* Gustavo Nelson Arzola, Appellant / Cross-res. V. Name Intelligence, Inc., Respondent / Cross-app.

NOTICE: SLIP OPINION
(not the court’s final written decision)
The opinion that begins on the next page is a slip opinion. Slip opinions are the
written opinions that are originally filed by the court.
A slip opinion is not necessarily the court’s final written decision. Slip opinions
can be changed by subsequent court orders. For example, a court may issue an
order making substantive changes to a slip opinion or publishing for precedential
purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits
(for style, grammar, citation, format, punctuation, etc.) are made before the
opinions that have precedential value are published in the official reports of court
decisions: the Washington Reports 2d and the Washington Appellate Reports. An
opinion in the official reports replaces the slip opinion as the official opinion of
the court.
The slip opinion that begins on the next page is for a published opinion, and it
has since been revised for publication in the printed official reports. The official
text of the court’s opinion is found in the advance sheets and the bound volumes
of the official reports. Also, an electronic version (intended to mirror the
language found in the official reports) of the revised opinion can be found, free of
charge, at this website: https://www.lexisnexis.com/clients/wareports.
For more information about precedential (published) opinions, nonprecedential
(unpublished) opinions, slip opinions, and the official reports, see
https://www.courts.wa.gov/opinions and the information that is linked there.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
GUSTAVO NELSON ARZOLA, an
individual, MICHAEL KLATT, an
individual, and SUSAN PROSSER, an
individual,
Appellants/Cross Respondents,
CARL TAYLOR, an individual,
Plaintiff,
v.
NAME INTELLIGENCE, INC., a
Washington corporation; and
JAY WESTERDAL, an individual,
Respondents/Cross Appellants.
No. 71455-4-
ORDER WITHDRAWING OPINION
AND SUBSTITUTING OPINION
The court has determined that the opinion filed on June 15, 2015, should
be withdrawn and a substitute published opinion be filed. 	Now, therefore, it is
hereby
ORDERED that the opinion filed on June 15, 2015, be withdrawn and a
substitute published opinion be filed.
DATED this offi^day of 	Ai-nrvo 	2015.
| y<ii<£ vy 	/ 	>l
i J.^^j.
 	 	 	 	 	 	 	 	 	 	 	 	 	

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
GUSTAVO NELSON ARZOLA, an
individual, MICHAEL KLATT, an
individual, and SUSAN PROSSER, an
individual,
Appellants/Cross Respondents,
CARL TAYLOR, an individual,
Plaintiff,
NAME INTELLIGENCE, INC., a
Washington corporation; and
JAY WESTERDAL, an individual,
Respondents/Cross Appellants.
No. 71455-4-
DIVISION ONE
PUBLISHED OPINION
FILED: 	June 29, 2015
Trickey, J. — Where a party has voluntarily satisfied a trial court decision
that the appellate court later modifies, RAP 12.8 requires the trial court to order
restitution 	in 	appropriate circumstances. 	Here, the 	defendants 	appealed 	a
judgment that awarded the plaintiffs damages for nonpayment of wages. 	This
court modified that judgment, determining that the compensation paid plaintiffs did
not constitute wages. 	Thus, the defendants were entitled to recover the monies
they had paid for exemplary damages, attorney fees, and litigation expenses.
Defendants were also entitled to prejudgment interest assessed from the time
payment was made.
The defendants cross appeal the 	interest rate for prejudgment interest
awarded, asserting that the trial court was required to impose the statutory rate of
12 percent. 	Because this is an action in equity, the court can determine the
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 71455-4-1/2
prejudgment interest rate. 	Here, the trial court awarded 5 percent prejudgment
interest. 	Under the circumstances, the trial court did not abuse its discretion in its
equitable award of prejudgment interest. We affirm.
FACTS
Gustavo Arzola, Michael Klatt, and Susan Prosser (collectively Arzola) were
employees of Name Intelligence Inc. (Nl), a Washington corporation co-founded
by respondent Jay Westerdal, 	its chief executive officer, 	president, 	and 	100
percent 	shareholder. 	Arzola sued 	Nl 	for 	monies 	owed 	under 	stock 	right
cancellation agreements. 	The trial court determined that the amounts owed
constituted wages. The trial court entered a judgment on February 18, 2011, which
included exemplary damages, attorney fees, and costs as required under chapter
49.52 RCW.
Nl and Westerdal paid the judgment in full, submitting a check to Arzola's
counsel. 	At the same time, they notified Arzola that they were appealing the
judgment. 	On appeal, Nl and Westerdal challenged the trial court's decision that
payments owed 	to Arzola 	constituted 	wages 	entitling 	Arzola 	to exemplary
damages of twice the amount of wages wrongfully withheld, as well as attorney
fees and costs. This court held that the monies owed did not constitute wages and
reversed the award of exemplary damages, attorney fees, and costs.1
Nl and Westerdal filed a motion under RAP 12.8 to recover the monies paid
along with 12 percent prejudgment interest. The trial courtawarded the monies Nl
1Arzola v. Name Intelligence. Inc.. 172 Wn. App. 51, 288 P.3d 1154 (2012).
2
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 71455-4-1 / 3
had paid for exemplary damages, attorney fees, and costs, but awarded only the
five percent prejudgment interest. Arzola timely appeals.2
Nl and Westerdal cross appeal, arguing that the prejudgment interest rate
should be 12 percent.
ANALYSIS
This court reviews an award 	under RAP 	12.8 for a 	manifest abuse of
discretion. 	Ehsani v. McCullouqh Family P'ship, 160 Wn.2d 586, 589, 159 P.3d
407 (2007). An abuse of discretion occurs only when exercised in a manifestly
unreasonable manner or on untenable grounds. 	In re Marriage of Littlefield, 133
Wn.2d 39, 46-47, 940 P.2d 1362 (1997).
RAP 12.8 provides:
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 ofthe property, or in appropriate circumstances,
provide restitution. 	An interest in property acquired by a purchaser
in good faith, under a decision subsequently reversed or modified,
shall not be affected by the reversal or modification of that decision.
A party is entitled to a refund where one has satisfied a later reversed judgment.
Sloan v. Horizon Credit Union, 167 Wn. App. 514, 520, 274 P.3d 386 (2012).
Arzola's 	argument 	that 	RAP 	12.8 	does 	not 	require 	restitution 	after
modification of a judgment is not well taken. 	Our Supreme Court has construed
RAP 12.8 as requiring practitioners and courts to look to the common law of
restitution 	as 	set forth 	in 	the 	Restatement 	of Restitution to 	determine 	the
2 Arzola filed a motion for reconsideration more than 10 days after the judgment. 	The
court denied the motion as untimely.
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 71455-4-1/4
postreversal remedy. 	Ehsani, 160 Wn.2d at 590. 	Section 74 of the Restatement
of Restitution (1937) states:
A person who has conferred a benefit upon another in compliance
with a judgment, ... is entitled to restitution if the judgment is
reversed or set aside, unless restitution would be inequitable or the
parties 	contract that payment 	is to 	be 	final; 	if the judgment is
modified, there is a right to restitution of the excess.
Under RAP 12.8 and section 74 of the Restatement of Restitution, Nl and
Westerdal are entitled to be restored to their original positons upon reversal of the
trial court's judgment. See Simonson v. Fendell, 101 Wn.2d 88, 93, 675 P.2d 1218
(1984) ("The general principle is that rescission contemplates restoration of the
parties to as near their former position as possible or practical.").
On 	remand from this 	court, 	the trial court awarded 	Nl and Westerdal
$254,598.36, calculated as follows:
$145,007.00 (exemplary/double damages for 2009)
$7,381.82 (exemplary/double damages for 2010)
$97,860.00 (attorney fees)
$4,349.54 (litigation costs)
Procedurally, Arzola argues that the trial court should have conducted an
evidentiary hearing on the RAP 12.8 motion. 	Both parties submitted declarations
in support of their positions. The trial court issued its ruling without oral argument.
The facts are undisputed, and thus there was no need for an evidentiary hearing.
See Kwiatkowski v. Drews. 142 Wn. App. 463, 479, 176 P.3d 510 (2008).
Arzola then argues that because RAP 12.8 provides an equitable remedy,
the trial court should have assessed what benefit they received from the monies
paid. 	Specifically, Arzola contends that the amounts paid for taxes and attorney
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 71455-4-1/5
fees were not a direct monetary benefit to them and therefore should be excluded
from restitution.
In support, Arzola submitted declarations establishing the amount of federal
income taxes paid on the funds distributed to each of them. 	In response, Nl and
Westerdal provided a declaration by a certified public accountant indicating that
such payments were recoverable under section 1341 	of the Internal Revenue
Code. 	Under that section, Arzola could elect to either deduct the repayment on
their tax returns or claim a refundable tax credit, whichever option provided the
most tax benefit. 	Arzola did not submit anything to refute this declaration.
Citing Ehsani, Arzola argues that the attorney fees paid were not a benefit
to them and therefore should not have been assessed against them. 	Arzola's
reliance on Ehsani for this argument is misplaced. There, the judgment was paid
into the attorney's client trustaccount. The clients specifically directed the attorney
to distribute proceeds to the clients' creditors and to himself. 	Ehsani. 160 Wn.2d
at 589. 	But here, the judgment itself awarded attorney fees to the lawyers as part
of a statutory scheme. 	The fees paid were erroneously awarded under RCW
49.48.030. Neither Nl nor Westerdal should bear the attorney fee expenses Arzola
paid to their attorneys. Arzola's situation is more similar to Sloan v. Horizon Credit
Union, 	167 Wn. 	App. 	514, 	274 	P.3d 	386 (2012), 	where the court permitted
restitution 	under RAP 12.8 for CR 	11 attorney fees 	in a judgment that was
subsequently reversed.
Arzola contends next that the trial court erred in entering a joint judgment in
favor of both Nl and Westerdal and jointly against all three plaintiffs. Arzola argues
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 71455-4-1/6
that Westerdal was not entitled to be a judgment debtor because NI paid the check.
But the judgment listed both Nl and Westerdal as the judgment debtor. 	Further,
the order clauses specified that judgment in the amount of $256,698.36 was
against Jay Westerdal, individually. 	Because Westerdal was individually liable, he
is entitled to be reimbursed. 	The fact that Nl paid the check is immaterial. 	See
Sloan, 167 Wn. App. at 519-21 (not material that someone other than the judgment
debtor tendered funds in satisfaction of the debt).
The first judgment listed each of the employees as the judgment creditors.
The trial court did not enter separate judgments. 	A judgment against all was
appropriate on remand.
Prejudgment Interest
The trial court awarded 5 percent prejudgment interest. Arzola argues that
no prejudgment interest should be awarded. 	Nl and Westerdal cross appeal
asserting that the trial court was required to impose 12 percent prejudgment
interest.
This court reviews prejudgment interest awards for abuse of discretion.
Scoccolo Constr.. Inc. v. City of Renton, 158 Wn.2d 506, 519,145 P.3d 371 (2006).
An award of prejudgment interest is appropriate where a party retains funds rightly
belonging to another party and thereby denies the party the use value of the
money. 	Crest. Inc. v. Costco Wholesale Corp.. 128 Wn. App. 760, 775, 115 P.3d
349 (2005). 	A prevailing party is entitled to prejudgment interest, provided the
damages are liquidated. 	Lakes v. von der Mehden, 117 Wn. App. 212, 214, 70
P.3d 154 (2003). 	Here, the claim is liquidated because the measure of damages
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 71455-4-1/7
does not require the exercise of discretion. 	Egerer v. CSR W.. LLC. 116 Wn. App.
645, 653, 67 P.3d 	1128 (2003). 	Thus, 	an award of prejudgment interest is
appropriate.
We turn now to the question of whether the trial court erred in imposing only
five percent prejudgment interest. 	Interest is not a penalty but compensation for
the loss of use of those funds. 	Jones v. Best. 134 Wn.2d 232, 242, 950 P.2d 1
(1998).
Here, 	the 	prejudgment 	interest 	is 	not 	awarded 	pursuant 	to 	RCW
19.52.010(1). 	Rather, its basis lies in the court rule, RAP 12.8. 	Restitution to a
judgment debtor for the amounts paid by the judgment debtor to satisfy a judgment
that is later modified by the appellate court is an equitable remedy. 	Ehsani. 160
Wn.2d at 589-90. In matters of equity, trial courts have broad discretionary powers
to fashion equitable remedies and we review the trial court's consideration of the
equities for abuse of discretion. 	Recreational Eguip.. Inc. v. World Wrapps Nw..
Inc.. 165 Wn. App. 553, 559, 266 P.3d 924 (2011).
Nl and Westerdal were deprived of the use of their funds and the payment
of interest is appropriate here to avoid injustice.3 	The trial court awarded "a
reasonable, equitable rate of interest of 5 [percent] on the above amount of
restitution, from the date of payment of the judgment on March 2, 2011."4 	Under
3 An award 	of less than 	the 	12 percent prejudgment interest requested by Nl and
Westerdal was appropriate where the trial court had evidence before it that two of the
plaintiffs had placed the money in their bank accounts where it earned 0.5 percent and
0.41 percent interest. Neither the third plaintiff nor the third plaintiff's attorneys submitted
any evidence of the interest made on the monies from the judgment. In view of this, a
reduction of the 12 percent prejudgment interest rate requested was appropriate.
4 Clerk's Papers (CP) at 98.
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 71455-4-1 / 8
the circumstances here, we conclude that the five percent interest was not so
manifestly unreasonable or based on such untenable grounds as to constitute an
abuse of discretion.
We affirm the trial court.
| 	r >kJ^Z. y 	i J
WE CONCUR:
^^
8
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 71455-4-1
Arzola v. Name Intelligence. Inc. - Concurrence
Leach, J. (concurring) — I concur in the result only.