§42.6 Analysis

• Jurisdiction: Washington

§42.6ANALYSIS

This section examines specific issues that arise related to motions to consolidate and retransfer separate trials.

(1)Generally

CR 42 grants a trial court broad discretion to decide whether issues of law or fact common to two or more civil actions warrant consolidation for hearing or trial of the actions or of matters at issue in them. This rule provides the court with the same broad discretion to decide whether particular issues or claims in any civil action, including consolidated actions, should be heard jointly or tried separately.

The two sentences that constitute CR 42 use the word "may" five times and the word "any" four times. It is not surprising, therefore, that the few appellate decisions addressing the scope of a court's power under CR 42 and its predecessor rules uniformly decline to find any abuse of discretion in rulings granting or denying motions. The constraints on a court's power to consolidate actions are discussed in §42.6(2), below.

(2)Consolidation under CR 42(a)

For consolidation, CR 42(a) requires one or more common questions of law or fact in two or more actions pending before that court. The rule authorizes a trial court, "[w]hen actions involving a common question of law or fact are pending before [it,]" to

• order a joint hearing of any or all of the matters in issue
• order a joint trial of any or all of the matters in issue
• order all of the actions consolidated

The court also may "make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delays." CR 42(a). The court has the authority to consolidate actions for pretrial proceedings and discovery even if no joint hearing or trial is anticipated, and/or if a decision on outright consolidation is deferred until completion of discovery and pretrial proceedings.

Comment: Consolidation under CR 42(a) differs from joinder under CR 18(a), which confers on a claimant the right to "join, either as independent or as alternate claims, as many claims, legal equitable, or maritime, as he has against an opposing party." See Chapter 18(Rule 18. Joinder of Claims and Remedies) of this deskbook. Parties to a civil case are not entitled to consolidation or separation under CR 42 as a matter of right.

Practice Tip: Even if consolidation of actions for trial or hearing on common issues cannot be agreed upon by all parties, it may be in the parties' interest to consolidate the separate actions for common discovery and pretrial proceedings, as in a federal MDL action. No formal rules or procedures exist as in federal court However, nothing prevents the parties from stipulating to consolidation for discovery and pretrial proceedings and presenting an order to the trial court judge. In the alternative, a party opposing consolidation can propose this option as an alternative to outright consolidation, asking the court to defer ruling on a consolidated hearing and/or trials until discovery has been completed and pretrial motions heard.

Consolidation is within the sound discretion of the trial court and the trial court's determination to consolidate will be reviewed under an abuse of discretion standard. W.R. Grace & Co.-Conn. v. State Dep't of Revenue, 137 Wn.2d 580, 590, 973 P.2d 1011, cert, denied, 528 U.S. 950 (1999); King Cnty. Dep't of Adult & Juvenile Bet. v. Parmelee, 162 Wn.App. 337, 360, 254 P.3d 927 (2011), review denied, 175 Wn.2d 1006 (2012), cert, denied, 133 S. Ct. 1732 (2013). Under the abuse of discretion standard, a trial court's decision will not be disturbed on review except on a clear showing of abuse; i.e., discretion that is manifestly unreasonable, exercised on untenable grounds, or for untenable reasons. Angela v. Angela, 142 Wn.App. 622, 639, 175 P.3d 1096, review denied, 164 Wn.2d 1017 (2008).

No Washington court has held that it is an abuse of discretion under CR 42 for a trial court to consolidate or to refuse to consolidate actions, for trial or for pretrial proceedings. E.g., Nat'l Bank of Wash. v. Equity Investors, 86 Wn.2d 545, 560-61, 546 P.2d440 (1976); Leader Nat'l Ins. Co. v. Torres, 51 Wn.App. 136, 142, 751 P.2d 1252 (1988), aff'd, 113 Wn.2d 366, 779 P.2d 722 (1989).

At the conclusion of a consolidated action, the court has discretion to make multiple awards or one single award of statutory attorney fees taxable as a cost pursuant to RCW 4.84.080. Thus, when multiple defendants prevail, the court may award each of them the statutory amount, or it may assess a single award against the plaintiff(s). Gray's Harbor Boom Co. v. McAmmant, 21 Wash. 465, 58 P. 573 (1899). Conversely, when a plaintiff prevails in consolidated actions against multiple defendants, the court may assess a separate statutory award against each defendant, or may award the plaintiff a single statutory attorney fee. Jeffery v. Weintaub, 32 Wn.App. 536, 547-49, 648P.2d914 (1982); see RCW 4.84.080 (setting statutory attorney fee at $200). When multiple judgments are entered in a consolidated case, a trial court's award of "single" statutory attorney fees, and its award of costs, may be apportioned among the judgments. Id.

Limitations on a court's jurisdiction may constrain a court's authority to consolidate. A superior court for one county lacks authority to consolidate a case pending before it with one pending before a superior court for a different county. Am. Mobile Homes of Wash., Inc. v. Seattle-First Nat'l Bank, 115 Wn.2d 307, 312-14, 796P.2d1276 (1990).

Comment: You may occasionally be faced with two cases pending in two different counties that arise out of essentially the same facts (e.g., a car accident in which the driver and passenger file suit in different counties against the same defendant, or parties to a contract sue for breach simultaneously in different courts). Neither court has unilateral authority to assume jurisdiction over both cases.

In these circumstances, the parties could stipulate to the entry of an order transferring venue. If the parties are not willing to stipulate, one party could move the court for a change of venue pursuant to RCW 4.12.030(3). If the original court grants a change of venue, a motion for consolidation could then be filed in the new court.

Until the consolidation and venue issues are resolved, one party could move to enjoin the litigation in either action. Another option is for a party in one county to move for a stay of proceedings in the action pending in the other county until the action in the first county is resolved. See, e.g., Am. Mobile Homes, 115 Wn.2d 307.

The unlawful detainer statute, Chapter 59.12 RCW, which confers on a superior court the limited power to hear and determine issues relating to possession of real property, presents a unique consolidation problem. In an action under this statute, the court does not sit as a court of general jurisdiction. Granat v. Keasler, 99 Wn.2d 564, 571, 663 P.2d 830, cert, denied, 464 U.S. 1018 (1983). The unlawful detainer action is a "narrow one, limited to the question of possession and related issues such as restitution of the premises and rent." Angelo Prop. Co. v. Hafiz, 167 Wn.App. 789, 809, 274 P.3d 1075 (citing Munden v. Hazelrigg, 105 Wn.2d 39,711 P.2d 295 (1985)), review denied, 175 Wn.2d 1012 (2012). To protect the summary nature of an unlawful detainer action, a damages suit by a tenant against a landlord probably cannot be consolidated with an unlawful detainer action brought by the landlord, except perhaps to the extent that the damages action could have been framed as a cognizable counterclaim in the unlawful detainer action. A tenant is generally precluded from asserting counterclaims, however, unless the claims seek to establish facts that excuse the tenant's failure to pay rent or to perform other covenants of the lease. Id. When counterclaims are based upon facts that excuse the tenants' breaches, they may be properly heard as part of the unlawful detainer proceedings. Id.

Comment: If the issue of right to possession ceases to exist before an unlawful detainer action

...