IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent/Cross-Appellant,

v.

MICHAEL EMERIC MOCKOVAK,

Appellant/Cross-Respondent.

DIVISION ONE

No. 68020-0-1

UNPUBLISHED OPINION

FILED: July 1,2013

\

Dwyer, J. — This case involves two challenges to an order of restitution.

Following Dr. Michael Mockovak's convictions of attempted murder in the first

degree and solicitation to commit murder in the first degree, the State sought

$220,439.95 in restitution on behalf of Mockovak's intended victim, Dr. Joseph

King. The trial court granted restitution with respect to certain medical expenses

of King and his wife—totaling $1,543.34—but denied the State's remaining

requests. Mockovak appeals from the trial court's restitution order, contending

that it abused its discretion by ordering restitution for medical expenses that, he

asserts, did not result from Mockovak's crimes. The State cross appeals,

asserting that the trial court applied an unduly narrow legal standard in limiting

restitution to King's medical expenses. We affirm the trial court in all respects.

"&.

<°>
No. 68020-0-1/2

Mockovak is the former co-owner of Clearly Lasik, Inc., a refractive eye

surgery business operating surgical centers in both the United States and

Canada. In 2009, over the course of several months, Mockovak plotted with

Daniel Kultin, the information technologies director at the company, to arrange

the murder of Mockovak's business partner, King, and to thereafter collect on a

$4 million insurance policy. Unbeknownst to Mockovak, however, Kultin was

working as an informant for the FBI. Kultin wore a concealed recording device

during several of his conversations with Mockovak in which the two men

discussed the plan to murder King. Ultimately, Mockovak gave Kultin a $10,000

payment for the murder along with a photograph of King and hisfamily, with the

intention that the money and photograph would be forwarded to the hired killers.

Soon thereafter, Mockovak was arrested.

Following a jury trial, Mockovak was convicted of attempted murder in the

first degree, solicitation to commit murder in the first degree, attempted theft in

the first degree, and conspiracy to commit theft in the first degree.1 The trial

court sentenced Mockovak to a term of imprisonment within the standard range.

A restitution hearing was thereafter scheduled for September 22, 2011.

The trial judge limited the issues to be presented at the hearing to legal issues

regarding the limits of restitution.

The State requested restitution in the amount of $220,439.95. This

1We affirmed Mockovak's convictions in a decision filed May 20, 2013. State v.

Mockovak. No. 66924-9-I, 2013 WL 2181435 (Wash. Ct. App. May 20, 2013). The details of the

investigation leading to Mockovak's arrest and convictions are more fully set forth therein.

-2-
No. 68020-0-1/3

request was based on losses in four categories: (1) medical expenses; (2) travel

expenses; (3) business expenses; and (4) legal expenses. The medical

expenses, incurred by King and his wife, were "related to the stress imposed

upon them by [Mockovak's] crime." The State requested restitution based upon

a $10 payment for anxiety medication for King's wife and $1,533.34 for

cardiology treatments for King.

The travel expenses were incurred by King, the State asserted, when he

cut short his vacation in Australia upon learning of the plot against his life. The

State requested that King be reimbursed $1,876 for a rental van payment.

The business expenses were incurred by two corporations, Clearly Lasik

and King Lasik, Inc.2 The State requested restitution in the amountof $26,615

based upon Clearly Lasik's hiring of a public relations firm, Sound Counsel Crisis

Communications, in the aftermath of Mockovak's arrest. The State requested

restitution of $8,460.49 based upon King Lasik's hiring of a replacement surgeon

during the period that King attended Mockovak's criminal trial.

In addition, the State sought restitution for a number of legal expenses.

These expenses related to the hiring by King of "attorneys to assist with witness

preparation and other aspects of [Mockovak's] criminal trial," and the hiring of law

firms by King and his businesses to "pursue civil claims for damage caused by

[Mockovak's] crimes." In the first civil suit, the King family sought damages for

"emotional distress, fear, embarrassment, humiliation, loss of consortium,

damage to familial relationships, the loss of enjoyment of life, and financial harm"

2King incorporated King Lasik two weeksafterMockovak's arrest.

-3-
No. 68020-0-1/4

arising from Mockovak's actions. In the second civil suit, Clearly Lasik3 asserted

causes of action for breach of fiduciary duty and tortious interference with a

business expectancy. The corporation additionally sought an injunction

prohibiting Mockovak from entering any Clearly Lasik office or communicating

with any Clearly Lasik "employee, supplier, creditor, customer, or financial

institution." Finally, the State sought restitution based upon a $5,000 payment

from King to Mockovak's ex-wife for legal fees relating to child custody and

visitation proceedings involving Mockovak. The State requested legal expense

restitution in the total amount of $181,945.12.

Following oral argument, the trial court denied restitution with regard to the

majority of the claimed expenses. The court explained that these expenses were

not "directly related" to Mockovak's crimes and that, accordingly, the expenses

were not properly compensable as restitution.

The trial court then explained that it believed King's medical expenses to

be potentially compensable.4 At Mockovak's request, an evidentiary hearing was

initially set for November 4, 2011 to determine whether King's medical expenses

were a direct result of Mockovak's crimes. However, after King's medical records

were furnished to the court, Mockovak indicated that the issue of restitution could

be decided without oral argument. Accordingly, the evidentiary hearing was

stricken.

3Thislawsuit was also brought by King and Mockovak Eye Center, Inc., P.S., a closelyheld business also co-owned by King and Mockovak.

4 Mockovakdid not contest the State's restitution request pertaining to the $10

prescription for King's wife.

-4-
No. 68020-0-1/5

On November 7, 2011, the trial court issued an order setting restitution at

$1,543.34. King was designated as the recipient.

Mockovak appeals from the trial court's restitution order. The State cross

appeals.

II

Mockovak contends that the trial court erred by awarding restitutionbased upon the medical expenses of King and his wife—in the amount of

$1,543.34 payable to King. We disagree.

The trial court's authority to order restitution is derived entirely from

statute. State v.Smith. 119 Wn.2d 385, 389, 831 P.2d 1082 (1992). Courts

have broad discretion when determining the amount of restitution. State v.

Kinneman, 155Wn.2d 272, 282, 119 P.3d 350 (2005) (citing State v. Hughes.

154Wn.2d 118, 153, 110P.3d 192(2005)). The trial court abuses its discretion

where the restitution order is manifestly unreasonable, exercised on untenable

grounds, or for untenable reasons. State v. Enstone, 137 Wn.2d 675, 679-80,

974 P.2d 828 (1999). The court's application of an incorrect legal analysis or

other error of law can constitute an abuse of discretion. State v. Tobin. 161

Wn.2d 517, 523, 166 P.3d 1167 (2007).

Restitution is required where "the offender is convicted of an offense

which results in injury to any person ordamage to orloss of property."5 RCW

5Atrial court may decline to orderrestitution where"extraordinary circumstances exist

which make restitution inappropriate in the court's judgment and the court sets forth such

circumstances in the record." RCW 9.94A.753(5). No such extraordinary circumstances were

found to exist by the trial court in this case.

-5-
No. 68020-0-1/6

9.94A.753(5). The award must be "based on easily ascertainable damages for

injury to or loss of property, actual expenses incurred for treatment for injury to

persons, and lost wages resulting from injury." RCW 9.94A.753(3). Restitution

may not be awarded for "damages for mental anguish, pain and suffering, or

other intangible losses." RCW 9.94A.753(3). However, a restitution award may

include the "costs of counseling reasonably related to the offense." RCW

9.94A.753(3).

Restitution is allowed only for losses that are causally connected to the

crimes charged unless the defendant expressly agrees to pay restitution for

crimes for which he was not convicted. State v. Griffith. 164 Wn.2d 960, 965-66,

195 P.3d 506 (2008). "Losses are causally connected if, butfor the charged

crime, the victim would not have incurred the loss." Griffith. 164 Wn.2d at 966

(citing Tobin. 161 Wn.2d at 524). The trial court cannot impose restitution based

on a defendant's "'general scheme'" or acts "'connected with'" the crime charged,

when those acts are not part ofthe charge. State v. Woods. 90 Wn. App. 904,

907-08, 953 P.2d 834 (1998) (quoting State v. Miszak, 69 Wn. App. 426, 428,

848P.2d 1329 (1993)): accord Kinneman. 155 Wn.2d at 286.

Here, the trial court explained that restitution is proper where the "victim of

an attempted, or inchoate murder" experiences stress that requires that person to

"see a psychiatrist or counselor, or go to a cardiologist." The court noted,

however, that in order to be compensable, such stress must result directly from

the crime: "[A]s to these consequences that are caused by being in trial on a

criminal case and how those impact the victim, Ithink the [Court of Appeals] is

-6-
No. 68020-0-1/7

going to say, 'We are sorry, but that is the cost of our justice system. You don't

get repaid for it.'"

An evidentiary hearing was set for November 4, 2011 to determine the

reasons for King's cardiology treatment. The court requested that King's doctor

provide a letter to the court specifying whether the treatment at issue was directly

related to King having been the victim of a threatened murder.

King's medical records were thereafter furnished to the court. The treating

physician reported that King's chest pain occurred with stress. The doctor

stated:

His stress is related to professional issues. His business partner

hired a hit man to kill him in an attempt to collect life insurance.

There is now a criminal investigation going on and most of the

professional work at his clinic has now been dumped on him. As

well, he has to deal with the partner who is still part of the practice.

In the final assessment and plan, the doctor again noted: "[King] initially

presented with occasional chest tightness secondaryto extreme stress in his life.

Apparently his business partner hired a hit man to kill him." Finally, in a letter to

the court, the doctor stated that King's symptoms "were a direct result of stress

suffered from criminal proceedings associated with his practice."

Following the trial court's receipt ofthese materials, Mockovak indicated

that the issue of restitution could be decided without oral argument. Accordingly,

the hearing set for November 4, 2011 was stricken. The trial court thereafter

ordered restitution of $1,543.34 on November 7, 2011. King was designated as

the recipient.

Mockovak asserts that the restitution award was improper because King's

-7-
No. 68020-0-1/8

medical treatment became necessary, not because King was the victim of an

attempted murder, but as a result of Mockovak's criminal trial. Restitution in such

circumstances is prohibited, Mockovak asserts, because it penalizes a defendant

for exercising his or her constitutional right to a trial by jury. A crime victim will

often suffer greater stress where the defendant elects to go to trial and, if higher

restitution awards were permitted against such defendants, it would

impermissibly chill the defendant's exercise of this constitutional right. As

Mockovak correctly points out, "[t]he imposition of a penalty for the exercise of a

defendant's legal rights violates due process." State v. Sandefer. 79 Wn. App.

178, 181, 900 P.2d 1132(1995).

However, we need not address this constitutional question in order to

resolve this issue. Imposition of restitution for injury incurred solely as the result

of a criminal trial is not permissible because such an injury is not the result ofthe

defendant's crime. A criminal trial does not occur in instances where a defendant

simply pleads guilty to the charged offense. Instead, the trial occurs only where

the defendant chooses to exercise his or her right to a jury trial. Such a decision,

while "connected with" the crime charged, is not an act constituting a part of the

charge. See Woods, 90Wn. App. at 907-08. Accordingly, restitution cannot be

imposed for injuries arising from this act. Kinneman. 155Wn.2d at 286.

Because the defendant's criminal trial does not directly result from the

defendant's crimes, injuries that arise solely as a result of the trial are not

compensable as restitution. See State v. Goodrich. 47 Wn. App. 114, 115,733

P.2d 1000 (1987) (reversing imposition of restitution for victim's lostwages where

-8-
No. 68020-0-1/9

losses resulted from victim's trial attendance and not from injury).

Keeping these principles in mind, the award of restitution in this case was

not improper. The trial court agreed with Mockovak that no restitution should be

granted if King's need for treatment arose as a result of the stresses associated

with Mockovak's trial. The court noted that restitution is improper where a

person's need for therapy results from "tak[ing] the stand and being crossexamined by the defense." In such circumstances, the trial court explained, the

costs of the counseling would not be compensable. Thus, in granting restitution

for King's medical expenses, the court necessarily concluded that King's need for

medical treatment did not arise as a result of the trial.

Nor did the trial court err by so concluding. King's doctor stated that King

experienced chest pain "occurring] with stress." Thisstress related to

"professional issues," which, the doctor explained, included Mockovak's hiring of

"a hit man to kill [King] in an attempt to collect life insurance." In the doctor's final

assessment and plan, she again noted that Mockovak's symptoms occurred with

stress related to an incident in which King's "business partner hired a hit man to

kill him." Such evidence was sufficient for the trial court to determine that King's

need for medical treatment was the direct result of Mockovak's criminal acts.

Nevertheless, Mockovak contends that a letter from King's doctor, stating

that King'sstress resulted from "criminal proceedings associated with his

practice," indicates that King's chest pain resulted solely from "Mockovak's trial

and pretrial proceedings." However, it is unlikely that the doctor intended to give

the term "criminal proceedings" a precise legal definition. Instead, this statement

-9-
No. 68020-0-1/10

may reasonably be interpreted to indicate that King's stress was the result of

Mockovak's criminal activity, and the trial court attached this meaning to the

words. If Mockovak wanted the doctor to more precisely parse out this

statement, the evidentiary hearing—which Mockovak asked to be stricken—

would have provided such an occasion. Based upon the evidence actually

presented, however, the trial court properly determined that King's need for

medical treatment flowed directly from the crime itself.

From the actual evidence presented and the reasonable inferences

therefrom, the trial court concluded that it was King's discovery of his longtime

business partner's plot to murder him that resulted in his medical expenses.6

Sufficient evidence supports this determination. The trial court did not err by

6 Mockovak also contends that the amount of restitution was improper because a portion

ofKing's medical expenses was paid by Mockovak's insurance company. In preparation for the

evidentiary hearing on restitution, King explained thatwith respect to his $1,533.34 medical bill,

$69570 had been paid by Premera Blue Cross and $837.64 had been paid by King. Mockovak

asserts that the restitution statute limitsreimbursement to the "actual expenses incurred" by the

victim.

There is, however, no requirement that the restitution ordered be equivalent to the injury,

damage, orloss. Kinneman. 155 Wn.2d at 282-83. "The trial court has great power and

discretion in issuing restitution." Hughes, 154 Wn.2d at 153. Here, there was ample reason for

the trial court to name King as the sole recipient of the restitution award. As King's insurer,

Premera would have had either a contractual or an equitable right to subrogation. See Mahler v.

Szucs, 135 Wn.2d 398, 411, 957 P.2d 632, 966 P.2d 305 (1998). The trial court unquestionably

was aware of this. An insurer's entitlement to subrogation payments, however, arises only"after

the insured isfully compensated for hisloss." Thirinaer v. Am. Motors Ins. Co.. 91 Wn.2d 215,

219, 588 P.2d 191 (1978). Thus, until King received the full amount of his out-of-pocket

expenses—$837.64—Premera would not be entitled to recover its loss.

By contrast, where multiple victims are designated to be the recipients ofa restitution

award, payments are distributed on a pro rata basis to the listed victims. See, e.g.. State v.

Shultz, 138 Wn.2d 638, 641, 980 P.2d 1265(1999). Thus, ifMockovak was unable to pay the

entirety ofthe restitution award, any order naming King's insurance company as a recipient ofthe

award would result in a windfall to the company. Until King received $837.64, representing his

out-of-pocket expenses, no right ofreimbursement would exist in favor of Premera. Nonetheless,

if the court had listed the company as a victim, Premera might have received payment even if

King was not fully compensated for his loss. Given this possibility, the trial court properly listed

King as the sole recipient of the award. The court wisely left the preciseallocation ofthe

restitution award to the relationship—contractual or equitable—between King and his insurer.

-10-
No. 68020-0-1/11

ordering restitution in the amount of $1,543.34 based upon the medical expenses

of King and his wife.

Mockovak next asserts that the State's cross appeal of the trial court's

restitution order is untimely and that the cross appeal must be dismissed. We

disagree.

Where restitution is ordered following a criminal judgment, the order

becomes part of the offender's sentence. State v. Dorenbos. 113 Wn. App. 494,

497, 60 P.3d 1213 (2002). A party may, of course, appeal from a final order

entered after judgment. RAP 2.2(a)(13). However, only a "final order" is subject

to such an appeal.

Here, the trial court issued two orders relating to restitution. In the first

order, dated September 22, 2011, the trial court resolved several of the State's

requests for restitution as a matter of law. The order did not, however, fully

resolve the issue of restitution. Instead, following the entry of this order, the trial

court scheduled an evidentiary hearing to determine the availability of restitution

based upon the State's remaining requests. After Mockovak requested that this

hearing be stricken, the trial court entered a second order entitled "order setting

restitution" on November 7, 2011. In this order, the court set the final amount of

restitution at $1,543.34.

Mockovak contends that, because the State's notice of appeal was not

filed within 30 days of the trial court's first order, the State's notice of appeal

seeking review of the issues decided in that order is untimely. However, the trial

-11 -
No. 68020-0-1/12

court's first order was not a "final order after judgment" from which an appeal

could be taken. Following entry of the September 22, 2011 order, the trial court

remained free to exercise its discretion in setting the final amount of the

restitution award. Thus, the trial court's restitution order did not become final

until November 7, 2011, the date on which the matter of restitution was fully

resolved by the trial court.

Mockovak appealed from the trial court's final order of restitution on

December 5, 2011. After Mockovak filed his notice of appeal, the State was

allotted "14 days after service of the notice" to file its own notice of appeal. RAP

5.2(f). The State filed this notice on December 15, 2011. Accordingly, the

State's notice of appeal was timely.

IV

In its cross appeal, the State first contends that the trial court erred by

determining that certain business expenses—incurred byClearly Lasik and King

Lasik during the period of Mockovak's criminal trial—were notthe direct result of

Mockovak's crimes and, thus, were not compensable as restitution. We

disagree.

As our Supreme Court has explained, "funds expended by a victim as a

direct result of the crime (whether or not the victim is an 'immediate' victim of the

offense) can be a loss of property on which restitution is based." Kinneman. 155

Wn.2d at 287. Here, the claimed business expenses relate to two expenditures.

First, the State requested restitution of $8,460.49 based upon King Lasik's hiring

of a replacement surgeon to perform surgeries during "King's required

-12-
No. 68020-0-1/13

attendance at trial." Second, the State requested restitution of $26,615 based

upon Clearly Lasik's hiring of "a public relations firm to ameliorate the harmful

effects of [Mockovak's] conduct and the very public trial on the business." The

trial court correctly determined that neither expense was a proper basis for

restitution.

In the materials before the trial court, King admitted that King Lasik hired

the replacement surgeon because of King's attendance at Mockovak's criminal

trial. Such an expense, the State contends, would not have been incurred had

Mockovak not committed his crimes and, thus, this expense was improperly

excluded by the trial court in the award ofrestitution. However, as discussed

above, Mockovak's criminal trial was not a direct result of Mockovak's crimes

and, accordingly, any funds expended as the result of that trial are not

compensable. See Goodrich. 47 Wn. App. at 115. The trial court did not err by

determining that the cost ofthe replacement surgeon was not a proper basisfor

restitution.

Nor did the trial court err by determining that Clearly Lasik's expense in

hiring the public relations firm was not compensable. The State assertsthat this

payment directly related to Mockovak's crimes:

Certainly the reputation of Clearly Lasik suffered because

one of its primary surgeons plotted and paid to have the other

primary surgeon killed. Some patients or potential patients would

be concerned about whether the clinics were a safe place to be.

Other patients would be concerned about whether a business that

employed Mockovak was making wise personnel decisions, and

that other employees might be unstable or at least unreliable. It is

also possible that other merchants would choose not to do

business with an operation that appeared to be on such an

-13-
No. 68020-0-1/14

unstable footing. . . . The expenses incurred were between January

7, 2011, and February 10, 2011, when the crimes and the business

were receiving maximum negative publicity, during the criminal trial.

Thus, the State argues, because "[i]t is likely that the public relations firm

was hired to respond to these potential harmful consequences of Mockovak's

crimes," this expense was compensable as restitution.

The trial court correctly rejected this argument for several reasons. First,

insofar as the reasons for hiring the public relations firm related to Mockovak's

exercise of his trial right, this cost is not compensable as restitution. As the State

notes, the firm was hired during the period of Mockovak's criminal trial, when the

"business [was] receiving maximum negative publicity." Any payments made to

"ameliorate the harmful effects" of that trial were not a proper basis for restitution.

Second, the legislature has determined that restitution in a criminal case is

not available for damages arising from "intangible losses." RCW 9.94A.753(3).

Accordingly, damage to a corporation's reputation is not compensable as

restitution. "Goodwill is property of an intangible nature . . . commonly defined as

the expectation of continued public patronage." In re Marriage of Lukens, 16Wn.

App. 481, 483, 558 P.2d 279 (1976) (citing In re Marriage of Foster. 42 Cal. App.

3d 577, 117 Cal. Rptr. 49 (1974)). With regard to such intangible losses, the

legislature has limited a victim's recovery to the "costs of counseling reasonably

related to the offense." RCW 9.94A.753(3). The restitution statute does not

authorize compensation for any other expenditure to mitigate an intangible loss.

This limitation represents a legislative determination regarding the proper

scope of restitution in criminal cases. Clearly Lasik's hiring of a public relations

-14-
No. 68020-0-1/15

firm cannot, of course, be reasonably construed as "counseling" related to

Mockovak's offense. Accordingly, for this reason as well, the trial court properly

determined that this expenditure was not compensable as restitution.

Finally, even were restitution not precluded by the aforementioned

principles, the trial court did not abuse its discretion by determining that Clearly

Lasik's hiring of the public relations firm did not constitute a loss of property upon

which restitution could be based. As noted above, only those funds expended by

a victim as a "direct result ofthe crime" are compensable as restitution.7

Kinneman. 155 Wn.2d at 287. Here, Mockovak was charged and convicted

based upon his conduct in plotting the murder of King. The State offered

evidence that, after scheming for several months, Mockovak gave Kultin $10,000

to hire hit men to kill King while he traveled in Australia. Kultin, however, was

working as an informant for the FBI. No actual hit men were hired, and,

accordingly, Mockovak's actions resulted in none of the negative consequences

7The State points to our SupremeCourt's decision in State v. Hiett, 154Wn.2d 560, 115

P.3d 274 (2005), for the proposition thatany funds thatwould not have been expended "but for

an offender's criminal conduct are compensable as restitution. In that case, several juveniles

tooka motor vehicle without permission, and the vehicle was subsequently damaged during an

attempt to elude the police. Hiett, 154Wn.2d at 562-63. Although two passengers hadjumped

from the vehicle prior to the driver's attempt to elude, the court explained that, because damage

to the vehicle would not have occurred "but for" the unlawful taking, the passengers were jointly

and severally liablefor the restitution award. Hiett, 154 Wn.2d at 566.

In so ruling, the court did notannounce a radical new approach to the limits ofrestitution.

Indeed, in that case, the damage to the victim flowed directly from the defendants' crimes.

Reserving the question ofwhether principles of proximate cause should apply in the criminal

context, the court noted that itwas hardly "unforeseeable that a person guilty of taking a motor

vehicle would . . . attempt to elude the police, or cause an accident." Hiett, 154Wn.2d at 566.

Here, unlike the situation presented in Hiett. Mockovak's criminal acts caused no property

damage. Nor did the expenditures ofClearly Lasik or King Lasik result directly from those crimes.

Instead, King Lasik's need to hire a replacement surgeon arose solely as a result ofMockovak's

trial. Similarly, Clearly Lasik's need to hire the public relations firm resulted from the negative

publicity thatsurrounded Mockovak's arrestand trial. Given suchdisparate circumstances, Hiett

has little applicability to the present case.

-15-
No. 68020-0-1/16

that he had intended.

Clearly Lasik incurred no costs as a direct result of Mockovak's criminal

acts. Instead, as the State concedes, Clearly Lasik hired the public relations firm

to address the negative publicity associated with Mockovak's arrest and trial.

This publicity, however, did not result directly from Mockovak's criminal acts and,

accordingly, any payments to ameliorate the effects of that publicity were not

"funds expended ... as a direct result of [Mockovak's] crime." Kinneman, 155

Wn.2d at 287. For all the reasons set forth above, the trial court did not abuse its

discretion by determining that the companies' expenditures were not

compensable as restitution.

V

The State next asserts that the trial court erred by declining to order

restitution based upon $181,945.12 in legal fees incurred primarily by King and

Clearly Lasik during civil litigation with Mockovak. However, the trial court

properly concluded that such expenses did not directly result from Mockovak's

crimes.

"[T]he criminal justice system is not a substitute for a civil judgment

against a criminal defendant." Statev.Moen. 129Wn.2d 535, 542, 919 P.2d 69

(1996). "'[C]ompensation is not the primary purpose of restitution, and the

criminal process should not be used as a means to enforce civil claims.'" Moen,

129 Wn.2d at 543 (quoting State v. Martinez, 78 Wn. App. 870, 881, 899 P.2d

1302 (1995)). Nevertheless, "[ajttorneyfees and costs may constitute damages

on which restitution may be based, depending on the circumstances."

-16-
No. 68020-0-1/17

Kinneman, 155 Wn.2d at 288. The touchstone of the inquiry is whether the

attorney fees were "'expended by the victim as a direct result of the crime.'"

Tobin. 161 Wn.2d at 524 (quoting Kinneman, 155 Wn.2d at 287).

Our courts have determined that attorney fees and costs are compensable

as restitution where they were expended in order to discover a crime or to

recover property that was lost as a result of the crime. Kinneman, 155 Wn.2d at

288. Thus, "where the defendant was an attorney convicted of stealing from his

clients and the victim had to pay attorney fees to obtain any recovery in the civil

suit, the victim's attorney fees from the civil suit could be calculated as part of

restitution." Tobin. 161 Wn.2d at 524-25 (citing Kinneman. 155 Wn.2d at 288).

Similarly, where the defendant was convicted of custodial interference based

upon the taking of a child, fees expended in locating and returning a missing

child could properly be included in a restitution award. State v. Vinvard, 50 Wn.

App. 888, 893-94, 751 P.2d 339 (1988).

On the other hand, where a separate civil action is not sufficiently

connected to the defendant's crime, restitution is not authorized for attorney fees

incurred in that action. Kinneman, 155 Wn.2d at 288. Thus, where the

defendant's crime was custodial interference, attorney fees incurred by the

defendant's husband in a separate visitation action were not sufficiently causally

related to the crime to justify restitution. Kinneman, 155 Wn.2d at 288-89

(discussing Vinvard, 50 Wn. App. at 893-94). As we explained, "[although [the

defendant's] rights of visitation would naturally be affected by her actions,

attorney fees and costs incurred in conjunction with these hearings are not

-17-
No. 68020-0-1/18

expenses incurred in locating or returning the child, or causally related to the

actual crime of custodial interference." Vinvard, 50 Wn. App. at 894.

Accordingly, such attorney fees were improperly granted under the restitution

statutes. Vinvard. 50 Wn. App. at 893-94.

Here, the State's restitution request was based upon several sets of legal

expenses. First, the State sought restitution for King's hiring of "attorneys to

assist with witness preparation and other aspects of [Mockovak's] criminal trial."

Second, the State requested reimbursement for fees relating to a civil suit for

damages brought by King and hisfamily against Mockovak. Third, the State

sought restitution based upon Clearly Lasik's expenses in "pursuing] civil claims

for damages caused by [Mockovak's] crimes." Finally, the State sought

reimbursement for a $5,000 payment by King to Mockovak's ex-wife for legal

fees relating to child custody and visitation proceedings.

The trial court properly determined that none of these legal expenses were

recoverable as restitution. With regard to King's legal fees relating to "witness

preparation and other aspects of[Mockovak's] criminal trial," such expenses do

not constitute a proper basis for restitution. As discussed above, because a

defendant's criminal trial does not directly result from the defendant's crimes,

expenditures that arise solely as the result of that trial are not compensable as

restitution. The trial court did not err by declining to order restitution based upon

legal fees incurred as a result of Mockovak's criminal trial.

The attorney fees relating to the King family's civil suit against Mockovak

were also properly rejected. This lawsuit was an action for damages for "family

-18-
No. 68020-0-1/19

emotional distress, fear, embarrassment, humiliation, loss of consortium, damage

to familial relationships, the loss of the enjoyment of life, and financial harm."

However, as noted above, the restitution statute specifically excludes

reimbursement for "mental anguish, pain and suffering, or other intangible

losses." RCW 9.94A.753(3). Because the King family's lawsuit was an action for

damages based upon such injuries, the trial court properly determined that

restitution for expenses incurred as a result of initiating that lawsuit was

unavailable.

Moreover, the King family's civil suit was dismissed by the trial court

pursuant to CR 12(b)(6) for failure to state a claim.8 In enacting the restitution

statute, the legislature did not intend for a person, having expended funds in a

meritless civil lawsuit, to thereafter recover those expenses by way of a criminal

proceeding. "[T]he criminal justice system is not a substitute for a civil judgment

against a criminal defendant." Moen. 129 Wn.2d at 542. The trial court did not

err by denying restitution to recover these litigation expenses.

Similarly, the trial court correctlydetermined that Clearly Lasik's legal

expenses—incurred prosecuting the company's lawsuit for damages based upon

Mockovak's alleged breach offiduciary duty and tortious interference with a

business expectancy—were not compensable as restitution. That lawsuit was

not initiated in order to discover a crime or to recover property that was lost as a

result of the crime. See Kinneman, 155 Wn.2d at 288. Rather, the lawsuit was

8We affirmed that decision based upon the untimeliness of King's appeal. King v.

Mockovak. No. 67479-0-I, 2013 WL 619545 (Wash. Ct. App. Feb. 19, 2013).

-19-
No. 68020-0-1/20

initiated to recover damages based upon financial injury to the company.9

Mockovak's crimes, however, did not directly result in such injury. Due to

the efforts of law enforcement, Mockovak's attempt to hire a hit man to kill King

was thwarted. Injury to Clearly Lasik resulted, if at all, not from Mockovak's

criminal conduct but from Mockovak's arrest and subsequent prosecution. As

discussed above, expenditures incurred as the result of a defendant's criminal

trial are not compensable. Nor is damage to a company's reputation a loss that

is subject to recovery pursuant to the restitution statute. The trial court properly

determined that fees incurred in prosecuting this civil action were not sufficiently

causally related to Mockovak's crimes to permit an award of restitution.

Finally, for similar reasons, the trial court properly rejected the State's

remaining restitution request. The $5,000 payment by King to Mockovak's exwife was intended to finance her legal efforts in child custody and visitation

proceedings against Mockovak. However, as our prior decisions make clear,

such proceedings are not sufficiently causally related to Mockovak's crime to

justify an award of restitution. See Vinvard 50 Wn. App. at 893-94 (holding that

attorney fees incurred in conjunction with visitation proceedings are not expenses

9A claim for tortious interference with a business expectancy requires five elements: (1)

the existence of a valid contractual relationship or business expectancy, (2) that defendants had

knowledge ofthat relationship, (3) an intentional interference inducing or causing a breach or

termination of the relationship or expectancy, (4) that defendants interfered for an improper

purpose or used improper means, and (5) resultantdamage. Manna Funding. LLC v. Kittitas

County. Wn. App. . 295 P.3d 1197, 1207 (2013).

The essential elements to pleading a breach offiduciary duty cause of action under

Washington law are: (1) that a fiduciary relationship existed which gave rise to a dutyof care on

the part ofthe defendant to the plaintiff; (2) that there was an act or omission bythe fiduciary in

breach of the standard of care; (3) that plaintiffsustained damages; and (4) that the damages

were proximately caused by the fiduciary's breach of the standard of care. 29 David K. DeWolf,

Washington Practice: Elements of an Action § 12:1, at 347-48 (2012).

-20-
No. 68020-0-1/21

causally related to the actual crime of custodial interference). These expenses

did not constitute a proper basis for restitution.

Because the legal expenses of King, his family, and Clearly Lasik were not

incurred as the "direct result of [Mockovak's] crime," Kinneman, 155 Wn.2d at

287, the trial court did not err by denying these requests for restitution.

VI

The State's final contention is that the trial court erred by determining that

King's travel expenses could not be properly included within the restitution

award. We disagree.

King's asserted travel expenses relate to his payment for a rental van in

Australia. The documents submitted to the trial court indicate that King made an

advance payment of$1,876 in order to rent the van. King left Australia shortly

after being informed of Mockovak's arrest and, accordingly, did not make use of

the van for the entire rental period. The State thereafter sought restitution of

$1,876 on King's behalf.

This request was properly denied for two related reasons. First, because

King paid for the rental van before Mockovak committed his crimes, it cannot be

true that King incurred this expense "as a direct result" ofthose crimes.

Kinneman, 155 Wn.2d at 287. Second, in so far as King's request for restitution

is based upon a loss of enjoyment resulting from the disruption of his vacation,

such losses are not recoverable. Although it is true that King was unable to fully

enjoy the use ofthe rental van, as discussed above, restitution cannot be granted

based upon such intangible losses. RCW 9.94A.753(3).

-21 -
No. 68020-0-1/22

The trial court correctly determined that the cost of the rental van was not

the proper subject of its restitution award.

Affirmed.

We concur:

~-^

U- ^L

-22-