### FILED AUGUST 27, 2013 In the Office oftheClerkofCourt W A State CourtofAppeals, Division III
INTHECOURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE Kevin Grudzinski, ) No. 30795-6-111 ) Appellant, ) ) 

### v. ) UNPUBLISHED OPINION ) Randy Grudzinski and ) Nancy Grudzinski, husband and wife, ) ) Respondents. ) KULIK, 

### J.

- Kevin Grudzinski appeals summary dismissal ofclaims against his brotherRandy Grudzinski. The claims stem from Randy dumpingdemolition debris on landthat Kevin later inherited.I Kevin alleged thatthe debris was toxic, devalued the land, and cloudedtitle. He suedRandy for reliefunder the Model Toxics Control Act (MTCA), chapter 70.105D RCW, chapter 82.21 RCW; damages for negligent injury to property; an injunction ordering Randy to cleanup the land; and a declaration quieting title. Eleven days before trial, the court dismissed all ofthe claims on summary judgment.

I For clarity, we will refer to Kevin Grudzinski and Randy Grudzinski by fIrst

### No. 30795-6-111 Grudzinski

### v. Grudzinski


### We conclude that there was no release ofhazardous substances and the court properly dismissed the remaining claims. Accordingly, we affirm. FACTS Elsie Grudzinski was the mother oftwo sons, Kevin Grudzinski and Randy Grudzinski. Ms. Grudzinski owned 

### 57 acres in Walla Walla. Parts ofthat acreage are known as Lots 

### 1,3, and 4. Those lots are at issue here. DebrisDisposal onLots 1, 3, and4 

### Randy owned a demolition and excavation company called Randy Grudzinski, Inc. (RGI). He planned to use Lot 1as a base ofoperations for RGI. 2 

### He intended to store his equipmentthere. He began dumping debris, which included large pieces ofasphalt and concrete, on Lot 1. However, the plan to make it a base ofoperations never materialized. While dumping a load ofexcavation material on·Lot 1, an "end-dump trailer" tipped over on its side. Clerk's Papers (CP) at 

### 118. It

### remained tipped over for several months. Duringthat time, fluid leaked out ofthe trailer and onto the soil. Kevin believed that the liquid was hydraulic fluid. The record does not reveal what the fluid was made of
or whether it was cleaned up.

name. We intend no disrespect. 2 

### Theparties submitted evidence on and argued about whetherMs. Grudzinski gave Randy permission to use her land and, ifso, whatthe scope ofthatpermission was. 2No. 30795-6-111 Grudzinski v. Grudzinski Later, RGI had an excavation contract with Apollo, Inc. Apollo, Inc. was the general contractor on the "MyraRoad project." CP at 146. According to Randy, he dumped "asphalt, concrete, vegetation, tree stumps andpit-run gravel" onhis mother's land during theproject. CP at 52. He dumped most ofthe debris on Lot4, but also dumped some onLot 3. Apollo, Inc. itselfwas dumping debris on Ms. Grudzinski's land. She signed a document giving Apollo, Inc. permission to dump dirt and vegetation on her land, but not "[m]aterials from Stubblefieldproperty.,,3 CP at 55. The "Stubblefield property" refers to the former Stubblefield Salvage Yard. Itis a hazardous site awaiting clean up by the Department ofEcology. The Myra Road project wentthrough a portion ofthe salvage yard. As a result, some ofthe salvage yard was excavated. According to Randy, debris from the Stubblefield Salvage Yard was disposed of
on anotherpart ofthe yard, which Randy and a business partner eventually bought. Randy knew that Stubblefield Salvage Yard's debris was there because he sawApollo moving loads ofit and there "was truckloads and truckloads stacked that [he] had to deal However, Ms. Grudzinski's permission is irrelevant to the issues addressed here. 3What land she gave thempermission to dump on is unclear. The letter that she signed authorizing the dumping $ays that Apollo may dump on "parcel number 350725220004 at 531 Hatch Street." CP at 55. That parcel numberis Lot4, but 531 Hatch Streetwas Ms. Grudzinsk;i's residence, which was on a differentparceL 3No.30795-6-III Grudzinski v. Grudzinski
with" when he bought the land. CP at 187. He indicated thatthe Environmental Protection Agency had testedhis portion oftheyard and concludedthat it was not contaminated. Kevin, however, suggested that Stubblefield Salvage Yard debris ended up onMs. Grudzinski's land. Although he did not actually see debris from the Stubblefield being dumped onMs. Grudzinski's land, he did see Apollo's andRGI's trucks loaded with Stubblefield debris andtraveling toward Lots 3 and 4. According to Kevin, the debris on Lots 3 and 4 included "ironpipe, cast iron manhole covers, cast iron manhole rings, and PVC pipe," and a "concrete manhole ring." CP at 118. None ofthe land was tested for the presence ofhazardous substances. Ms. Grudzinski's Estate Ms. Grudzinski died in 2009 and lefther estate to Kevin and Randy. In her will, she indicated,I am concerned that my children will argue over the disposition of my estate and management ofmy estate after my death
.... [S]hould either ofmy children contest theterms ofmy Will orthe manner in which my Personal Representative is handling the resolution ofmy estate, said child shall receive the sum ofONE DOLLAR ($1.00) and otherwise receive nothing under this Will. CP at 31. She devised and bequeathed 60 percent ofthe estate's residue to Kevin and 40 percent to Randy. The residue included Lots 1,3, and 4. 4No.30795-6-III Grudzinski v. Grudzinski
The court appointed Thomas Sawatzki personal representative. Instead ofselling the land and dividing the proceeds, Mr. Sawatzki divided the land between Randy and Kevin. Kevin ended up with Lots 1,3, and 4. Mr. Sawatzki knew thatthose lots had demolition debris on them. He concluded that the debris did notreduce the land'svalue, but got several estimates on the cost to clean up the debris. The estimates indicated that it would cost $15,000 to $43,700 to
remove the debris. Based on those figures, he decided to give Kevin a setoffof$25,000 worth ofadditional estate property.4 Accordingto Kevin, rather than giving Kevin anything ofvalue, Mr. Sawatzki artificially inflatedthe value ofpersonal property already distributed to Kevin. ProceduralHistory The Walla Walla County Health Department ordered that Kevin remove the debris andproperly dispose ofit. Nobody had a permit to dump excavation debris onMs. Grudzinski's land and the dumping was prohibited by a zoning regulation. Nothing in the record shows that Walla Walla Countyhas enforced its order.

4The record also suggest$ that Kevin may have received $43,700 ratherthan $25,000. However, Randy agre¢d at the summaryjudgmenthearing and in his appellate briefthat Kevin received**$25,00~.** 

### 5No. 30795-6-II1 Grudzinski 

### v. Grudzinski
Kevin did not clean up the land, but he did sue Randy for the cost ofcleanup. He claimedthat he was entitledto reliefunder the MTCA, damages for negligent injury to real property, equitable reliefordering Randy to clean up the property, a declaration quieting title, and a dech"tration ofthe legal status ofan easement for well water. On February 16,2012, Randy moved for summaryjudgment on every claim. The summaryjudgmenthearing was set for March 15,2012,which was 11 days before trial. Kevin movedto strike the summaryjudgmenthearing as untimely. He argued that it was prejudicial because it would be impossible to prepare for the summaryjudgmenthearing and trial 11 days later. The court denied the motion. Atthe summaryjudgment hearing, Kevin conceded that hardened asphalt could not support an MTCA claim. Counsel for Kevin explained thatthe MTCA claim did not include Lot 1 "because ofthe nature ofthe material dumped there, which are hardened asphalt, large volume oftrees, tree trunks, and tree stumps and concrete, so forth. None ofthat is going to be a MTCA claim." Report ofProceedings (RP) at 24. The court grantedthe motion and dismissed every claim except the easementrelated claim. Itconcluded that there was insufficient evidence ofhazardous substances to support the MTCA claim, Randy did not owe a duty to Kevin or that Ms. Grudzinski's negligence claim did notpass to!Kevin, thatthe equities did not support a declaratory


### 6

### No.30795-6-III Grudzinski 

### v. Grudzinski 

### relief, and that there was no cloud on the title. Kevin appeals. ANALYSIS We review orders on summaryjudgment de novo. Michak 

### v. Transnation Title Ins. Co., 

### 148 Wn.2d 788, 794-95, 64 P.3d 22 (2003). Summaryjudgment should be granted "ifthe pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, ifany, showthat there is no genuine issue as to any material fact and that the moving party is entitled to a summaryjudgment as a matter oflaw." CR 56(c). We consider all facts and all reasonable inferences from those facts in a light most favorable to the nonmoving party. Lakey 

### v. PugetSoundEnergy, Inc., 

### 176 Wn.2d 909,922,296P.3d 860 (2013). A genuine issue ofmaterial fact exists when reasonable minds could disagree about the facts controlling the outcome oflitigation. Wilson 

### v. Steinbach, 

### 98 Wn.2d 434,437,656P.2d 1030 (1982). MTCA Claim 

### The MTCA's goal is to protecthuman and environmental health from irresponsible use and disposal ofhazardous substances. RCW 70.l05D.OIO. The MTCA allows the Department ofEcology to recover "all remedial action costs and for all natural
resource damages resulting from the releases or threatened releases ofhazardous substances." RCW 70.105D.040(2). Additionally, a landowner liable for clean up costs


### 7

### No. 30795-6-III Grudzinski

### v. Grudzinski


### may seek contribution or declaratory relieffrom other liable parties. RCW 70.105D.040(l)(a), .080. To support a private MTCA claim, the evidence must show that (l) the plaintiffis responsible for cleanup costs, (2) the defendant is a liable party, (3) the property is a "facility," and (4) there is a release orthreatened release ofa hazardous substance. RCW 70.105D.040(l), .080. Once the court concludes that the plaintiffmay recover, it determines the measure ofrecovery using equitable factors and limits the recovery to fees and expenses that are the "substantial equivalent ofa [Department of Ecology]-supervised remedial action." RCW 70.105D.080. Here, the parties dispute whether there was a release ofhazardous substances, whether Randy is a liable party, and whether Kevin is entitled to relief. Because we conclude that there was no release ofhazardous substances, we do not reach the remaining issues. Kevin argues that the trial court erred by concluding that there was no evidence of hazardous substances on the land. "Hazardous substance" is statutorily defined. RCW 70.105D.020(l0), It includes many substances, but the substances most relevant here are "petroleumproducts" and "extremely hazardous waste." See 

### RCW 70.105D.020(10)(a), (d). "Extremely hazardous waste" is any waste "[i]fdisposed ofat a disposal site in such I 

### quantities as wouldpresent an ettremehazard to human beings or the environment."


### 8No.3079S-6-III Grudzinski v. Grudzinski
RCW 70.1OS.O 1O(7)(b). Other hazardous substances include those that are highly toxic to or "may affect the genetic make-up ofhuman beings orwildlife," RCW 70.l0S.01O(7)(a)(i); have "short-lived, toxic properties that may cause death, injury, or illness," are "mutagenic, teratogenic, or carcinogenic," RCW 70.10S.010(1)(a);
or are "corrosive, explosive, [or] flammable." RCW 70.l0S.010(1)(b). Kevin contends thatthere was evidence ofhazardous substances onthe land. Specifically, he contends that the Stubblefield Salvage Yard debris, hardened asphalt, and hydraulic fluid -are all hazardous substances. StubblefieldSalvage YardMaterial. Kevin contends that there was evidence that this material was a hazardous substance because the evidence showedthatthe Stubblefield Salvage Yard was awaiting clean up by the Department ofEcology and the debris from the salvage yard was on Lots 3 and 4. Fromthat evidence, he contends the court can infer thatthere are hazardous substances on the land. Randy responds thatthere is no way to know whether hazardous substances are on the land because Kevin failed to test the land for hazardous substances. The evidence shows that RGI worked on the MyraRoad project with Apollo, the MyraRoadproject went througH the salvage yard; RGI andApollo trucks traveled toward ! I Lots 3 and 4 while loaded with**~alvage** yard debris; and thatthe salvage yard was
9No.30795-6-II1 Grudzinski 

### v. Grudzinski awaiting clean up by the Department ofEcology. By all accounts, the debris on Lots 3 and 4 consisted ofasphalt, concrete, vegetation, tree stumps, gravel, cast iron, and PVC. Viewed in a light most favorable to Kevin, this court could infer that material from the Stubblefield Salvage Yard was on the land. However, this court cannot inferthat the material is hazardous. Perhaps the material would behazardous ifit was in such a quantity as to present an extreme hazard to human beings or the environment. See RCW 70.105.010(7)(b). However, there is no evidence to suggest that. Additionally, the materials were not tested for contamination from hazardous substances that might be, for example, mutagenic, teratogenic, carcinogenic, corrosive, explosive, or flammable. See RCW 70. 105.0lO(1)(a), (b). The evidence does not support the conclusion that any debris from the Stubblefield Salvage Yard is hazardous. Hydraulic Fluid. Next, Kevin argues that hydraulic fluid is a hazardous substance. His argument, however, consists only ofa conclusory statement that hydraulic tluid is a hazardous substance. That statement relies on the assumption that hydraulic fluid is a petroleum product. Petroleum products are hazardous substances. RCW 70.l05D.020(10)(d).

10No.30795-6-III Grudzinski v. Grudzinski
The evidence showed that hydraulic fluid spilled ontothe soil, butnotthat the fluid was a petroleum product or any other kind ofhazardous substance. Indeed, there are at least four types ofhydraulic fluids and only one type is a petroleumproduct. 5 See U.S. DEP'T OF HEALTH & HUMAN SERVICES, PUBLIC HEALTH SERV., AGENCY FOR TOXIC SUBSTANCES & DISEASE REGISTRY, TOXICOLOGICAL PROFILE FOR HYDRAULIC FLUIDS at 9 (Sept. 1997) (there are mineral oil, organophosphate ester, and polyalphaolefin hydraulic fluids);6 Dawn Lyons-Johnson, BiodegradablePlant-BasedHydraulic Fluid, AGRICULTURAL RESEARCH, Nov. 1998, at 9 (there are plant-based hydraulic fluids).7 HardenedAsphalt. On appeal, Kevin also argues that hardened asphalt is a hazardous substance. However, this court may refuse to review issues notraised in the trial court. RAP 2.5(a). Atthe summaryjudgmenthearing, Kevin conceded that hardened asphalt could not contribute to his MTCA claim. There, Kevin's counsel explained that the MTCA claim did not include Lot 1 "because ofthe nature ofthe materials dumped there, which are hardenedasphalt, large volume oftrees, tree trunks,

5This court may take**judi~ial** notice offacts "not subject to reasonable dispute." ER 201(b).
. 6Available athttp://wwwfatsdr.cdc.gov/toxprofiIes/tp99.pdf
. 7Available athttp://wwwj.ars.usda.gov/is/ar/archive/nov98/0iII198.pdf
. I I 

### 11No.30795-6-III Grudzinski v. Grudzinski
and tree stumps and concrete, so forth. None of that is going to be a MTCA claim." RP at 24 (emphasis added). Because Kevin did not preserve this issue for appeal, we need not address it. See RAP 2.5(a). In sum, Kevin failed topresent any evidence ofhazardous substances on the land. There beingno genuine issue ofmaterial fact on that element, Randy was entitled to summaryjudgment as a matter oflaw. See CR56(c). Negligence Kevin next argues thatthe trial court incorrectly dismissed his negligence claim. A plaintiffraising negligence must establish four elements: (l) a duty owed to the plaintiff, (2) breach ofthat duty by the defendant, (3) resulting injury, and (4) proximate
cause between the breach and the injury. Tincani 

### v. InlandEmpire ZoologicalSoc

## y, 124 Wn.2d 121, 127-28,875 P.2d 621 (1994). Whetherthe defendant owed a duty to the plaintiffis a threshold question. Munich v. Skagit Emergency Commc 'ns Ctr., 175 Wn.2d 871,877,288 P.3d 328 (2012). Ifthe existence ofa duty does not depend on disputed facts and the plaintiffdoes not establish that a duty exists, then summaryjudgmentis appropriate. See Hymas 

### v. UAP Distrib., Inc., 167 Wn. App. 136, 150,272 P.3d 889, review denied, 175 Wn.2d 1006 (2012) (summaryjudgmentinappropriate when duty depends ondisputed facts); Jackson v. City of Seattle, 158 Wn. App. 647,652,244 P.3d
12No. 30795-6-III Grudzinski v. Grudzinski
425 (2010) (burden ofestablishing duty is on theplaintiff). Kevin contends thatRandy owed him a duty because Randy owed Ms. Grudzinski
a duty and now Kevin owns her land. Randy responds thathe did not owe Kevin a duty because Kevin did not ownthe land at the time ofRandy's alleged negligent conduct. While the issue may certainly be framed as one ofduty, it might betterbe framed
as one ofstanding: Does Kevin have standingto assert Ms. Grudzinski's negligence claim? Standing is a common law doctrine thatprohibits a plaintifffrom raising the legal rights ofanother. Grant County Fire Prot. Dist. No.5 v. City of Moses Lake, 150 Wn.2d 791,802,83 P.3d 419 (2004). Generally, a person has standing toraise a claim for injury to real property only ifthat person ownedthe real property at the time ofthe injury. Powell v. Superior Portland Cement, Inc., 15 Wn.2d 14, 18, 129 P.2d 536 (1942) ("[T]he right ofaction, ifany, respondent's grantor may have had for damages to that property ... did notpass to respondent grantee with conveyance ofthe property, needs no citation of sustaining authority."); Scott v. Elliot, 253 Or. 168, 181, 451 P.2d 474 (1969); West v. BrenntagSw., Inc., 168 S.W.3d 327,333 (Tex. App. 2005); Beach St. Corp. v. A.P. Constr. Co., 441 Pa. Super. 639, 641-42, 658 A.2d 379 (1995); Frank 

### C. Minvielle, LLC v./MC Global Operations, Inc.,:380 F. Supp. 2d 755, 771-72 (W.D. La. 2004). Kevin does not have standingto assert Ms. Grudzinski's claim.
13

### No.30795-6-III Grudzinski v. Grudzinski


### Kevin also contends that he is entitled to assert Ms. Grudzinski's negligence claim because ofthis state's survival statute. See 

### RCW4.20.046(1). Underthe survival statute, the claim ofa decedent survives and passes to the personal representative. 

### Id. The statute provides: All causes ofaction by aperson orpersons against another person or persons shall survive to thepersonalrepresentatives of theformer 

### and againstthe personal representatives ofthe latter, whether such actions arise on contract or otherwise, and whether or not such actions would have survived at the common law orpriorto the date ofenactment ofthis section. 

### Id. (emphasis added). There are two problems with Kevin's argument. First, 

### Mr. Sawatzki-not Kevin-was Ms. Grudzinski's personal representative. He had the discretion to sue Randy, but chose not to do so. See 

### RCW 11.48.010. Second, the record does not show that 

### Mr. Sawatzki distributed a negligence claim to Kevin. The claim is not listed in the inventory and appraisal ofthe estate or as an asset to be distributed to Kevin. Kevin points out that 

### Mr. Sawatzki did not formally release the claim either and it therefore remains an undistributed asset ofthe estate. Ifso, a trial courtmay reissue letters of administration to dispose ofthe claim. See 

### RCW 11.76.250. Butin the meantime, Ms. Grudzinski's negligence claim dbes not belong to Kevin. The court correctly dismissed Kevin's negligence claim. 14No. 30795-6-111 

### Grudzinski v. 

### Grudzinski Equitable and Quiet Title Claims Next, Kevin argues that the trial court incorrectly dismissed his equitable and quiet title claims. Both claims sought an orderrequiring Randy to clean up the land to the satisfaction ofWalla Walla County and Kevin. Kevin contends that the trial court erred because he raised a genuine issue of material fact as to whetherMr. Sawatzki adequately compensated him for the cost of cleaning up the land. However, that factual issue is immaterial to the court's conclusion that Kevin was not entitled to equitable relief. The court observed that Ms. Grudzinski's will appointed a neutral third-party personal representative and contained a no-contest clause. The court concludedthatthe will evidenced Ms. Grudzinski's intent to avoid conflictbetween Randy and Kevin. It further concluded that Kevin's suitwas an attempt to circumventthe terms ofthe will and allowing Kevin to do so would be inequitable. Even assuming that Mr. Sawatzki's setoffwas inadequate, the court's conclusion would apply. There was no genuine issue ofmaterial fact that prevented summaryjudgment on this issue. Kevin also contends that the trial court erred by dismissing the claims without citingto any authority. However, we will not consider arguments that are not supported by citations to authority. RAP 10.3(a)(6); 

### Joy v. 

### Dep'to/Labor & 

### Indus., 170 Wn. App.
15No. 30795-6-111 Grudzinski v. Grudzinski 614,629,285 P.3d 187 (2012), review denied, 176 Wn.2d 1021 (2013). Because Kevin does not cite to any authority to support his argument, this courtwill not consider it. There is no basis to conclude that the court erred by dismissing the equitable and quiet title claims. Timeliness of SummaryJudgmentMotion Finally, Kevin contends that the court erred by hearing the summaryjudgment motion untimely. A motion for summaryjudgment "shall be heard more than 14 calendar days before the date set for trial unless leave ofcourt is granted to allow otherwise." CR 56(c). An order shortening time between a summaryjudgmenthearing andtrial is reviewed for an abuse ofdiscretion. State ex ref. CitizensAgainst Tolls 

### v. Murphy, 151 Wn.2d 226,236,88 P.3d 375 (2004). Shortening time is an abuse ofdiscretion ifit prejudiced the nonmovingparty. ld. To demonstrate prejudice, the nonmoving party "must show a lack ofactual notice, a lack oftime to prepare for the motion, andno opportunity to submit case authority orprovide countervailing oral argument." ld. at 236­ 37. In CitizensAgainst Tolls, the plaintiffargued that a summaryjudgmenthearing eight days prior to trial was prejudicial because it had insufficient time to collect evidence
orfile a CR 56(t) motion. ld.; sJe CR 56(t) (the court may refuse to consider a summary
16No.30795-6-II1 Grudzinski v. Grudzinski judgmentmotion ifthe nonmoving party cannotpresent affidavit facts to oppose the summaryjudgmentmotion). The court concluded that there was no prejudice because the plaintiffknew about the issues that might lead to summaryjudgment months before the hearing and the uncollected evidence had no value. 

### ld. at 238. Here, Kevin argued that shortening time prejudiced him because it would be too hard to prepare for summaryjudgment andthen trial 11 days later. On appeal, he further explains that he did not have time to file a CR 56(f) motion or conduct more discovery to address the issues raised by Randy. However, the record shows that Kevin had more than
one month to file a CR 56(f) motion, prepare for summaryjudgment, and then 11 more days to prepare for trial. He also never explainedwhat type ofevidence he neededto obtain through additional discovery. Like in CitizensAgainst Tolls, he has not shown prejudice. The court did not abuse its discretion by hearing the summaryjudgment motion 11 days before trial.

17No. 30795-6-111 Grudzinski 

### v. Grudzinski
We affirm the decision ofthe trial court. A majority ofthepanel has determined this opinion will notbe printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040. Kulik, 1. WE CONCUR:

Korsmo, C
.. 

# err

18