                                                                                        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STATE OF WASHINGTON; WASHINGTON                                           UNPUBLISHED OPINION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.
                                                                          2
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
                                                                3
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

                                                                   4
43891- 7- 11



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.
                                                                    5
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:




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