Filed Washington State Court of Appeals Division Two
August 3, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II JEFFREY T. CLOSSON, No. 54031-2-II (consolidated with No. 54138-6-II) Respondent,
v.
ELIZABETH J. KELSEY,
Appellant.
LISA L. GANOWSKI, (and consolidated with No. 54021-5-II and No. 54148-3-II) Respondent,
v. UNPUBLISHED OPINION ELIZABETH J. KELSEY,
GLASGOW, A.C.J.—Jeffrey T. Closson and Lisa L. Ganowski lived next door to Elizabeth
J. Kelsey and Clayton Longacre. Relations between the neighbors were tense. When Closson
returned Longacre’s puppy one night after it had wandered into his and Ganowski’s yard, Kelsey
threatened to shoot Closson if he came onto her property again. There was also an incident
involving smoke bombs set along the fence line and smoke drifting into Closson and Ganowski’s
home. The trial court granted Closson and Ganowski antiharassment protection orders against
Kelsey. No. 54031-2-II
We hold that the trial court did not abuse its discretion in issuing antiharassment protection
orders. There is sufficient evidence in the record to support the trial court’s findings of fact, and
its findings support its conclusions of law. The trial court did not abuse its discretion in awarding
costs and attorney fees to Closson and Ganowski. We affirm and award Closson and Ganowski
costs and attorney fees on appeal.
FACTS
I. BACKGROUND
Kelsey moved into her home in Bremerton in November 1998. Clayton Longacre lived
with Kelsey. As of 2019, Kelsey owned three small dogs, and Longacre owned four other dogs,
including a young black Labrador retriever.
In January 2017, Ganowski moved into the house next door. Ganowski described being
“woken up with [Kelsey] screaming profanities” and getting frustrated when Kelsey’s dogs would
defecate in Ganowski’s yard and “bark in the middle of the night.” 1 Verbatim Report of
Proceedings (VRP) at 51-52.
Tensions between the two households escalated in February 2019. They argued over
whether Ganowski’s son had shoveled snow onto Kelsey’s property, and Kelsey admitted that she
shouted profanities at Ganowski.
A. Threats to Shoot Closson
Closson moved in with Ganowski in April 2019. On June 13, 2019, Closson went over to
Kelsey’s house to return Longacre’s black lab puppy that had gotten into their yard. Ganowski
took a video of the exchange because she wanted “proof that [they] weren’t doing anything
wrong.” Id. at 70.
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The video, which the trial judge viewed, shows that Closson approached Kelsey’s home,
holding the dog in his arms, and rang the doorbell. In a second video, Closson said from the front
porch, “This is Jeff, your neighbor. I’ve got this little black lab. She’s come into our -- our yard a
couple times.” Ex. 1. Kelsey asked, “Are you that neighbor over there?” Id. When Closson
answered, “Yeah,” Kelsey responded, “Oh, you’re terrible.” Id.
Closson handed the dog to Kelsey, said “oh, really?” and turned to walk away. Id. As the
two got further apart, they began to raise their voices. Closson said that Kelsey’s dogs had been
coming over into their yard, while Kelsey accused Closson and Ganowski of dumping snow into
her yard. Kelsey also accused Ganowski of harassing her. She then yelled more loudly, “Don’t you
ever f***ing come onto my property again, or I’ll shoot your motherf***ing a** you hear me? . .
. You hear me, a**hole?” Id.
In a third video, Kelsey yelled, “Come on my property again, threaten my dog, and I’ll
f***ing shoot you.” Id. Closson asked, “Did I threaten your dog?” Id. Kelsey continued, “And I’ll
f***ing shoot you, b**ch.” Id. The video ended with the following exchange:
Closson: Okay Kelsey: And I’ll shoot you, b**ch. Closson: Alright. Kelsey: You want a war, you got a war.
Id. Closson made a noise at the end of the video that sounded like “huh.” Id.
Closson called 911 that night and informed dispatch that it was not an emergency but he
wanted to report the incident. Bremerton police contacted Closson and Ganowski and reviewed
the videos. The responding officer “advised [he] would be writing a report for Harassment charges
against Kelsey. [He] advised [Closson and Ganowski] to attempt to obtain an order against her.”
Exs. to Clerk’s Papers (Exs.) at 94.
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The next day, June 14, 2019, Closson and Ganowski filed petitions for antiharassment
protection orders against Kelsey in the Bremerton Municipal Court. The court issued temporary
protection orders.
B. Smoke Bombs Incident
Cindy Hjelmaa, another neighbor, saw smoke blowing onto Ganowski’s property on July
20, 2019 and took a video. In the video, Hjelmaa stated, “It looks like there’s a smoke bomb that’s
coming, obviously, from the house next to [Ganowski’s], just on the other side of the fence. It’s
been going on for about five minutes now, and it’s white smoke, and it’s been consistent.” Ex. 1.
Later she stated, “It looks like white smoke bombs, and it looks like it’s not a -- not a barbeque,
and not a fireplace, and something that is ongoing and deliberate.” Id.
In a second video, Hjelmaa stated that it was “five minutes later,” so there had been
approximately ten minutes of “continuous, white smoke coming from the house next to
[Ganowski’s].” Id. She described the smoke as “filtering over to [the neighbors’] decks.” Id.
When Closson and Ganowski returned home, Closson called 911 to report that there was
not an emergency but their house was “full of smoke.” Ex. 2. He called 911 again later that night
to report that Kelsey had “an open fire going right next to [their] fence.” Id. The fire department
responded and reported that they “arrived to a person having a safe, controlled, recreational fire in
a [chiminea].” Exs. at 76.
Closson and Ganowski then filed new petitions for antiharassment protection orders. These
petitions added details about the smoke bombs and fire and repeated that Kelsey had threatened
Closson. Both Closson’s and Ganowski’s petitions also incorporated their prior petitions.
4 No. 54031-2-II
Closson’s petition explained, “I am afraid [Kelsey] will kill me or my girlfriend.” Clerk’s
Papers (CP) at 21. Ganowski’s petition similarly stated, “I am afraid [Kelsey] will become so angry
she kills me or my boyfriend.” Suppl. Clerk’s Papers (SCP) at 117. Both petitions checked the
boxes requesting that the court “[r]equire the respondent to pay fees and costs of this action, which
may include administrative court costs and service fees and petitioner’s costs including attorneys’
fees.” CP at 20; SCP at 116.
The Bremerton Municipal Court granted temporary protection orders and transferred the
petitions to Kitsap County Superior Court for a hearing.
II. SUPERIOR COURT HEARING
A. Testimony
Argument on the Porch: At the hearing, the trial court viewed the videos described above.
Ganowski testified that Kelsey’s threats against Closson were what prompted her to petition for a
protection order and explained that she “[t]ook it as a direct threat to [herself] as well.” 1 VRP at
66. She told the court, “It terrified me. . . . I have no idea what they had for weapons. . . . But the
way that she screams at people and me, I didn’t -- I was very afraid that she would actually shoot
us.” Id. at 72. Closson also testified that his confrontation with Kelsey “really rattled [him],
considering [he] had never spoken to her before and [has not] spoken to her since.” Id. at 130. He
said, “That [was] the only conversation I had with her when I was returning her dog, you know, in
my mind doing her a favor [and her response] was basically to threaten to shoot me multiple times.”
Id. He told the court, “I believe that’s the first time I’ve ever called 911 was on that day. Because
of how scared I was.” Id. at 132.
5 No. 54031-2-II
Kelsey’s testimony about the argument on her porch contradicted Closson’s and
Ganowski’s. Kelsey testified that she was in the shower when she heard Closson “yelling through
the front door. You need to leave. You need to leave the neighborhood now and swearing.” Id. at
170. She said that the videos did not include “all that was said” and that they cut out “a whole
bunch of interaction where [she] told [Closson] what [Ganowski] had been doing.” Id. at 172. She
also said that during the argument, Closson would start to walk away and “then he’d run back to
the door, which scared [her].” 2 VRP at 194.
Kelsey apologized for threatening to shoot Closson, saying, “I was scared. I was in my
home by myself. And as I came down the stairs I didn’t even recognize this man.” 1 VRP at 173.
She explained that her threats to shoot were “[i]n the context of [Closson] coming back over onto
[her] property.” Id. at 175. She further explained, “I was taught when someone’s scaring you, to
try to be bigger so that you don’t get attacked. . . . They’re at my front door. I’m not at their front
door.” 2 VRP at 225.
Smoke Incident: Ganowski testified that after the smoke bomb incident, their house was
“all sulfur smelling.” 1 VRP at 79. It “didn’t smell like wood from a fireplace. It smelled like
fireworks or something. . . . It just smelled rotten.” Id. Closson agreed and told the court, “I’m
familiar with what smoke bombs are from when I was a kid. It was definitely the smell of a smoke
bomb or something similar to it.” Id. at 134-35. Hjelmaa testified that she observed the smoke
blow toward Closson and Ganowski’s home for about 20 minutes, but when the wind changed
direction and began blowing the smoke toward Kelsey’s home, the smoke stopped.
Ganowski and Closson also testified that later that night, Kelsey came out onto her deck
and commented “something like you shouldn’t leave that poor dog alone” or “you better be careful
6 No. 54031-2-II
about that poor dog being there.” Id. at 80, 136. Ganowski said, “[I]t felt like a threat that she knew
I had a dog in the house and she knew the windows were open and she could see them and it was
a deliberate attempt to hurt my dog. It was very upsetting to me.” Id. at 80. Closson said, “I took
it distinctly as a threat based on the only other conversation I had ever had with her was a threat to
my life . . . . like you better not leave your house or bad things will happen.” Id. at 136.
Kelsey and Longacre testified that the only fire they lit on their property that night was in
their chiminea. Longacre believed this fire created a lot of smoke because there was debris in it,
which “smelled, like, old leaves.” 2 VRP at 263. Kelsey told the trial court that she had not touched
smoke bombs since she was a child because her sister was burned by one. Kelsey also said that the
only comment she made about Ganowski’s dog was in a private conversation with Longacre and
that she never threatened the dog.
Black Lab Puppy: With respect to the black lab puppy continuing to come onto their
property, Closson said, “I don’t know that they are teaching the dog to come over and do that, but
they know that the dog is doing this and they continue to let it happen.” 1 VRP at 146. Videos
admitted into evidence showed the black lab puppy coming into Closson and Ganowski’s back
yard, coming into Closson and Ganowski’s house, and taking a shoe. Ganowski testified that she
contacted animal control about the dog “[20] or 30 times.” Id. at 60. Closson and Ganowski filed
two declarations with Kitsap Animal Rescue and Enforcement detailing multiple instances when
the black lab puppy had come onto their property and caused damage during August and
September 2019.
Kelsey testified that the puppy belonged to Longacre, that he had been working to train the
puppy, and that he had been setting up baby gates along the fence to try and keep the puppy inside
7 No. 54031-2-II
their yard. Longacre testified that he owned the black lab puppy but he had recently decided to
place the dog in another home “because of the problems that [they had] been having.” 2 VRP at
247.
B. Trial Court’s Ruling
The trial court did not enter written findings of fact or conclusions of law, but it thoroughly
explained its decision in an oral ruling. On the issue of the threats, the trial court found that
Closson’s version of the events was “extremely credible” and Kelsey was not credible. Id. at 313.
The trial court rejected Kelsey’s testimony that the videos were incomplete, and it found no basis
for Kelsey’s assertions that she was afraid. The video showed Closson “peaceably” returning the
black lab puppy, and “Mr. Closson did nothing whatsoever to instill any fear or anything else in
Ms. Kelsey or anyone.” Id. at 314.
The trial court found that Kelsey “immediately lit into” Closson, asking him if he lived
next door and then going into an “absolute tirade, complaining about everybody in the house next
door.” Id. The trial court recited that Kelsey threatened to shoot Closson several times, cursed at
him repeatedly, and was “totally out of control.” Id. at 315. Although these threats were directed
at Closson in person, “in the Court’s view they were directed to Ms. Ganowski and anybody else
that was living in the Ganowski house.” Id.
The trial court concluded that “the threats and [Kelsey’s] tone . . . and aggression and
violence, and profanity was -- quite remarkable.” Id. at 316. “Obviously, on the tape Mr. Closson
was completely stunned by it. . . . He’s testified that he’s been in fear as a result of that. It’s been
on their mind, and Ms. Ganowski did [testify to that] also.” Id.
8 No. 54031-2-II
The trial court also found that the use of smoke bombs had been established by
circumstantial evidence. It cited Hjelmaa’s videos and observations, the sulfuric smell that
remained when Closson and Ganowski returned home, which Closson recognized as a smell
associated with smoke bombs due to his prior experience, and the testimony that Kelsey had said
Closson and Ganowski “shouldn’t leave [their] poor dog home alone like that.” Id. at 317. The
trial court concluded that the smoke bombs were set off “by or with the aid of Ms. Kelsey” and
that this act was “done against both Mr. Closson and Ms. Ganowski.” Id. at 317-18. The trial court
did not find that the fire in the chiminea was an issue.
The trial court concluded that “based on the threats that were made June 13th to Mr.
Closson, and the smoke that was done on July 20th, [it] would find that Ms. Kelsey committed
unlawful harassment.” Id. at 319. It found that the threats were sufficient to support issuance of
antiharassment orders because they involved “knowing and willful” conduct, “the threats would
cause any reasonable person substantial emotional distress,” and the threats “did cause both
[Closson and Ganowski] substantial emotional distress.” Id. at 320-21. It further found that “the
course of conduct [constituting harassment on June 13] was the entire tirade” because it included
multiple threats and that although the smoke bombs were not violent or as threatening, that incident
met “the elements of unlawful harassment together with the threats of June 13th.” Id. at 321. It
granted Closson and Ganowski’s petitions “as a consequence of those two things.” Id.
The trial court then addressed the issue of the black lab puppy “as an aside.” Id. at 322.
The trial court stated that “the black lab coming over to the house continuously, over and over and
over again, and digging holes, chewing up shoes, pooping in the yard, and all that over a period of
time . . . the depth [and] the breadth of that, I would consider that to be harassment.” Id. The trial
9 No. 54031-2-II
court further explained that “in conjunction with the threat, [the black lab puppy’s behavior] was
alarming. Because here you have these people that as far as they know they may get shot if they
touch this animal, let alone try to bring it home. And so . . . they don’t do that anymore.” Id. at
323. Even though Longacre owned the dog, “in the context” of Kelsey and Longacre living
together, the trial court “would also find that the series of events with the black lab was unlawful
harassment by Ms. Kelsey.” Id. at 324.
The trial court granted Closson and Ganowski’s second petitions, which incorporated all
of the allegations presented in their first petitions. Closson and Ganowski also requested
reimbursement for $552 in costs and $11,375 in attorney fees. The trial court awarded the
requested costs and $5,000 in attorney fees, explaining, “Based on the time that[] went into these,
the time of trial, and everything else, I think [$]5,000 is reasonable.” Id. at 335. It required Closson
and Ganowski to evenly split this award and entered orders granting each of them $276 in costs
and $2,500 in attorney fees.
Kelsey appeals the two antiharassment protection orders against her, as well as the order
granting Closson’s and Ganowski’s requests for costs and fees.1
1 Kelsey also designates the four temporary ex parte protection orders that were issued against her in her notice of appeal, but she fails to make any arguments specific to these orders. “‘Only issues raised in the assignments of error . . . and argued to the appellate court are considered on appeal.’” Weyerhaeuser Co. v. Commercial Union Ins. Co., 142 Wn.2d 654, 693, 15 P.3d 115 (2000) (alteration in original) (quoting State v. Kalakosky, 121 Wn.2d 525, 540 n.18, 852 P.2d 1064 (1993)).
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ANALYSIS
I. ANTIHARASSMENT PROTECTION ORDERS
A. Antiharassment Orders Generally
The court shall issue an antiharassment protection order if it “finds by a preponderance of
the evidence that unlawful harassment exists.” RCW 10.14.080(3).2 “Unlawful harassment” is “a
knowing and willful course of conduct directed at a specific person which seriously alarms,
annoys, harasses, or is detrimental to such person, and which serves no legitimate or lawful
purpose.” RCW 10.14.020(2).
A “course of conduct” is “a pattern of conduct composed of a series of acts over a period
of time, however short, evidencing a continuity of purpose.” RCW 10.14.020(1). The requirement
that the respondent engage in a “course of conduct” means “that it is the series of acts that, when
combined, serve to sufficiently alarm, annoy, or cause detriment such that the definition of
harassment is met.” State v. Haines, 151 Wn. App. 428, 436, 213 P.3d 602 (2009). “The course of
conduct shall be such as would cause a reasonable person to suffer substantial emotional distress,
and shall actually cause substantial emotional distress to the petitioner.” RCW 10.14.020(2).
“In determining whether the course of conduct serves any legitimate or lawful purpose,”
the trial court considers several factors, including whether “[a]ny current contact between the
parties was initiated by the respondent only or was initiated by both parties,” whether [t]he
2 In 2021, the legislature repealed chapter 10.14 RCW, finding that “in order to improve the efficacy of, accessibility to, and understanding of, civil protection orders, the six different civil protection orders in Washington state should be included in a single chapter of the Revised Code of Washington.” ENGROSSED SECOND SUBSTITUTE H.B. (ESSHB) 1320, 67th Leg., Reg. Sess., § 1(7) (Wash. 2021). However, ESSHB 1320 does not significantly change the substance of Washington’s civil harassment law.
11 No. 54031-2-II
respondent’s course of conduct appears designed to alarm, annoy, or harass the petitioner,”
whether “[t]he respondent is acting pursuant to any statutory authority, including but not limited
to acts which are reasonably necessary to . . . [p]rotect property or liberty interests,” and whether
“[t]he respondent’s course of conduct has . . . the purpose or effect of creating an intimidating,
hostile, or offensive living environment for the petitioner.” RCW 10.14.030(1), (3)-(5).
We review the trial court’s issuance of antiharassment orders for an abuse of discretion.
See Trummel v. Mitchell, 156 Wn.2d 653, 669, 131 P.3d 305 (2006). “[A]n abuse of discretion
involves the unreasonable or arbitrary exercise of authority or the exercise of authority based on
untenable grounds.” Ledgerwood v. Lansdowne, 120 Wn. App. 414, 423, 85 P.3d 950 (2004). The
relief granted “must be warranted by the facts.” Trummel, 156 Wn.2d at 668.
“This court does not weigh evidence. We will uphold the trial court’s findings of fact if
they are supported by substantial evidence.” Ledgerwood, 120 Wn. App. at 423 (citation omitted).
“Substantial evidence exists when the record contains evidence of sufficient quantity to persuade
a fair-minded, rational person that the declared premise is true.” State v. Askham, 120 Wn. App.
872, 883, 86 P.3d 1224 (2004). “We defer to the trier of fact on the persuasiveness of the evidence,
witness credibility, and conflicting testimony.” In re Vulnerable Adult Petition for Knight, 178
Wn. App. 929, 937, 317 P.3d 1068 (2014) (part published). The trial court’s factual findings must
support its legal conclusions, which we review de novo. Ledgerwood, 120 Wn. App. at 423-24.
Both the Washington Supreme Court and this court have reviewed the issuance of civil
antiharassment orders based on the trial court’s oral ruling where the trial court did not enter
written findings of fact or conclusions of law. See Trummel, 156 Wn.2d at 657-58; Price v. Price,
174 Wn. App. 894, 900-01, 301 P.3d 486 (2013). In addition, the trial court did not designate
12 No. 54031-2-II
expiration dates on the antiharassment orders at issue in this case, but they presumably expired in
September 2020. See RCW 10.14.080(4) (“An order issued under this chapter shall be effective
for not more than one year unless the court finds that the respondent is likely to resume unlawful
harassment of the petitioner when the order expires.”). However, Kelsey’s appeal of the orders is
not moot. She asks this court to remove the orders from her record due to the “‘continuing stigma,’”
and we have the authority to grant her requested relief. Appellant Kelsey’s Opening Br. at 29
(quoting Hough v. Stockbridge, 113 Wn. App. 532, 537, 54 P.3d 192 (2002), reversed in part on
other grounds, 150 Wn.2d 234, 76 P.3d 216 (2003) (per curiam)).
B. Threats
Kelsey first argues that her threats to shoot Closson cannot constitute harassment against
Ganowski because she “had no idea that Ganowski was present or listening.” Id. at 36. She also
argues that the trial court erred in finding unlawful harassment because the threat was not enough
to cause a reasonable person substantial emotional distress and the threat did not actually cause
Closson substantial emotional distress. Additionally, Kelsey contends that the trial court erred by
finding the threats did not serve any legitimate or lawful purpose because she did not initiate the
contact and she only wanted Closson to leave her property after he had come over at night when
Kelsey was “alone and in a state of undress.” Id. at 39.
Unlawful harassment requires “a knowing and willful course of conduct directed at a
specific person.” RCW 10.14.020(2) (emphasis added). The knowing and willful element goes “to
the identity of the targeted victim,” in addition to the conduct itself. Burchell v. Thibault, 74 Wn.
App. 517, 522, 874 P.2d 196 (1994). Someone who “just happened to be in the company of” a
person at whom harassment was directed cannot generally prove harassment. Id. However, “courts
13 No. 54031-2-II
have broad powers to address harassing conduct,” and this includes the power to protect a group
of people when the entire group is threatened. Trummel, 156 Wn.2d at 664.
Here, although Kelsey’s threats were directed at Closson, their conversation escalated after
Closson identified himself as Kelsey’s next-door neighbor, and Kelsey specifically referenced
Ganowski during the altercation. The conversation involved an argument about previous disputes
between the two households, including a snow shoveling incident before Closson moved in, and
Kelsey said that Ganowski’s household was “psycho” and had been harassing Kelsey “since they
moved in.” Ex. 1. This evidence supports the trial court’s finding that Kelsey’s threats, in addition
to being directed specifically at Closson, “were directed to Ms. Ganowski and anybody else that
was living in the Ganowski house.” 2 VRP at 315. Ganowski did not “just happen[] to be in the
company of” Closson when the harassment occurred. Burchell, 74 Wn. App. at 522.
Kelsey also challenges the trial court’s findings that Closson and Ganowski reasonably
suffered “substantial emotional distress” as required under RCW 10.14.020(2). Substantial
evidence must support the finding of substantial emotional distress, but testimony that the
petitioner “felt threatened” may be enough to satisfy this standard. Askham, 120 Wn. App. at 884.
There is ample evidence in the record that these threats actually caused Ganowski and
Closson substantial emotional distress. Ganowski testified that the incident “terrified” her because
she had “no idea what [Kelsey and Longacre] had for weapons” and she was “very afraid that
[Kelsey] would actually shoot [them].” 1 VRP at 72. Closson testified, “[I]t really scared me. It
really rattled me, considering I had never spoken to her before and haven’t spoken to her since.”
Id. at 130. Both Ganowski’s and Closson’s petitions stated they were afraid Kelsey would kill
them. These statements established substantial evidence of subjective fear. And the trial court did
14 No. 54031-2-II
not abuse its discretion in concluding that their fear was reasonable, especially in light of the
unprovoked nature of the threats.
Finally, Kelsey challenges the trial court’s determination that her conduct served no
legitimate or lawful purpose. The trial court watched the video of the confrontation and heard
testimony from both Closson and Kelsey. It found that Closson’s review of the events was
“extremely credible,” whereas Kelsey’s was not. 2 VRP at 313. “We defer to the trier of fact on
the persuasiveness of the evidence, witness credibility, and conflicting testimony.” Knight, 178
Wn. App. at 937.
Kelsey is correct that Closson initiated this contact and that she is entitled to protect herself
and her property. However, the trial court also had to consider whether her conduct appeared
“designed to alarm, annoy, or harass” and whether it created “an intimidating, hostile, or offensive
living environment.” RCW 10.14.030(3), (5). The trial court here found that Closson was
“peaceably” returning Longacre’s puppy and that he did “nothing whatsoever to instill any fear . .
. in Ms. Kelsey.” 2 VRP at 314. It also found that “the threats and [Kelsey’s] tone . . . and
aggression and violence, and profanity was . . . quite remarkable.” Id. at 316. Kelsey testified that
her perspective at the time was, “I’m afraid and I don’t know the guy. And I was taught when
someone’s scaring you, to try to be bigger so that you don’t get attacked.” Id. at 225 (emphasis
added). Kelsey’s own testimony corroborated the trial court’s finding that she was attempting to
alarm and intimidate Closson.
Regardless of how Kelsey felt during the interaction, the evidence in the record is sufficient
to support the trial court’s finding that Kelsey’s response exceeded what was legitimate and lawful
under the circumstances. In sum, substantial evidence supported the trial court’s findings that
15 No. 54031-2-II
Kelsey threatened Closson and Ganowski, that they experienced reasonable fear, and that her
threats were not legitimate and lawful. The threats supported the entry of antiharassment orders.
C. Smoke Bombs
Kelsey next argues that there was insufficient evidence to support an antiharassment order
based on the smoke bombs because there was no evidence that she was responsible for lighting
smoke bombs or that the smoke was directed at Closson and Ganowski. She claims that
“discrepancies and omissions” in Closson, Ganowski, and Hjelmaa’s statements would “lead any
reasonable person to question whether substantial evidence supports the Court’s finding.”
Appellant Kelsey’s Reply Br. at 11. She also challenges whether the remnants of the smoke and
its odor would be sufficient to cause substantial emotional distress.
“This court does not weigh evidence.” Ledgerwood, 120 Wn. App. at 423. The question on
appeal is whether the trial court’s factual findings were supported by substantial evidence, meaning
whether “the record contains evidence of sufficient quantity to persuade a fair-minded, rational
person that the declared premise is true.” Askham, 120 Wn. App. at 883. The record here contains
a video showing white smoke, Hjelmaa’s testimony describing the duration and direction of the
smoke, Closson and Ganowski’s testimony describing the lingering smell of the smoke, and
testimony that Kelsey threatened Closson and Ganowski’s dog. This evidence is sufficient to
persuade a fair-minded and rational person that Kelsey was involved in lighting smoke bombs and
that the smoke bombs were lit when the wind was blowing toward Closson and Ganowski’s house.
The trial court ruled that the smoke bombs incident “wasn’t as violent, [or] as threatening,
but . . . it meets the elements of unlawful harassment together with the threats of June 13th.” 2
VRP at 321 (emphasis added). The trial court granted Closson and Ganowski’s petitions “as a
16 No. 54031-2-II
consequence of those two things.” Id. (emphasis added). It did not abuse its discretion in ruling
that the smoke bombs incident—when considered alongside the threats made approximately one
month earlier—was part of a pattern of harassment and intimidation by Kelsey that reasonably
caused substantial emotional distress. The trial court did not err by considering these incidents to
be a series of acts, or a course of conduct, that combined to constitute unlawful harassment.
D. Black Lab Puppy
Kelsey also argues that the trial court erred by issuing antiharassment orders based on the
black lab puppy’s behavior. Whether the black lab puppy’s behavior can be characterized as part
of a knowing and willful course of conduct by Kelsey is debatable. But regardless, the trial court
was clear that it issued antiharassment orders based on the threats and the smoke bombs incident,
not the puppy’s behavior. See id. (“[J]ust for those two things [the threats and the smoke bombs],
. . . I would find Ms. Kelsey committed unlawful harassment. And as a consequence of those two
things, the most recent petition of both Ms. Ganowski and Mr. Closson would be granted.”).
Therefore, we affirm the trial court’s orders granting the antiharassment petitions. We need not
reach Kelsey’s arguments that the trial court erred by characterizing the puppy’s behavior as
harassment by Kelsey.
II. ATTORNEY FEES
A. Attorney Fees Below
Kelsey next argues that the trial court erred when it awarded costs and attorney fees without
giving her “the opportunity to review and contest them.” Appellant Kelsey’s Opening Br. at 39.
She suggests that Closson and Ganowski failed to comply with CR 54(d) because, she says, they
requested the fees orally and CR 54(d) requires that claims for attorney fees be made by motion.
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We hold that proceedings under chapter 10.14 RCW are special proceedings created by the
legislature and, therefore, it is permissible for petitioners to request costs and attorney fees in their
petitions rather than by a separate motion.
CR 81(a) states, “Except where inconsistent with rules or statutes applicable to special
proceedings, these rules shall govern all civil proceedings.” The civil rules do not define “special
proceedings,” but the Supreme Court has described them as “proceedings created or completely
transformed by the legislature,” including actions “unknown to common law” and actions where
the legislature has “entirely changed the remedies available.” Putman v. Wenatchee Valley Med.
Ctr., P.S., 166 Wn.2d 974, 982, 216 P.3d 374 (2009).
Although no court has addressed whether proceedings for antiharassment orders under
chapter 10.14 RCW are special proceedings, Division Three has held that proceedings for domestic
violence protection orders are special proceedings. Scheib v. Crosby, 160 Wn. App. 345, 352, 249
P.3d 184 (2011). Division Three reasoned that “the [Domestic Violence Prevention Act, chapter
26.50 RCW,] replaces the common law injunction, to the extent that domestic violence protection
becomes an adjunct of the common law injunction, with the statutory remedy of a domestic
violence protection order.” Id.
Similarly, the antiharassment protection order is a statutory remedy that did not exist in
common law. See Aaron H. Caplan, Free Speech and Civil Harassment Orders, 64 HASTINGS L.J.
781, 790 (2013) (“The advent of domestic violence restraining orders -- which combined elements
of pre-existing criminal and tort laws with the enforceability of an injunction -- gave rise to modern
civil harassment statutes.”). The Washington Legislature created this remedy in 1987. See RCW
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10.14.040 (“There shall exist an action known as a petition for an order for protection in cases of
unlawful harassment.”).
Because the legislature statutorily created the remedy of the antiharassment order, we hold
that proceedings for antiharassment orders are special proceedings under CR 81(a) and that, to the
extent the civil rules are inconsistent with chapter 10.14 RCW, the statutory provisions of chapter
10.14 RCW govern.
With chapter 10.14 RCW, the legislature “intended to provide victims with a speedy and
inexpensive method of obtaining civil antiharassment protection orders preventing all further
unwanted contact.” RCW 10.14.010. To achieve this goal, the legislature asked the administrative
office of the courts to develop “a single master petition pattern form for all antiharassment and
stalking protection orders.” RCW 10.14.800(1); see also RCW 10.14.050. It also directed all court
clerks to “make available simplified forms and instructional brochures” and to provide these
materials “free of charge.” RCW 10.14.040(3)-(4).
Kelsey cites to CR 54(d)(2), which provides that claims for attorney fees and expenses
“shall be made by motion.” However, in developing the master petition pattern form for
antiharassment orders that the legislature expressly required, the administrative office of the courts
included a section permitting the petitioner to request costs and attorney fees by simply checking
a box. This effectuated the legislature’s intent of providing petitioners with “a speedy and
inexpensive method” of obtaining protection. RCW 10.14.010. To the extent CR 54(d)(2)
conflicts, chapter 10.14 RCW governs, and a separate motion is not required.
RCW 10.14.090(2) provides, “The court may require the respondent to pay the filing fee
and court costs, including service fees, and to reimburse the petitioner for costs incurred in bringing
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the action, including a reasonable attorney’s fee.” The decision to award costs and reasonable
attorney fees is within the trial court’s discretion. See RCW 10.14.090(2) (“The court may require
the respondent to pay.” (emphasis added)); see also Hough, 113 Wn. App. at 543 (“The trial judge
had the discretion not to order fees, and we will not disturb that ruling.”). The statute does not
require that the trial court enter findings to support its decision.
Closson and Ganowski checked the box requesting costs and attorney fees on their
petitions. They requested $552 in costs and $11,375 in attorney fees. At the hearing, Kelsey argued
that they did not have a basis for requesting such substantial attorney fees from her. The trial court
reviewed the statute and awarded the requested costs and approximately half of the requested
attorney fees—an amount which it determined was reasonable. Kelsey has not shown that the trial
court abused its discretion in reaching this determination. Therefore, we affirm the trial court’s
order granting reimbursement for costs and some attorney fees.
B. Attorney Fees and Costs on Appeal
Finally, Closson and Ganowski argue that under RCW 10.14.090(2) and RAP 18.1(a), they
are entitled to additional costs and attorney fees on appeal. RAP 18.1(a) provides for the recovery
of reasonable attorney fees on appeal if “applicable law grants to a party the right to recover
reasonable attorney fees or expenses on review” and the party properly requests it. “If attorney
fees are allowable at trial, the prevailing party may recover fees on appeal.” Scheib, 160 Wn. App.
at 353.
RCW 10.14.090(2) allows for the trial court to “require the respondent . . . to reimburse
the petitioner for costs incurred in bringing the action, including a reasonable attorney’s fee.”
Therefore, this court has discretion to award fees and costs pursuant to RCW 10.14.090(2) and
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RAP 18.1(a). We award Closson and Ganowski costs and attorney fees on appeal in an amount to
be determined by a commissioner of this court.
CONCLUSION
We hold that the trial court did not abuse its discretion in granting Closson’s and
Ganowski’s petitions for antiharassment protection orders based on Kelsey’s threats and the
incident involving smoke bombs. The trial court did not abuse its discretion in awarding Closson
and Ganowski costs and reasonable attorney fees below. We affirm and award Closson and
Ganowski costs and attorney fees on appeal.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Glasgow, A.C.J. We concur:
Cruser, J.
Veljacic, J.