   IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


GEORGE AYDELOTTE,

                     Appellant,                  No. 70694-2-1


      v.

                                                 DIVISION ONE
TOWN OF SKYKOMISH; CHARLOTTE
MACKNER; HENRY SLADEK; and                       UNPUBLISHED OPINION
DARRELL JOSELYN,

                     Respondents.                FILED: March 16. 2015

       Spearman, C.J. - George Aydelotte alleged that the Town of Skykomish and

various town council members negotiated an improper agreement of environmental

cleanup issues and then retaliated against him when he tried to publicize the

misconduct. Because he failed to demonstrate a material factual dispute, the trial

court properly dismissed his claims on summary judgment. Aydelotte has also failed

to demonstrate that the trial court erred or abused its discretion in denying his motion

to amend the complaint and in failing to consider an untimely declaration and his

untimely response to a request for admissions. We affirm.

                                        FACTS

       Aydelotte filed this action against the Town of Skykomish and individual town

council members (Town) on March 11, 2011. He requested injunctive and monetary

relief for the Town's alleged improper demolition of his garage, the Town's agreement
No. 70694-2-1/2



to a conditional point of compliance for ground water quality, and the Town's

placement of "institutional controls"1 on Aydelotte's use of his property. Aydelotte

alleged that the Town had retaliated against him after he exposed financial conflicts

of interest in the Town's negotiation of a 2008 settlement with Burlington Northern

Santa Fe Railroad (BNSF) "relating to certain property, compensation, and superfund

cleanup issues."2

       On October 5, 2012, the Town mailed its first set of interrogatories, first set of

requests for admissions, and a request for statement of damages to Aydelotte. On
January 18, 2013, after Aydelotte failed to respond, the Town moved to compel.
Aydelotte did not respond. On February 8, 2013, the trial court entered an order
granting the motion to compel and directing Aydelotte to respond to the first set of
interrogatories and to the request for a statement of damages. The court also ruled
that the first set of requests for admissions was deemed admitted under CR 36(a).
       On May 3, 2013, the Town moved for summary judgment. Aydelotte did not
file a response, but on June 4, 2013, three days before the scheduled hearing on the
summary judgment motion, Aydelotte filed his answers to the Town's first request for
admissions. On June 7, 2013, the trial court granted Aydelotte's motion to continue

the hearing until June 25, 2013, to permit him to file a response to the summary

judgment motion.




    1 Clerk's Papers (CP) at 110.

    2CPat109.



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      Aydelotte filed a declaration opposing summary judgment on June 13, 2013.

On the same day, he also filed a motion to amend the complaint by adding new

parties and claims.

       On June 25, 2013, the court heard argument on the summary judgment

motion. Aydelotte informed the court that he had filed a second declaration on June

24. The court noted that the declaration was untimely and in violation of the

schedule that the court established at the first hearing and declined to consider it.

The court also denied Aydelotte's motion to amend the complaint as untimely and

procedurally improper. Concluding that Aydelotte had failed to demonstrate a

material factual dispute, the court dismissed his claims on summary judgment.

                                     DISCUSSION

                                   Standard of Review

       An appellate court reviews summary judgment orders de novo, undertaking

the same inquiry as the trial court. See Greenhalqh v. Dep't of Corr., 160 Wn. App.

706, 713-14, 248 P.3d 150 (2011). We consider the materials before the trial court

and construe the facts and inferences in the light most favorable to the nonmoving

party. Hubbard v. Spokane County, 146 Wn.2d 699, 706-07, 50 P.3d 602 (2002).

Summary judgment is proper only if there is no genuine issue of material fact. CR

56(c); Hubbard, 146 Wn.2d at 707 (citing Trimble v. Wash. State Univ., 140 Wn.2d

88, 92-93, 993 P.2d 259 (2000)).

                                   Summary Judgment

       The moving party can satisfy its initial burden under CR 56 by demonstrating

the absence of evidence supporting the nonmoving party's case. Young v. Key
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Pharms.. Inc., 112 Wn.2d 216, 225 n.1, 770 P.2d 182(1989). The burden then shifts

to the nonmoving party to set forth specific facts demonstrating a genuine issue for

trial. Kendall v. Douglas, Grant, Lincoln and Okanogan Public Hosp. Dist. No. 6, 118

Wn.2d 1, 8-9, 820 P.2d 497 (1991).

      Aydelotte's complaint alleged two claims arising out of the Town's settlement

of environmental cleanup issues: the Town's agreement "to a conditional point of

compliance for ground water quality" and the Town's imposition of "institutional

controls" on Aydelotte's use of his property. CP at 110. Neither below nor on appeal

has Aydelotte cited any relevant authority indicating the existence of a private cause

of action for the alleged claims or identified any admissible evidence tending to

support such claims. A "'complete failure of proof concerning an essential element of

the nonmoving party's case necessarily renders all other facts immaterial.'" Young,

112 Wn.2d at 225 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct.

2548, 91 L.Ed.2d 265 (1986)). The trial court properly dismissed the claims on

summary judgment.

       Aydelotte's complaint also alleged that the Town had improperly demolished

his garage in retaliation for his whistleblowing activities. Aydelotte denied the Town's

assertion that the garage was on the Town's right of way.

       When Aydelotte failed to file any response to the summary judgment motion

by June 7, 2013, the scheduled hearing date, the trial court continued the hearing to

permit him to file a substantive response. Aydelotte filed only a single timely

declaration. The declaration failed to address the summary judgment motion and

included no evidence supporting the specific claims in the underlying complaint.



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No. 70694-2-1/5


       On appeal, Aydelotte points to photographs in the record that, he alleges,

depict debris the Town dumped on his rear stars. He claims that "[witnesses will

testify who and when the debris was piled."3

       But a party cannot create a factual dispute with bare allegations that witnesses

will supply the supporting evidence at trial. In order to defeat a properly supported

summary judgment motion, the nonmoving party
       may not rely on the allegations in the pleadings but must set forth
       specific facts by affidavit or otherwise that show a genuine issue exists.
       Additionally, any such affidavit must be based on personal knowledge
       admissible at trial and not merely on conclusory allegations, speculative
       statements or argumentative assertions.

Las v. Yellow Front Stores, Inc., 66 Wn. App. 196, 198, 831 P.2d 744 (1992) (citation

omitted).

       Despite the continuance, Aydelotte failed to submit any witness declarations,

documents, or other admissible evidence raising a factual dispute as to the location

of the Town's right of way or to the propriety of its demolition of the garage. The trial
court did not err in dismissing the claim on summary judgment.

                                Response to Reguest for Admissions

       Aydelotte contends that the trial court erred in refusing to admit his belated
response to the Town's request for admissions. But contrary to Aydelotte's assertion,
the trial court refusal's to admit the belated response did not "preclude[] a resolution

of the case on its merits. . . ."4




    3 Br. of Appellant at 12.

    4 Br. of Appellant at 5.
No. 70694-2-1/6



       On February 8, 2013, after Aydelotte failed to respond to the Town's request

for admissions or to the motion to compel, the trial court ruled that the requests would

be deemed admitted. See CR 36(a). Aydelotte filed his answers to the Town's first

request for admissions on June 4, 2013, three days before the scheduled summary

judgment hearing.5

       On appeal, Aydelotte has not challenged the court's ruling deeming the

requests admitted. Nor has he demonstrated how his answers filed on June 4, 2013,

even if considered, would have defeated the motion for summary judgment. After

Aydelotte filed the answers, the trial court provided him with a full opportunity to
submit a substantive response to the summary judgment. Despite this opportunity,

Aydelotte failed to establish a material factual dispute. Because Aydelotte cannot
demonstrate that he was prejudiced by the court's failure to admit the answers, any

error was harmless.

                                       Untimely Declaration

       Aydelotte contends that the trial court erred in refusing to consider his second
declaration, which he filed on the afternoon of June 24, 2013, one day before the

summary judgment hearing. The court had not yet received the declaration by the
time of the hearing, but noted that the declaration was filed in violation of the
schedule that the court set when it continued the hearing on June 7.

        Aydelotte informed the court that the declaration proved that various
individuals associated with the Town had been continuing their alleged acts of



    5Aydelotte claimed that he did not receive either the request for admissions or the motion to
compel because the wife of a councilman, who worked as a postal clerk, "diverted" his mail. Aydelotte
failed to submit any evidence supporting this conclusory allegation.


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No. 70694-2-1/7



harassment and misconduct in recent days. But he failed to identify anything in the

declaration relevant to the specific claims at issue in the pending motion for summary

judgment. Nor did Aydelotte request a continuance under CR 56(f). Under the

circumstances, Aydelotte fails to demonstrate any abuse of discretion. See

Southwick v. Seattle Police Officer John Doe # s 1-5 and King County Corr. Employ.

John Doe #s 1-5. 145 Wn. App. 292, 301, 186 P.3d 1089 (2008) (trial court has

discretion to accept or reject an untimely declaration).

                              Motion to Amend Complaint

       Aydelotte contends that the trial court erred in denying his motion to amend
the complaint, but he has not supported the assignment of error with any meaningful
legal argument. Failure to support assignments of error with legal arguments
precludes review. Howell v. Spokane &Inland Empire Blood Bank, 117 Wn.2d 619,
624, 818P.2d 1056(1991).

       Affirmed.



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WE CONCUR:




                                                           iV-elfl.




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