                                                                                                                                     n
                                                                                                               col p 1 01- APSr-
                                                                                                                                t- 1., 3
                                                                                                                       111   f

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTbN

                                                    DIVISION II
                                                                                                             STT':               5       lIOTJiI
    BARLOW        POINT      LAND        CO.,       LLC.,      a                            No. 46080- 7- I,
    Delaware limited liability company; and PORT                                                                      0E RUTY
    OF LONGVIEW, a municipal corporation,


                                       Respondents,


           V.



    KEYSTONE          PROPERTIES             I,    LLC.,       a                UNPUBLISHED OPINION

    Washington limited liability company,

                                       I

          MELNICK, J. —      Keystone appeals from the trial court' s order granting summary judgment

to Barlow Point Land Company LLC ( Barlow Point) and the Port of Longview ( the Port) and

quieting title to disputed tidelands.

          In 2006, Terra Firma, Inc. ( Terra        Firma), a company owned by a father, Robert Radakovich

    Radakovich I), and his    son,   Robert Radakovich ( Radakovich II), conveyed two parcels of its land


to Stephen Jeffrey Wilson. In 2012, Wilson conveyed both parcels to Barlow Point. Barlow Point

then    conveyed a portion of        the tidelands)      of one of     the   parcels   to the Port.      A few weeks later,


Terra Firma attempted to convey the tidelands of the same parcel to Keystone Properties I LLC

    Keystone).   Barlow Point and the Port jointly filed a complaint against Keystone to quiet title to

the disputed tidelands.       The trial court concluded that ambiguities existed in the 2006 deed as to

whether     it included the disputed tidelands.                     The trial court found that extrinsic evidence


demonstrated the parties intended to convey the disputed tidelands through the 2006 deed.



1
     Tidelands   are submerged       lands   affected    by   the   ebb and   flow     of   tides.   First class tidelands are
located    within   city limits   or within   two   miles of    city limits. CP      at   188. Second class tidelands are
located    more   than two   miles    from city limits.         The tidelands abutting Parcel B are second class
tidelands   because they     were    initially    more   than two     miles   from Longview city limits.
46080 -7 -II




          Keystone argues that the trial court erred by granting summary judgment because the 2006

deed to Wilson is not ambiguous and the trial court erred when it considered extrinsic evidence to

determine      whether   the   parties   intended to convey the disputed tidelands in the 2006 deed.   We


agree with the trial court that the 2006 deed is ambiguous; therefore, it did not err by considering

extrinsic   evidence.     Because the extrinsic evidence demonstrates that the parties intended to


convey the disputed tidelands in the 2006 deed and no genuine issue of material fact exists, we

affirm.



                                                      FACTS


I.        OVERVIEW


          Radakovich I and Radakovich II owned multiple parcels of land constituting over 300 acres

along the Columbia River in Cowlitz County. In 2006, the Radakoviches, through their company

Terra Firma, conveyed the only two waterfront parcels it owned to Wilson by statutory warranty

deed (" 2006 deed").      The legal description in the 2006 deed describes the parcels as follows:

          Parcel A:


          Lot 2 of short subdivision no. 91- 001, as recorded in volume 6 of short plats, page
          83, under auditor' s file no. 910204032; and being a portion of the George Barlow
          D. L.C.;
          Together with all tidelands of the second class, situated in front of, adjacent to or
          abutting the above described uplands and as conveyed in Parcel " Y' of said deed,
          volume 997, page 242 ( Fee No. 840924042).


          Parcel B:


          All that portion of George Barlow D.L.C. and George Fisher D.L.C. lying outside
          of Columbia River Dike of consolidated diking improvement district no. 1, said.
          dike being described by deed in volume 121, page 391, auditor' s file no. 5 125 6;




                                                         2
46080 -7 -II




          Excepting therefrom that portion lying northerly of a line that is parallel to and
          1, 765. 70 feet south of the south line of section 22, township 8 north, range 3 west
          of the W.M.


          Situate in Cowlitz County, State of Washington.

Clerk' s Papers ( CP)        at   103.   From 2006 to 2012, Wilson used the parcels, including the tidelands

abutting and adjacent to Parcel B (Parcel B tidelands).

          In 2010, Terra Firma lost its remaining parcels to foreclosure and the Port purchased them

at a   trustee'   s sale.   In November 2011, after a preliminary title report suggested that Terra Firma

still owned       the Parcel B tidelands, the Port       offered   Radakovich I $ 10, 000 for a quitclaim deed


conveying any interest he may. have in the Parcel B tidelands.                Radakovich I did not accept the


offer.




          Shortly thereafter on December 21, 2011, Radakovich I filed for bankruptcy. Radakovich

I did    not   list the Parcel B tidelands in the        bankruptcy    schedules.   He listed Terra Firma as a


dissolved corporation with zero value.


          On January 9, 2012, Wilson entered into a purchase and sale agreement with Barlow Point

to convey         all   the land he had     purchased   from Terra Firma.     On February 14, 2012, Wilson

conveyed Parcel A and Parcel B to Barlow Point, using the legal description from the 2006 deed.

Later in 2012, Barlow Point conveyed a portion of the Parcel B tidelands to the Port.


           On January 25, 2012, Terra Firma executed a statutory warranty deed conveying the Parcel

B tidelands to Keystone for $ 10.


II.        SUMMARY JUDGMENT


           Barlow Point and the Port jointly filed a complaint against Keystone to quiet title to the

Parcel B tidelands. The primary issue before the trial court was whether the 2006 deed to Wilson

conveyed the Parcel B tidelands to Wilson, or whether Terra Firma retained ownership.




                                                            3
46080 -7 -II



          Barlow Point and the Port moved for summary judgment on three bases. First, they argued

that the 2006 deed unambiguously conveyed the Parcel B tidelands to Wilson because the language

used in the description of Parcel A included the Parcel B tidelands. Second, to the extent the 2006


deed is ambiguous, they argued extrinsic evidence demonstrated that the parties intended to convey

the Parcel B tidelands to Wilson.         Third, they argued the Parcel B tidelands were conveyed to

Wilson in the 2006 deed pursuant to the Wardell2 doctrine.


           In support of their motion for summary judgment, Barlow Point and the Port submitted, in

relevant part, the declarations of Wilson; Calvin Hampton, a licensed land surveyor; and Norm


Krehbiel, Chief Operating Officer for the Port. In response to Barlow Point and the Port' s motion

for summary judgment, Keystone submitted evidence in the form of declarations and deposition

testimony.      The following facts are derived from the declarations, deposition testimony, and

exhibits.



           A.      Wilson' s Declaration


           Wilson stated that, prior to signing the 2006 deed, the Radakoviches provided him with a

tax appraisal of Parcel A and Parcel B that included the Parcel B tidelands. From the time of the


2006 deed until Wilson conveyed the parcels to Barlow Point in 2012, Wilson paid all of the


property tax for Parcels A     and   B. This area encompassed all river frontage and tidelands of both


parcels.



           The purchase and sale agreement between Terra Firma and Wilson, signed on January 13,

2006,     specified   that Wilson would   receive "` a minimum of   20   acres."'   CP   at   82. Wilson stated


that "[   t] he only way that a ` minimum of 20 acres' is achieved is by the inclusion of the [ Parcel B]




2 Wardell v. Commercial Waterway Dist. No. I ofKing County, 80 Wash. 495, 141 P. 1045 ( 1914)

                                                     0
46080 -7 -II




tidelands."     CP    at   82.     The purchase and sale agreement did not reserve any tidelands to Terra

Firma.


           From 2006 to 2012, Wilson continuously                           used    the tidelands.    He operated a duck boat


business, and used the tidelands to launch and stage his boats. Wilson also submitted five mooring

buoy     applications      to the    state   for locations      on   the Parcel B tidelands.          The Radakoviches " never


came near" the tidelands during this time, nor did they object to Wilson' s use of the tidelands. CP

at 87.


           Two days prior to signing the purchase and sale agreement, Radakovich II sent Wilson an

e- mail'   stating, " Do you want to extend me an option to buyback. [sic] in case of a suitor for the


whole      property?      You will also be in negotiation with the Port on the tidelands I think when they

come     to the table."         CP   at.   95.    In July 2006, Radakovich II copied Wilson on an e- mail to his

attorney in    which       he   referred     to Wilson    as   the   owner of "the      tidelands."    CP at 105.


           In early October 2006, Radakovich II                      offered       Wilson "$ 100, 000 for the water frontage


from the     road   to the      beach   east     to the property     line   at   the BPA towers," a reference to the Parcel B


tidelands.     CP    at   84.    In late October 2006, Radakovich II sent Wilson an option agreement that


included a map describing the tidelands Radakovich II wanted to purchase. It included the Parcel

B tidelands. After Wilson refused to sign the option agreement, Radakovich II approached Wilson

with a new offer that again indicated that the tidelands Radakovich II sought .to purchase from


Wilson included the Parcel B tidelands.                    Following Wilson' s refusal of this offer, Radakovich II

sent Wilson e- mails that included the following statements:

           I need to get the tidelands back for many reasons including my own sanity Jeff. I
           made a mistake not paying Duncan to survey out the tidelands when we executed
           this deal.  I could not afford it and unnecessarily handed you control of the
           waterfront access.:. .



           I need the tidelands back to survive....




                                                                       5
46080 -7 -II




        I am on the edge of my life and I need those damn tidelands back ....

        I am tired and trying to bridge a chasm of vast expanse and I can' t do it without those damn
        tidelands back.


CP at 85, 86.


        In 2008, Terra Firma commenced litigation against Wilson regarding easements over Terra

Firma' s remaining parcels. During that litigation, the Radakoviches never asserted an ownership

interest in any      portion of   the tidelands,   including   the Parcel B tidelands.       The trial court in that


case granted a preliminary injunction preventing Wilson from entering the Radakoviches' property

 for any   reason other      than accessing his tidelands."      CP   at   86.    A map admitted and used during

the 2008 trial indicated the Parcel B tidelands belonged to Wilson.


        Radakovich I filed for bankruptcy in December 2011. He did not list the Parcel B tidelands

as his property in the bankruptcy schedules. 3 He listed Terra Firma as a dissolved corporation with
zero value.



        B.           Hampton' s Declaration


        Hampton reviewed the title history of the parcels. He opined that as of 2012 the Parcel B

tidelands belonged to Wilson and that Terra Firma and Keystone had no ownership interest.

Hampton also noted that Wilson could not have received 20 acres as promised in the purchase and


sale agreement unless the Parcel B tidelands were conveyed in the 2006 deed.


        Hampton further opined that the Parcel B tidelands were " expressly included within the

legal description" of Parcel A because the language " and as conveyed in Parcel J of said Deed,


Volume 977,     page     242, ( Fee No. 840924042)" included          all of     the Parcel B tidelands.   CP at 190


 quoting CP     at   103).   Hampton reached this conclusion because the conveyance of the Parcel A




3 The bankruptcy records were attached as an exhibit to Wilson' s declaration.

                                                          0
46080 -7 -II




tidelands was complete without the additional language referencing Parcel J; thus, the purpose of

the second portion of the conveyance following the word " and" was to convey separate additional

tidelands.      CP at 190.


          Hampton     also provided an explanation    for the   reference   to Parcel J.       In 1923, the State of


Washington sold 3. 65 miles of tidelands to Long Bell Lumber Company. The legal description of

the tidelands      included the Parcel B tidelands.     Long Bell Lumber Company, under the name

International Paper Company, later sold a large amount of its tidelands to International Paper

Realty    Corporation.       Parcel J is among the parcels included in the deed to International Paper

Realty Corporation. According to Hampton, the portion of land comprising the Parcel B tidelands

is included within Parcel J. In 1987, International Paper Realty Corporation conveyed some of its

tidelands to Radakovich I. That       deed included tidelands described          as "   Parcel H," which is the " the


same as ` Parcel J' in the previous [ d] eed with the exception of some tidelands that had been sold


off.    Parcel H convey[ ed] to ...    Radakovich [ I] that portion of the ` Parcel J' tidelands that are in


front    of   the Wilson property [ the Parcel B tidelands]."        CP     at   191.      Therefore, according to

Hampton, when Terra Firma conveyed the tidelands described in Parcel J to Wilson, it conveyed


the Parcel B tidelands.


           C.       Krehbiel' s Declaration

          In November 2011, Krehbiel attended a meeting in which the Port offered Radakovich I

  10, 000 for a quitclaim deed to convey any interest he may have had in the Parcel B tidelands.

Krehbiel provided Radakovich I with a.preliminary title report suggesting Terra Firma owned the

Parcel B tidelands. At that time Radakovich I " responded that he no longer owned the tidelands."


CP at 210.




                                                       7
46080 -7 -II



           D.       Reynolds' s Deposition


           Arlene Reynolds, a title officer for Cowlitz County Title Company, prepared the legal

descriptions for the 2006 deed.         She admitted to using legal descriptions from a previous deed.

Reynolds did not recall discussing the legal descriptions with the parties and did not know why

the legal description for Parcel A included reference to tidelands but the legal description for Parcel

B did not.


           E.       Woodruff s Deposition


           Woodruff stated that when he first examined the title history of the Parcel B tidelands, he

excluded the 2006 deed to Wilson and certified that Terra Firma conveyed the Parcel B tidelands


to Keystone in 2012.       Woodruff could not offer an explanation as to why he excluded the 2006

deed to Wilson.        But, Woodruff explained that upon further examination, he believed that the

phrase "[    a] nd as conveyed under Parcel J" in the 2006 deed conveyed to Wilson the same tidelands

that   were conveyed under       Parcel J,   which   includes the Parcel B tidelands. CP at 350. He agreed


that, "   unfortunately" the language would also include other Parcel J tidelands that had already been

conveyed to other parties in previous years. CP at 351.


           F.       Gish' s Declaration


           Dennis Gish, a title officer with Columbia Title Agency opined that the Parcel B tidelands

were not included in the 2006 deed to Wilson. The " absence of any reference to the tidelands in

the legal definition of Parcel B or any indication that the tidelands abutting or adjacent Parcel B

would      be   conveyed means   that those tidelands    were not part of   the   grant of that   deed." CP at 301.


Gish believed his opinion was " consistent with the history of how these particular tidelands have

been described and conveyed" because the portion comprising the Parcel B tideland was described

as a separate parcel in the deed from International Paper Company to International Paper Realty




                                                          3
46080 -7 -II




Corporation.       CP   at    302.        The 1987 deed from International Paper Realty Corporation to

Radakovich I also described the tidelands as a separate parcel. Because " all deeds conveying the

tidelands have taken         pains   to   describe them   with    specificity," the absence of a reference to the


Parcel B tidelands in the 2006 deed to Wilson means that the tidelands were not conveyed. CP at

303.


        G.        Radakovich I' s and Radakovich II' s Declarations


        Radakovich I declared that he was not involved in the 2006 transaction with Wilson.

        Radakovich II stated that prior to the 2006 deed, Wilson never expressed a desire to


purchase tidelands or a belief that he would be purchasing tidelands. He corroborated Radakovich

I' s statement that Radakovich I was not involved in the 2006 transaction with Wilson. Radakovich

II explained that he based his reference to the tidelands in his e- mails to Wilson on information

from   an associate of   the Port         in 2006.   Prior to receiving this information, he believed that Terra

Firma   still   owned   the Parcel B tidelands.           Radakovich II also said that the previous litigation


between Terra Firma and Wilson did not address what was conveyed in the 2006 deed.

         H.       Van Vessem' s Declaration


         Van Vessem, Keystone' s manager, also attended the 2011 meeting between the Port and

Radakovich I. Van Vessem recalled that Radakovich I did not state that he no longer owned the

tidelands in response to the Port'             s   November 2011      offer.   He also said that Cowlitz County

established a new tax parcel for the Parcel B tidelands in 2012.


         The trial court granted Barlow Point and the Port' s motion for summary judgment. It also

granted their motion to quiet title. The trial court concluded that the 2006 deed was ambiguous as

to   whether    the Parcel B tidelands         were   included in the    conveyance   to Wilson.   The trial court


resolved the ambiguity by considering extrinsic evidence, which it concluded demonstrated Terra



                                                              0
46080 -7 -II




Firma' s intent to convey the Parcel B tidelands to Wilson in the 2006 deed. Alternatively, the trial

court also granted Barlow Point and the Port' s motion for summary judgment under the Wardell

doctrine. Keystone appeals.


                                                          ANALYSIS


I.          STANDARD OF REVIEW


            We review an order for summary judgment de novo, engaging in the same inquiry as the

trial   court.    Jones   v.   Allstate Ins. Co., 146 Wn.2d 291, 300, 45 P. 3d 1068 ( 2002).                        Summary

judgment is proper if "the pleadings, depositions, answers to interrogatories, and admissions on


file, together with the affidavits, if any, show that there is no genuine issue as to any material fact

and     that the moving party is      entitled   to   a   judgment      as   a   matter of   law."   CR 56( c).   We construe


all facts and their reasonable inferences in the light most favorable to the nonmoving party. Jones,

146 Wn.2d at 300.


            A party moving for summary judgment bears the burden of demonstrating that there is no

genuine issue of material fact. Atherton Condo. Apartment -Owners Assn Bd. of Dirs. v. Blume

Dev. Co., 115 Wn.2d 506, 516, 799 P. 2d 250 ( 1990). "                            A material fact is one upon which the


outcome of       the litigation   depends in   whole or      in   part."     Atherton, 115 Wn.2d at 516. If the moving

party satisfies its burden, the nonmoving party must present evidence demonstrating that a material

fact    remains    in dispute.     Atherton, 115 Wn. 2d            at   516.      The nonmoving party may not rest on

allegations or      denials from the    pleadings.         CR 5.6( e).       The response, by affidavits or as otherwise

provided under CR 56, must set forth specific facts that reveal a genuine issue for trial. Grimwood

v.   Univ. ofPuget Sound, Inc., 110 Wn.2d 355, 359, 753 P. 2d 517 ( 1988). "[                        C] onclusory statements

of   fact   will not suffice."   Grimwood, 110 Wn.2d at 360. If the nonmoving party fails to demonstrate

that a material fact remains in dispute, and reasonable persons could reach but one conclusion from




                                                                  10
46080 -7 -II



all   the   evidence,   then summary judgment          is   proper.      Vallandigham v. Clover Park Sch. Dist. No.


400, 154 Wn.2d 16, 26, 109 P. 3d 805 ( 2005).


11.         AMBIGUITY


            Keystone first     argues   that the 2006       deed is      not ambiguous.   We disagree.   Because the


2006 deed is capable of more than one fair and reasonable interpretation, it is ambiguous.


            A.         Construing a Deed

            The interpretation of a deed is a mixed question of fact and law: the parties' intention is a


question of fact, while the legal consequence of that intention is a question of law. Newport Yacht


Basin Ass'       n
                     of Condo. Owners     v.   Supreme Nw., Inc.,          168 Wn. App. 56, 64, 277 P. 3d 18 ( 2012).

We apply principles of contract interpretation when interpreting deeds. Edmonson v. Popchoi, 155

Wn.     App.     376, 386, 228 P. 3d 780 ( 2010). "[ D] eeds are construed to give effect to the intentions


of the parties, and particular attention is given to the intent of the grantor when discerning the

meaning       of the entire   document."       Zunino v. Rajewski, 140 Wn. App. 215; 222, 165 P. 3d 57 (2007).

Generally, we glean the parties' intentions from the language of the deed as a whole, giving

meaning to "` every        word   if reasonably     possible."'       Newport Yacht, 168. Wn. App. at 64 ( quoting

Hodgins v. State, 9 Wn. App. 486, 492, 513 P. 2d 304 ( 1973)).

            B.         The 2006 Deed is Ambiguous


            Ambiguity is      a question of     law. Hoglund        v.   Omak Wood Prods., Inc.,   81 Wn. App. 501,

504, 914 P. 2d 1197 ( 1996).            A statement is ambiguous if it is capable of two or more meanings.


Newport Yacht, 168 Wn. App. at 66. A deed is ambiguous if, reading the deed as a whole, two or

more reasonable interpretations are possible. GMAC v. Everett Chevrolet, Inc., 179 Wn. App. 126,

135, 317 P. 3d 1074,          review   denied, 181 Wn.2d 1008, 335 P. 3d 941 ( 2014). Here, the language of


the 2006 deed is capable of two or more reasonable interpretations.




                                                               11
        To determine which tidelands were conveyed in the 2006 deed requires us to interpret the


phrase, "   and as conveyed in Parcel J of said deed, volume 997, page 242 ( Fee No. 840924042)."


CP at 103. This phrase is susceptible to more than one meaning. It could refer to only the tidelands

situated in front of, adjacent to, or abutting Parcel A or it could refer to separate tidelands in

addition to the tidelands situated in front of, adjacent to, or abutting Parcel A.

        As to the former interpretation, the phrase could simply mean that the tidelands adjacent to

Parcel A were also conveyed in Parcel J, and does not include any tidelands other than those

adjacent to Parcel A. In that sense, the phrase " and as conveyed in Parcel J" merely represents an

attempt to include all conceivable tidelands associated with or near Parcel A as part of the


conveyance of     the   uplands.   CP   at   103.   Accordingly, the absence of reference to tidelands in the

Parcel B description could mean that the Parcel B tidelands were not conveyed.


        But, as to the latter interpretation, in light of the history of Parcel J as provided by Hampton,

it is reasonable that Parcel J describes all of the tidelands Terra Firma owned as conveyed to


Radakovich I in 1987 by International Paper Reality Corporation, except some tidelands that had

been conveyed to other parties. Because it is undisputed that Terra Firma already owned the land

comprising the Parcel B tidelands as a result of the 1987 conveyance, its later conveyance of the

tidelands "   as described in Parcel J" could include the disputed portion of tidelands adjacent to

Parcel B, separate and distinct from those tidelands adjacent to Parcel A.


        By giving meaning to every word in the 2006 deed, it is susceptible to at least two

reasonable interpretations. Therefore, the 2006 deed is ambiguous.




                                                           12
46080 -7 -II



III.         EXTRINSIC EVIDENCE


             A.        Admissibility of Extrinsic Evidence

             Extrinsic    evidence will not be considered where the plain language of a deed is


unambiguous.            Newport Yacht, 168 Wn.          App.   at   64.      But, where ambiguity exists, extrinsic

evidence is admissible to determine the parties' intent. Sunnyside Valley Irrigation Dist. v. Dickie,.

149 Wn.2d 873, 880, 73 P. 3d 369 ( 2003). " Extrinsic evidence is to be used to illuminate what was


written, not what was            intended to be   written."   Hollis   v.   Garwall, Inc., 137 Wn.2d 683, 697, 974


P. 2d 836 ( 1999). However, admissible extrinsic evidence does not include:


                       Evidence of a party's unilateral or subjective intent as to the meaning of a
                       contract word or term;
                       Evidence that would show an intention independent of the instrument; or
                       Evidence that would vary, contradict or modify the written word.

Hollis, 137 Wn.2d at 695.


             While the ultimate question is the parties' intention at the time they executed the deed, we

may consider the parties' subsequent actions to reflect their intent at the time of execution. King

County       v.   Hanson Inv. Co., 34 Wn.2d 112, 126, 208 P. 2d 113 ( 1949). As such,


               w]here a deed is of doubtful meaning, or the language used is ambiguous, the
             construction given by the parties themselves, as elucidated by their conduct or
             admissions, will      be deemed the true    one, unless        the contrary is   shown.          So, where
             all the parties have acted on a particular construction, such construction should be
             followed unless it is forbidden by some positive rule of law."

Hanson, 34 Wn.2d            at   126 ( quoting 26 C. J. S. Deed § 93,         at   346 ( 1941)).        We will consider " the


circumstances of the transaction and the subsequent conduct of the parties in determining their

intent      at   the time the deed   was executed."    Newport Yacht, 168 Wn.             App.     at   65.   Construing a deed

against the drafter is not necessary if we can determine the parties' intent. Forest Mktg. Enters.,

Inc.   v.   Dept of Nat.    Res., 125 Wn. App. 126, 133, 104 P. 3d 40 ( 2005).




                                                              13
46080 -7 -II



         Keystone moved the trial court to strike all extrinsic evidence and argues on appeal that


because the 2006 deed is not ambiguous, the trial court erred when it considered any extrinsic

evidence    to   determine the    parties'        intent regarding        conveyance     of   the Parcel B tidelands.             We


disagree. Because the 2006 deed is ambiguous and we employ a de novo standard of review, both

this court and the trial court may consider extrinsic evidence, including the parties' subsequent

conduct, to determine Wilson' s and Terra Firma' s intent regarding the 2006 conveyance of the

Parcel B tidelands.


         Before we can properly analyze the extrinsic evidence, we must first resolve Keystone' s

objections to evidence. CR 56( e) governs the use of affidavits' for purposes of summary judgment..

The   rule requires   that an affidavit in        support of       summary judgment          shall (   1) "   be made on personal


knowledge," ( 2) "     set    forth    such   facts     as    would      be   admissible     in   evidence,"      and (   3) "   show




affirmatively that the       affiant   is   competent        to   testify." CR 56( e); Hill v. Sacred Heart Med. Ctr.,

143 Wn.     App. 438, 449,      177 P. 3d 1152 ( 2008).              But "` evidence    may be presented in affidavits by

reference   to   other sworn statements           in   the   record such as     depositions       and other affidavits."'        Hill,


143 Wn. App. at 449 ( quoting Mostrom v. Pettibon, 25 Wn. App. 158, 162, 607 P. 2d 864 ( 1980)).

Ordinarily, we review a trial court' s evidentiary rulings for abuse of discretion, but we review such

rulings made      in. conjunction      with   a   summary judgment             motion   de    novo.       Davis v. Baugh Indus.


Contractors, Inc., 159 Wn.2d 413, 416, 150 P. 3d 545 ( 2007)).


         In his affidavit supporting summary judgment, Wilson made a number of statements that

Keystone argues are not based on personal knowledge, are inadmissible hearsay, or are not facts.

Keystone argues that the trial court erred when it considered Wilson' s declaration that he paid

taxes on the Parcel B tidelands because it is inadmissible hearsay and Wilson lacked personal



  We use the terms affidavit and declaration interchangeably. See GR 13.


                                                                    14
46080 -7 -II



knowledge.                Hearsay is an out- of-court statement offered in court to prove the truth of the

statement.            ER 801(       c).     Wilson'    s statement        is   not an out- of-court statement.              It is a declaration


offered         in   court.    Therefore, it is         not   hearsay. Generally, a witness' s statement must be based on

personal knowledge of the matter. ER 602. Here, Wilson' s declaration contains the tax appraisal


provided to him by the Radakoviches which includes the Parcel B tidelands in tax parcel 714

 Parcel B in the 2006 deed).                         Because this evidence supports a finding that Wilson has personal

knowledge of the matter, his statement is admissible.


            Keystone next argues that any statements by the Radakoviches made after completion of

the 2006 deed                 are    inadmissible           hearsay.       However, Keystone fails to identify the specific

statements           to   which     it    objects.    Clearly, not all of the statements are hearsay. We do not consider

arguments unsupported                      by   citation    to the record. RAP 10. 3( a)( 5);             Cowiche Canyon Conservancy

v. Bosley, 118 Wn.2d 801, 809, 828 P. 2d 549 ( 1992).

            Keystone also argues that the doctrine of merger by deed applies to exclude consideration

of   the   purchase and sale agreement. "                         The general rule is that provisions of a real estate purchase


and sale agreement merge                        into the deed."          Deep    Water    Brewing,        LLC   v.   Fairway      Res. Ltd., 152


Wn.    App. 229,            252, 215 P. 3d 990 ( 2009).                  However, the intent of the parties determines whether


the terms            of a purchase or sale agreement merge                          into the deed.    Deep Water Brewing, 152 Wn.

App.       at   252. "` [     W]here the intent of the parties is not clearly expressed in a deed, courts may

consider parol evidence.                        In order to determine the intent of the parties, extrinsic evidence is

admissible as              to the   entire circumstances under which a contract                      is   made."'     Deep Water Brewing,

152 Wn.2d             at   252 ( quoting Harris              v.   Ski Park Farms, Inc., 120 Wn.2d 727, 742, 844 P. 2d 1006


 1993)).             A     purchase         and      sale   agreement "         may be considered as some evidence of the

circumstances of               the   parties at       the time      of   the grant."    Harris, 120 Wn.2d             at   742.   Here, because




                                                                               15
46080 -7 -II




the 2006 deed is ambiguous, we may consider the purchase and sale agreement to determine the

parties' intent.


        Keystone additionally challenges a number of statements in Wilson' s and Krehbiel' s

declarations. For example, Keystone argues that the trial court erred when it considered Wilson' s

statements concerning the relationship between Radakovich I and Keystone because that

relationship is not relevant. In his declaration, Wilson stated that Radakovich I and Van Vessem,

Keystone' s manager, are close friends. Notwithstanding Keystone' s contention that the trial court

should have stricken this statement, it was unnecessary to do so because the statement had no

material effect on the determination of the issues where other evidence provided similar


information. See Guntheroth      v.   Rodaway,         107 Wn. 2d 170, 178, 727 P. 2d 982 ( 1986).    Here, we


have reviewed the challenged statements and they either have no bearing on the issue or they.have

no material effect on the determination of the issues. Some of the challenged statements are merely

cumulative.     Therefore, although the trial court could have stricken some of the. challenged


portions, it was unnecessary and there is no error.

        B.         The Parties Intended the 2006 Deed to Convey the Parcel B Tidelands

        The    extrinsic evidence evinces        the   parties'   intent to convey the Parcel B tidelands.   See


Newport Yacht, 168 Wn.        App.    at   65.   The tax appraisal the Radakoviches provided to Wilson


includes the Parcel B tidelands.        The purchase and sale agreement also demonstrates that Terra


Firma intended to convey the Parcel B tidelands. Terra Firma promised Wilson a minimum of 20

acres, and that acreage can only be achieved, by inclusion of the Parcel B tidelands in the

conveyance. Terra Firma did not reserve any tidelands in the purchase and sale agreement. Prior

to signing the 2006 deed, Radakovich II advised Wilson that Wilson may later negotiate with the

Port " on the tidelands."   CP at 95.




                                                            Wei
46080 -7 -II



           Furthermore,        the   parties'   conduct and admissions following the 2006 deed also

demonstrate that the parties intended to convey the Parcel B tidelands to Wilson. See Hanson, 34

Wn. 2d     at   126.     Wilson and the Radakoviches acted as if the 2006 deed conveyed the Parcel B


tidelands to Wilson. Wilson paid taxes for the complete tax parcels, which included the Parcel B


tidelands. He enjoyed uninterrupted use of the Parcel B tidelands from 2006 to 2012 and used the

Parcels to operate his business.


           Radakovich II       made repeated offers    to   purchase   the tidelands from Wilson. One of these



offers included a map depicting the Parcel B tidelands that Radakovich II wanted to repurchase.

Radakovich II referred to Wilson as the owner of the tidelands during communications with third

parties.    In the 2008 litigation, Radakovich I and II did not assert any ownership interest in any

tidelands in their own capacity or as representatives of Terra Firma.

           Finally, as recently as 2011, Radakovich I claimed no ownership interest in the Parcel B

tidelands. Radakovich I did not list the Parcel B tidelands in his bankruptcy schedules. When the

Port presented Radakovich I with an offer for the Parcel B tidelands, he " responded that he no

longer     owned       the tidelands."   CP at 210.


           In reviewing the evidence de novo, there is no genuine issue of material fact in dispute.

Keystone argues that Cowlitz County' s creation of a new tax parcel for the Parcel B tidelands

creates a genuine issue of material fact as to whether Wilson paid taxes on the Parcel B tidelands.


We disagree.            The affirmative evidence demonstrates that Wilson paid taxes on the Parcel B


tidelands from 2006 to 2011.              The   creation of a new   tax lot   does   not refute   this   evidence.   This


evidence does not create a genuine issue of material fact.




                                                             17
46080 -7 -II



        Keystone argues that statements referencing Wilson' s ownership of the tidelands made by

Radakovich II during the 2006 deed negotiations and by Radakovich I in November 2011 tend to

show only what they intended to write in the 2006 deed, not what they intended to convey by the

deed.   But Radakovich II' s statements demonstrate that Terra Firma did not intend to retain any

ownership rights in the Parcel B tidelands. And Radakovich I' s denial of ownership of the Parcel

B tidelands demonstrates that he did not believe Terra Firma retained any ownership right to the

Parcel B tidelands   following    the 2006 deed to Wilson.          In turn, this evidence demonstrates that


Terra Firma intended to convey the Parcel B tidelands to Wilson in the 2006. deed..

        Keystone also claims that " Wilson waived any right to claim" Parcel B other than what is

described in the deed. Br. of Appellant at 38. But Barlow Point and the Port make no such claim

of rights outside of the deed. Wilson' s claim of right to the tidelands is based solely on what was

conveyed   in the 2006 deed.      Because the deed is ambiguous, extrinsic evidence is admissible to


determine what the deed says. This extrinsic evidence is used only to interpret the deed and does

not create a separate claim outside .of          the deed itself.   Furthermore, Keystone fails to cite any

authority for this   argument.     We do not consider arguments that are unsupported by citation to

authority. RAP 10. 3(   a)(   5); Cowiche Canyon, 118 Wn.2d at 809.


        There   are no material    issues   of   fact in dispute.   Viewing the evidence in the light most

favorable to Keystone, reasonable persons could reach but one conclusion that the parties intended


to convey the Parcel B tidelands to Wilson in the 2006 deed. We affirm.




                                                         18
46080 -7 -II



        Because we affirm on the above grounds, we do not reach the issue of whether the 2006


deed conveyed the disputed tidelands to Wilson pursuant to the Wardell doctrine.


        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.




                                                           Melnick, J. %


We concur:




        Johanson, C.J. .




        B      gen, J.--




                                               19
