                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                          June 23, 2020
       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                           DIVISION II
    RUDOLPH WACKER,                                                  No. 52402-3-II

                          Appellant,

           v.

    KAREN WACKER and JOHN R. WACKER,                           UNPUBLISHED OPINION
    husband and wife, and RICHARD WACKER,

                            Respondents.



          GLASGOW, J.—Herta Williams had a son, Rudolph Wacker, and two grandsons, Richard

and John Wacker. John was married to Karen Wacker. Before her death, Herta executed a durable

power of attorney in favor of Richard and Karen. Karen executed a deed transferring Herta’s real

property to Richard and John upon Herta’s death. Herta died and John was appointed personal

representative of her estate.1

          Rudolph sued Karen and John, alleging fraudulent transfer of property and breach of trust

by Karen. The trial court dismissed under CR 12(b). Rudolph appeals, asserting that because the

real property transfer was fraudulent and the personal representative was conflicted, he had

standing to sue even though RCW 11.48.010 authorizes only the personal representative to bring

claims on the estate’s behalf.




1
    For clarity, we refer to members of the Wacker family by their first names.
No. 52402-3-II


       We affirm the trial court’s dismissal under CR 12(b)(6). Rudolph has not shown that there

is an exception to RCW 11.48.010 that applies. The proper avenue for relief is an action to remove

the personal representative.

                                             FACTS

       In 2014, Herta executed a durable power of attorney in favor of her grandson Richard

Wacker and her granddaughter-in-law Karen Wacker, who was then married to her other grandson,

John Wacker. The durable power of attorney did not authorize Karen or Richard to make gifts of

Herta’s property to any person.

       Herta owned a house in Pierce County, Washington. In 2015, Karen executed a transfer on

death deed for the property on Herta’s behalf, transferring ownership of the property to John and

Richard as tenants in common on Herta’s death.

       Herta died intestate in 2016. Herta was survived by her son, Rudolph, and her grandsons,

John and Richard.

       In 2017, Rudolph sued Karen and John, arguing that the transfer on death deed violated the

durable power of attorney and constituted fraud and breach of trust by Karen. Karen and John filed

a motion to dismiss under CR 12(b)(1) and CR 12(b)(6).

       The trial court granted the motion to dismiss, citing CR 12(b) without identifying whether

it was relying on CR 12(b)(1), CR 12(b)(6), or both. Rudolph appeals.

                                          ANALYSIS

A.     Motions to Dismiss, Standard of Review, and Waiver

       Under CR 12(b)(6), failure to state a claim upon which relief could be granted is a basis

for dismissal. The court must be satisfied “‘beyond doubt that the plaintiff can prove no set of


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No. 52402-3-II


facts, consistent with the complaint, which would entitle the plaintiff to relief.’” See Deegan v.

Windermere Real Estate/Ctr.-Isle, Inc., 197 Wn. App. 875, 884, 391 P.3d 582 (2017) (internal

quotation marks omitted) (quoting FutureSelect Portfolio Mgmt., Inc. v. Tremont Grp. Holdings,

Inc., 175 Wn. App. 840, 865-66, 309 P.3d 555 (2013)). The trial court considers whether any

hypothetical set of facts support the plaintiff’s claim. Id. All facts alleged in the plaintiff’s

complaint are presumed true. Rodriguez v. Loudeye Corp., 144 Wn. App. 709, 717, 189 P.3d 168

(2008).

          We review the trial court’s CR 12(b)(6) dismissal de novo. Deegan, 197 Wn. App. at 884.

Under CR 52(a)(5)(B), the trial court need not make findings of fact to support a CR 12 ruling,

absent special circumstances that do not apply here. Id.

          As an initial matter, the defendants argue that Rudolph waived the arguments he raises on

appeal by failing to provide argument, authority, or citation to the factual record to support his

assertions and by failing to perfect his record. We hold that Rudolph has presented sufficient

argument for us to discern and resolve the issues, and the record is sufficient for our de novo

review.

          To the extent Rudolph argues that the trial court erred because it did not explain whether it

was granting the motion to dismiss under CR 12(b)(1), CR 12(b)(6), or both, we reject that

argument as well. The trial court’s failure to specify the precise CR 12(b) basis for its dismissal

does not warrant reversal because we review CR 12(b) dismissals de novo and, under CR

52(a)(5)(B), no specific findings are required when granting a CR 12(b) motion. Id.




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B.     Standing

       Rudolph contends that although RCW 11.48.010 normally authorizes only the personal

representative to bring actions on behalf of an estate, that rule should not apply in this case.

Rudolph argues he pleaded facts sufficient to show that the real property was fraudulently

transferred in violation of the durable power of attorney and that a conflict of interest existed

because John was a recipient of the fraudulently transferred property and the personal

representative of Herta’s estate. Accordingly, Rudolph argues he was entitled to bring claims on

the estate’s behalf even though he was not the personal representative. We disagree.

       Under RCW 11.48.010, “The personal representative shall be authorized . . . to maintain

and prosecute . . . actions [that] pertain to the management and settlement of the estate,” as well as

to sue for debts due to the estate, to recover property, and for trespass. But only the personal

representative is authorized to maintain and prosecute claims on behalf of the estate. The Supreme

Court held in Rummens v. Guaranty Trust Co., 199 Wash. 337, 344, 92 P.2d 228 (1939), “The

general rule is that executors and administrators alone can bring actions to recover assets belonging

to a decedent’s estate or to obtain damages for the conversion of the personal property of the

estate.”2 Citing the predecessor to RCW 11.48.010, the court held that the personal representative

not only had a “positive duty” to “commence and prosecute all actions for the recovery of property

of the estate,” but that the personal representative also had “the exclusive right to maintain such

action.” Id. at 345-46 (emphasis added).




2
  Under RCW 11.02.005(4), “‘Executor’ means a personal representative of the estate of a
decedent appointed by will and the term may be used in lieu of ‘personal representative’ wherever
required by context.”

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No. 52402-3-II


       Further, under CR 17(a), only a “real party in interest” may initiate a lawsuit. To determine

if a plaintiff is a real party in interest, we apply the three-pronged test that federal courts use to

decide whether an implied statutory cause of action exists. Bennett v. Hardy, 113 Wn.2d 912, 920-

21, 784 P.2d 1258 (1990). Under this test, we ask “first, whether the plaintiff is within the class

for whose especial benefit the statute was enacted; second, whether legislative intent, explicitly or

implicitly, supports creating or denying a remedy; and third, whether implying a remedy is

consistent with the underlying purpose of the legislation.” Id. (internal quotation marks omitted).

       Rudolph was never the personal representative of Herta’s estate. Rudolph sought to bring

claims to protect his own interest as a beneficiary and on behalf of Herta’s estate. But under the

plain language of RCW 11.48.010, as well as longstanding precedent to which the legislature has

acquiesced, these interests can be protected only by an action brought by the personal

representative. See Rummens, 199 Wash. at 344. And because the statute’s language and

underlying legislative intent do not support a remedy for anyone other than the personal

representative under RCW 11.48.010, Rudolph also is not a real party in interest.

       In Washington, the Trust and Estate Dispute Resolution Act (TEDRA), chapter 11.96A

RCW, gives a party, including a beneficiary, standing to initiate a judicial proceeding under that

statute to remove a personal representative. See RCW 11.96A.030(5)(e), .080(1), .030(2)(g)(ii).

Removal then facilitates a determination by a new, disinterested personal representative as to

whether the estate should bring any claims on behalf of the estate. See RCW 11.48.010.

        Here, Rudolph did not bring a TEDRA petition, and he has offered no authority to support

his argument that a beneficiary may pursue claims limited under RCW 11.48.010 to the personal




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representative if the personal representative has a conflict of interest. Rudolph lacked standing to

raise the claims he brought on behalf of the estate.3

                                               CONCLUSION

          We hold that RCW 11.48.010 prevented Rudolph from asserting claims that only the

personal representative could bring, and he has not shown any applicable exception to this rule.4

We affirm the trial court’s dismissal of Rudolph’s claims under CR 12(b)(6).5

          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.



                                                      Glasgow, J.
    We concur:



    Maxa, P.J.




    Cruser, J.




3
    We note that Herta’s estate is being addressed by the Arizona courts.
4
  Rudolph’s citation to RCW 11.84.900 is irrelevant because chapter 11.84 RCW applies only to
the inheritance rights of slayers or abusers, which does not apply to any of his claims.
5
 Because we conclude that the trial court properly dismissed Rudolph’s claim under CR 12(b)(6),
we need not address whether CR 12(b)(1) provides an alternative basis for dismissal.


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