IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

UMPQUA BANK,

Respondent,

v.

CHARLES A. GUNZEL, III, and GINELLE 

F. GUNZEL, husband and wife,

Appellants.

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No. 37400-9-III

PUBLISHED OPINION

FEARING, J. — This is our second published opinion in this appeal. In our first 

opinion, we ruled that the Oregon statute of limitations barred Umpqua Bank’s suit 

against Charles Gunzel on his guaranty of a hefty debt owed by the borrower Cornerstone 

Building Company. Umpqua Bank v. Gunzel, 16 Wn. App. 2d 795, 483 P.3d 796 (2021). 

Umpqua Bank seeks reconsideration of our opinion based on new evidence and 

fraud. Along with its motion for reconsideration, the bank moves this court to 

FILED

AUGUST 24, 2021

In the Office of the Clerk of Court

WA State Court of Appeals Division III
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Umpqua Bank v. Gunzel, III

2

supplement the evidentiary record. We elect, pursuant to RAP 17.6(b), to resolve the two 

related motions with an opinion. 

Based on a newly produced record that shows one or more payments to the bank 

by guarantor Charles Gunzel personally, rather than the debtor corporation, Cornerstone 

Building Company, Umpqua Bank now asserts that Gunzel prevaricated in a declaration

opposing the bank’s summary judgment motion. Umpqua Bank also contends that 

Gunzel’s personal payments extended the accrual of the statute of limitations. In turn, 

Umpqua Bank requests that we reverse our ruling in favor of Charles Gunzel because 

Gunzel perjured himself in his declaration and because this court decided the appeal on 

the basis that Gunzel tendered no personal payments when the parties did not litigate this 

factual question. Umpqua Bank asks that we grant it judgment against Gunzel. 

We exercise our discretion to deny Umpqua Bank’s motion to supplement the 

record because the bank did not seek to enhance the factual record until after the issuance 

of the court’s opinion, because the bank should have produced the relevant document in 

response to a discovery request, and because the equities do not favor the bank. We deny 

the motion for reconsideration because we decline to review new evidence and because 

this court based its earlier decision on an issue litigated by the parties. 

FACTS

We refer the reader to our first opinion for most of the underlying facts behind the 

suit by Umpqua Bank against Charles Gunzel. Umpqua Bank v. Gunzel, 16 Wn. App. 2d 
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Umpqua Bank v. Gunzel, III

3

795 (2021). We briefly recap those facts. 

On June 27, 2007, Cornerstone Building, Co., a corporation, borrowed $200,000 

from Umpqua Bank. The maturity date for the entire debt, under the promissory note 

signed by Cornerstone, was May 28, 2009. Charles Gunzel, the president of Cornerstone, 

executed a commercial guaranty, under which Gunzel guaranteed Cornerstone’s payment 

of the $200,000 indebtedness to Umpqua Bank. The guaranty addressed the statute of 

limitations for any claim on the guaranty and read in part: 

Guarantor also waives any and all rights or defenses based on 

suretyship . . . but not limited to, any rights or defenses arising by reason of 

. . . any statute of limitations, if at any time any action or suit brought by 

Lender against Guarantor is commenced, there is outstanding Indebtedness 

which is not barred by any applicable statute of limitations.

Clerk’s Papers (CP) at 71 (emphasis added). The guaranty read that Oregon law 

controlled the parties’ relationship. 

On May 28, 2009, the maturity date of the promissory note, Cornerstone defaulted 

on its obligations by failing to pay the note in full. Nevertheless, according to the record 

on summary judgment, the corporation periodically made late payments on the loan until 

December 16, 2013. 

PROCEDURE

The relevant facts behind this second ruling are the procedures in the superior 

court during the summary judgment motion process and the procedures in this appellate 

court since we issued our ruling. On March 28, 2019, Umpqua Bank filed suit against 
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Umpqua Bank v. Gunzel, III

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Charles Gunzel on his personal guaranty. Gunzel raised the defense of the statute of 

limitations and contended that the statute commenced to run on the default by debtor 

Cornerstone Building on May 28, 2009. Umpqua argued that the statute of limitations 

did not begin to run until the last late payment on December 16, 2013. 

On May 21, 2019, Gunzel propounded interrogatories and requests for production 

to Umpqua Bank. Among other documents requested, Gunzel sought the following:

REQUEST FOR PRODUCTION NO. 2: Please provide copies of all 

records showing payments on the obligation and the balance owing after 

each such payment. 

CP at 22. Umpqua Bank produced only one document in response, an “Umpqua Bank 

Loan Accounting System Note Transcript Statement.” CP at 77. Umpqua Bank 

employee, Lisa Redcay, signed and verified the bank’s document response. 

Charles Gunzel’s counsel thereafter identified for Umpqua Bank its deficiencies in 

the production of documents. Counsel emphasized that the bank had failed to provide the 

Cornerstone promissory note in response to one of the other requests for records. 

Counsel for Umpqua did not respond. Gunzel sent a second set of requests for 

production that requested, in part, a copy of all loan documents. On July 11, 2019, 

Umpqua merely repeated its response to the earlier request for documents. The bank 

once again failed to produce the promissory note. Umpqua Bank failed to verify its 

second response to the request for production of documents. 
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Umpqua Bank v. Gunzel, III

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Charles Gunzel scheduled, pursuant to CR 30(b)(6), a corporate deposition of 

Umpqua Bank. The notice of deposition designated the answers to Gunzel’s discovery 

requests as one of the topics for questioning during the deposition scheduled for 

December 20, 2019. Umpqua failed to produce a witness for the deposition. The 

superior court imposed discovery sanctions on Umpqua and its counsel for the 

nonappearance. 

Charles Gunzel moved for summary judgment dismissal of the suit on the basis of 

the statute of limitations. He argued that, under Oregon law: (1) the statute of limitations 

on a personal guaranty is independent from any underlying obligation, (2) the six-year 

statute of limitations accrued on May 28, 2009, when Cornerstone’s loan matured without 

full payment and he thereby became obligated to pay the debt, (3) Cornerstone’s periodic

payments thereafter did not recommence the running of the statute of limitations against 

him since he remained in default under his guaranty, (4) the waiver of the statute of

limitations defense under his guaranty agreement with Umpqua Bank violated public 

policy, and (5) the statute of limitations barred Umpqua’s suit because the bank sued after 

May 28, 2015. Note that Gunzel framed the issues as if Cornerstone, not he personally, 

tendered the late payments. 

In his brief in support of his motion for summary judgment, Charles Gunzel wrote: 

“[t]hereafter, Cornerstone Building Co. continued to make payments through December 

16, 2013.” CP at 7. Gunzel based this factual assertion on Umpqua’s responses to 
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Umpqua Bank v. Gunzel, III

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discovery that showed the bank applied payments only to the promissory note and 

Cornerstone Building’s matching loan account number 124790 as opposed to Gunzel’s

personal guaranty account number 525164. 

In response to Charles Gunzel’s summary judgment motion, Umpqua Bank 

contended that both parties agreed no material factual disputes existed. The bank wrote 

four times, in its opposing memorandum of authorities, that, after Cornerstone Building’s 

default, Gunzel, as president of the corporation, continued to direct Cornerstone to make 

payments to Umpqua Bank until December 2013. The bank did not cite the record for its 

factual allegation that Gunzel directed Cornerstone to issue payments. The bank, in its 

summary judgment motion response, did not suggest that Gunzel personally made a 

payment. 

In opposition to Charles Gunzel’s summary judgment motion, Lisa Redcay, 

assistant vice president and special assets officer in the Special Assets Department of 

Umpqua Bank, submitted a declaration. She did not claim in the declaration that Charles 

Gunzel personally tendered a payment to the bank. 

As part of its response to Charles Gunzel’s summary judgment motion, Umpqua 

Bank asked the court to “sua sponte” grant it summary judgment against Gunzel. Gunzel 

asked the court for a postponement of the bank’s motion so he could have more time to 

respond. The trial court denied Charles Gunzel’s motion and the bank’s sua sponte 

motion. 
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Umpqua Bank thereafter moved again for summary judgment. In opposition to 

the bank’s motion, Charles Gunzel submitted a declaration that read, in part: 

I did not consent to the extension of the debt evidenced by loan 

number 3468648478 owed by Cornerstone Building Company to Umpqua 

Bank beyond the maturity date of May 28, 2009. Cornerstone Building 

Company continued to make payments on loan number 3468648478 until 

December of 2013.

CP at 220 (emphasis added). 

In response to Charles Gunzel’s declaration and brief opposing the bank’s motion, 

Umpqua Bank filed a reply brief. In the reply brief, the bank, in support of its attempt to 

impose personal liability on Gunzel and without any citation to the record, wrote that: 

“Mr. Gunzel . . . was the actual person responsible for continuing to make payments to 

Umpqua after the debt became due and owing.” CP at 226. The bank later wrote, in its

reply brief: “Umpqua merely notes that Gunzel’s payments after the debt became due and 

owing extended the statute of limitations of the debt [under the guaranty] as this court has 

already found as a matter of law.” CP at 226-27 (emphasis added). The statement lacked 

any citation to the record to show that Gunzel personally made a payment or that the trial 

court earlier issued a finding as a matter of law. 

The trial court granted Umpqua Bank’s summary judgment motion and entered 

judgment in the bank’s favor in the amount of $265,045.99. 

Charles Gunzel appealed to this court. In Gunzel’s opening brief on appeal, he 

wrote, with regard to payments after Cornerstone Building’s default: “While Cornerstone 
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Umpqua Bank v. Gunzel, III

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continued to make payments on the note until 2013, no payments were made by Gunzel 

in regard to the Guaranty Agreement. CP 75-81; CP 220.” Appellant’s Br. at 4. CP at 

75-81 is the Umpqua Bank Loan Accounting System Note Transcript Statement, the only 

document produced by the bank in discovery. The note transcript statement lists 

Cornerstone Building as the borrower and Charles Gunzel as a guarantor. The statement 

records payments on the loan, but does not identify the payor. CP 220 is the first page of 

Charles Gunzel’s declaration that declares, in part: “Cornerstone Building Company 

continued to make payments on loan number 3468648478 [after the maturity date] until 

December of 2013.” 

In its respondent’s appellate brief, Umpqua Bank identified issue 1 on appeal as:

Whether the trial court correctly concluded that Gunzel’s continued 

payments on the Note after its maturity date extended the statute of 

limitations on its corresponding personal guaranty in accordance with

Oregon law?

Resp’t’s Br. at i, 3 (emphasis added). In its brief’s introduction, Umpqua Bank wrote: 

While the Note became fully due and payable in 2009, it remained 

unpaid, Gunzel continued to make payments in partial satisfaction of the 

company’s obligations on the Note (and his own personal obligations on 

the guaranty) until 2013. Doing so forestalled Umpqua’s collection actions 

on both the Note and the personal guaranty. 

Resp’t’s Br. at 1 (emphasis added). 

To be sure, Gunzel made a calculated and conscience choice to 

continue making payments on the Note even after its maturity. 
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Umpqua Bank v. Gunzel, III

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Resp’t’s Br. at 2 (emphasis added). The statements in the Umpqua Bank’s brief’s 

introduction contained no citations to the superior court record. In the brief’s argument, 

Umpqua Bank contended: “Instead, Umpqua merely notes that Gunzel’s payments after 

the debt became due and owing extended the statute of limitations of the debt not the date 

of maturity.” Resp’t’s Br. at 15. 

In his reply brief, Charles Gunzel emphasized that Umpqua Bank asserted facts in 

its brief, which facts lacked support in the record. Gunzel highlighted the two quotes 

above from pages 1 and 2 of the bank’s brief. 

On appeal, this court posed four discrete questions and answered the questions as 

follows. Question one: under Oregon law, when does the statute of limitations begin to 

accrue on the obligation of the guarantor of a loan when the underlying debtor defaults 

but later tenders payments, but in the meantime the guarantor tenders no payments? 

Answer: at the time the underlying debtor first defaults on the loan. Question two: did 

the commercial guaranty between Umpqua Bank and Charles Gunzel alter the date of the 

accrual of the Oregon statute of limitations? Answer: yes, the commercial guaranty read 

that the statute of limitations would not run on the claim against Charles Gunzel unless 

the statute had run on the claim against Cornerstone Building. Question three: if the 

answer to question two is yes, was that alteration in the form of a waiver? Answer three: 

yes, the alteration was in the form of an advance waiver. Question four: did Oregon 
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Umpqua Bank v. Gunzel, III

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public policy prohibit the commercial guaranty from an advance waiver of the accrual 

date of the statute of limitations? Answer: yes. 

In our opinion’s recital of facts, we wrote:

In its brief, Umpqua Bank repeatedly claims that Charles Gunzel 

personally made the payments after May 28, 2009. Nevertheless, it cites to 

no portion of the record to support this factual allegation. The records 

provided by Umpqua Bank indicate that payment was applied to 

Cornerstone’s debt and does not specify any payment from Gunzel. . . . In 

a declaration, Charles Gunzel avers that Cornerstone, not he, tendered the 

late payments to Umpqua Bank. Umpqua Bank does not controvert this 

testimony.

Umpqua Bank v. Gunzel, 16 Wn. App. 2d 795, 799-800 (2021). As part of this court’s 

ruling, we wrote:

We acknowledge that, when the guarantor approves or ratifies the 

late part payment by the primary debtor, the statute of limitations will be 

revived as to the guarantor as well. Corona v. Corona, 2014-NMCA-071, 

329 P.3d 701, 709 (2014); PNL Asset Management Co. v. Brendgen & 

Taylor Partnership, 193 Ariz. 126, 970 P.2d 958, 964 (Ct. App. 1998). We 

recognize that Charles Gunzel was the president and owner of Cornerstone. 

Nevertheless, in response to Gunzel’s summary judgment motion, Umpqua 

Bank provided no facts as to the role that Gunzel played in the part 

payments, let alone any authorization or ratification of the payments by

Gunzel. Umpqua Bank does not argue ratification. 

Umpqua Bank v. Gunzel, 16 Wn. App. 2d 795, 805 (2021). 

After release of our decision, Umpqua Bank moved the court for reconsideration 

and to supplement the record to consider evidence contained in a new declaration of Lisa 

Redcay. Redcay’s declaration reads, in part:
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3. In reviewing the recent published opinion on this Court relative to 

this dispute, the Court incorrectly presumed that Mr. Gunzel was either 

unaware and/or uninvolved in the last several payments made on the 

Cornerstone notes, namely payments in July, September, November and 

December of 2013. Not only is this an incorrect assumption, but each of 

these payments was actually made by Mr. Gunzel, personally, and directed 

to the bank to apply to the Cornerstone loan number (3468648478). 

4. As this is an older debt, all hardcopies and original loan 

documentation are stored at Iron Mountain for the bank. After reading this 

Court’s opinion and mistaken belief that Mr. Gunzel was claiming he did 

not make the 2013 payments, I searched the bank’s files and found copies 

of these four checks below:

[The declaration then shows four checks written on a Wells Fargo 

bank account of Charles Gunzel III each in the amount of $200. The 

checks are dated July 31, 2013, September 10, 2013, November 6, 2013, 

and December 9, 2013].

5. Not only was Mr. Gunzel aware of these payments, he was the 

one that made them from his own personal account. Thus the statement this 

Court was relying on from him that somehow it was Cornerstone making 

these payments is simply a lie. During the bank’s motion for summary 

judgment before the trial, who was making these 2013 payments was never 

pertinent to the arguments being made by either party thus the bank had no 

reason to search these older files for such information.

Resp’t Umpqua Bank’s Mot. for Recons. And to Suppl. the R., App. A at 2-3.

In her declaration, Lisa Redcay did not identify the location of Iron Mountain. 

Iron Mountain, Inc. is an American enterprise information management services

company founded in 1951 and headquartered in Boston. Redcay skirted any explanation 

as to why Umpqua Bank failed to produce the checks during trial court discovery. 

LAW AND ANALYSIS

In its motion for reconsideration, Umpqua Bank asks that we reverse and grant it 

judgment against Charles Gunzel based on new evidence that Gunzel tendered late 
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Umpqua Bank v. Gunzel, III

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payments and that Gunzel committed perjury. The bank also complains that we 

addressed an issue not litigated. As alluded to in our first opinion, we would have 

affirmed the superior court’s judgment in favor of the bank if the bank had presented 

facts supporting its assertions about Gunzel’s conduct and Gunzel had failed to 

sufficiently controvert those facts on summary judgment. 

In support of its motion for reconsideration, Umpqua Bank also files a motion, 

pursuant to RAP 9.11, to submit additional evidence. We first address whether to grant 

the bank’s motion to supplement the record before analyzing whether the court 

mistakenly decided the case on a spurious issue. 

Perjury and Motion to Supplement the Record

Umpqua Bank requests that this court, pursuant to RAP 9.11(a), consider the 

declaration of Lisa Redcay, including the affixed checks showing payments by Charles 

Gunzel. RAP 9.11 declares:

(a) Remedy Limited. The appellate court may direct that additional 

evidence on the merits of the case be taken before the decision of a case on 

review if: (1) additional proof of facts is needed to fairly resolve the issues 

on review, (2) the additional evidence would probably change the decision 

being reviewed, (3) it is equitable to excuse a party’s failure to present the 

evidence to the trial court, (4) the remedy available to a party through 

postjudgment motions in the trial court is inadequate or unnecessarily 

expensive, (5) the appellate court remedy of granting a new trial is 

inadequate or unnecessarily expensive, and (6) it would be inequitable to 

decide the case solely on the evidence already taken in the trial court.

(Emphasis added.) 
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Umpqua Bank v. Gunzel, III

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We emphasize that RAP 9.11(a) authorizes additional evidence on appeal only 

before the appeals court renders its decision. We deny the motion to supplement on this

basis alone. No Washington decision presents circumstances whereby a party sought to 

furnish the appellate court new evidence after the court’s decision. 

RAP 9.11 presents a limited remedy. Harbison v. Garden Valley Outfitters, Inc., 

69 Wn. App. 590, 593, 849 P.2d 669 (1993). RAP 9.11(a) contains six conditions under 

which new evidence will be received on appeal. Normally, new evidence will be 

accepted only if the movant fulfills all six of these conditions. State v. Ziegler, 114 

Wn.2d 533, 541, 789 P.2d 79 (1990); Harbison v. Garden Valley Outfitters, Inc., 69 Wn. 

App. 590, 593 (1993). 

Even if we were to permit the late, late filing of the request to supplement the 

record, we would deny the motion because Umpqua Bank fails to satisfy condition three

of the six conditions under RAP 9.11. The bank lacks any excuse for its failure to present 

the additional evidence before the trial court, let alone present the records timely before 

this reviewing court. In a declaration in support of his summary judgment motion and in 

his brief in support of summary judgment, Gunzel wrote that Cornerstone Building 

tendered all the late payments. In its summary judgment briefs, the bank wrote that 

Gunzel tendered the late payments. Because Gunzel presented evidence contrary to the 

facts asserted by Umpqua Bank and because the bank relied on this purported fact for its 
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Umpqua Bank v. Gunzel, III

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summary judgment motion, it should have produced the evidence by the time of the 

summary judgment hearings. 

In his reply brief before this court, Charles Gunzel criticized Umpqua Bank for 

asserting in its appellate brief that Gunzel tendered payment to the bank when the bank 

failed to present any evidence to support this assertion. The bank should have earlier 

known of the factual dispute of who tendered payments, so, by the time of the reply brief, 

the bank lacked any semblance of an excuse not to seek to add evidence before this 

court’s ruling. The bank instead buried its head in the sand, which apparently it also did 

when responding to discovery requests. 

Umpqua Bank lacks clean hands in seeking to supplement the record. The bank 

should have disclosed the checks written by Charles Gunzel during discovery. By failing 

to produce the records, the bank flouted important court rules, on which fair and orderly 

litigation is based. Lisa Redcay verified under oath that the bank had produced all 

requested documents. In her recently submitted declaration, Redcay fails to explain the 

violation of the discovery rules and does not even recognize the document having been 

sought during discovery. 

Umpqua Bank asks us to waive the conditions to RAP 9.11(a). We recognize that 

we may waive the requirements of RAP 9.11 to serve the ends of justice. Sears v. 

Grange Insurance Association, 111 Wn.2d 636, 640, 762 P.2d 1141 (1988), overruled in 

part on other grounds by Butzburger v. Foster, 151 Wn.2d 396, 89 P.3d 689 (2004)
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Umpqua Bank v. Gunzel, III

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(plurality opinion); Washington Federation of State Employees, Council 28, AFL-CIO v. 

State, 99 Wn.2d 878, 885, 665 P.2d 1337(1983); In re Detention of Brooks, 94 Wn. App. 

716, 723, 973 P.2d 486 (1999), aff’d in part, rev’d in part, 145 Wn.2d 275, 36 P.3d 1034 

(2001), overruled in part on other grounds by In re Detention of Thorell, 149 Wn.2d 724, 

72 P.3d 708 (2003). 

In Washington Federation of State Employees Council 28, AFL-CIO v. State, 99 

Wn.2d 878 (1983), the Supreme Court granted a motion for submittal of additional 

evidence because the State officer created the new document after the initiation of 

litigation, because the document solved the problem raised by the plaintiff in litigation, 

and because of a question from the court in anticipation of oral argument. 

In Detention of Brooks, 94 Wn. App. 716 (1999), this court granted the State’s 

motion to supplement the record, before its decision. In a sexually violent offender 

prosecution’s appeal, in which the appellant contended the relevant statute violated the 

equal protection clause, the State asked to file a declaration of the superintendent of the 

Special Commitment Center in Monroe with facts and opinions about treating a sexually 

violent person. This court noted that the facts were “well within the arena of this court’s 

ability to conceive” when addressing the important constitutional issue. 94 Wn. App. 

716, 724 (1999). 

We decline to waive the requirement that the movant seek to introduce additional 

evidence before the court’s decision. None of the Washington decisions addressing 
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waiver involve a request to supplement the record after the appellate court’s decision. 

We also decline waiver of all six of the conditions under RAP 9.11(a) because of the 

unclean hands of Umpqua Bank and because of fair warning to the bank before the trial 

court and before this court of the need to support its factual assertion, of payments by 

Charles Gunzel, with payment records. 

Because we deny Umpqua Bank’s motion to supplement the record, we do not 

consider the declaration of Lisa Redcay in support of the bank’s motion for 

reconsideration. Therefore, this court lacks evidence of any perjury by Charles Gunzel. 

Un-Litigated, Un-Developed Issue

Umpqua Bank remonstrates that this court based its decision on an issue not 

litigated before the superior court. The bank suggests that this court violated the bank’s 

due process rights by resting its decision in part on the assumption that Cornerstone 

Building, not Charles Gunzel, tendered all late payments. In so arguing, Umpqua Bank 

cites fundamental principles of law with little relevance to the steps taken by this court to 

reach its ruling. In so arguing, Umpqua Bank fails to note that the parties’ superior court 

pleadings and the parties’ appeal briefs repeatedly disagreed as to whether Gunzel 

personally tendered payments to the bank. 

In support of its objection to this court’s ruling, Umpqua Bank asserts arguments 

that misrepresent or misconstrue the record before the trial court and before this court. 

First, the bank laments the lack of a complete record before the trial court. Yet, the bank 
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Umpqua Bank v. Gunzel, III

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fails to identify what additional record should have been placed before the trial court and 

who should have presented that record to the court. Presumably, the bank wishes that the 

trial court had received the four checks it implanted into Lisa Redcay’s recent 

declaration. Of course, photocopies of those checks always remained in the custody of 

Umpqua Bank, and the bank should have produced the four checks in discovery. 

In a related argument, Umpqua Bank promotes the fairness of requiring a party to 

assert factual arguments at the proper time so that the trial court can equitably resolve

issues before it. Presumably Umpqua Bank complains that Charles Gunzel did not assert 

before the trial court that Cornerstone Building, not him, tendered late payments to the 

bank. The record reads otherwise. 

Charles Gunzel moved for summary judgment before Umpqua Bank filed a 

motion for judgment. Gunzel then framed the issue, as to whether the statute of 

limitations bars the bank’s suit, as if Cornerstone Building, not he personally, tendered 

the late payments. In his brief in support of his motion for summary judgment, Gunzel 

wrote: “[t]hereafter, Cornerstone Building Co. continued to make payments through 

December 16, 2013.” CP at 7. Gunzel based this factual assertion on Umpqua’s 

responses to discovery that showed that Umpqua Bank applied the payments to 

Cornerstone Building’s loan account number as opposed to his personal guaranty account 

number. We may presume that Umpqua Bank read Gunzel’s pleadings and knew that 
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Gunzel sought summary judgment based on the factual proposition that Cornerstone 

Building paid the late payments. 

In opposition to Charles Gunzel’s summary judgment motion, Umpqua Bank 

Assistant Vice President Lisa Redcay submitted a declaration. She did not claim in the 

declaration that Charles Gunzel personally tendered any payment to the bank. Instead, 

the bank wrote four times, in its memorandum of authorities, that, after Cornerstone 

Building’s default, Gunzel, as president of the corporation, continued to direct 

Cornerstone to make payments to Umpqua Bank until December 2013. If the bank 

wished to foster the factual contention that Gunzel directed payments, Umpqua Bank 

should have cited to the record, but it failed to corroborate this assertion with any 

evidence. More importantly, if the bank believed that Gunzel personally issued 

payments, the bank should have presented the trial court copies of the four checks it then 

held in its possession. To rebut a properly supported summary judgment motion, the 

adverse party may not rest on allegations. CR 56(e); LaPlante v. State, 85 Wn.2d 154, 

158, 531 P.2d 299 (1975). 

Umpqua Bank thereafter moved for summary judgment. In opposition to the 

bank’s motion, Charles Gunzel submitted a declaration that read, in part: 

I did not consent to the extension of the debt evidenced by loan 

number 3468648478 owed by Cornerstone Building Company to Umpqua 

Bank beyond the maturity date of May 28, 2009. Cornerstone Building 

Company continued to make payments on loan number 3468648478 until 

December of 2013.
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CP at 220. Thus, in order to defeat the bank’s motion, Gunzel presented testimony that 

Cornerstone Building made late payments. We may assume that the bank then 

understood that Gunzel placed the identity of the payor of the late payments at issue. 

In its brief supporting its motion for reconsideration, Umpqua Bank writes that 

Charles Gunzel “buried in a declaration,” his avowal that Cornerstone Building tendered 

the payments. Resp’t Umpqua Bank’s Mot. for Recons. and to Suppl. the R. at 2. We are 

unsure as to why the bank characterizes this testimony as “buried,” when the testimony 

was in the same font and English language as found the bank’s own pleadings and was 

filed in the same manner as Lisa Redcay’s declaration in support of the bank’s motion. 

No facts suggest and Umpqua Bank does not argue that Gunzel entombed his avowal in 

Iron Mountain. 

Umpqua Bank filed a reply brief in support of its summary judgment motion. In 

support of its attempt to impose personal liability on Charles Gunzel, the bank wrote that: 

“Mr. Gunzel . . . was the actual person responsible for continuing to make payments to 

Umpqua after the debt became due and owing.” CP at 226. The bank later wrote, in the 

reply brief: “Umpqua merely notes that Gunzel’s payments after the debt became due and 

owing extended the statute of limitations of the debt [under the guaranty] as this Court 

has already found as a matter of law.” CP at 226-27. Thus, the bank sought judgment 

based on the factual assumption and assertion that Gunzel personally issued payments. 
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Unfortunately for Umpqua Bank, it failed to cite to the factual record to show that Gunzel 

personally made a payment, and thus it did not contradict Gunzel’s declaration of 

payment by the company. Uncontroverted, relevant facts offered in support of summary 

judgment are deemed established. Central Washington Bank v. Mendelson-Zeller, 

Inc., 113 Wn.2d 346, 354, 779 P.2d 697 (1989); Parrott Mechanical, Inc. v. Rude, 118 

Wn. App. 859, 864, 78 P.3d 1026 (2003). Although courts generally apply this rule in 

the context of the nonmovant failing to file contravening affidavits, the rule should apply 

with added force to the movant failing to file countering declarations since the moving 

party carries the burden to show by uncontroverted facts the lack of a genuine issue of 

material fact. Hope v. Larry’s Markets, 108 Wn. App. 185, 191, 29 P.3d 1268 (2001). 

In its brief in support of its motion for reconsideration before this court, Umpqua 

Bank writes that the trial court based its ruling on a finding that Charles Gunzel made the 

payments that extended the statute of limitations. The bank, however, fails to cite to the 

trial court record in support of its assertion that the superior court entered a finding. 

Anyway findings of fact on summary judgment are not proper, are superfluous, and are 

not considered by the appellate court. Chelan County Deputy Sheriffs’ Association v. 

County of Chelan, 109 Wn.2d 282, 294 n.6, 745 P.2d 1 (1987); Kries v. WA-SPOK 

Primary Care, LLC, 190 Wn. App. 98, 117, 362 P.3d 974 (2015). If the court had 

entered such a finding, we would have needed to review whether any facts supported the 
No. 37400-9-III

Umpqua Bank v. Gunzel, III

21

finding for purposes of affirming the ruling or whether facts contravened the finding so as 

to require denial of the summary judgment motion. 

Umpqua Bank contends that the circumstantial evidence established that Charles 

Gunzel must have tendered the late payments because of Cornerstone Building being a 

defunct closely held corporation. In Charles Gunzel’s declaration, he testified that 

Cornerstone Building had dissolved as a corporation. Nevertheless, in opposition to 

Charles Gunzel’s summary judgment motion and in support of its summary judgment 

motion, the bank never submitted evidence about stockholders and officers of the 

corporation. Although Gunzel may have provided money to Cornerstone Building to pay 

and may have directed the corporation to pay, others also could have done so. The case’s 

factual record shows nothing about the inner operations of Cornerstone Building. 

Mere speculation cannot support or defeat a motion for summary judgment. Kyreacos v. 

Smith, 89 Wn.2d 425, 429, 572 P.2d 723 (1977); Heringlake v. State Farm Fire & 

Casualty Co., 74 Wn. App. 179, 192, 872 P.2d 539 (1994). Just as important, Umpqua 

Bank never argued before the trial court or earlier argued before this court that 

circumstantial evidence compelled such a conclusion. 

Umpqua Bank emphasizes the newly discovered evidence of four checks, “dug out 

of Iron Mountain,” which the bank claims shows perjury. We assume the bank does not 

suggest that it literally encountered difficulty by shoveling underground and into a 

mountain in order to locate records deeply buried years ago. Declarant Lisa Redcay 
No. 37400-9-III

Umpqua Bank v. Gunzel, III

22

provided no explanation for the late submittal of the four checks. If the evidence was 

available but not offered until after that opportunity passes, the parties are not entitled to 

another opportunity to submit that evidence. Davies v. Holy Family Hospital, 144 Wn. 

App. 483, 500, 183 P.3d 283 (2008), abrogated on other grounds by Frausto v. Yakima 

HMA, LLC, 188 Wn.2d 227, 393 P.3d 776 (2017). 

Finally, Umpqua Bank complains that this court’s initial opinion was based almost 

entirely on Charles Gunzel’s declaratory statement that Cornerstone Building tendered 

the late payments. To the contrary, this court engaged in an extensive analysis as to the 

language in Charles Gunzel’s commercial guaranty, the Oregon statute of limitations on 

promissory notes, the difference between when the limitation period accrues for purposes 

of the debt of the borrower and when the period accrues for purposes of the guarantor’s 

obligation, waiver of the protection of the statute of limitations, and public policy against 

waivers. This court wrote only one paragraph in its legal analysis about the implications 

of whether Charles Gunzel or Cornerstone Building issued the late payments. We 

accurately noted that, despite occasionally asserting that Gunzel tendered the payments, 

the bank submitted no evidence in support of its assertion. 

In its respondent’s brief, Umpqua Bank identified issue 1 on appeal as:

Whether the trial court correctly concluded that Gunzel’s continued 

payments on the Note after its maturity date extended the statute of 

limitations on its corresponding personal guaranty in accordance with 

Oregon law?
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Umpqua Bank v. Gunzel, III

23

Resp’t Umpqua Bank’s Response Br. at 3. This framing of the issue required the court to 

determine whether the facts submitted during the summary judgment process supported

the factual assumption inserted into the issue and, if so, whether personal payments 

extended the running of the statute of limitations. The bank’s own framing of an issue 

required that this court resolve whether late payments by Charles Gunzel extended the 

statute of limitations. Facts inserted into a party’s statement of issues are fair game for 

this court to challenge and to issue a decision based on a lack of support for the purported 

facts. 

This court abhors perjury. We recognize the possibility that Charles Gunzel 

committed perjury. With the denial of Umpqua Bank’s motion for reconsideration, we 

remand the case to the superior court to enter judgment in favor of Gunzel. Our ruling, 

however, does not preclude Umpqua Bank from later filing in the superior court a motion 

for relief of judgment pursuant to CR 60(b). The superior court sits in a better position 

than this court to determine if Gunzel perjured himself, to assess whether the bank 

engaged in due diligence when responding to discovery and when searching its records, 

and to weigh the equities between the parties. We proffer no opinion as to the validity of 

any motion for relief from judgment. 
No. 37400-9-III

Umpqua Bank v. Gunzel, III

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CONCLUSIONS

We deny Umpqua Bank’s motion to submit additional information and its motion 

for reconsideration. We confirm our first opinion. 

_________________________________

Fearing, J.

WE CONCUR:

______________________________

Pennell, C.J.

______________________________

Staab, J.