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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

JOE BRANDMEIER, an individual; and )

LISA BRANDMEIER, an individual, ) No. 80111-2-I

) 

Appellants, )

) DIVISION ONE

v. )

) 

NOELE MILLER; and )

WAH INVESTMENTS, INC., )

) UNPUBLISHED OPINION

Respondents. )

)

MANN, C.J. — Joe and Lisa Brandmeier appeal the trial court’s order dismissing 

their action brought under the Trust and Estate Dispute Resolution Act, chapter 11.96A 

RCW (TEDRA) against Noele Miller and WAH Investments, Inc. (WAH). The trial court 

struck the Brandmeiers’ TEDRA claims under CR 12(f) and dismissed the TEDRA

action after determining that the TEDRA claims were duplicative with common law 

counterclaims filed by the Brandmeiers in a prior lawsuit brought by Miller and others. 

The Brandmeiers argue that the trial court erred in relying on CR 12(f) because the 

TEDRA statute requires TEDRA claims be brought in a separate action. While we 
No. 80111-2-I/2

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agree that dismissal of the TEDRA action under CR 12(f) was erroneous, the error was 

harmless because the Brandmeiers’ claims remain intact in the prior lawsuit. We affirm. 

I. FACTS

Noele and George Miller1 contracted with Joe and Lisa Brandmeier to provide 

management, bookkeeping, and accounting services for Noele’s real estate investment 

holding company, WAH. WAH owns real property 5 Lake Street in Kirkland, known as 

Marina Park. Joe Brandmeier provided property management services to Marina Park, 

and Lisa Brandmeier provided accounting and bookkeeping services. 

In lieu of payment, the parties agreed that in exchange for their services the

Brandmeiers would receive five percent equity interest in Marina Park. The 

Brandmeiers testified that George Miller told them that he expected to sell the property 

in three to four years. Noele Miller maintains that the parties did not agree to a fixed 

timeframe for the sale. The Millers subsequently sold the Brandmeiers an additional 

two percent interest in Marina Park for $60,000. 

In May 2004, the parties prepared and signed a “declaration of trust.” The 

declaration stated that WAH was the trustee of the Lightfelt Building (aka Marina Park), 

and that 

the interest in said Building is held in trust by WAH Investments, Inc. of an 

undivided (93%) Ninety-three Percent for and on behalf of Noele Miller, as 

her separate estate, and of an undivided (7%) Seven Percent for and on 

behalf of Joe and Lisa Brandmeier, husband and wife . . . and said trustee 

does not claim to have any right, title or interest in said buildings or any 

portion thereof, to its own use or benefit, but solely to the use and benefit 

of Noele Miller and Joe and Lisa Brandmeier.

 1 At the time of this agreement, Noele and George Miller were married. Their marriage was 

subsequently dissolved. The claims herein involve Noele Miller only. 
No. 80111-2-I/3

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The Brandmeiers recorded the declaration of trust on April 29, 2013, and again 

on March 19, 2014, to correct a parcel number. Miller2 claims that she did not know that 

the declaration would be recorded. The Brandmeiers claimed that they recorded the 

trust after a “loss of trust with the Millers.”3 

Miller subsequently attempted to refinance Marina Park. Lenders who were 

interested in refinancing the commercial real estate loan demanded that the title be 

cleared by removing the declaration of trust from title. Miller approached the 

Brandmeiers to discuss her efforts to refinance. She claimed that they demanded a 

buyout or sale of Marina Park to set aside the recorded declaration. Miller was 

ultimately unable to refinance Marina Park. 

On November 3, 2017, Miller, WAH, and another company owned by Miller, sued 

the Brandmeiers and their businesses (the “main case”). The complaint alleged fraud, 

conversion, restitution and unjust enrichment, tortious interference with contract or 

business expectancy, breach of contract, consumer protection act, professional 

negligence, and negligent misrepresentation. In the ninth cause of action, Miller sought 

declaratory judgment to determine the parties’ respective rights, status, and legal 

relationships under the declaration of trust. 

The Brandmeiers did not answer, but instead filed the underlying TEDRA action 

against Miller and WAH on December 22, 2017. The Brandmeiers petitioned the court 

 2 “Miller” subsequently refers to Noele Miller only. 

3 The Millers and the Brandmeiers had extensive business troubles, some resulting in litigation, 

during this time period. Noele Miller and George Miller dissolved their marriage during this time. The 

complete history between the parties is unnecessary for our analysis.
No. 80111-2-I/4

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(1) to remove the trustee and appoint a successor trustee, (2) for damages for the 

trustee’s breaches of fiduciary duties and waste of trust assets, (3) for the trustee to turn 

over any and all documents related in any way to the establishment and administration 

of the Trust to the successor trustee, and (4) statutory attorneys’ fees and costs 

incurred in bringing the TEDRA action. 

On January 4, 2018, WAH was placed in general receivership and Resource 

Transition Consultants, LLC (RTC) was appointed as the receiver. As a result, the 

Brandmeiers’ TEDRA action was stayed. On February 20, 2018, RTC successfully 

moved to sell Marina Park. Because of the pending litigation with the Brandmeiers, 

RTC recommended, and the court ordered, a portion of the sale price be held back. 

The court ordered $350,000 be interpleaded in the main case. The receivership closed 

on August 28, 2018. 

Meanwhile, on January 24, 2018, Miller amended the complaint in the main case 

and deleted the request for declaratory judgment concerning the declaration of trust. 

In December 2018 the Brandmeiers filed an amended answer in the main case, 

including multiple counterclaims against WAH. The Brandmeiers’ counterclaims 

included a claim that WAH, as trustee of the trust holding Marina Park, breached its 

fiduciary duties by failing to preserve the trust assets, failing to treat the trust 

beneficiaries equally, failing to avoid conflict of interests between the trustee and the 

beneficiaries, and committing waste. The Brandmeiers sought damages and an 

equitable recovery of their attorney fees and cost. 

The Brandmeiers then moved to consolidate the TEDRA action with the main 

case, contending that the cases involved “substantially the same trust claims, which 
No. 80111-2-I/5

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raise identical factual and legal questions.” The Brandmeiers also argued that the 

receiver interpleaded the $350,000 from the sale of Marina Park into the court registry 

associated with the main case. The Brandmeiers finally argued that consolidating the 

cases and applying the streamlined resolution procedures under TEDRA would 

preserve their right to statutory remedies. The trial court denied the motion to 

consolidate and instead instructed the parties to lift the stay in the TEDRA action and 

resolve whether dismissal was proper before consolidation. 

On March 1, 2019, Miller moved for partial summary judgment and dismissal of 

the trust related counterclaims in the main case. Miller alleged that a valid trust was 

never created, requiring dismissal of the Brandmeiers’ breach of fiduciary duty claim.4

On March 7, 2019, the Brandmeiers moved for partial summary judgment in the 

TEDRA case, asking the court to find that there was a valid trust created over Marina 

Park, that the Brandmeiers’ had a 7 percent interest in the trust’s income, losses, and 

assets, that WAH was the trustee, and that neither the trust nor WAH’s trusteeship was 

revoked or terminated prior to commencement of the TEDRA action. The same day, 

Miller moved to strike the substantive allegations in the TEDRA claim as redundant and

moved to dismiss the petition for failure to state a claim for relief. 

On March 17, 2019, the trial court granted Miller’s motion to dismiss, finding that 

the allegations in the TEDRA case were redundant of those pled and pending in the 

main case. The court subsequently dismissed all claims asserted in the TEDRA action 

 4 Miller asks this court to take judicial notice of four trial court documents and accept the inclusion 

of the documents as response brief appendices. The Brandmeiers do not oppose this motion. This court 

may take judicial notice of proceedings “engrafted, ancillary, or supplementary” to the proceeding before 

the court. Swak v. Dep’t of Labor & Indus., 40 Wn.2d 51, 53, 240 P.2d 560 (1952). We grant the motion

and take notice of the appendix. 
No. 80111-2-I/6

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with prejudice. The court then denied the Brandmeiers’ motion for partial summary 

judgment as moot. The trial court also denied Miller’s motion for partial summary 

judgment and dismissal of the breach of fiduciary duty counter claims in the main case. 

The Brandmeiers appeal the trial court’s dismissal of their TEDRA action.

5 

II. ANALYSIS

The Brandmeiers argue that the trial court erred by striking its TEDRA claims 

under CR 12(f). While we agree that dismissal of the TEDRA action under CR 12(f) 

was inappropriate, because the Brandmeiers were not prejudiced, the error was 

harmless. 

We review a trial court’s decision to strike pleadings for an abuse of discretion. 

King County. Fire Prot. Districts No. 16, No. 36 & No. 40 v. Hous. Auth. of King County, 

123 Wn.2d 819, 826, 872 P.2d 516 (1994). “A trial court abuses its discretion if its 

decision is manifestly unreasonable or based on untenable grounds or untenable 

reasons.” In re Marriage of Littlefield, 133 Wn.2d 39, 46-47, 940 P.2d 1362 (1997). 

CR 12(f) allows a trial court to strike from any pleading any “redundant, 

immaterial, impertinent, or scandalous matter.”6 The Brandmeiers do not seriously 

dispute that the trust claims raised in the main case are largely duplicative of the trust 

claims raised in the TEDRA action. Indeed, in their motion to consolidate, the 

Brandmeiers asserted that the two matters involved “substantially the same trust claims, 

which raise identical factual and legal questions.” The Brandmeiers instead argue that 

CR 12(f) should not be used to strike claims raised in a TEDRA action. We agree. 

 5 The main case is set for trial in early 2021.

6 CR 12(f) requires that a motion to strike made by a party must be brought prior to responding to 

the pleading, or if no response is required, within 20 days. The record before us does not identify 

whether Miller filed an answer to the Brandmeiers’ TEDRA action before moving to strike. 
No. 80111-2-I/7

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TEDRA provides that a “judicial proceeding under this title is a special 

proceeding under the civil rules of court.” RCW 11.96A.090(1). As such, the statutory 

provisions of TEDRA “control over any inconsistent provision of the civil rules.” RCW 

11.96A.090(1). The statute requires that TEDRA actions “must be commenced as a 

new action.” RCW 11.96A.090(2). And further, that civil rules apply “only to the extent 

that [the rules] are consistent” with TEDRA. RCW 11.96A.090(4). Finally, the statute 

anticipates that the requirement for a new action may result in more than one judicial 

proceeding. As a result, TEDRA recognizes that once a TEDRA action is commenced, 

it may be “consolidated with an existing proceeding.” RCW 11.96A.090(3). 

We agree with the Brandmeiers that they were required to file a separate TEDRA 

action to raise TEDRA claims and that the trial court should have consolidated the 

Brandmeiers’ TEDRA action with the main case as anticipated by RCW 11.96A.090(3).

7

While the Brandmeiers did not challenge the denial of consolidation, CR 12(f) remains 

in conflict with the TEDRA statute. RCW 11.96A.090(2) required the Brandmeiers to 

commence their claims in a new action. CR 12(f)’s authority for striking redundant 

allegations is consequently circumscribed by TEDRA. The trial court erred in relying on

CR 12(f) to strike the Brandmeiers’ TEDRA action. 

The Brandmeiers fail, however, to demonstrate harm. Again, they do not dispute 

that their pending trust related counterclaims in the main case involve “identical factual 

and legal questions” as the trust claims raised in their TEDRA action. Both claims seek 

 7 Alternatively, the trial court could have exercised its discretion under CR 12(f) to strike the 

duplicative trust related counterclaims in the main case. 
No. 80111-2-I/8

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damages for breach of fiduciary duty and attorney fees.8 Indeed, the only identified 

difference is that TEDRA provides statutory discretion for a trial court to award 

reasonable attorney fees and costs in a TEDRA action. RCW 11.96.150. In the interest 

of judicial economy, the trial court should consider RCW 11.96.150 when exercising its 

discretion to award attorney fees and costs to the Brandmeiers or Millers in the main 

case based on the result of the trust related claims.9 

Affirmed. 

WE CONCUR:

 8 We note that the Brandmeiers’ TEDRA claims seeking removal and replacement of WAH as 

trustee appear moot since the only assets of the trust—Marina Park—were sold by the receiver. 

9 Both parties seek attorney fees and cost on appeal under RCW 11.96A.150(1). We decline to 

award attorney fees or costs to either party.