Dwyer, J.
¶ 1 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."
¶ 2 Shari Furnstahl brought this action as the guardian ad litem 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
¶ 3 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, Barr
¶ 4 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.
¶ 5 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 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."
¶ 6 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.
¶ 7 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.
¶ 8 The jury awarded $225,000 in damages to C.F. The damage award was not segregated between defendants or claims.
¶ 9 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.
¶ 10 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 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
¶ 11 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.
¶ 12 Furnstahl appeals from this ruling.
¶ 13 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 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.
¶ 14 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 statute is neither so simple nor so broad.
¶ 15 No appellate opinion has previously specifically discussed the requirements of RCW 9.68A.130.
¶ 16 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 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.
¶ 17 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.
¶ 18 Thus, Furnstahl's argument that RCW 9.68A.130 entitles any plaintiff who prevails in a case arising from
¶ 19 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 has been proved is to be decided — as a factual matter — by the trial court, rather than by the jury. Furnstahl is wrong.
¶ 20 "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."
¶ 21 "At its core, the right of trial by jury guarantees litigants the right to have a jury resolve questions of disputed material facts."
¶ 23 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 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.
¶ 23 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.
¶ 24 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
¶ 25 Indeed, the
¶ 26 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
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.
¶ 27 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.
¶ 28 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.
¶ 29 In response to Furnstahl's postverdict request for an award of attorney fees pursuant to RCW 9.68A.130, the trial court stated:
¶ 30 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.
¶ 31 Affirmed.
We concur:
Mann, J.
Cox, J.
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.