       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


In the Matter of the Estate of
SHIRLEY A. HARTY.                                 No. 68036-6-1


J. PATRICK HARTY,                                 DIVISION ONE


                     Appellant,
                                                                                     ro


BENJAMIN HARTY and
                                                                                          .'„• •»'—'
JASON HARTY,                                                                              ' : (-—
                                                                                          • "• tJ-l


                     Petitioners,
                                                  UNPUBLISHED OPINION
              v.

                                                  FILED: June 24, 2013
GREG HARTY,

                     Respondent.


       Becker, J. — Patrick Harty obtained partial relief on appeal from a

judgment that was not superseded. He argues in this second appeal that

because RAP 12.8 contains the phrase "shall. . . provide restitution," the trial

court had a mandatory obligation to order restitution when its earlier decision was

modified on appeal. Patrick Harty fails to acknowledge that the rule also contains

the phrase "in appropriate circumstances" and that the trial court must be guided

by equitable principles. We affirm the trial court's decision denying restitution.

       This appeal is a sequel to a previous case involving a family dispute about

the estate of Shirley Harty. In re Estate of Harty, noted at 159 Wn. App. 1048

(2011). Shortly before she died, Shirley made Greg Harty, one of her three sons,
No. 68036-6-1/2



a joint owner with right of survivorship on the credit union accounts that

contained most of her wealth. Shirley's decision to favor Greg in this way was

not revealed to others until after her death. Another son, Patrick Harty, sued

Greg under the Trust and Estate Dispute Resolution Act (TEDRA), chapter

11.96A RCW. He challenged the validity of Shirley's designation of Greg as a

joint owner of the accounts and accused Greg of exerting undue influence.

Patrick's two sons, Benjamin and Jason (Shirley's grandsons), joined him in the

petition.

       There was a seven-day bench trial in January 2009. The trial court

dismissed the action on Greg's motion after Patrick rested his case, a ruling that

would later be affirmed on appeal.

       The trial court awarded Greg, as the prevailing party, a judgment for

$135,015.44 in attorney fees and costs under RCW 11.96A.150. The issue in

this second appeal arises from the fact that Greg persuaded the trial court to

enter the judgment for attorney fees not only against the losing parties, Patrick

and his two sons, but also against Patrick's wife, Christine, and the marital

community composed of Patrick and Christine. Christine and the marital

community were not parties to the action. The trial court accepted Greg's

argument that Christine's willing participation in the lawsuit as a witness for

Patrick showed that the lawsuit was a family project, and that Christine and the

marital community were real parties in interest even though they were not named

parties. The trial court adhered to this position notwithstanding Patrick's motion
No. 68036-6-1/3



for reconsideration in which he asserted that he alone controlled the litigation and

the marital community did not stand to benefit from it.

       Patrick and his sons appealed, but they did not supersede the judgment

for attorney fees. While the first appeal was pending, Greg garnished a total of

$28,539.55 from Patrick's paychecks and the couple's bank account. All these

funds were community property; Patrick did not have any separate property.

       In the course of his collection efforts, Greg discovered that Patrick and

Christine had recorded a deed of trust against their house to secure the unpaid

fees owed to Patrick's attorney. At Greg's request, the trial court imposed a

supplemental judgmentfor attorney fees as a CR 11 sanction, on the ground that

it was disingenuous for Patrick to insist in his motion for reconsideration that the

lawsuit was his separate endeavor when he had used community assets to fund

it.

       This court affirmed the dismissal of the TEDRA action by Patrick and his

sons against Greg. We also affirmed the judgment for attorney fees, except

insofar as it was entered against Christine and the marital community. The

statute "authorizes fees only against estate or trust assets, nonprobate assets

that are the subject of the proceedings, or parties to the action." Harty, slip op. at

13, citing RCW 11.96A.150(1). Because Christine and the marital community

were not parties to the action, we directed the trial court to modify the judgment

on remand so that it was entered only against Patrick and his two sons. We also

reversed the supplemental judgment imposing sanctions, reasoning that the use
No. 68036-6-1/4



of a community asset to fund litigation for Patrick's benefit did not make it

disingenuous for Patrick to insist that the lawsuit was his separate endeavor. We

exercised our discretion to award attorney fees on appeal to Greg against

Patrick, Benjamin, and Jason, except for the fees Greg incurred defending the

supplemental judgment for attorney fees as sanctions and the inclusion of

Christine and the marital community in the original judgment.

       On remand, citing RAP 12.8, Patrick moved in the trial court to have Greg

reimburse the marital community for the community property funds Greg had

garnished—$28,539.55—plus interest. Patrick argued that as a result of this

court's decision, the community assets were not subject to garnishment or

execution by Greg. The trial court denied Patrick's motion. Patrick appeals.

       Patrick contends that once this court decided that the marital community

was not liable on the judgment, the trial court was obliged by RAP 12.8 to order

Greg to restore the garnished funds to the marital community. The rule, Patrick

emphasizes, uses the word "shall":

               If a party has voluntarily or involuntarily partially or wholly
       satisfied a trial court decision which is modified by the appellate
       court, the trial court shall enter orders and authorize the issuance of
       process appropriate to restore to the party any property taken from
       that party, the value of the property, or in appropriate
       circumstances, provide restitution.

RAP 12.8.


       Greg makes two arguments in response. First, he contends that a

judgment is analogous to a tort, and he had a right to execute on Patrick's half of

the community property under the rationale of deElche v. Jacobsen, 95 Wn.2d
No. 68036-6-1/5



237, 622 P.2d 835 (1980). Second, he contends that restitution under RAP 12.8

is not mandatory. Because we agree with his second argument, we do not

address the first. Although Greg's argument for a new application of the deElche

rationale is interesting, Patrick does not cite or brief community property law to

argue for reversal. We are hesitant to approach a question of first impression in

community property law without adequate briefing from both sides. We need not

do so in this case.

       Patrick's appeal is based exclusively on RAP 12.8. The language of RAP

12.8 does not make restitution mandatory after a trial court decision is modified

by the appellate court. Because restitution is to be provided by the trial court "in

appropriate circumstances," restitution is "not a matter of right," nor is it

"automatic upon the modification of a judgment by an appellate court." Ehsani v.

McCullouah Family P'ship. 160 Wn.2d 586, 597, 159 P.3d 407 (2007).

Restitution under RAP 12.8 is an equitable remedy. Trial courts have broad

discretion to fashion equitable remedies, reviewable for abuse of discretion.

Ehsani, 160 Wn.2d at 589. Appropriate circumstances for providing restitution

may be identified by looking to the common law of restitution. Ehsani. 160

Wn.2d at 590-91.

       Patrick does not come to grips with the equitable nature of the decision

the trial court was called upon to make. He does not look to the common law of

restitution. He simply insists that restitution is mandatory and the trial court

should have granted it because the facts of this case are not the same as the
No. 68036-6-1/6



facts in other cases where restitution was denied.

       The record of this case supports the trial court's decision to deny

restitution. The litigation was initiated by Patrick, not by Greg. Shirley Harty's

bank accounts rightfully belonged to Greg, yet Patrick forced Greg to incur many

thousands of dollars in attorney fees to defend his rights. Patrick's wife,

Christine, supported the litigation and participated in it. She agreed to encumber

the community real property as security for Patrick's unpaid attorney fees so that

he could carry on the fight. Having lost the fight, Patrick has a personal

obligation to pay Greg's attorney fees. This is a separate obligation, yet Patrick

has no separate assets that can be used to satisfy it. As neither Patrick nor

Christine posted a bond to supersede the original judgment, Greg had the right to

garnish community funds while the appeal was pending. On appeal, Patrick

prevailed only to the extent that this court recognized that Christine and the

marital community were not named parties and therefore should be removed

from the judgment. The amount of the judgment against the named petitioners,

Patrick and his two sons, was not modified on appeal at all. Patrick would have

this court put him in a position where he can enforce a judgment against Greg for

the $28,539.55 that Greg garnished from community funds, while Greg is unable

by any means to enforce his judgment against Patrick, which at this point

amounts to more than $135,000. This is inequitable.

       In summary, Patrick's only argument for reversal is that RAP 12.8 makes

restitution mandatory. Following Ehsani, we reject that argument.
No. 68036-6-1/7



      Greg requests an award of attorney fees on appeal. Such a request

continues to be governed, as in the first appeal, by RCW 11.96A. 150(1). Under

that statute, an award is discretionary. We exercise our discretion to award Greg

fees on appeal against Patrick.

      Affirmed.

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WE CONCUR:                                               g

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