IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON In the Matter ofthe Estate of SHIRLEY A. HARTY. J. PATRICK HARTY, Appellant,
BENJAMIN HARTY and JASON HARTY, Petitioners,

v. GREG HARTY, Respondent. No. 68036-6-1 DIVISION ONE

UNPUBLISHED OPINION FILED: June 24, 2013 ro

Becker, J. — Patrick Harty obtained partial relief on appeal from a judgmentthat was not superseded. He argues inthis 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 earlierdecision was modified on appeal. Patrick Harty fails to acknowledge that the rule also contains the phrase "inappropriate 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 ofher three sons, .'„• •»'—'
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### a joint ownerwith right of survivorship on the credit unionaccounts that contained most ofherwealth. Shirley's decision to favor Greg in this way was not revealed to others until after her death. Another son, Patrick Harty, sued 

### Greg underthe Trust and Estate Dispute Resolution Act(TEDRA), chapter 11.96A RCW. He challenged the validity ofShirley's designation of Greg as a 

### jointowner of the accounts and accused Greg of exerting undue influence. Patrick's twosons, Benjamin and Jason (Shirley's grandsons), joinedhim in the petition. 

### There was a seven-day bench trial inJanuary 2009. The trial court 

### dismissed the action on Greg's motion after Patrickrested his case, a ruling that would later be affirmed on appeal. 

### The trial court awarded Greg, as the prevailing party, ajudgmentfor 

### $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 

### enterthe judgment for attorney fees not onlyagainstthe 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'swilling participation in the lawsuitas 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 motionNo. 68036-6-1/3 for reconsideration in which he asserted that he alone controlled the litigation and the marital community did not stand to benefitfrom it. Patrick and his sons appealed, but they did not supersede thejudgment 

### 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 oftrust againsttheir house to securethe unpaid 

### fees owed to Patrick's attorney. AtGreg's request, the trial court imposed a 

### supplemental judgmentfor attorneyfees as a CR 11 sanction, on theground that itwas disingenuousfor Patricktoinsistin hismotion forreconsideration that the lawsuitwas his separate endeavorwhen he had used community assets to fund
it. This court affirmed the dismissal ofthe TEDRA action by Patrick and his


### sons against Greg. We also affirmed the judgment for attorney fees, except insofaras itwas entered against Christine and the marital community. The statute "authorizes fees only against estate ortrust 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 itwas entered onlyagainst Patrick and his two sons. We also 

### reversed the supplementaljudgment imposingsanctions, reasoning that the useNo. 68036-6-1/4
of a community asset to fund litigation for Patrick's benefit did not make it disingenuous for Patrickto insistthat 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 supplementaljudgmentfor attorneyfees as sanctions and the inclusion of Christine and the marital community inthe originaljudgment. On remand, citing RAP 12.8, Patrick moved inthe trial courtto 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 subjectto garnishment or execution by Greg. The trial courtdenied Patrick's motion. Patrickappeals. Patrick contends that once this court decided thatthe marital community
was not liable on thejudgment, the trial courtwas 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": Ifa 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 ofthe property, or inappropriate circumstances, provide restitution.
RAP 12.8. Greg makes two arguments inresponse. 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 underthe rationale ofdeElche v. Jacobsen, 95 Wn.2dNo. 68036-6-1/5 

### 237, 622 P.2d 835 (1980). Second, he contends that restitution under RAP 12.8 is not mandatory. Becausewe agree with his second argument, we do not 

### address the first. AlthoughGreg's argumentfor a new application of the deElche rationale is interesting, Patrick does not cite or brief community property law to 

### argue for reversal. We are hesitantto approach a question offirst impression in community property law withoutadequate briefing from both sides. We need not
do so in this case. 

### Patrick's appeal isbased 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 "nota matter ofright," nor is it "automatic upon the modification of a judgment by an appellate court." Ehsani v. McCullouah Family P'ship. 160Wn.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 forabuse of discretion. Ehsani, 160 Wn.2d at 589. Appropriate circumstances for providing restitution 

### may be identified bylooking to the commonlaw ofrestitution. Ehsani. 160
Wn.2d at 590-91. 

### Patrick does not cometo 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 itbecausethe facts of thiscase are not the same as theNo. 68036-6-1/6

facts in other cases where restitution was denied. The record ofthis 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 Patrickforced Greg to incur many thousands ofdollars inattorneyfees 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 lostthe 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 originaljudgment, Greg had the right to garnish community funds while the appeal was pending. On appeal, Patrick prevailed only to the extentthatthis court recognized that Christine and the marital community were not named parties and therefore should be removed from thejudgment. The amount ofthejudgmentagainst 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 ajudgment against Greg for the $28,539.55 that Greg garnished from community funds, while Greg is unable by any means to enforce hisjudgment against Patrick, which atthis point amounts to more than $135,000. This is inequitable. Insummary, Patrick's only argument for reversal is that RAP 12.8 makes restitution mandatory. Following Ehsani, we rejectthat 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, byRCW 11.96A.150(1). Under that statute, an award is discretionary. We exercise our discretion to award Greg fees on appeal against Patrick. Affirmed.

WE CONCUR: 

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