Ringold, J.
The defendants (homeowners), owners of 13 floating homes moored at a facility
owned and operated by plaintiffs Gordon Jeffery and Margaret Jeffery (Jeffery),
appeal a summary judgment for unpaid increases in moor-age fees (rent). Jeffery cross-appeals the award of a single statutory attorneys fee in the consolidated superior court proceeding. We affirm the judgment of the Superior Court, but modify the effective date of the rent increase and remand for redetermination of statutory attorneys fees.
On May 29, 1979, Jeffery gave notice to the homeowners that moorage rates would increase approximately 20 percent, or $30 per month, effective July 1, 1979. The homeowners then petitioned the City of Seattle for factfinding pursuant to ordinance 107012.
A fact finder was appointed
on July 9, 1979, and a hearing was held September 5, 1979. The fact finder in his decision of September 27, 1979, concluded that not only was the proposed increase unreasonable, but "[a]ny increase in the fees currently charged would be unreasonable." Following the factfinding, Jeffery notified the homeowners that regardless of the fact finder's decision, the increased rental would take effect on September 8, 1979, with all arrearages due November 1, 1979. The homeowners continued to pay moorage fees but refused to pay the increase.
Jeffery brought 14 separate actions in district court against the delinquent homeowners, which were consolidated by agreement of the parties. Following judgment in Jeffery's favor, 13 of the homeowners appealed to the superior court for a trial de novo. The Superior Court granted Jeffery's motion for summary judgment and the homeowners appeal.
Effect of Fact Finder's Decision
The homeowners contend that under the Equity Ordinance, the fact finder's decision that the increase was unreasonable is binding on the parties and prevents Jeffery from charging an increased fee. They argue that if the city council had not intended the fact finder's decision to be binding, the ordinance would have explicitly so provided, as in the Educational Employment Relations Act, RCW 41.59.120(2), which provides that "the fact-finder shall make findings of fact and recommend terms of settlement . . . which recommendations shall be advisory only."
Our task in construing a statute is to give effect to the intent of the Legislature.
Janovich v. Herron,
91 Wn.2d 767, 592 P.2d 1096 (1979). We hold that the trial court did not err in concluding that the Legislature intended the fact finder's decision to have no binding effect.
The stated purpose of a statute is an important indicium of legislative intent.
Whatcom Cy. v. Langlie,
40 Wn.2d 855, 246 P.2d 836 (1952). The purpose of the ordinance, as expressed in its title, was to establish "a fact-finding process to aid the settlement of disputes over moorage fees between floating home owners and owners of floating home moorages." The factfinding is characterized
as
aiding
dispute settlement, not as finally settling the dispute.
Statements by the chairperson of the committee in charge of legislation have been used by courts in determining legislative intent.
Snow's Mobile Homes, Inc. v. Morgan,
80 Wn.2d 283, 494 P.2d 216 (1972). The chairman's comments indicate that the fact finder's decision was not intended to be binding on the parties.
Unconscionability
The homeowners next contend that by granting summary judgment to Jeffery the trial court denied them an opportunity to prove that the moorage fee increases were unconscionable, hence unenforceable at law. They cite
Schroeder v. Fageol Motors, Inc.,
86 Wn.2d 256, 544 P.2d 20 (1975), for the proposition that the issue of unconscionability may not be determined at summary judgment, and argue that they are entitled to a full hearing in order to present evidence of unconscionability.
While the court in
Schroeder,
after exploring the concept of unconscionability under the Uniform Commercial Code (UCC),
stated at page 262, "In accordance with
the requisites set forth above, a court is not authorized to dispose of this issue under the rules governing summary judgment", this statement is dicta and not binding on this court.
Schroeder
was an appeal from a judgment after trial and did not concern a summary judgment. The court made its statement as part of a general exposition on unconscionability and not as part of its holding.
See, e.g., State ex rel. Johnson v. Funkhouser,
52 Wn.2d 370, 325 P.2d 297 (1958).
We see no reason why principles of summary judgment should not apply to test the legal sufficiency of the facts underlying a claim of unconscionability. Although unconscionability is a matter of law to be decided by the trial court,
Schroeder,
at 262, the decision is one based on the factual circumstances surrounding the transaction in question.
Christiansen Bros. v. State,
90 Wn.2d 872, 586 P.2d 840 (1978). The purpose of summary judgment is to avoid a useless trial where there are no material facts at issue.
LaPlante v. State,
85 Wn.2d 154, 531 P.2d 299 (1975). If the material facts are undisputed, and when looked at in the light most favorable to the party alleging unconscionability are insufficient to establish unconsciona-
bility, there is no need for the trial court to inquire further. Absent a threshold showing of unconscionability sufficient to survive summary judgment, the issue disappears from the case.
To prevail on summary judgment, the moving party must present facts showing that it is entitled to judgment as a matter of law. Once the initial showing is made, the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial." CR 56(e);
LaPlante v. State, supra.
Jeffery's uncontroverted affidavit established the amount of the moorage fee increase and the homeowners' refusal to pay it, thereby meeting the initial burden.
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Ringold, J.
The defendants (homeowners), owners of 13 floating homes moored at a facility
owned and operated by plaintiffs Gordon Jeffery and Margaret Jeffery (Jeffery),
appeal a summary judgment for unpaid increases in moor-age fees (rent). Jeffery cross-appeals the award of a single statutory attorneys fee in the consolidated superior court proceeding. We affirm the judgment of the Superior Court, but modify the effective date of the rent increase and remand for redetermination of statutory attorneys fees.
On May 29, 1979, Jeffery gave notice to the homeowners that moorage rates would increase approximately 20 percent, or $30 per month, effective July 1, 1979. The homeowners then petitioned the City of Seattle for factfinding pursuant to ordinance 107012.
A fact finder was appointed
on July 9, 1979, and a hearing was held September 5, 1979. The fact finder in his decision of September 27, 1979, concluded that not only was the proposed increase unreasonable, but "[a]ny increase in the fees currently charged would be unreasonable." Following the factfinding, Jeffery notified the homeowners that regardless of the fact finder's decision, the increased rental would take effect on September 8, 1979, with all arrearages due November 1, 1979. The homeowners continued to pay moorage fees but refused to pay the increase.
Jeffery brought 14 separate actions in district court against the delinquent homeowners, which were consolidated by agreement of the parties. Following judgment in Jeffery's favor, 13 of the homeowners appealed to the superior court for a trial de novo. The Superior Court granted Jeffery's motion for summary judgment and the homeowners appeal.
Effect of Fact Finder's Decision
The homeowners contend that under the Equity Ordinance, the fact finder's decision that the increase was unreasonable is binding on the parties and prevents Jeffery from charging an increased fee. They argue that if the city council had not intended the fact finder's decision to be binding, the ordinance would have explicitly so provided, as in the Educational Employment Relations Act, RCW 41.59.120(2), which provides that "the fact-finder shall make findings of fact and recommend terms of settlement . . . which recommendations shall be advisory only."
Our task in construing a statute is to give effect to the intent of the Legislature.
Janovich v. Herron,
91 Wn.2d 767, 592 P.2d 1096 (1979). We hold that the trial court did not err in concluding that the Legislature intended the fact finder's decision to have no binding effect.
The stated purpose of a statute is an important indicium of legislative intent.
Whatcom Cy. v. Langlie,
40 Wn.2d 855, 246 P.2d 836 (1952). The purpose of the ordinance, as expressed in its title, was to establish "a fact-finding process to aid the settlement of disputes over moorage fees between floating home owners and owners of floating home moorages." The factfinding is characterized
as
aiding
dispute settlement, not as finally settling the dispute.
Statements by the chairperson of the committee in charge of legislation have been used by courts in determining legislative intent.
Snow's Mobile Homes, Inc. v. Morgan,
80 Wn.2d 283, 494 P.2d 216 (1972). The chairman's comments indicate that the fact finder's decision was not intended to be binding on the parties.
Unconscionability
The homeowners next contend that by granting summary judgment to Jeffery the trial court denied them an opportunity to prove that the moorage fee increases were unconscionable, hence unenforceable at law. They cite
Schroeder v. Fageol Motors, Inc.,
86 Wn.2d 256, 544 P.2d 20 (1975), for the proposition that the issue of unconscionability may not be determined at summary judgment, and argue that they are entitled to a full hearing in order to present evidence of unconscionability.
While the court in
Schroeder,
after exploring the concept of unconscionability under the Uniform Commercial Code (UCC),
stated at page 262, "In accordance with
the requisites set forth above, a court is not authorized to dispose of this issue under the rules governing summary judgment", this statement is dicta and not binding on this court.
Schroeder
was an appeal from a judgment after trial and did not concern a summary judgment. The court made its statement as part of a general exposition on unconscionability and not as part of its holding.
See, e.g., State ex rel. Johnson v. Funkhouser,
52 Wn.2d 370, 325 P.2d 297 (1958).
We see no reason why principles of summary judgment should not apply to test the legal sufficiency of the facts underlying a claim of unconscionability. Although unconscionability is a matter of law to be decided by the trial court,
Schroeder,
at 262, the decision is one based on the factual circumstances surrounding the transaction in question.
Christiansen Bros. v. State,
90 Wn.2d 872, 586 P.2d 840 (1978). The purpose of summary judgment is to avoid a useless trial where there are no material facts at issue.
LaPlante v. State,
85 Wn.2d 154, 531 P.2d 299 (1975). If the material facts are undisputed, and when looked at in the light most favorable to the party alleging unconscionability are insufficient to establish unconsciona-
bility, there is no need for the trial court to inquire further. Absent a threshold showing of unconscionability sufficient to survive summary judgment, the issue disappears from the case.
To prevail on summary judgment, the moving party must present facts showing that it is entitled to judgment as a matter of law. Once the initial showing is made, the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial." CR 56(e);
LaPlante v. State, supra.
Jeffery's uncontroverted affidavit established the amount of the moorage fee increase and the homeowners' refusal to pay it, thereby meeting the initial burden. The homeowners responded with the affidavit of one of the individual homeowners, which contains the following relevant to the claimed unconscionability:
3. Because of a variety of circumstances including, most notably, a number of statutes and regulations restricting and regulating use of the waterfronts in and around Seattle, including Lake Union, there is no legal place to which she can move her floating home. There are not any additional places for existing floating homes in the Seattle area.
4. She has never had any choice as to the moorage fee to be paid to the Moorage Owners for moorage space for her floating home, or as to other terms and conditions of her tenancy. Except for the fact-finding process which enables her to obtain a determination of the reasonableness of the moorage fee demanded by the Moorage Owners, she has never had any ability to bargain about or otherwise have an effect upon the amount of the fee demanded. Her only choice other than through litigation is either to pay the amount demanded or move her floating home, and if she were to remove her floating home, she would have to dismantle it and sell it for scrap as there is no legal place in the area to put it other than where it is presently located.
6. The moorage fee demanded by the Moorage Owners is, under the circumstances, an unreasonable and unconscionable moorage fee, and should not be enforceable.
Jeffery responded with the affidavit of his attorney to the
effect that at the time of the increase and continuing to the present there was an established market for the sale of floating homes at prices varying from $40,000 to $80,000, and that as of May 13, 1980, two new houseboat moorages were available for rent in the Portage Bay area. This affidavit also related that the contested increase in moorage fees was less than the corresponding rise in the Consumer Price Index for the same period. The homeowners made no further response.
While the affidavits arguably raise issues of fact, such as the scarcity of moorages and the evanescence of the homeowners' lifestyle, none is material to the issue of unconscionability. What is material, and seems to us dis-positive, is the homeowners' failure to set forth unconscionable circumstances at the time of the initial contract, when they first decided to moor their homes at Jeffery's facility. The relevant inquiry when unconscionability is claimed is into the circumstances "at the time the contract is made." Restatement (Second) of Contracts § 208 (1981).
The record is barren as to the relative bargaining power of the parties at the time of the initial contract. The homeowners nowhere allege that the specter of moorage fee increases was not foreseeable. Nor do they contend that they were forced to live in floating homes, or that they are prevented from changing their lifestyle if they so choose. We must conclude, on this record, that they had the power, at the time of their initial bargain with Jeffery, to either contract for an acceptable moorage fee schedule or to live elsewhere.
See Christiansen Bros. v. State, supra.
Synonyms for unconscionable include "shocking to the conscience" and "monstrously harsh."
Montgomery Ward & Co. v. Annuity Bd.,
16 Wn. App. 439, 444, 556 P.2d 552 (1976). The moorage fee increase here before us is neither. In the absence of a showing of unconscionability sufficient to merit further inquiry, summary judgment was proper.
State Action in Violation of Due Process
We understand the homeowners to argue that if state action is present an unreasonable rent increase constitutes a deprivation of property without due process of law. They claim that there was a genuine issue of material fact as to the presence of state action, because the State owns and leases to Jeffery a portion of the land on which the moorage facility is situated. They also point to the statutes and regulations governing shoreline use and argue that the State has given Jeffery monopoly power over the owners of floating homes moored at the facility.
Even if we assume that the State's ownership of part of the submerged land used for the moorage facility brings the fee increase into the realm of state action sufficient to implicate the protections of the Fourteenth Amendment,
the homeowners have not raised a genuine issue of material fact as to the claimed due process violation. But for the bare assertion that imposition of an "unreasonable" moor-age fee increase violates the due process clause, the home
owners cite no authority to justify this request for judicial rent control. We will not consider an argument, absent citation of relevant authority, unless it is well taken on its face.
State v. Kroll,
87 Wn.2d 829, 558 P.2d 173 (1976).
Effective Date of the Fee Increase
Section 7 of ordinance 107012 reads in part:
The fact-finding proceedings shall be concluded either by agreement or by issuing a final decision within 60 days of the appointment of the fact-finder. No contested moor-age fee increase shall take effect until the conclusion of fact-finding proceedings . . .
The fact finder was appointed by the mayor on July 9, 1979, but did not announce his decision until September 27, 1979, 20 days past the 60-day deadline. The judgment of the trial court granted Jeffery recovery of the rent increases "from the effective date of September 7, 1979."
The homeowners contend that the plain language of the ordinance requires the fee increases to be effective September 27, 1979, the date the factfinding proceedings concluded. Jeffery argues that the ordinance suspends the increases 60 days pending factfinding, making the fee increase effective September 7, 1979.
Although the ordinance did not contemplate the issuance of a decision more than 60 days after the appointment of a fact finder, the record shows no objection by Jeffery to the fact finder's delay. By failing to make a timely objection at the end of the 60-day period Jeffery waived the right to the increases at that time. We modify the trial court's order to reflect an effective date for the increases of September 27, 1979, the date the factfinding process concluded.
Statutory Attorneys Fees
Jeffery brought 14 actions in the district court which were consolidated, upon the motion of all parties, "for all further proceedings herein, including trial." The district court entered 14 judgments in Jeffery's favor, allowing costs consisting in part of a $25 statutory attorneys fee against each defendant. On appeal to the superior court, Jeffery
again moved to consolidate, arguing
That all of the thirteen causes set forth above have virtually identical factual issues and legal issues. That all of the Defendants-Appellants are represented by one counsel and that it would effect an economy of time, on both the Court, the parties and the attorneys, as well as costs if they were consolidated for purposes of trial.
The actions were again "consolidated for all further proceedings. "
On granting Jeffery's single motion for summary judgment, the court entered 13 separate judgments against the homeowners. The superior court judgments granted Jeffery multiple statutory attorneys fees as costs for the district court action,
but awarded a single $35 statutory attorneys fee against defendant Weintraub for the superior court action. Both sides assign error to the determination of costs, the homeowners arguing against the multiple award of district court attorneys fees, and Jeffery contending on cross appeal that multiple fees should have been awarded in superior court as well.
An order of consolidation effectively discontinues the separate actions and creates a single new and distinct action; the fact that separate judgments are entered does not overcome the effect of the consolidation.
First Nat'l Bank v. Fowler,
51 Wash. 638, 99 P. 1034 (1909). A general order of consolidation "for all purposes" includes the rendition of a single judgment.
See Johnson v. California-Washington Timber Co.,
159 Wash. 214, 292 P. 418 (1930).
Despite the effect of a consolidation on the existence of the underlying separate actions, the Supreme Court has approved awards of multiple statutory attorneys fees under certain circumstances. In
Gray's Harbor Boom Co. v. McAmmant, 21
Wash. 465, 58 P. 573 (1899), the plaintiff brought separate actions against multiple defendants to
foreclose liens on cut timber. The actions were consolidated for trial. The court granted a nonsuit at the close of the plaintiff's case, entered separate judgments of dismissal against the plaintiff, and taxed costs including a statutory attorneys fee in each case. The Supreme Court affirmed the cost award, holding that each defendant "was entitled to the statutory costs awarded him."
Gray's Harbor Boom Co.,
at 469. In
Hanson v. Blackwell Motor Co.,
143 Wash. 547, 255 P. 939, 52 A.L.R. 851 (1927), two actions against Blackwell by separate parties for personal injuries arising out of a single auto accident were consolidated for trial. Following judgment for Blackwell, the court assessed costs against each plaintiff, including individual awards of statutory attorneys fees. The Supreme Court cited
Gray's Harbor Boom Co.
and affirmed the award of costs: "The cases were consolidated, as stated, for the purpose of trial. Separate judgments of dismissal were entered. The costs objected to were properly taxed."
Hanson,
at 556-57.
Although the court in these two cases upheld multiple awards of statutory attorneys fees once granted below, we do not believe that
Gray's Harbor Boom Co.
and
Hanson
give rise to a rule requiring multiple fees in all cases where separate actions are consolidated. The statutes, which provide only that the prevailing party is entitled to its costs and disbursements, including a $25 attorneys fee in district court, RCW 12.20.060, and a $35
attorneys fee in superior court, RCW 4.84.080, do not resolve the situation before us. Under RCW 4.84.190, decisions on cost awards not specifically covered by statute are left to the discretion of the trial court. We hold that the decision to allow a single fee for the consolidated action or a separate fee in each underlying action is within the sound discretion of the trial court.
Factors to be considered by the trial court in exercising iff. iiscretion on this issue include, but are not limited to,
the convergence or divergence of the factual and legal issues among the consolidated actions, the identity of interest among the multiple parties, the representation of the multiple parties by single or multiple counsel, and the necessity that the prevailing party expend greater time and effort in the litigation of the consolidated action than would have been necessary in a single action against one of the multiple parties.
It is appropriate that the trial court reassess costs in accord with the views expressed herein. Without some foundation in the record justifying different treatment in district and superior courts, Jeffery should recover either a single fee in both courts or multiple fees in both courts, not a single fee in superior court and multiple fees in district court.
The judgment as modified is affirmed, with costs to Jeffery,
and remanded for redetermination of statutory attorneys fees.
Durham, A.C.J., concurs.
Williams, J., concurs in the result.