Citations and pin cites are based on the Westlaw online version of the cited material. IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

JOE BRANDMEIER, an individual; and ) LISA BRANDMEIER, an individual , ) No

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- I ) Appellants , ) ) DIVISION ONE v. ) ) N OELE MILLER; and ) WAH INVESTMENTS, INC. , ) ) UN PUBLISHED OPINION Respondents

. ) )
M ANN , C. J.

— Joe and Lisa Brandmeier appeal the trial court’s order dismiss ing
their a ction 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 B randmeiers 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 separat e action. While weNo. 80111

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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 Miller 1 contracted with Joe and Lisa Brandmeier t o 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 Par k,
and Lisa Brandmeier provided accounting and bookkeeping services. In lieu of payment, the parties agreed that i n exchange for their services the
Brandmeiers would receive five percent equity interest in Marina Park. The
Brandmeiers testified that Geo rge 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 i n Marina Park for $60,000.
I n May 2004 , the parties prepared and s igned a “ declaration of t rust.” 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 no t 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 ti me of this agreement, Noele and George Miller were married . Their marriage was subsequently dissolved

. The claims herein involve Noele Miller only.No. 80111

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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. Miller 2 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 subsequ ently 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 effo rt s to refinance. She claim ed 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 negli gence, and negligent misrepresentation . In the ninth cause of a ction , 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 in stead 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 bu siness 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

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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 o f 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 a ction. O n 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 Par k

. 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.
Meanw hile, o n 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 , in cluding 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, fail ing 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 wit h the main
case, contending that the cases involved “substantially the same trust claims, whichNo. 80111

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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 cou rt registry
associated with the main case. The Brandmeier s 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

c onsolidate 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 counterclaim s 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 f ind that there was a valid trust created over Marina
P ark, 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 s trike 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, t he 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 tak e 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

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- with prejudice. The court then denied the Brand meiers’ 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 claim s in the main case

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

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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 p rejudiced, the error was
harmless.
We review a trial court’s decision to strike pleadings for an abuse of discretion. King C ounty . Fire Prot. Districts No. 16, No. 36 & No. 40 v. Hous. Auth. of King C ounty , 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 t rial court to strike from any pleading any “redundant, immaterial, impertinent, or scandalous matter.” 6 The Brandmeiers do not serio usly dispute that the trust claims raised in the main case are largely duplicative of the trust

c laims raised in the TEDRA action. Indeed, in their moti on 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 strik e 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

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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 provision s 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 cons olidation , 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
al legations is consequently circumscribed by TEDRA. T he 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 coun terclaims in the main case involve “identical factual and legal questions” as the trust claims raised in their TEDRA action. Both claims seek

7 Alte rnatively, 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

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- damages for breach of fiduciary duty and attorney fees. 8 Indeed, the only identified difference is that TEDRA pr ovides 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 attorne y 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 m oot 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.