  IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                      DIVISION ONE

ADA MOTORS, INC., dba BURIEN   )                   No. 76613-9-1
TOYOTA, a Washington corporation,
                               )                   consolidated with
                               )                   No. 76614-7-1
                   Respondent, )
                               )
            v.                 )
                               )
DAVID L. BUTLER and ELIZABETH  )                   PUBLISHED OPINION
BUTLER, and THE ROBERT LARSON )
AUTOMOTIVE GROUP, INC., a      )                    FILED: December 31, 2018
a Washington corporation, dba  )
LARSON TOYOTA,                 )
                               )
                   Appellants. )
                               )

       VERELLEN, J. — Before a trial court excludes witnesses for a party's failure

to list them in a joint statement of evidence, the court must consider the factors

identified in Burnet v. Spokane Ambulance.1 Because the trial court excluded four

witnesses without considering the Burnet factors and because the error was not

harmless, this matter must be remanded for a new trial.

       Although we need not address the additional issues raised on appeal, we

take this opportunity to clarify that, as to damages, the plaintiff's initial burden of




       1 131 Wn.2d 484, 933 P.2d 1036 (1997).
No. 76613-9-1/2


proof in an unjust enrichment claim under the Uniform Trade Secrets Act(UTSA)2

is to establish sales attributable to the use of a trade secret. Then the burden

shifts to the defendant to prove that any of those sales are not attributable to the

use of a trade secret. And for the "willful and malicious" jury instructions, "willful" is

adequately defined as "voluntary or intentional" and "malicious" is best defined to

include "as a result of ill will or improper motive." Finally, if damages are

recovered on remand and the jury determines the conduct was willful and

malicious, resulting in an award of attorney fees, the trial court must expressly

address any disproportionality between the amount of the fee award and the

amount in issue.

                                        FACTS

       Prior to February 2003, Butler sold shoes at Nordstrom and developed a list

of his customers and contacts. In February 2003, Butler left Nordstrom and began

selling cars at Burien Toyota. Burien Toyota connected Butler with a marketing

firm to help him maintain his customer list.

       In March 2011, Butler left Burien Toyota and began selling cars at Larson

Toyota (Larson). Butler took a 2009 version of the customer list with him. Butler

contacted the customers to announce he was working at Larson. On April 4,

2011, Burien Toyota sent a cease and desist letter to Butler and Larson, alleging

the customer list was Burien Toyota's trade secret. Larson flagged the customers

on the list as "dead clients" and ceased all efforts to contact them.


       2 Ch. 19.108   RCW.



                                           2
No. 76613-9-1/3


       On April 25, 2011, Burien Toyota sued Larson, alleging breach of contract,

unjust enrichment, breach of the duty of loyalty, violation of the UTSA, and tortious

interference with business relationships. The court dismissed all but the UTSA

claim, which proceeded to trial. During discovery, Larson produced a list of its

vehicle sales since Butler started working at Larson Toyota, regardless of the

salesperson involved. Burien Toyota produced a list of 200 matches between its

customer database and Larson's sales list. In the first trial, the jury found the

customer list was Burien Toyota's trade secret and that Larson misappropriated it,

but the jury found the misappropriation did not financially harm Burien Toyota.

Burien Toyota appealed. This court remanded the case for a new trial on unjust

enrichment damages due to a jury instruction error.3

       On remand for the second trial, the trial court reopened discovery. Burien

Toyota produced a list of 412 matches between its database and the updated

Larson sales list. Burien Toyota claimed $4,305.66 in unjust enrichment damages

per customer, totaling $1,773,934.96. Burien Toyota also claimed an equal

amount of damages for future unjust enrichment. Larson presented evidence that

of the 412 matches identified by Burien Toyota, only five individuals actually

purchased cars at both dealerships. Larson attempted to call the five individuals

to testify, but the court excluded four of them because Larson had not properly

listed them as potential witnesses. At the end of the second trial, the jury found



       3 ADA Motors, Inc. v. Butler, No. 70047-2-1 (Wash. Ct. App. Aug. 18, 2014)
(unpublished), http://www.courts.wa.gov/opinions/pdf/700472.pdf.




                                          3
No. 76613-9-1/4



Larson was unjustly enriched and $12,496.12 of Larson's profits on sales were

"attributable to the use of a trade secret."4 The jury also found Larson's

misappropriation of the customer list was willful and malicious.

       Larson moved for a new trial under CR 59 based on the court's exclusion of

the four witnesses. The court denied the motion. Because the jury found willful

and malicious conduct by Larson, the court doubled the jury award and awarded

attorney fees as allowed by the UTSA. Larson appeals.

                                     ANALYSIS

Witness Exclusion

       We review a trial court's denial of a motion for a new trial for abuse of

discretion.5 A trial court abuses its discretion if its decision is based on untenable

grounds or untenable reasons.6

          Larson moved for a new trial under CR 59(a)(1) and (8), which provide

that a court may grant a new trial due to:

              (1) Irregularity in the proceedings of the court, jury or adverse
       party, or any order of the court, or abuse of discretion, by which such
       party was prevented from having a fair trial.



             (8) Error in law occurring at the trial and objected to at the
       time by the party making the application.



      4   Clerk's Papers(CP)at 2384.
      5   Brundridoe v. Flour Fed. Svcs., Inc., 164 Wn.2d 432, 454, 191 P.3d 879
(2008).
      6 Teter   v. Deck, 174 Wn.2d 207, 215, 274 P.3d 336 (2012).




                                          4
No. 76613-9-1/5



Larson argued the exclusion of the four witnesses he failed to identify in his joint

statement was error. He submitted declarations from the witnesses indicating they

would have testified that they bought cars from Larson for reasons unrelated to the

misappropriation and that they were not contacted or solicited prior to purchasing

cars. We conclude a new trial is warranted.

       Prior to imposing a severe discovery sanction such as excluding witnesses,

the court must explicitly consider the factors from Burnet of whether a lesser

sanction would probably suffice, whether the violation at issue was willful or

deliberate, and whether the violation substantially prejudiced the opponent's ability

to prepare for tria1.7 A Burnet error is harmless where erroneously excluded

evidence is irrelevant and/or "merely cumulative."8

       Here, Burien Toyota acknowledges that the lack of Burnet findings "is

reversible error as to the damages award."8 To the extent Burien Toyota suggests

the Burnet error is generally harmless, there is no showing that the testimony of

the four witnesses will be irrelevant or cumulative to the testimony given at trial.

Burien Toyota's argument that the Burnet error is specifically harmless as to the

jury determination that the misappropriation was willful and malicious also fails.

Burien Toyota argues that the four witnesses' testimony is irrelevant to whether


       7   Mayer v. Sto Industries, Inc., 156 Wn.2d 677, 688, 132 P.3d 115 (2006).
       8 Jones v. City of Seattle, 179 Wn.2d 322, 360, 314 P.3d 380(2013)
(witnesses testified to "virtually every specific activity cited by the excluded
witnesses"; the court held the erroneously excluded testimony "that was not
irrelevant was instead cumulative and its exclusion was therefore harmless")
       9 Resp't's Br. at 22.




                                          5
No. 76613-9-1/6



the misappropriation is willful and malicious, so there is no need for the jury to

revisit that question on remand. But the testimony of the four excluded witnesses

will address Larson's use of the misappropriated trade secret. Of course, Larson

does not anticipate that their four proffered witnesses will be the source of any

adverse evidence of malicious conduct, but we don't know the details of their

testimony. The four witnesses may provide information material to whether the use

of the trade secret was malicious.

       Burien Toyota also argues that in the most recent trial, the only arguments it

made about willful and malicious behavior related to how the trade secret was

misappropriated, not how the trade secret was used. But Burien Toyota provides

no authority that willful and malicious behavior, for purposes of trade secrets,

encompasses only misappropriation and not how a trade secret was used. The

question whether Larson's conduct was willful and malicious must be addressed

by the jury on remand.

       Therefore, we accept Burien Toyota's concession as to the damages

verdict and conclude the court's failure to consider the Burnet factors was not

harmless. We remand for a new trial concerning unjust enrichment damages and

whether the misappropriation was willful and malicious.

       We need not address additional issues raised on appeal, but we take this

opportunity to provide some guidance for the third trial in this dispute.1°


       10 See State v. Fricks, 91 Wn.2d 391, 392, 588 P.2d 1328 (1979)
                                                                           ("We find
two of the errors to be prejudicial, each requiring a remand for a new trial. We
reach the remaining issues for the guidance of the trial court on remand."); Taylor



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No. 76613-9-1/7



Jury Instructions11

       Larson argues jury instruction 7 misstated Burien Toyota's burden of proof.

In the prior appeal, we concluded that, consistent with Petters v. Williamson &

Associates, Inc.,12 a proper damages instruction describing the plaintiff's burden in

an unjust enrichment trade secret misappropriation case should not include the

phrase "damages from sales." But the damages instruction given in the second

trial also eliminated the phrase "attributable to the use of a trade secret." We

clarify that the inclusion of the phrase "attributable to the use of a trade secret" is a

more complete and precise statement of the law.

       In Petters, this court adopted the Restatement (Third) of Unfair Competition

approach to proving damages in cases involving misappropriation of a trade

secret:

       The traditional form of restitutionary relief in an action for the
       appropriation of a trade secret is an accounting of the defendant's
       profits on sales attributable to the use of the trade secret. . . . The



v. Intuitive Surgical, Inc., 187 Wn.2d 743, 753, 389 P.3d 517(2017)("Although we
need not reach Taylor's additional claims, we reach them to provide guidance for
the trial court should these issues arise on retrial.").
          11 We review jury instructions de novo. Anfinson v. FedEx Ground Package
Sys., Inc., 174 Wn.2d 851, 860, 281 P.2d 289 (2012). An instruction is erroneous
if it is misleading, does not allow counsel to argue their theory of the case, or when
read as a whole does not properly inform the trier of fact of the applicable law. Id.
(quoting Bodin v. City of Stanwood, 130 Wn.2d 726, 732, 927 P.2d 240 (1996));
Joyce v. Dep't of Corr., 155 Wn.2d 306, 323, 119 P.3d 825 (2005)). "An
erroneous instruction is reversible error only if it prejudices a party. Prejudice is
presumed if the instruction contains a clear misstatement of law; prejudice must be
demonstrated if the instruction is merely misleading." Anfinson, 174 Wn.2d at 860.
       12   151 Wn. App. 154, 210 P.3d 1048 (2009).




                                           7
No. 76613-9-1/8


       plaintiff has the burden of establishing the defendant's sales; the
       defendant has the burden of establishing any portion of the sales not
       attributable to the trade secret and any expenses to be deducted in
       determining net profits.[13]

This approach "requires the defendant to explain why any particular portion of the

money that it received as a result of the misappropriating transaction should not be

considered an 'actual loss' suffered by the plaintiff."14 The Petters court also

acknowledged "it is the burden of the party seeking relief under the Uniform Trade

Secrets Act to demonstrate that such a secret has actually been misappropriated

in order to have a right to any damage award."15

       Before the second trial, Larson proposed the following instruction:

             On the claim of misappropriated trade secrets, Burien Toyota
       has the burden of proving each of the following propositions:

              That, as a result of the misappropriation of Burien's customer
       information, Mr. Butler and/or Larson Toyota received money or
       benefits that in justice belong to Burien Toyota. The burden is on
       Burien Toyota to prove sales attributable to the use of a trade secret.
       If Burien Toyota proves sales attributable to the use of a trade
       secret, the burden shifts to Mr. Butler and/or Larson Toyota to
       establish any portion of the sales not attributable to the trade secret
       and any expenses to be deducted in determining net profits.116]

The court declined to give this proposed instruction and opted instead to give jury

instruction 7:



       13  Id. at 165 (quoting RESTATEMENT(THIRD)OF UNFAIR COMPETITION § 45
cmt. f., at 516-17 (1995)).
       14   Id.
       15   Id. at 164.
       16   CP at 1600(emphasis added).




                                          8
No. 76613-9-1/9



               Burien Toyota claims that as a result of the misappropriation
       of the trade secret, Mr. Butler and/or Larson Toyota have been
       unjustly enriched. On the claim of unjust enrichment resulting from
       the misappropriated trade secret, Burien Toyota has the burden of
       proving the following proposition:

               That, as a result of the misappropriation of the trade secret,
       Mr. Butler and/or Larson Toyota received money or benefits that in
       justice and fairness belong to Burien Toyota. Plaintiff has the initial
       burden of proving defendants'sales. The burden then shifts to Mr.
       Butler and/or Larson Toyota to establish any portion of the sales not
       attributable to the trade secret and any expenses to be deducted in
       determining net profits.

              If you find from your consideration of all of the evidence that
       the proposition has been proved, then your verdict should be for
       Burien Toyota. On the other hand, if you find that the proposition
       has not been proved, your verdict should be for Mr. Butler and
       Larson Toyota.[171

Without the phrase "sales attributable to the trade secret," jury instruction 7 can be

read to allow the plaintiff to satisfy its burden with gross sales data, whether or not

attributable to the trade secret. Although Burien Toyota argues the existing

instructions adequately allowed Larson to argue its legal theories, the trial court

should not give an instruction that contains the potential for confusion or

uncertainty.

       Therefore, on remand, the damages instruction should include the

provision: "The plaintiff has the initial burden of proving sales attributable to the

trade secret. Then the burden shifts to the defendant to establish any portion of

the sales not attributable to the trade secret and any expenses to be deducted in

determining net profits."


       17 CP at 2198(emphasis added).
No. 76613-9-1/10



       Larson also challenges jury instructions 8 and 9 defining "willful" and

"malicious." Under the UTSA, if "wilful and malicious misappropriation exists, the

court may award reasonable attorney's fees to the prevailing party."19 But the

UTSA does not define "willful," "malicious," or "willful and malicious."19 The

sufficiency of jury instructions defining "willful and malicious" within the context of

the UTSA is an issue of first impression before this court.

       Jury instruction 8 defined "willful" as "voluntary or intentional, but not

necessarily malicious."20 Jury instruction 9 defined "malicious" as "without just

cause or excuse."21 Larson contends that, read together, these instructions allow

a jury to find willful and malicious misappropriation without finding the "critical"

element of maliciousness, "ill will or improper motive."22 Larson makes no other

objection to jury instruction 8 regarding the definition of "willful." In this setting,

"willful" is adequately defined as "voluntary or intentional."

       Regarding maliciousness under the UTSA, Larson proposed a detailed

definition:

       "Malicious" is defined as being characterized by, or involving, malice;
       having, or done with, wicked, evil or mischievous intentions or



       18   RCW 19.108.040.
       195    RCW 19.108.010.
       20 CP at 2199.
       21   CP at 2200.
        22 "Larson's proposed instructions defining 'willful' and 'malicious'...
reflected the common meaning understanding of these terms and included the
critical ill will or improper motive element 'malicious." Appellant's Br. at 37-38.




                                            10
No. 76613-9-1/11



       motives; wrongful and done intentionally without just cause or
       excuse or as a result of ill will.[23]

Burien Toyota's position is that Petters controls on the issue of defining "malicious"

under the UTSA for the purposes of jury instructions. But Petters did not address

the proper form of a jury instruction under the UTSA when it endorsed the phrase

"without just cause or excuse" to define "malicious."24

       In Boeing v. Sierracin Corp., our Supreme Court analyzed the sufficiency of

evidence supporting the trial court's finding of willful and malicious

misappropriation.25 After a contractual relationship between Boeing and Sierracin

fell through, Sierracin continued to use Boeing proprietary data to manufacture

and sell airplane windows in the spare parts market. A Boeing official warned

Sierracin that any such use outside manufacturing parts for sale by Boeing was

misappropriation, but Sierracin continued to use various Boeing specifications and

tried to obtain its own FAA-authorization using the data. The trial court's finding




        23 CF at 1602. As a threshold matter, Burien Toyota relies on Harris v.
Burnett, 12 Wn. App. 833, 843, 532 P.2d 1165 (1975), and argues Butler
inadequately objected to jury instruction 9 and waived this issue. Under Harris
"When an instruction to be given by the trial court is a correct statement of the law
but is objected to as too broad or as insufficiently specific under the evidence, the
objecting party must propose a proper instruction on the subject. Reversible error
is not present unless the preferable instruction has been submitted and has been
refused." Harris, 12 Wn. App. at 843. Butler's proposed instruction containing the
preferable language "as a result of ill will" is sufficient to meet the Harris burden.
        24 Petters, 151 Wn. App. at 173.

       25 108 Wn.2d 38, 738 P.2d 665 (1987). The narrower issue presented in
this appeal, the sufficiency of jury instructions regarding the meaning of "willful and
malicious," was not at issue in Boeing.




                                          11
No. 76613-9-1/12


that Sierracin willfully and maliciously misappropriated trade secrets was affirmed

on appeal:

              The record indicates that Sierracin knew its actions to be of
       dubious legality, and engaged in a massive effort to disguise its
       copying of Boeing's drawings. The trial court did not believe that
       Sierracin ever entertained any honest doubt as to the legality ofits
       conduct, but took a calculated risk and lost. . . . The trial court's
       decision that Sierracin's actions were willful and malicious is not
       erroneous and the award of punitive damages is affirmed.[26]

       The Petters court, like the Supreme Court in Boeing, analyzed the

sufficiency of evidence supporting the trial court's finding of willful and malicious

misappropriation. Petters, a design engineer specializing in underwater

engineering, worked with Williamson to design and market a unique deep sea drill.

After a falling out regarding Peters' compensation, the contractual relationship

between Petters and Williamson ended. Petters then alleged Williamson

misappropriated trade secrets owned in part by Petters. The trial court's finding

that Williamson willfully and maliciously misappropriated trade secrets was

affirmed on appeal:

      Williamson advances the argument that, notwithstanding that it
      "willfully" licensed the BMS technology to NGK, it cannot be found to
      have acted "maliciously" because it did not actually intend to harm
      Petters by licensing the technology. Williamson protests that,
      indeed, because it always intended to pay Petters his royalty share
      of the transaction's proceeds, it only wanted to help Petters by
      licensing the technology.

              This position both misstates the basis for the trial court's ruling
       and unjustifiably narrows the scope of that which may constitute
       "malicious" misappropriation. The conduct that the trial court found to


       26   Id. at 62(emphasis added).




                                          12
No. 76613-9-1/13



       be malicious was Williamson's refusal to provide Petters with any
       information regarding the BMS—II transaction, let alone obtain
       authorization to disclose the BMS technology. Black's Law Dictionary
       977 (8th ed.2004) defines "malicious" as: "1. Substantially certain to
       cause injury. 2. Without just cause or excuse." The only excuse that
       Williamson had for its conduct was its unusual interpretation of the
       injunction. That interpretation was erroneous and, hence, did not
       provide just cause for Williamson's behavior. None of the foreign
       cases cited by Williamson cast serious doubt on this purely factual
       determination.[27]

This reasoning does not equate with using "without just cause or excuse" as the

sole basis for a jury instruction defining "malicious" for purposes of the UTSA.

Rather, it stands for the principle that the scope of what constitutes malicious

misappropriation may not be unjustifiably narrowed.

       Although there is significant variation in how other UTSA jurisdictions

construe the same "malicious" provision, there is a legitimate concern that "without

just cause or excuse" does not adequately convey the level of malice required.

       For example, in Real-Time Laboratories, Inc. v. Predator Systems, Inc., the

District Court of Appeal of Florida, Fourth District, declined to hold that a finding of

"willful and malicious" requires only that trade secrets were taken with "knowing or

reckless disregard."28 Instead, the Florida court looked to two explanations of

UTSA maliciousness found in other jurisdictions. First, the court used the rationale

from a Seventh Circuit case that "willful and malicious" "surely must include an

intentional misrepresentation as well as a misappropriation resulting from the



      27 Petters, 151 Wn. App. at 172-73(emphasis added).
      28 757 So.2d 634, 637-38, 25 Fla. L. Weekly D1250 (2000).




                                          13
No. 76613-9-1/14



conscious disregard of the rights of another.'"29 Second, the court highlighted our

Supreme Court's decision in Boeing with its emphasis on "dubious legality" and

lack of "any honest doubt as to the legality of its conduct."3°

       In Bond v. Polvcvcle, Inc., the Court of Special Appeals of Maryland found

that "actual malice was present" where the defendant exercised obvious "ill will"

toward the plaintiff in his willful misappropriation.31 The Maryland court used two

definitions of "malicious." First, "'the intentional doing of a wrongful act without

legal justification or excuse. . . . done knowingly and deliberately, for an improper

motive and without legal justification."32 Second, having a purpose "to deliberately

cause harm or injure."33 Several other jurisdictions have applied similar definitions

of "malicious" under the UTSA.34



       29Id. at 637(emphasis added)(quoting Mangren Research & Dev. Corp. v.
Nat'l Chem. Co., Inc., 87 F.3d 937, 946 (7th Cir. 1996)).
       39   Id. (quoting Boeing, 108 Wn.2d at 62).
       31   127 Md. App. 365, 382, 732 A.2d 970 (1999).
       32   Id. (quoting Elliot v. Kupferman, 58 Md. App. 510, 526, 473 A.2d 960
(1984)).
       33   Id.
       34 See, e.g., Learning Curve Toys, Inc. v. PlavWood Toys, Inc., 342 F.3d
714, 730 (7th Cir. 2003)("[T]he phrase 'willful and malicious misappropriation'. . .
includes 'an intentional misappropriation as well as a misappropriation resulting
from the conscious disregard of the rights of another.")(quoting Mangren
Research, 87 F.3d at 946); Haught v. Louis Berkman, LLC, 417 F. Supp. 2d 777,
784 (N.D. West Virginia 2006)("Malice is 'characterized by, or involving, malice;
having, or done with, evil or mischievous intentions or motives; wrongful and done
intentionally without just cause or excuse or as a result of ill will.")(quoting State v.
Burgess, 205W. Va. 87, 516 S.E.2d 491, 493(1999)); MicroStrategv, Inc. v.
Business Obiects, S.A., 331 F. Supp. 2d 396,430(E.D. Va. 2004)("[M]alice
requires a finding that the action was taken with 'ill will, malevolence, grudge,



                                           14
No. 76613-9-1/15



       We conclude that, consistent with the Petters rationale, an intent to injure

need not be shown to prove maliciousness under the UTSA. But "malicious"

connotes a level of ill will or improper motive not captured by "without just cause or

excuse." Therefore, the UTSA maliciousness instruction on remand would be

more complete and meaningful if expressed to include "as a result of ill will or

improper motive."

Attorney Fees

       Larson raises numerous challenges to the amount and computation of

attorney fees awarded. Because any award of attorney fees will be dependent on

the outcome of the new trial on remand, we decline to address each of the

arguments raised. But a key consideration is the proportionality of the award of

fees to the amount in controversy.35 A lodestar calculation that grossly exceeds

the amount in controversy should suggest a downward adjustment, but a court

"'will not overturn a large attorney fee award in civil litigation merely because the

amount at stake in the case is small."36 The court must give consideration to the

billing judgment exercised, or not exercised, in view of the amount in

controversy." For purposes of proportionality analysis, the amount in controversy


spite, wicked intention or a conscious disregard of the rights of another.")(quoting
Peacock Buick, Inc. v. Durkin, 221 Va. 1133, 1137, 277 S.E.2d 225 (1981)).
       35   Berryman v. Metcalf, 177 Wn. App. 664, 660, 312 P.3d 745(2013).
       36   Id. at 657 (quoting Mahler v. Szucs, 135 Wn.2d 398, 433, 957 P.2d 632
(1998)).
        Id. at 661 (quoting Scott Fetzer Co. v. Weeks, 122 Wn.2d 141, 156, 859
       37
P.2d 1210 (1993)).




                                          15
No. 76613-9-1/16



necessarily requires consideration of the actual amount recovered on a claim.38 A

court considering requested fees nearly 50 times as large as the amount

recovered must necessarily address the billing judgment giving rise to the fee

request.39

Fees on Appeal

       Burien Toyota also seeks fees on appeal under RAP 18.1 and

RCW 19.108.040. RAP 18.1(a) allows fees when "applicable law grants to a party

the right to recover reasonable attorney fees or expenses on review before. . . the

Court of Appeals." Under RCW 19.108.040, if "wilful and malicious

misappropriation exists, the court may award reasonable attorney's fees to the

prevailing party." Consistent with RAP 18.1(i), we defer to the trial court to include

reasonable fees associated with this appeal as part of any award of trial court fees

on remand.4°




      38 See Travis  v. Wash. Horse Breeders Ass'n, Inc., 111 Wn.2d 396, 409-10,
759 P.2d 418(1988)(For fees under the Consumer Protection Act, ch. 19.86
RCW,"the amount in controversy is merely listed as a factor to be considered.
The size of the attorney fees in relation to the amount of the award is not in itself
decisive.")(emphasis added); Singleton v. Frost, 108 Wn.2d 723, 731, 742 P.2d
1224(1987)(instructing trial court to "take into account the amount involved and to
set the award of fees with the total sum recovered in mind')(emphasis added).
       39 The jury awarded $12,496.12 in damages. The court awarded
$610,071.90 in attorney fees.
       40 See also Felipe v. Dep't of Labor & Indus., 195 Wn. App. 908, 920, 381
P.3d 205(2016)("When an appellate court remands a case for retrial, as we do
here, that court cannot properly award fees because the prevailing party has not
yet been determined. Thus, at this time a fee award is premature, but the trial
court may award appellate attorney fees after retrial, if appropriate.").




                                         16
No. 76613-9-1/17



                                  CONCLUSION

       Because of a Burnet error, remand for a new trial is required to address the

unjust enrichment damages on the misappropriation of trade secrets claim,

together with a determination of whether the misappropriation was willful and

malicious for purposes of the UTA.

       Therefore, we reverse and remand for further proceedings consistent with

this opinion.




WE CONCUR:




                                        17
