                 NOT FOR PUBLICATION WITHOUT THE
                APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-5786-13T4

TELMA MORAES,
                                       APPROVED FOR PUBLICATION
     Plaintiff-Appellant,
                                          February 23, 2015
v.
                                          APPELLATE DIVISION
DIDI WESLER & SIMONY WESLER,

     Defendants-Respondents.
_________________________________

TELMA MORAES,

     Plaintiff-Appellant,

v.

WILLIAM TAYLOR and STATE FARM
INSURANCE COMPANY,

     Defendants-Respondents.
__________________________________

         Submitted February 3, 2015 – Decided February 23, 2015

         Before Judges Fisher, Nugent, and Accurso.

         On appeal from interlocutory orders of
         Superior Court of New Jersey, Law Division,
         Essex County, Docket No. L-8101-12.

         Blume, Donnelly, Fried, Forte, Zerres, &
         Molinari, P.C., attorneys for appellant
         (John W. Gregorek, on the brief).

         Respondents have not filed briefs.
       The opinion of the court was delivered by

NUGENT, J.A.D.

       On leave granted, plaintiff Telma Moraes appeals from the

Law Division orders that denied her motion to consolidate her

two personal injury actions and her motion for reconsideration,

both     unopposed.             The        trial       court     denied       plaintiff's

consolidation motion on a record that disclosed no significant

or complex liability issue in either action, overlooked that

trying    the    actions       separately         could      result   in    inconsistent

verdicts,       and   provided        no    appropriate         explanation      for   its

decision.        For those reasons, we conclude the court misapplied

its discretion by denying the motion to consolidate the two

actions.     Accordingly, we reverse and remand to the trial court

to consolidate the cases for discovery and trial.

       Plaintiff was injured in a November 11, 2011 accident when

an oncoming car crossed the road's center line into plaintiff's

lane of travel and struck the car plaintiff was driving; facts

the    defendant      driver     admitted         in   her     interrogatory     answers.

According       to    plaintiff's          medical      providers,         the   injuries

plaintiff sustained in the accident included bulging discs and a

herniated disc in her cervical spine, a bulging disc in her

lumbar     spine,     and   an    injury          to   her     left   knee.       Seeking




                                              2                                  A-5786-13T4
compensation for her injuries, plaintiff commenced a personal

injury action by filing a complaint on November 12, 2012.1

      Less than a year later, on September 26, 2013, plaintiff

was injured in a second accident when a car struck the rear of

the   car   she    was   driving.         According    to    her    primary    medical

provider,     as   a     result    of   the    September       2013       accident   she

suffered, among other injuries, bulging discs and a herniated

disc in her cervical spine, bulging discs in her lumbar spine,

and aggravations of her previous cervical and lumbar injuries.

Seeking     compensation     for    her    injuries,    plaintiff          commenced    a

personal injury action by filing a complaint on                            January 21,

2014.2

      The    following       month,       plaintiff         filed     a     motion     to

consolidate the actions.            The motion was unopposed.3                 At that

time, plaintiff did not have a medical report comparing the


1
  Plaintiff has not included a copy of the complaint.        The
pleadings that are included have a 2012 docket number and
plaintiff's brief states the complaint was filed on November 12,
2012.
2
  Plaintiff has not included a copy of the complaint.       The
pleadings that are included have a 2014 docket number and
plaintiff's brief states the complaint was filed on January 21,
2014.
3
  The court stamped its order with a list of "Papers Considered,"
which included "opposed" and "unopposed," but did not check off
any of the lines next to the items included.            Plaintiff
represents in her brief that the motion was unopposed.



                                           3                                   A-5786-13T4
injuries plaintiff sustained in the two accidents.                            The court

denied the motion, explaining at the bottom of the order in a

note that states in its entirety:

            [O]n the propriety of an order consolidating
            two   actions   after  separate  trials   on
            liability, the court has taken this and
            consolidation of the liability and damages
            issue in one trial and given the lack of
            closeness in time, separate accidents but
            common issues of injury; confusion [of]
            liability combined trials, and exercising
            trial judge discretion in consolidation deny
            the application.

      Following    the       denial    of    the     motion,   plaintiff's      medical

expert     wrote   a    report        in    which     he   compared    the     injuries

plaintiff sustained in the two accidents and discussed how each

had contributed to the injuries.                    A medical expert retained by

the   tortfeasor       who    caused       the    first    accident    also    wrote    a

report,    opining     that    "any        ongoing    symptoms,   to   a     reasonable

degree of medical probability, relate to the [second] accident."

Plaintiff filed a motion for reconsideration and submitted both

reports.     The court denied the motion in an order it entered

without explanation.4          Plaintiff then filed a motion for leave to

file an interlocutory appeal.                We granted the motion.




4
  Once again the court stamped its order with a list of "Papers
Considered," which included "opposed" and "unopposed," but did
not check off any of the lines next to the items included; nor
does the order reference an oral or written explanation.



                                              4                                A-5786-13T4
       The    rule     that      authorizes           consolidation         of     actions,       Rule

4:38-1,      states     in       subsection          (a):    "When    actions       involving       a

common       question       of     law        or    fact     arising        out    of    the    same

transaction       or    series           of        transactions       are     pending      in     the

Superior Court, the court on a party's or its own motion may

order the actions consolidated."                            A trial court's decision to

grant    or    deny     a     party's          motion       to    consolidate           actions    is

discretionary.           Ibid.;          see        also    Union    Cnty.        Imp.    Auth.    v.

Artaki, LLC, 392 N.J. Super. 141, 149 (App. Div. 2007).

       We will not disturb a trial court's exercise of discretion

absent an abuse of such discretion.                                 "Although the ordinary

'abuse    of    discretion'         standard             defies     precise       definition,      it

arises when a decision is 'made without a rational explanation,

inexplicably departed from established policies, or rested on an

impermissible basis.'"               Flagg v. Essex Co. Prosecutor, 171 N.J.

561,    571    (2002)        (quoting          Achacoso-Sanchez             v.    Immigration       &

Naturalization Service, 779 F.2d 1260, 1265 (7th Cir. 1985)).

An abuse of discretion also arises when "the discretionary act

was not premised upon consideration of all relevant factors, was

based upon consideration of irrelevant or inappropriate factors,

or amounts to a clear error in judgment."                             Masone v. Levine, 382

N.J. Super. 181, 193 (App. Div. 2005).                            Here, we are constrained




                                                     5                                     A-5786-13T4
to    conclude    that    the    trial     court    abused       its    discretion      by

denying plaintiff's motion.

       The trial court noted that the liability issues in the two

accidents involve separate questions of law and fact.                          However,

the liability of the respective defendants appears to be rather

straightforward.          The defendant driver in the first accident

admitted     in   interrogatory       answers      that    she    swerved      into    the

oncoming lane of traffic.             The defendant driver in the second

accident     failed      to   maintain     control    of     his       vehicle,     which

collided with the rear of the vehicle plaintiff was driving.

The   defendant     driver      in   the   second    accident          and   action    was

negligent.        Dolson v. Anastasia, 55 N.J. 2, 10 (1969).                            Of

course, the trial court did not have the benefit of depositions

or other discovery concerning liability when it made its ruling.

Nevertheless, on the record before it, it appeared that both

defendants were negligent and plaintiff was not.

       The   damage    issues    in   plaintiff's         actions      involve    common

questions of law and fact, a proposition that the trial court

acknowledged.         In fact, absent consolidation, two juries could

reach inconsistent verdicts if                 the jury in the first action

attributes plaintiff's continuing symptoms to the injuries she

sustained in the second accident, and the jury in the second




                                           6                                     A-5786-13T4
action attributes plaintiff's continuing symptoms to permanent

injuries she sustained in the first accident.

    To the extent the court was concerned that the liability

issues would somehow confuse the jury if tried together, there

was no rational explanation for that concern, Flagg, supra, 171

N.J. at 571, and as the court overlooked the possibility of

inconsistent   damage   verdicts,      its   decision   "was   not   premised

upon consideration of all relevant factors,"              Massone, supra,

382 N.J. Super. at 193.        The court provided no other explanation

for its decision.

    For   those     reasons,    we    conclude   that    the   trial    court

misapplied its discretion.           Accordingly, we reverse and remand

for consolidation of the cases for discovery and trial.

    Reversed and remanded.




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