INTHE 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 DIVISION ONE No. 68020-0-1 UNPUBLISHED OPINION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 ofattempted murder in the first degree and solicitation to commit murder in the firstdegree, the State sought $220,439.95 in restitution on behalfof Mockovak's intended victim, Dr. Joseph 

### King. The trial court granted restitution with respectto certain medical expenses of King and his wife—totaling $1,543.34—but denied the State's remaining 

### requests. Mockovakappeals from the trial court's restitution order, contending that itabused 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 affirmthe trial court in all respects. 

## "&.

<°>No. 68020-0-1/2

Mockovak is the former co-owner ofClearly 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 ofMockovak's business partner, King, and to thereafter collect on a 

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

### working as an informantfor 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 

### paymentfor the murder along with a photograph ofKing and hisfamily, with the intention that the money and photograph would beforwarded to the hired killers. Soon thereafter, Mockovak was arrested. 

### Following ajurytrial, Mockovakwas convicted ofattempted murder in the first degree, solicitation tocommit murder in thefirst degree, attempted theft in 

## thefirst degree, and conspiracyto committheft inthe firstdegree.1 The trial court sentenced Mockovak to a term of imprisonment withinthe standard range. 

### Arestitution hearing was thereafter scheduled forSeptember 22, 2011. The trialjudge limited the issues to be presented at the hearing to legalissues 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 toMockovak's arrest andconvictions 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 paymentfor 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 inAustralia upon learning ofthe 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 requestedrestitution in the amountof$26,615 based upon Clearly Lasik's hiring of a public relations firm, Sound Counsel Crisis Communications, inthe 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. Inaddition, the State sought restitution for a number of legal expenses. 

### These expenses related to the hiring by King of"attorneys to assist withwitness 

### preparation and other aspects of[Mockovak's] criminal trial," and the hiring of law firms by King and his businesses to "pursue civil claims fordamage caused by [Mockovak's] crimes." Inthe first civil suit, the King family sought damages for "emotional distress, fear, embarrassment, humiliation, loss ofconsortium, 

### damage to familial relationships, the loss of enjoyment oflife, 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 ofaction 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 legalfees 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 medicalexpenses
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. 3Thislawsuitwas also brought byKing and Mockovak Eye Center, Inc., P.S., a closelyheld business also co-owned by King and Mockovak. 4Mockovakdid notcontestthe State's restitutionrequest pertaining to the $10 prescription for King's wife.

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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 trialcourt's restitution order. The State cross appeals.
II Mockovak contends that the trial court erred by awarding restitution

### based upon the medical expenses ofKing 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 ofdiscretion. State v. Tobin. 161 Wn.2d 517, 523, 166 P.3d 1167 (2007). Restitution is required where "the offender is convicted ofan offense 

### which results in injurytoany person ordamage to orloss ofproperty."5 RCW

5Atrial court may decline to orderrestitution where"extraordinary circumstances exist which make restitution inappropriate in the court'sjudgment 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 fortreatment forinjury to persons, and lostwages resultingfrom 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 forlosses that are causally connected to the 

### crimes charged unless the defendant expresslyagrees to payrestitution for crimes for which he was not convicted. State v. Griffith. 164 Wn.2d 960, 965-66, 

### 195 P.3d506 (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). Thetrial court cannotimpose 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. 90Wn. 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 inorder to be compensable, such stress must result directly from 

### the crime: "[A]s to these consequences that are caused by being intrial on a criminal case and howthose 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 ourjustice system. You don't get repaid for it.'" 

### An evidentiary hearing was set for November4, 2011 to determine the
reasons for King's cardiology treatment. The court requested that King's doctor 

### provide a letter to the court specifyingwhetherthe 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 ofthe 

### professionalwork at his clinic has now been dumped on him. As well, he has to deal withthe partner who is stillpart ofthe practice. 

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

### presentedwith occasional chesttightness secondarytoextreme 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 ofstress 

### 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 November4, 2011 was stricken. Thetrial 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
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medical treatment became necessary, not because King was the victim ofan attempted murder, but as a result ofMockovak's criminal trial. Restitution in such circumstances is prohibited, Mockovak asserts, because itpenalizes a defendant 

### forexercising 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, ifhigher 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 legalrights 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 orderto 

### resolve this issue. Imposition ofrestitution for injury incurred solely as the result of a criminal trial is notpermissible 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 thecharged offense. Instead, thetrial 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. at907-08. 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 ofrestitution forvictim's lostwages where
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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 fortreatment arose as a result of the stresses associated with Mockovak's trial. The court noted that restitution is improper where a person's need fortherapy results from "tak[ing] the stand and being cross

### examined by the defense." In such circumstances, the trial court explained, the costs of the counseling would not be compensable. Thus, in granting restitution 

### forKing's medicalexpenses, the court necessarily concluded that King's need for medical treatment did not arise as a result ofthe trial. 

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

### experienced chest pain "occurring] with stress." This stress related to 

### "professional issues," which, the doctorexplained, included Mockovak's hiring of "ahit man to kill [King] in an attempt to collectlife 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's stress resulted from "criminal proceedings associated with his 

### practice," indicates that King's chest pain resulted solelyfrom "Mockovak's trial and pretrialproceedings." However, it is unlikely that the doctor intended to give the term "criminalproceedings" 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. IfMockovak 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 properlydetermined 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 itwas King's discovery of his longtime 

## business partner's plotto murderhimthatresulted in his medical expenses.6 Sufficientevidence supports this determination. The trial court did not err by

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

### ofKing's medical expenses waspaid by Mockovak's insurance company. In preparation forthe evidentiary hearing onrestitution, King explained thatwith respect tohis $1,533.34 medical bill, $69570had been paid by Premera Blue Cross and$837.64 had beenpaid by King. Mockovak asserts that the restitution statute limitsreimbursement to the "actual expenses incurred" by the victim. There is, however, norequirement that the restitution ordered be equivalentto the injury, damage, orloss. Kinneman. 155 Wn.2d at282-83. "The trial courthas greatpower and discretion in issuing restitution." Hughes, 154Wn.2d at 153. Here, there wasample 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, 135Wn.2d398, 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 theinsured isfully compensated for hisloss." Thirinaerv. Am. Motors Ins. Co.. 91 Wn.2d 215, 219, 588 P.2d 191 (1978). Thus, until King received the full amount of hisout-of-pocket expenses—$837.64—Premera would not be entitled to recover its loss. By contrast, where multiple victims aredesignated to be therecipients ofa restitution award, payments are distributed on a pro rata basis to thelisted victims. See, e.g.. Statev. Shultz, 138Wn.2d638, 641, 980 P.2d 1265(1999). Thus, ifMockovakwas unable to pay the entirety oftherestitution award, any ordernaming King's insurance company as a recipient ofthe awardwould resultin a windfall to the company. Until King received $837.64, representing his out-of-pocketexpenses, noright ofreimbursementwould exist in favor ofPremera. Nonetheless, ifthecourt hadlisted thecompany as a victim, Premera might havereceived paymentevenif King wasnotfully compensated for his loss. Given this possibility, thetrial court properly listed King as the solerecipient of theaward. Thecourtwisely leftthe 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 ofthe trial court's restitution order is untimely and that the cross appeal must be dismissed. We disagree. Where restitution is ordered following a criminaljudgment, 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, ofcourse, appeal from a final order 

### entered after judgment. RAP2.2(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 forrestitution as a matter oflaw. The orderdid 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 ofrestitution 

### 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 ofappeal 

### 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 afterjudgment" 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 ofthe 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 ofrestitution on December 5, 2011. After Mockovak filed his notice of appeal, the State was 

### allotted "14 days after service of the notice" tofile 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 itscross 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 ofMockovak'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 ofproperty onwhich 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'shiring of a replacement surgeon to performsurgeries 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. Inthe materials before the trial court, King admitted that King Lasik hired 

### the replacement surgeon because of King'sattendance 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 thetrial court in the award ofrestitution. However, as discussed above, Mockovak's criminal trial was not a direct result ofMockovak's crimes and, accordingly, any funds expended as the result of that trial are not 

### compensable. See Goodrich. 47Wn. App. at 115. Thetrial courtdid not errby determining that the cost ofthereplacement surgeon was not a proper basisfor
restitution. 

### Nor did the trial court err bydetermining thatClearly Lasik's expense in 

### hiring thepublic relations firm wasnot compensable. The State assertsthatthis payment directly related to Mockovak's crimes: Certainly the reputation of Clearly Lasik suffered because 

### one of itsprimary surgeons plotted and paid to have the other 

### primary surgeon killed. Some patients orpotential patientswould 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
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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 likelythat 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 ofMockovak's criminaltrial, when the 

### "business [was] receiving maximum negative publicity." Any payments made to "ameliorate the harmful effects" ofthat trial were not a proper basis for restitution. 

### Second, the legislature has determined that restitution in a criminal case is notavailable 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 ofcontinued public patronage." In re Marriage ofLukens, 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 otherexpenditure to mitigate an intangible loss. This limitation represents a legislative determination regarding the proper 

### scope ofrestitution in criminal cases. Clearly Lasik's hiring of a public relations
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firm cannot, ofcourse, 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 ofthecrime" 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 ofKing. The State offered 

### evidence that, after schemingfor several months, Mockovak gave Kultin $10,000 to hirehit men to kill King while he traveled in Australia. Kultin, however, was 

### working as an informantfor the FBI. No actual hit men werehired, and, accordingly, Mockovak's actions resulted in none of the negative consequences
7The Statepoints to our SupremeCourt's decision in Statev. Hiett, 154Wn.2d 560, 115 P.3d 274 (2005), for theproposition thatanyfunds thatwould not have been expended "butfor an offender's criminal conduct are compensable as restitution. In thatcase, several juveniles tooka motorvehicle without permission, and thevehicle was subsequently damaged during an attemptto elude thepolice. Hiett, 154Wn.2d at562-63. Although two passengers hadjumped from thevehicle priorto thedriver's attempttoelude, thecourtexplained that, because damage to the vehicle would not have occurred "butfor" the unlawful taking, the passengers werejointly and severally liablefor the restitution award. Hiett, 154 Wn.2d at 566. In so ruling, the court did notannounce a radical new approach to thelimits ofrestitution. Indeed, in that case, the damage to the victim flowed directly from the defendants' crimes. Reserving thequestion ofwhether principles ofproximate cause should apply in thecriminal context, the court noted that itwas hardly"unforeseeable that a person guilty of taking a motor vehicle would . . . attempt to elude the police, orcause an accident." Hiett, 154Wn.2d at 566. Here, unlike the situation presented inHiett. Mockovak's criminal acts caused no property damage. Nordid theexpenditures ofClearly Lasik orKing Lasik resultdirectly from thosecrimes. Instead, King Lasik's need tohire a replacement surgeon arose solely as a result ofMockovak's trial. Similarly, Clearly Lasik's need tohire thepublic relations firm resulted from thenegative publicity thatsurrounded Mockovak's arrestandtrial. 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 thatthe 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 incurredprimarily by King and 

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

### properly concluded that such expenses did not directly resultfrom Mockovak's
crimes.

### "[T]he criminaljustice system is not a substitute for a civiljudgment 

### against a criminal defendant." Statev.Moen. 129Wn.2d 535, 542, 919P.2d 69 (1996). "'[C]ompensation is not the primary purpose ofrestitution, 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 ofthe inquiry is whether the attorney fees were "'expended by the victim as a direct result ofthe 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 ofthe 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 inthe 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 ofcustodial 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 withwitness preparation and other aspects of [Mockovak's] criminaltrial." 

### Second, the State requested reimbursementforfees relating to a civil suit for 

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

### sought restitution based uponClearly Lasik's expenses in "pursuing] civil claims fordamages 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 ofthese 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 forrestitution. As discussed above, because a defendant's criminal trialdoes 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 

### legalfees incurred as a result of Mockovak's criminal trial. 

### The attorney fees relating to the King family's civil suitagainst Mockovak were also properly rejected. This lawsuit was an action fordamages for"family
-18-No. 68020-0-1/19
emotional distress, fear, embarrassment, humiliation, loss of consortium, damage to familial relationships, the loss ofthe 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 initiatingthat lawsuit was unavailable. 

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

## pursuantto CR 12(b)(6) forfailure to state aclaim.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 criminaljustice system is not a substitutefor a civiljudgment 

### against a criminal defendant." Moen. 129 Wn.2d at 542. Thetrial court did not err by denying restitution to recoverthese litigation expenses. 

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

### expenses—incurred prosecuting the company's lawsuitfor 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 ofthe crime. See Kinneman, 155 Wn.2d at 288. Rather, the lawsuit was
8We affirmed that decision based upon the untimeliness ofKing's appeal. King v. Mockovak. No. 67479-0-I, 2013 WL 619545 (Wash. Ct. App. Feb. 19, 2013).
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### initiated torecover 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 similarreasons, 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 childcustody and visitation 

### proceedings against Mockovak. However, as ourprior decisions make clear, such proceedings are notsufficiently causally related to Mockovak's crime to 

### justify an award ofrestitution. See Vinvard 50Wn. App. at 893-94(holding that attorney fees incurred in conjunction with visitationproceedings are notexpenses 9A claim for tortious interference with a business expectancy requires fiveelements: (1) the existence of a valid contractual relationship or business expectancy, (2) that defendants had knowledge ofthatrelationship, (3) an intentional interference inducing or causing a breach or termination of the relationship orexpectancy, (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 existedwhich gave rise to a dutyof care on the part ofthe defendant to the plaintiff; (2) that there was an act oromission bythefiduciary in breach of the standard ofcare; (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 ofan Action § 12:1, at 347-48 (2012).

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### causally related to the actual crime ofcustodial interference). These expenses did not constitute a proper basis for restitution. 

### Because the legal expenses of King, his family, and Clearly Lasikwere 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 forrestitution.
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 paymentfor a rental van in Australia. The documents submitted to the trial court indicate that King made an 

### advance payment of$1,876 in orderto rentthevan. King leftAustralia shortly 

### afterbeing informed ofMockovak's arrest and, accordingly, did not make use of the vanfor the entire rental period. The Statethereafter soughtrestitution of $1,876 on King's behalf. 

### This request wasproperly denied for two related reasons. First, because 

### King paid fortherental van before Mockovak committed his crimes, it cannotbe true thatKing incurred this expense "as a direct result" ofthose crimes. Kinneman, 155 Wn.2d at 287. Second, in so far as King's requestfor restitution 

### is based upon a loss ofenjoyment resulting from the disruption ofhis vacation, such losses are not recoverable. Although it is true that King was unable to fully 

### enjoy the use oftherental van, as discussed above, restitution cannot begranted based upon such intangiblelosses. RCW 9.94A.753(3).
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-No. 68020-0-1/22 

### The trial court correctly determined thatthe cost of the rental van was not the proper subject of its restitution award.
Affirmed.

We concur: 

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