Telma Moraes v. Didi Wesler & Simony Wesler

NOT FOR PUBLICATION WITHOUT THE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

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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.

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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.

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 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

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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

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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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