with prejudice on summary

judgment.

       Blakely appeals, pro se.

       If the party moving for summary judgment sustains the initial burden of

showing that the case involves no genuine issue of material fact, the burden then


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No. 74765-7-1/3

shifts to the nonmoving party to show that the case does indeed involve a

genuine issue of material fact. Schaafv. Hiqhfield, 127 Wn.2d 17, 896 P.2d 665

(1995). If the nonmoving party cannot demonstrate a genuine issue of material

fact, summary judgment will be granted. Our review of a grant of summary

judgment is de novo; we engage in the same analysis as the trial court.

Mahoney v. Shinpoch, 107 Wn.2d 679, 732 P.2d 510 (1987).

       To prevail on a claim for legal malpractice, Blakely must prove, among

other things, the existence of an attorney-client relationship giving rise to a duty

of care on the part of the attorney to the client and an act or omission by the

attorney in breach of the duty of care. Hizey v. 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 for summary judgment, Kahrs argued that his scope of

representation was limited to representing Blakely for the two purposes identified

by the Spokane County Superior Court order of December 3, 2009—pursuing

post-conviction relief and 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 of the two general representation agreements. But as stated

above, Kahrs did in fact submit these 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 by the Spokane County

Superior Court order limiting his representation.

       Blakely contends the two general representation agreements raise an

issue as to whether the scope of Kahrs’s representation was actually limited.

They do not, because they are not signed by Kahrs. Blakely’s claim of legal

malpractice was properly dismissed because, given the limited scope of the

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 of the court order.

       To prevail on a claim of breach of fiduciary duty, a plaintiff must show (1)

existence of a duty owed, (2) breach of that 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 complaint that he was billed $35,000 for services that were

never received, that Kahrs took advantage of the fact that he was partially blind

and vulnerable, and that Kahrs failed to return certain legal documents.

       In support of the motion for summary judgment on this claim, Kahrs

submitted a declaration asserting that he submitted his billings for legal services

on Blakely’s behalf to the trustee for approval and transferred the money from the

trust account only after he received permission from the trustee. He stated that

he always obtained the trustee’s approval before making payments for medical

and court records and for an investigator, medical experts, and other

professionals. Kahrs declared that he returned all remaining trust account funds


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to Blakely when 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 of showing that the 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 of fiduciary duty.

       Blakely next contends that the court erred by refusing to consider certain

materials he submitted in his opposition to Kahrs’s motion for summary

judgment. In an order dated January 25, 2016, the court said it would not

consider materials submitted by Blakely in violation of CR 56(e). “A substantial

portion of the materials submitted by Plaintiff were not made on personal

knowledge, did not set forth facts that would be admissible in evidence, and/or

did not affirmatively show the affiant was competent to testify to the matters

stated therein. The court further notes that lay testimony is not competent to

opine on the legal standard of care.” Blakely gives us no reason to revisit the

trial court’s ruling on this issue.

       Blakely next contends that the trial court erred in denying his motions to

compel discovery filed in November and December 2015. In a response dated

December 19, 2015, Kahrs represented to the trial court that defendants had fully

answered both Blakely’s complaint and his First Request for Interrogatories

Combined with Request for Production of Documents. The record contains one


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court order denying a motion to compel discovery by Blakely, dated January 12,

2016. Blakely does not explain how this order was erroneous. The gravamen of

Blakely’s complaint about discovery is that the court granted summary judgment

before the defendants had produced all the documents that he believed were

required.

       The trial court granted Blakely’s request for a 60-day extension of time at

the first scheduled summary judgment 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 further extension of time, we conclude the

court did not act unfairly in deciding the motion for summary judgment after the

January 22 hearing.

       Blakely next claims that the trustee of his special needs trust was not

lawfully appointed because he was never officially declared an “incapacitated

person” under Washington 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 of fiduciary duty and are not properly before the

court in this appeal.

       Affirmed.




WE CONCUR:                                                            C)



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