Jeffery Mckee, V State Of Washington

FILED
COURF OF A
DIVISION 11.
201' i JUL - 8 AM 10: 88
IN THE COURT OF APPEALS OF THE STAT Ill ON
iOf A g
DIVISION II Y.
TY
JEFFREY MCKEE, No. 43891 -7 -II
Appellant,
v.
STATE OF WASHINGTON; WASHINGTON UNPUBLISHED OPINION
STATE PATROL; DEPARTMENT OF
LICENSING; and MITCHELL T. BAUER and
JANE DOE BAUER, husband and wife,
individually and as a marital community;
Respondents.
Melnick, J. — Jeffrey McKee appeals the trial court' s decisions denying his motion for a
granting the State' summary judgment McKee failed to inform the
s1
continuance and motion.
court of any evidence he would have obtained with a continuance. He also filed his motion in an
untimely manner. Therefore, we hold that the trial court properly denied his motion for a
McKee filed his claim after the statute of limitations had run. The
continuance. Additionally,
trial court properly granted the State' s summary judgment motion. We affirm.
FACTS
On November 8, 2008, law enforcement arrested McKee for driving under the influence
and attempting to elude a police officer. On November 10, 2011, McKee filed a tort claim with
the office of risk management pursuant to former RCW 4. 92. 100 ( 2009) naming the State, the
Washington State Patrol, the Department of Licensing, and the arresting officer as defendants.
He alleged a number of torts arising from his arrest, including libel, trespass, false arrest, false
imprisonment, assault, negligence, gross negligence, wanton/ willful misconduct, intentional
1
McKee sued the State and state agencies and employees. We refer to the defendants
collectively as the State.
43891- 7- 11
inflection of emotional distress, negligent infliction of emotional distress, and outrage. On
January 17, 2012, McKee filed his complaint in superior court. On April 16, 2012, he served the
attorney general.
On June 7, 2012, the State moved for summary judgment, arguing, among other matters,
that McKee failed to commence his suit within the statute of limitations. McKee did not file a
response to the State' s motion. Two days before the July 13 summary judgment hearing, McKee
filed a request for accommodation. He stated that, on June 29 he developed a bruise on his leg
that made it difficult for him to travel. He asked the court to reschedule the hearing. The court
did not reset the hearing but allowed McKee to attend telephonically and argue for a
continuance.
On the day of the scheduled hearing, McKee appeared telephonically as a self -
represented litigant and asked for a continuance. He represented that his leg still bothered him
and that it kept him from travelling to the law library and the court. The State objected. It
argued that McKee had a history of delaying the litigation and that he should have to comply
with court rules. Lastly, the State argued the statute of limitations issue was straightforward and
McKee should not be given extra time to research it. In ruling against McKee, the court
determined that McKee' s motion for a continuance was untimely.
The court then heard argument on the State' s summary judgment motion. The State
asserted that the statute of limitations on McKee' s claims ran on November 8, 2011, and that he
did not file his claims with risk management until November 10, 2011. 2 McKee responded that
2 Some of McKee' s claims had a two -
year statute of limitations —libel, assault, and false
imprisonment. RCW 4. 16. 100( 1). He abandoned those claims, except libel, at the trial court and
does not argue them on appeal. Accordingly, this appeal relates only to the claims with a three -
year statute of limitations.
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43891 -7 -II
he was in jail from November 8, 2008, " until the 10th or 1 lth, "
and that the statute of limitations
tolled during that time. Report of Proceedings ( RP) at 8. Therefore, his claims did not run until
November 11, 2011, the day after he filed his complaint with risk management. McKee did not
provide evidence or make an offer of proof regarding this issue.
The trial court granted the State' s summary judgment motion and dismissed the case with
prejudice. McKee filed a motion for reconsideration. The trial court denied his motion for
reconsideration, reiterating that his request for a continuance was untimely and that he failed to
support his allegations that the statute of limitations had tolled. McKee appeals.
ANALYSIS
I. CONTINUANCE
McKee first argues that the trial court erred when it denied his motion for a continuance.
McKee failed to identify the evidence he would have obtained if he had more time. McKee filed
the motion in an untimely manner. The trial court did not en by denying McKee' s request.
We review a ruling denying a motion for a continuance for an abuse of discretion.
Coggle v. Snow, 56 Wn. App. 499, 504, 784 P. 2d 554 ( 1990). A trial court abuses its discretion
if the decision is manifestly unreasonable or based on untenable grounds or reasons. State ex rel.
Carroll v. Junker, 79 Wn. 2d 12, 26, 482 P. 2d 775 ( 1971). The trial court may deny a motion for
continuance where ( 1) the requesting party does not offer a good reason for the delay in
obtaining the desired evidence, ( 2) the requesting party does not state what evidence would be
established through the additional discovery, or ( 3) the desired evidence will not raise a genuine
issue of fact. Butler v. Joy, 116 Wn. App. 291, 299, 65 P. 3d 671 ( 2003).
Here, McKee stated he needed a continuance because his injury made it difficult for him
to travel to the law library. He did not specify the evidence he would have obtained with more
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43891 -7 -II
time. He did not say why he delayed responding to the summary judgment motion, which he
received several weeks before his leg injury. The State filed its summary judgment motion on
June 7 and McKee failed to take any action, including filing a response, until July 11 — two days
before the hearing. He requested a continuance on the day of the hearing. McKee' s motion was
untimely. The trial courts did not abuse its discretion when it denied McKee' s motion for a
continuance.
II. SUMMARY JUDGMENT
McKee next argues that the trial court erred when it granted the State' s motion for
summary judgment. He contends that he filed his claims within the statute of limitations.
Because he failed to present competent evidence that the statute of limitations had tolled, we
affirm the trial court.
We review a summary judgment order de novo, engaging in the same inquiry as the trial
court. Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P. 2d 301 ( 1998). Summary judgment
is appropriate when there is no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. CR 56( c); Folsom, 135 Wn.2d at 663.
To avoid summary judgment, the nonmoving party must offer specific facts rebutting the
moving party' s contentions and disclosing the existence of material issues of fact. Marshall v.
Bally' s Pacwest, Inc., 94 Wn. App. 372, 377, 972 P. 2d 475 ( 1999). The nonmoving party may
not rely on speculation or argumentative assertions. Marshall, 94 Wn. App. at 377. The
nonmoving party must present competent evidence by affidavit or otherwise. Bldg. Indus. Ass 'n
of Wash. v. McCarthy, 152 Wn. App. 720, 735, 218 P. 3d 196 ( 2009).
The trial court granted summary judgment in the State' s favor because McKee did not
file his claims within the statute of limitations. McKee' s claims have a three -
year statute of
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limitations. See RCW 4. 16. 080. The statute of limitations tolls when the plaintiff files a
complaint or serves a summons. RCW 4. 16. 170. A party asserting an action against the State
must file the claim with risk management and wait 60 days before commencing the action.
RCW 4. 92. 110. The statute of limitations is tolled during the 60 -day period. RCW 4. 92. 110.
Imprisonment tolls the statute of limitations. RCW 4. 16. 190( 1).
The parties agree that McKee' s claims accrued on November 8, 2008, the date of his
arrest. See White v. Manville
Johns - Corp., 103 Wn.2d 344, 348, 693 P. 2d 687 ( 1985) ( " In an
ordinary personal injury action, the general rule is that a cause of action `` accrues' at the time the
act or omission occurs. "). Therefore, he had until November 8, 2011, to either file or serve his
complaint. See RCW 4. 16. 080; RCW 4. 16. 170. He did not file his complaint with risk
management until November 10, 2011, two days after the statute of limitations had run.
McKee argued at summary judgment that the statute of limitations tolled while he was in
jail following his arrest. But he failed to present any evidence of when he was released from jail.
He did not file an affidavit or offer any records to prove the length of his jail time. He merely
argued that he was incarcerated from November 8 until " the 10th or 1 lth." RP at 8.
Accordingly; McKee failed to present competent evidence to rebut the State' s assertion that he
failed to file within the statute of limitations.
McKee also argues that his action was timely because he filed with the trial court on
January 17, his action tolled during the 60 -day waiting period in RCW 4. 92. 110, and
computation of the filing date does not include weekends or holidays. But this argument
assumes that McKee' s initial claim filed with risk management was timely. It was not. Thus,
even though he may be correct that his claim tolled from the time he filed with risk management
until January 17, his claim is still time barred. We affirm the trial court' s dismissal.
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43891 -7 -II
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2. 06. 040, it is so ordered.
We concur:
6