* Shari Furnstahl, Appellant V. Jonnie Barr & Sue Barr, Et Al., Respondents

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
SHARI FURNSTAHL, as Guardian ) CZ:1 CA CD	C"
ad Litem for C.F., a minor child, )
) DIVISION ONE C:=1
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Appellant, ) C.) 9
) No. 75636-2-1
V.
JONNIE and SUE BARR, husband
and wife; and PUYALLUP
)
)
)
)
PUBLISHED OPINION
Cr)
Ci) rr;
> °
Cl)
BASKETBALL ACADEMY, )
)
Respondents. ) FILED: December 19, 2016
)
DWYER, J. — An award of attorney fees pursuant to RCW 9.68A.130 is
contingent upon a fact finder's determination that the party seeking the award
prevailed in an action arising from conduct constituting a violation of a provision
of chapter 9.68A RCW, entitled "Sexual Exploitation of Children."
Shari Furnstahl brought this action as the guardian ad litenn for her minor
daughter C.F. She appeals from the trial court's ruling denying her request for an
award of attorney fees pursuant to RCW 9.68A.130. After securing jury verdicts
on tort claims brought on behalf of C.F., Furnstahl moved for an award of
attorney fees pursuant to the cited provision. The trial court ruled that the jury's
verdicts in her favor on the tort claims did not establish that Furnstahl had proved
facts constituting a violation of a specific provision of chapter 9.68A RCW. Under
these circumstances, the trial court properly denied the request. We affirm.
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No. 75636-2-1/2
C.F. was a student at the Puyallup Basketball Academy (PBA), which was
owned and operated by Jonnie and Sue Barr. Sometime between late 2010 and
early 2011, Jonnie Barr began a series of inappropriate interactions with C.F.
while she was attending the PBA. C.F. was seven years old at the time. In these
interactions, Barri asked C.F. to join him in a secluded place at the PBA and,
when she did, he touched and kissed her while saying that he loved her and
wanted to marry her. The touching by Barr included picking C.F. up off of the
ground and hugging her, patting C.F.'s bottom with his hand, and placing his
hand on her upper thigh near her "private area." The kissing by Barr included
placing his lips on C.F.'s mouth and placing his tongue into her mouth.
One day in late 2011, Furnstahl arrived at the PBA gym and noticed Barr
squeezing C.F.'s bottom while he was picking her up off of the ground in a hug.
Furnstahl later spoke with her daughter about Barr's conduct, and C.F. told her
mother about the incidents in which Barr had touched, kissed, and made
comments to her. C.F.'s family notified the police.2
Furnstahl was appointed as guardian ad litem for C.F. and commenced
this lawsuit against Jonnie Barr, Sue Barr, and the PBA (collectively the
Defendants). Her amended complaint alleged causes of action for assault,
battery, negligence, intentional infliction of emotional distress, false
I Although Jonnie and Sue Barr share a last name, when we refer to "Barr" we are
referring to Jonnie Barr.
2 After a criminal investigation, Barr was charged in district court with assault in the fourth
degree, committed with sexual motivation. The sexual motivation allegation was dismissed and
Barr entered a guilty plea to assault in the fourth degree.
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No. 75636-2-1/3
imprisonment, and false light invasion of privacy. In her amended complaint,
Furnstahl included a prayer for relief requesting "attorneys' fees, prejudgment
interest, costs and exemplary damages as may be provided by law."
At trial, the parties presented evidence concerning claims of assault,
battery, negligence, intentional infliction of emotional distress, false
imprisonment, false light invasion of privacy, and outrage.3 The jury instructions
were tailored to the tort theories litigated at trial. The jury's verdict form was
comprised of 13 questions that were also tailored to these tort theories.
The jury returned a verdict finding for Furnstahl against Jonnie Barr on six
claims, with the exception of false imprisonment, against Sue Barr on the claim of
false light invasion of privacy, and against the PBA on the negligence claim. The
jury found for Sue Barr and the PBA on the remaining claims.
The jury awarded $225,000 in damages to C.F. The damage award was
not segregated between defendants or claims.
Thereafter, Furnstahl moved for an award of costs and reasonable
attorney fees. The trial court granted Furnstahl's request for an award of costs
and a statutory attorney fee pursuant to RCW 4.84.010, .030 and .080.4
In addition, Furnstahl requested an award of reasonable attorney fees
pursuant to RCW 9.68A.130, the cost and attorney fees provision of the "Sexual
3 Although this cause of action was not pleaded in Furnstahl's amended complaint, her
claim of outrage was submitted to the jury.
4 RCW 4.84.010 establishes a nonexhaustive list of the costs allowed to a prevailing
party incurred as a result of litigation. RCW 4.84.030 establishes a prevailing party's entitlement
to an award of costs and disbursements pertaining to an action in the superior court. RCW
4.84.080 establishes a $200 statutory attorney fee, awarded to a prevailing party in actions
wherein judgment is rendered.
3
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No. 75636-2-1/4
Exploitation of Children Act" (SECA), codified at chapter 9.68A RCW. The
applicability of SECA had not before been raised in this litigation. The
Defendants opposed this request, contending that the statute required that the
fact finder determine whether a violation of a specific provision of chapter 9.68A
RCW was proved and noting that, in this case, that question was never raised,
argued, or submitted to the jury for consideration. Furnstahl responded that the
entitlement to such an award of attorney fees should be determined by the trial
court after the jury's verdicts.
The trial court ruled that the jury, as fact finder, was responsible for
making the determination required by statute. It then denied the request,
concluding that the verdicts in Furnstahl's favor on the tort claims submitted to
the jury did not establish that the jury had found facts proved that constituted a
violation of a specific provision of chapter 9.68A RCW.
Furnstahl appeals from this ruling.
11
Furnstahl contends that the trial court erred by denying her motion for an
award of attorney fees pursuant to RCW 9.68A.130. This is so, Furnstahl
contends, because C.F. prevailed in a case concerning sexual abuse of a child.
But the statute is not so general. Instead, it requires that a violation of a specific
provision of chapter 9.68A RCW be established. And it is the jury, as fact finder,
who must make that determination. Given the trial court's conclusion that the
jury verdicts in Furnstahl's favor on the tort claims submitted to the jury did not
4
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No. 75636-2-1/5
establish that the jury had found facts proved that constituted a violation of a
specific provision of chapter 9.68A RCW, the trial court ruled correctly.
A
Furnstahl asserts that RCW 9.68A.130 is a "simple, one-sentence
provision ensuring those who are subjected to childhood sexual abuse and who
later prevail at trial on civil claims for such misconduct, are entitled to recover
associated costs." Br. of Appellant at 18. In fact, the statue is neither so simple
nor so broad.5
No appellate opinion has previously specifically discussed the
requirements of RCW 9.68A.130.6 The provision reads: "A minor prevailing in a
civil action arising from violation of this chapter is entitled to recover the costs of
the suit, including an award of reasonable attorneys' fees." The plain meaning of
this language is that a minor is entitled to recover an award of costs and attorney
fees when the minor prevails in a civil action arising from an act or acts
constituting a violation of a specific provision of chapter 9.68A RCW.
Chapter 9.68A RCW establishes the crimes of sexually exploiting a minor,
RCW 9.68A.040; possessing, dealing in, sending, bringing into the state, or
viewing child pornography, RCW 9.68A.050-075; communicating with a minor for
5 Whether a statute authorizes an award of attorney fees is a question of law that is
reviewed de novo. Niccum v. Enauist, 175 Wn.2d 441, 446, 286 P.3d 966 (2012).
6 We conducted a limited discussion of RCW 9.68A.130 in Kuhn v. Schnall, 155 Wn. App.
560, 228 P.3d 828 (2010).
Furnstahl cites to three federal district court decisions referencing RCW 9.68A.130.
However, none of these cases directly address the issues before us. Instead, each merely
references the possibility of accepting briefing on the matter at a later time. They are unhelpful to
our analysis. See Boy 7 v. Boy Scouts of Am., 2011 WL 2415768, at *4 (E.D. Wash. 2011); Boy
1 v. Boy Scouts of Am., 832 F. Supp. 2d 1282, 1292 (W.D. Wash. 2011); J.C. v. Soc'y of Jesus,
457 F. Supp. 2d 1201, 1205 (W.D. Wash. 2006).
- 5 -
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No. 75636-2-1/6
immoral purposes, RCW 9.68A.090; promoting or permitting child prostitution,
RCW 9.68A.100-103; and allowing a minor on the premises of a live erotic
performance, RCW 9.68A.150.7
The text of RCW 9.68A.130 expressly references "violation of this
chapter." (Emphasis added.) While it is true that chapter 9.68A RCW contains
several provisions that set forth crimes against children, it is also true that other
provisions of the Revised Code of Washington also make criminal the sexual
abuse of children.8 Violations of these latter provisions are not referenced in
RCW 9.68A.130 and are, therefore, not encompassed within its embrace.
Thus, Furnstahl's argument that RCW 9.68A.130 entitles any plaintiff who
prevails in a case arising from any type of sexual abuse or assault against a
minor to an award of attorney fees is not supported by the wording of the statute
itself. Rather, to establish an entitlement to an award of attorney fees pursuant
to RCW 9.68A.130, the plaintiff must first establish that he or she prevailed in a
civil action arising from an act or acts constituting a violation of a specific
provision of chapter 9.68A RCW.
Furnstahl next asserts that, when the case is tried to a jury, the
determination of whether a violation of a specific provision of chapter 9.68A RCW
7 Chapter 9.68A RCW also addresses a variety of procedural matters not pertinent to the
resolution of this appeal.
8 For instance, see generally chapter 9A.44 RCW (setting forth RCW 9A.44.073, .076,
.079 (rape of a child in the first, second, and third degree); RCW 9A.44.083, .086, .089 (child
molestation in the first, second, and third degree); RCW 9A.44.093, .096 (sexual misconduct with
a minor in the first and second degree)).
6
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No. 75636-2-1/7
has been proved is to be decided—as a factual matter—by the trial court, rather
than by the jury. Furnstahl is wrong.
"Except in cases which fall peculiarly within equitable jurisdiction, or where
remedies and defenses are made available by statute without a jury, the right of
trial by jury shall be inviolate. Const., art. 1, § 21." Cox v. Charles Wright Acad.,
70 Wn.2d 173, 176, 422 P.2d 515 (1967). "The term "inviolate" connotes
deserving of the highest protection' and 'indicates that the right must remain the
essential component of our legal system that it has always been." Davis v. Cox,
183 Wn. 2d 269, 288-89, 351 P.3d 862 (2015) (quoting Sofie v. Fibreboard
Corp., 112 Wn.2d 636, 656, 771 P.2d 711, 780 P.2d 260 (1989)). "Where the
question is doubtful, the right to a jury trial is always preserved." Bain v. Wallace,
167 Wash. 583, 587, 10 P.2d 226 (1932).
"At its core, the right of trial by jury guarantees litigants the right to have a
jury resolve questions of disputed material facts." Davis, 183 Wn.2d at 289.
[T]he province of the court—the trial judge—is to determine and
decide questions of law presented at the trial and to state the law to
the jury, while the province of the jury is to determine the facts of
the case from the evidence adduced, in accordance with the
instructions given by the court.
Hastings v. Dep't of Labor & Indus., 24 Wn.2d 1, 13,163 P.2d 142 (1945). Such
was the law of Washington at the time of our constitutional convention. Johnson
v. Goodtime, 1 Wash. Terr. 484, 485 (1875).
Pursuant to RCW 9.68A.130, a minor is entitled to an award of attorney
fees when he or she prevails in a civil action arising from a violation of a specific
provision of chapter 9.68A RCW. Thus, the core determination is whether the
7
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No. 75636-2-1/8
prevailing party established the predicate for entitlement—that an act or acts
constituting a violation of a specific provision of chapter 9.68A RCW was proved.
Therefore, fact-finding is necessary to determine whether such a violation was
proved.
Furnstahl asserts that the trial judge, not the jury, must determine, after
the jury's verdict, whether the requesting party established the predicate for an
entitlement to an award of attorney fees. This amounts to a request that the trial
judge either independently conduct fact-finding upon the testimony and evidence
admitted at trial or, alternatively, conduct another fact-finding proceeding after the
jury verdict, in which the judge acts as the finder of fact. Neither can be so.
Rather, in keeping with the principles enshrined in Washington's
Constitution, in a jury trial, it is the jury who must declare the facts found to be
proved. Our discussion in Kuhn v. Schnall, 155 Wn. App. 560, 228 P.3d 828
(2010), is instructive. In Kuhn, we noted that the trial court allowed the plaintiffs
to amend their complaint "to assert claims for attorney fees under RCW
9.68A.130 based on allegations that Schnall had communicated for immoral
purposes with the patient-plaintiffs while they were minors, in violation of RCW
9.68A.090." 155 Wn. App. at 565. The trial court then ordered that the
deliberative phase of the trial be bifurcated. Kuhn, 155 Wn. App. at 565. This
resulted in two stages of jury deliberation. First, the jury reached verdicts on the
tort claims (negligence, battery, outrage, negligent infliction of emotional
distress). Kuhn, 155 Wn. App. at 565. After the verdicts were rendered, counsel
gave closing argument on the question of whether a violation of RCW 9.68A.090
8
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No. 75636-2-1/9
(communication with a minor for immoral purposes) was proved. Kuhn, 155 Wn.
App. at 566. Even though the jury had returned verdicts in favor of the plaintiffs
on a number of their tort claims, it returned a verdict finding that no such unlawful
communications were proved. Kuhn, 155 Wn. App. at 567. While a bifurcated
procedure is not mandated, this fact-finding approach is in line with a proper
understanding of the province of the jury and the requirements of RCW
9.68A.130.
Indeed, the Kuhn jury's decisions illustrate the danger of the fact-finding
approach advocated by Barr. During the Kuhn trial, much evidence was adduced
of defendant Schnall's inappropriate sexual conduct with several minors. The
jury found for the minors on several of their tort claims. However, the jury
declared, by its verdict, that the evidence it had credited in finding for the
plaintiffs on the tort claims did not also support a finding that Schnell had
communicated with the minors for immoral purposes.
Only the trial jury, through its verdict, could accurately make such a
declaration. Had the trial judge been charged with rendering the fact-finding
decision, it is entirely possible that the judge might have found the crucial facts at
variance with the jury's determination. Such a finding by the trial judge would
have then failed to correctly answer the key question: Did the minors prevail in
their civil action (the tort claims) based on facts that also established a violation
of a provision of chapter 9.68A RCW? In Kuhn, they did not. But we can be sure
of this only because it was the jury (and not the judge) who declared it to be so.
9
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No. 75636-2-1/10
Because only the jury can declare whether the facts it credited in
rendering a verdict for the plaintiff on a civil cause of action also established a
violation of a specific provision of chapter 9.68A RCW, whether the prevailing
party proved that the opposing party engaged in an act or acts constituting a
violation of chapter 9.68A RCW is a question of fact that must be determined by
the jury.9
C
Furnstahl next asserts that the trial court erred by resorting solely to an
examination of the jury's verdicts in ruling on her motion for an award of attorney
fees pursuant to RCW 9.68A.130. We disagree.
At trial, Furnstahl litigated seven tort causes of action: assault, battery,
negligence, intentional infliction of emotional distress, false light invasion of
privacy, false imprisonment, and outrage. The jury instructions issued for these
causes of action were typical instructions for each. The verdict form was
comprised of 13 questions asking the jury to reach a determination regarding
these seven claims. The jury verdict in favor of Furnstahl found against Jonnie
Barr on six of the seven tort causes of action, Sue Barr on one of the tort causes
of action, and the PBA on another.
In response to Furnstahl's postverdict request for an award of attorney
fees pursuant to RCW 9.68A.130, the trial court stated:
9 Furnstahl relies on CR 54(d) in claimed support of her attempt to categorize her request
for an award of attorney fees pursuant to RCW 9.68A.130 as merely a procedural request made
after she prevailed in her action. However, in order to request an award of attorney fees pursuant
to CR 54(d), Furnstahl first needed to establish that she had an underlying right for the trial court
to grant her request. As discussed herein, Furnstahl did not do so.
-10-
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No. 75636-2-1/11
Plaintiff did not sue or assert claims under Chapter RCW 9.68A.
Plaintiff sued under different theories, but there was no assertion of
a claim under 9.68A.
The jury found against Mr. Barr on a number of claims,
including civil assault and civil battery. So even if suing under
Chapter RCW 9.68A is not a prerequisite of recovery of attorney's
fees under RCW 9.68A.130, there were no specific findings by the
jury as to the factual basis for the jury's verdict. . . .
The jury instructions were general. There was no requested
jury instruction on an [SECA] violation or request for inclusion of
questions on a specific verdict form that asks the jury to consider
an [SECA] violation.
So the plaintiff is now asking the Court to interpret the
special verdict form or speculate as to the factual basis for the
jury's verdict, and this Court is not going to do that. The jury in this
case was the trier of fact.
The trial court's reasoning was sound. No part of the jury verdict in favor
of Furnstahl on any tort claim was necessarily based on facts having been
proved that established a violation of a specific provision of chapter 9.68A RCW.
Accordingly, Furnstahl failed to establish the statutorily required factual predicate
authorizing an award of attorney fees pursuant to RCW 9.68A.130.1°
Affirmed.
We concur:
10 Because Furnstahl is not a prevailing party, her request for an award of costs and
attorney fees on appeal is denied.
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