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Petitioners, UNPUBLISHED OPINION v.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judgment that was not superseded.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
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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.
^w
WE CONCUR: g
A*/