Brian Nelson v. David Loessin

2020 WI App 72

COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2018AP2448

Complete Title of Case:

BRIAN NELSON AND STACY NELSON,

PLAINTIFFS-APPELLANTS,

PAUL R. ROSENTHAL, ELENA J. ROSENTHAL, MICHAEL M. EASTON
AND KARA N. EASTON,

INVOLUNTARY-PLAINTIFFS-APPELLANTS,

AURORA HEALTH CARE INC. HEALTH AND WELFARE PLAN AND
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,

INVOLUNTARY-PLAINTIFFS,

V.

DAVID LOESSIN AND ALLSTATE PROPERTY AND CASUALTY
INSURANCE COMPANY,

DEFENDANTS-RESPONDENTS.

Opinion Filed: October 28, 2020
Submitted on Briefs: October 31, 2019
Oral Argument:

JUDGES: Neubauer, C.J., Gundrum and Davis, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYS: On behalf of the plaintiffs-appellants and involuntary plaintiffs-
appellants, the cause was submitted on the briefs of Kent A. Tess-
Mattner and Amy Hetzner of Schmidt, Rupke, Tess-Mattner & Fox,
S.C., Brookfield.
Respondent
ATTORNEYS: On behalf of the defendants-respondents, the cause was submitted on
the brief of Dustin T. Woehl and John M. Swietlik, Jr. of Kasdorf,
Lewis & Swietlik, S.C., Milwaukee.

2
2020 WI App 72

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
October 28, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2018AP2448 Cir. Ct. No. 2018CV1384

STATE OF WISCONSIN IN COURT OF APPEALS

BRIAN NELSON AND STACY NELSON,

PLAINTIFFS-APPELLANTS,

PAUL R. ROSENTHAL, ELENA J. ROSENTHAL, MICHAEL M. EASTON
AND KARA N. EASTON,

INVOLUNTARY-PLAINTIFFS-APPELLANTS,

AURORA HEALTH CARE INC. HEALTH AND WELFARE PLAN AND STATE
FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,

INVOLUNTARY-PLAINTIFFS,

V.

DAVID LOESSIN AND ALLSTATE PROPERTY AND CASUALTY INSURANCE
COMPANY,

DEFENDANTS-RESPONDENTS.
No. 2018AP2448

APPEAL from an order of the circuit court for Racine County:
EUGENE A. GASIORKIEWICZ, Judge. Reversed and cause remanded with
directions.

Before Neubauer, C.J., Gundrum and Davis, JJ.

¶1 GUNDRUM, J. Paul and Elena Rosenthal and Michael and Kara
Easton (collectively “the Rosenthals and Eastons”) appeal from the circuit court’s
order1 denying their motion to dismiss the third-party complaint filed by David
Loessin and his insurer, Allstate Property and Casualty Insurance Company,
(collectively “Loessin and Allstate”) joining the Rosenthals and Eastons in a lawsuit
filed against Loessin and Allstate by Brian and Stacy Nelson. We conclude the
court erred in denying their motion; as a result, we reverse.

Background

¶2 On October 14, 2017, the Nelsons, the Rosenthals, and the Eastons
were traveling in a van driven by Paul Rosenthal when it was struck from behind by
a vehicle driven by Loessin, who was allegedly impaired by alcohol. All six in the
van are alleged to have suffered injuries. Having completed treatment for their
injuries, the Nelsons filed suit against Loessin and Allstate on August 2, 2018,
seeking compensatory and punitive damages. Loessin’s auto insurance policy with
Allstate afforded Loessin coverage in the amount of $100,000 per person and
$300,000 per occurrence.

1
This court granted leave to appeal the order. See WIS. STAT. RULE 809.50(3) (2017-18).

All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.

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No. 2018AP2448

¶3 On October 22, 2018, Loessin and Allstate filed a third-party
complaint naming the Rosenthals and Eastons as third-party defendants in the
Nelsons’ suit. The third-party complaint states it is being filed against the
Rosenthals and Eastons because each “may have suffered personal injuries as a
result of the automobile accident that is the subject of [the Nelsons’] lawsuit and
may assert a claim” against Loessin and Allstate. Relying upon WIS. STAT.
§ 803.03, “Joinder of persons needed for just and complete adjudication,” and WIS.
STAT. § 803.05, “Third-party practice,” the third-party complaint asserts that the
Rosenthals and Eastons “must be joined in this action” as they are “necessary parties
to [the Nelsons’] lawsuit because their absence leaves … Loessin and Allstate[]
subject to a substantial risk of incurring double, multiple or otherwise inconsistent
obligations by reason of their claimed interests.” The third-party complaint
acknowledges that Loessin and Allstate assert no actual “claim” against the
Rosenthals and Eastons2 but demands judgment in the form of a “[d]etermination of
any claim” of the Rosenthals and Eastons.

¶4 Three days after this filing, the Rosenthals and Eastons moved to
dismiss the third-party complaint on the basis that they were improperly joined in
the Nelsons’ suit. Accompanying the motion was the affidavit of counsel for the
Rosenthals and Eastons (who is also counsel for the Nelsons), in which counsel
averred that the Rosenthals and Eastons were “still actively treating [their injuries]
or documentation of their damages ha[d] not yet been compiled” and “[n]o demand
or negotiations have taken place with Allstate … because [the Rosenthals and

2
No party suggests that anyone other than Loessin bears any responsibility for causing the
accident.

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No. 2018AP2448

Eastons’] claims cannot be fully proven with the information that is currently
available” to counsel.

¶5 The circuit court denied the Rosenthals and Eastons’ dismissal
motion, stating that if the Rosenthals and Eastons “have no claim, they can simply
abort their claim brought in as a third-party defendant.” The court noted that the
Nelsons were seeking punitive damages through their complaint and, apparently
assuming the Rosenthals and Eastons would also seek punitive damages if they
eventually filed suit, expressed that “if indeed punitives are available in this case,”
it would “not [be a] good use of the court[’s] time” to hear testimony of Loessin’s
net worth “on one, two, or three different situations.” The court stated, however,
that it was “not sure [the Rosenthals and Eastons] should be third-party
defendants”—as Loessin and Allstate’s third-party complaint had named them—
adding that they instead “should be dubbed involuntary plaintiffs.” The court
ultimately held that the Rosenthals and Eastons were properly joined as permissive
parties under WIS. STAT. § 803.04 and added in a subsequent written order “that it
is in the interest of judicial economy to join them in the [Nelsons’] lawsuit.” The
Rosenthals and Eastons petitioned for leave to appeal, which petition we granted.

Discussion

¶6 In their third-party complaint, Loessin and Allstate identified WIS.
STAT. § 803.03 as a basis for joinder of the Rosenthals and Eastons in the Nelsons’
suit. Then, in briefing before the circuit court, they “agree[d] that [the Rosenthals
and Eastons] are not necessary parties [to the suit] under [§] 803.03.” Now on
appeal, Loessin and Allstate revert back to their original tune, arguing that the
Rosenthals and Eastons are necessary parties under that statute and therefore are
properly joined in the suit. Loessin and Allstate also assert that the Rosenthals and

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No. 2018AP2448

Eastons were properly joined as third-party defendants because they are permissive
parties under WIS. STAT. § 803.04 and additionally argue, for the first time, that
joinder is proper based upon WIS. STAT. § 803.07, Wisconsin’s interpleader statute.
The Rosenthals and Eastons contend that none of the grounds relied upon by Loessin
and Allstate provide a legal basis for joining them in the Nelsons’ suit. We agree
with the Rosenthals and Eastons and conclude that the circuit court erred in denying
their motion to dismiss Loessin and Allstate’s third-party complaint.

¶7 No facts are in dispute. We are, however, called upon to interpret
various statutes and apply them to the undisputed facts, which are matters of law we
review de novo. Associated Bank, N.A. v. Brogli, 2018 WI App 47, ¶22, 383 Wis.
2d 756, 917 N.W.2d 37. We begin with the question of interpleader.

WIS. STAT. § 803.07

¶8 In their third-party complaint and briefing before the circuit court,
Loessin and Allstate made no suggestion that the Rosenthals and Eastons were
properly joined based upon Wisconsin’s interpleader statute, WIS. STAT. § 803.07.
At the hearing on the Rosenthals and Eastons’ motion to dismiss the third-party
complaint, Loessin and Allstate’s only mention of interpleader was a passing
comment that they “don’t know if this is an interpleader claim or not at this time.”
Despite having forfeited any interpleader argument by failing to develop one before
the circuit court, see State v. Kaczmarski, 2009 WI App 117, ¶7, 320 Wis. 2d 811,
772 N.W.2d 702 (“We generally do not consider arguments not raised in the circuit
court.”), they nonetheless make this statute a primary focus on appeal. The plain
language of § 803.07, however, makes clear that this provision does not support
their third-party complaint.

¶9 WISCONSIN STAT. § 803.07 states:

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No. 2018AP2448

Persons having claims against the plaintiff may be joined as
defendants and required to interplead when their claims are
such that the plaintiff is or may be exposed to double or
multiple liability.… A defendant exposed to similar liability
may obtain such interpleader by way of cross claim or
counterclaim….

The first sentence of this statute does not apply because the Rosenthals and Eastons
have no “claim[] against the plaintiff[s],” the Nelsons. As to the last sentence, it
clarifies that “defendant[s],” such as Loessin and Allstate, who are exposed to
double or multiple liability, may obtain interpleader “by way of cross claim or
counterclaim.” Sec. 803.07 (emphasis added). Loessin and Allstate did not,
however, file a cross claim or counterclaim. Cf. Grubbs v. General Elec. Credit
Corp., 405 U.S. 699, 705 n.2 (1972) (noting that “the interpleader provided by [FED.
R. CIV. P.] 22 must have some nexus with a party already in the case”; thus, “a
defendant seeking interpleader must frame his pleading either as a cross-claim
seeking relief against a co-party already in the lawsuit, or as a counterclaim seeking
relief against the plaintiff”).

WIS. STAT. §§ 803.05 & 803.03

¶10 Although Loessin and Allstate identified in their third-party complaint
WIS. STAT. § 803.05, “Third-party practice,” as a primary legal basis for that
complaint, they make no reference to this statute in their appellate briefing. As
recognized in the third-party complaint, however, third-party practice is governed
by § 803.05. The statute provides in relevant part:

(1) At any time after commencement of the action, a
defending party, as a 3rd-party plaintiff, may cause a
summons and complaint to be served upon a person not a
party to the action who is or may be liable to the defending
party for all or part of the plaintiff’s claim against the
defending party, or who is a necessary party under [WIS.
STAT. §] 803.03.

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No. 2018AP2448

Sec. 803.05 (emphasis added). Because Loessin and Allstate’s third-party
complaint makes no allegation that the Rosenthals and Eastons are or may be liable
to Loessin and Allstate (the “defending party”/“3rd-party plaintiff”) for any part of
the Nelsons’ claim against Loessin and Allstate, the third-party complaint can only
stand if the Rosenthals and Eastons are found to be necessary parties to the Nelsons’
suit under § 803.03. Whether an individual is a necessary party is a question of law
we review de novo. Dairyland Greyhound Park, Inc. v. McCallum, 2002 WI App
259, ¶¶10-11, 258 Wis. 2d 210, 655 N.W.2d 474.

¶11 WISCONSIN STAT. § 803.03(1) provides that a person “shall be joined
as a party” in an action “if”:

(a) In the person’s absence complete relief cannot be
accorded among those already parties; or

(b) The person claims an interest relating to the subject of
the action and is so situated that the disposition of the action
in the person’s absence may:

1. As a practical matter impair or impede the person’s
ability to protect that interest; or

2. Leave any of the persons already parties subject to a
substantial risk of incurring double, multiple or otherwise
inconsistent obligations by reason of his or her claimed
interest.

¶12 Loessin and Allstate assert that WIS. STAT. § 803.03(1)(a) applies
because the Nelsons, the Rosenthals, and the Eastons all are “seeking recovery from
the same ‘stake’” and the Rosenthals and Eastons “need to be joined for a complete
and equitable apportionment and distribution” of that stake “to the Nelsons as well
as to the Eastons and Rosenthals.” (Emphasis added.) Loessin and Allstate misread
this statute. Under its plain language, the only question is whether complete relief
can be accorded among “those already parties” if the Rosenthals and Eastons are
not joined in the suit. The Rosenthals and Eastons obviously were not “already

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No. 2018AP2448

parties” when Loessin and Allstate filed their third-party complaint, and based upon
the record, there is simply no reason to believe complete relief cannot be accorded
among the Nelsons, Loessin, and Allstate.

¶13 Consideration of Field v. Volkswagenwerk AG, 626 F.2d 293, 301
(3rd Cir. 1980), highlights the inapplicability of WIS. STAT. § 803.03(1)(a) to this
case. See State v. Evans, 2000 WI App 178, ¶8 n.2, 238 Wis. 2d 411, 617 N.W.2d
220 (“[W]here a state rule mirrors [a] federal rule, we consider federal cases
interpreting the rule to be persuasive authority.”); see also Helgeland v. Wisconsin
Muns., 2008 WI 9, ¶129 & n.105, 307 Wis. 2d 1, 745 N.W.2d 1 (noting that
§ 803.03(1) “is based on Rule 19(a) of the Federal Rules of Civil Procedure”).3

¶14 In Field, van driver Ivana Field and her minor stepson, a passenger,
were injured in an accident in which Ivana’s husband, another passenger, was killed.
Field, 626 F.2d at 295. An action was filed against the vehicle manufacturer on
behalf of the minor and the deceased. Id. On the question of whether Ivana, who

3
Rule 19(a) of the Federal Rules of Civil Procedure reads in relevant part:

(a) Persons Required to Be Joined if Feasible.

(1) Required Party. A person who is subject to service of
process and whose joinder will not deprive the court of
subject-matter jurisdiction must be joined as a party if:

(A) in that persons’ absence, the court cannot accord
complete relief among existing parties; or

(B) that person claims an interest relating to the subject of
the action and is so situated that disposing of the action in the
person’s absence may:

(i) as a practical matter impair or impede the person’s
ability to protect the interest; or

(ii) leave an existing party subject to a substantial risk of
incurring double, multiple, or otherwise inconsistent
obligations because of the interest.

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No. 2018AP2448

had her own, individual claim against the manufacturer of the van, was a necessary
party, under FED. R. CIV. P. 19, to the action, the court determined she was not.
Field, 626 F.2d at 302.

¶15 In addressing whether “complete relief” could be accorded “among
those already parties,” the Field court noted that this provision “refers to relief as
between the persons already parties, not as between a party and the absent person
whose joinder is sought.” See id. at 301 (citation omitted). The court concluded:

If the right of either Michael Field [(the stepson)] or
Arthur Field’s estate to relief against VWAG were
established, these parties would be awarded a judgment; if
their claims are not sustained, their complaint would be
dismissed. In either event, the district court will be able to
grant complete relief as between the parties without the
joinder of Ivana, and, as we have shown above, it is
unnecessary to join Ivana as a party in order to enable
VWAG to defend against these claims.

Id.

¶16 As with the stepson and husband in Field, in the case now before us,
if the right of either of the Nelsons to relief against Loessin and Allstate is
established, he and/or she will be awarded a judgment; if either fails to sustain his
or her claim, the complaint will be dismissed as to that individual. See id. In either
case, the circuit court will “be able to grant complete relief as between [the Nelsons
and Loessin and Allstate] without the joinder of [the Rosenthals and Eastons].” See
id. As the Rosenthals and Eastons assert in the instant case, “[t]he Nelsons’ claims
for damages against Loessin and Allstate can be fully determined and resolved
without the involvement of the Rosenthals or the Eastons,” and thus, WIS. STAT.
§ 803.03(1)(a) provides no basis for the joining of the Rosenthals and Eastons as
necessary parties to the Nelsons’ suit.

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No. 2018AP2448

¶17 Loessin and Allstate also assert that the Rosenthals and Eastons are
properly joined under WIS. STAT. § 803.03(1)(b). Again, that provision provides
that a person must be joined as a party if:

The person claims an interest relating to the subject of the
action and is so situated that the disposition of the action in
the person’s absence may:

1. As a practical matter impair or impede the person’s
ability to protect that interest; or

2. Leave any of the persons already parties subject to a
substantial risk of incurring double, multiple or
otherwise inconsistent obligations by reason of his or her
claimed interest.

Sec. 803.03(1)(b).

¶18 To begin, noticeably absent from Loessin and Allstate’s third-party
complaint is any allegation that the Rosenthals and Eastons are “claim[ing] an
interest” related to the subject of the Nelsons’ suit. Indeed, the third-party complaint
states it is being filed against the Rosenthals and Eastons because each “may have
suffered personal injuries as a result of the automobile accident that is the subject of
[the Nelsons’] lawsuit and may assert a claim” against Loessin and Allstate.
(Emphasis added.) Furthermore, counsel for the Rosenthals and Eastons averred
that, at least at the time Loessin and Allstate filed their third-party complaint, neither
the Rosenthals nor the Eastons had engaged in negotiations with or made any
demand of Loessin and Allstate. Thus, even if they may have had a “claim” that
they could potentially bring against Loessin and Allstate—simply by virtue of being
injured in the crash—they were not actually “claim[ing an] interest” related to the
subject of the Nelsons’ suit, which is required for WIS. STAT. § 803.03(1)(b) to
apply. As a result, § 803.03(1)(b) does not support joinder of the Rosenthals and
Eastons.

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No. 2018AP2448

¶19 Furthermore, as to WIS. STAT. § 803.03(1)(b)1. specifically, “the
relevant inquiry” related to whether a prospective party has an “interest” is “not
whether a prospective party has a legal or legally protected interest in the subject of
an action, but whether the person or entity has an interest of such direct and
immediate character that [the prospective party] will either gain or lose by the direct
operation of the judgment.” Koschkee v. Evers, 2018 WI 82, ¶21, 382 Wis. 2d 666,
913 N.W.2d 878 (alteration in original; emphasis added) (citing Dairyland
Greyhound Park, Inc., 258 Wis. 2d 210, ¶15). Here, the Rosenthals and Eastons
do not have an interest of such direct and immediate character that they will gain or
lose by direct operation of a judgment in the Nelsons’ suit.

¶20 Under Loessin’s policy with Allstate, insurance coverage is limited to
$100,000 per person and $300,000 per occurrence. Thus, while the record provides
no clear indication of the value of either of the Nelson’s claims, much less reason
to believe each of the Nelsons would be awarded $100,000 based upon his/her
injuries, even if each was awarded that amount, that $200,000 would not exhaust
the limits of the policy. Moreover, the record also provides no indication of the
extent of the Rosenthals and Eastons’ injuries from which we could even reasonably
speculate that if they did make claims against Loessin and Allstate, that those claims
would come close to exhausting the $300,000 per occurrence limit when added to
any recovery of the Nelsons. As Loessin and Allstate themselves acknowledge in

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No. 2018AP2448

their response brief, they “can only guess as to the potential value” of the Rosenthals
and Eastons’ claims.4

¶21 Thus, when Loessin and Allstate filed their third-party complaint, the
Rosenthals and Eastons’ interests in the Nelsons’ suit were more speculative and
tangential than “of such direct and immediate character that [they would] either gain
or lose by the direct operation of the judgment.” See Koschkee, 382 Wis. 2d 666,
¶21 (emphasis added; citation omitted). On this record, we cannot conclude “[a]s a
practical matter,” see WIS. STAT. § 803.03(1)(b)1., that the Rosenthals’ or Eastons’
ability to protect their interests may be impaired or impeded if they are not joined
in the Nelsons’ suit, and thus, § 803.03(1)(b)1. does not support Loessin and
Allstate’s claim that the Rosenthals and Eastons are necessary parties to the
Nelsons’ suit.5

¶22 Loessin and Allstate also claim that the Rosenthals and Eastons are
necessary parties to the Nelsons’ suit under WIS. STAT. § 803.03(1)(b)2. This
provision provides that a person must be joined in a lawsuit if:

(b) The person claims an interest relating to the subject
of the action and is so situated that the disposition of the
action in the person’s absence may:

4
The record also indicates that at least certain of the Rosenthals and Eastons have
underinsured motorist coverage available to them as counsel for the Rosenthals and Eastons has
averred that “[g]iven the UIM coverage under various policies owned by [the Rosenthals and
Eastons], it appears to provide enough coverage for all of these injured parties to be fully
compensated for their compensatory damages.” Furthermore, Loessin himself is a potential source
of funds, if awards to the Nelsons, the Rosenthals, and the Eastons should exceed the $300,000
limit.
5
This conclusion is only bolstered by the fact that the Rosenthals and Eastons—who
would obviously have the best knowledge of the extent of their injuries—are the ones arguing to
be kept out of the Nelsons’ suit. If there was a significant risk they could lose out on financial
recovery based upon the “direct operation of the judgment” in the Nelsons’ suit, they would
presumably be fighting to be joined in the suit.

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No. 2018AP2448

….

2. Leave any of the persons already parties subject to a
substantial risk of incurring double, multiple or otherwise
inconsistent obligations by reason of his or her claimed
interest.

Id. As already indicated, the Rosenthals and Eastons are not necessary parties under
§ 803.03(1)(b)2. because they were not “claim[ing] an interest” related to the crash
at the time Loessin and Allstate filed their third-party complaint joining them in the
Nelsons’ suit. See supra ¶18. Nevertheless, we will consider whether
§ 803.03(1)(b)2. would otherwise require the joinder of the Rosenthals and Eastons.

¶23 At the outset, we note that in their brief-in-chief, the Rosenthals and
Eastons provide extensive argument for why they are not necessary parties under
this subdivision. Loessin and Allstate do not directly respond to these arguments
but instead revert back to asserting that they are necessary parties because of the
interpleader statute, WIS. STAT. § 803.07. This is an insufficient response. To
begin, WIS. STAT. § 803.03(1)(b)2. makes no reference to § 803.07, and thus this
latter statute plays no role in our consideration of the former. Furthermore, as we
have already explained, § 803.07 has no application to this case. See supra ¶¶8-9.

¶24 Loessin and Allstate assert that “[f]ailing to join the [Rosenthals and
Eastons] would … expose Loessin to the risk of inconsistent obligations for punitive
damages.” Loessin and Allstate state that the Nelsons, the Rosenthals, and the
Eastons should not be “entitled to up to five attempts at proving the exact same
thing—that Loessin’s conduct rose to the level warranting punishment in the form
of punitive damages” and assert, briefly, that it would be a “waste [of] judicial
resources” to allow the Rosenthals and Eastons more than one kick at the cat to
prove punitive damages.

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No. 2018AP2448

¶25 Again, at the time the third-party complaint was filed, the Rosenthals
and Eastons had not engaged in negotiations with Loessin and Allstate, made a
demand of them, or filed suit against them, much less filed a suit seeking punitive
damages. Additionally, Loessin and Allstate write as if any claims of the six
individuals should be treated as one collective claim, but they provide no legal
authority suggesting that separate, individual lawsuits arising out of the same
accident are not permissible.6 They also provide no legal authority to support their
assertion that consideration of judicial resources is a basis for joinder under WIS.
STAT. § 803.03(1)(b)2. Loessin and Allstate additionally develop no argument that
individual lawsuits would create a “substantial risk of incurring double, multiple or
otherwise inconsistent obligations” and fail to respond to the Rosenthals and
Eastons’ extensive briefing and legal authority regarding the difference between
inconsistent “obligations” and inconsistent “results.”7 Here, Loessin and Allstate

6
The Field v. Volkswagenwerk AG, 626 F.2d 293, 301 (3rd Cir. 1980), court noted:

[A]s Professor Moore has emphasized, … the possibility of a
subsequent adjudication that may result in a judgment that is
inconsistent as a matter of logic, [does not] trigger the application
of Rule 19. For when, as alleged here, “several persons are injured
by the same tort and proof of damage is individual, the fact that
want of estoppel may leave a defendant who has defended
successfully against one of the injured parties with the risk that he
will be liable to another in a subsequent suit does not make it
necessary that all of the punitive plaintiffs … be joined in the same
suit.”

Id. at 301-02 (citing 3A MOORE’S FEDERAL PRACTICE § 1907-1(2.-2) (2d ed. 1979)). “While it is
true,” the court added, “that the Federal Rules encourage the joinder of parties where such joinder
would appear to avoid multiple actions or unnecessary delay and expense, this practice should not
penalize bona fide litigants who have a valid cause of action, choose the forum which they think
proper, and ask for specific relief.” Field, 626 F.2d at 302.
7
We find some of this authority instructive:

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No. 2018AP2448

argue about inconsistent results; however, § 803.03(1)(b)2. mandates joinder only
in the circumstance of double, multiple or inconsistent obligations.

¶26 Because “none of the criteria set forth in WIS. STAT. § 803.03(1) is
fulfilled,” that provision “cannot serve as authority for joining [the Rosenthals and
Eastons] as … necessary part[ies].” See Koschkee, 382 Wis. 2d 666, ¶23. We
concur with Loessin and Allstate’s concession in their briefing before the circuit
court that the Rosenthals and Eastons “are not necessary parties [to the Nelsons’
suit] under [§] 803.03.”

“Inconsistent obligations” are not … the same as inconsistent
adjudications or results. Inconsistent obligations occur when a
party is unable to comply with one court’s order without breaching
another court’s order concerning the same incident. Inconsistent
adjudications or results, by contrast, occur when a defendant
successfully defends a claim in one forum, yet loses on another
claim arising from the same incident in another forum. Unlike a
risk of inconsistent obligations, a risk that a defendant who has
successfully defended against a party may be found liable to
another party in a subsequent action arising from the same
incident—i.e., a risk of inconsistent adjudications or results—does
not necessitate joinder of all of the parties into one action pursuant
to FED. R. CIV. P. 19(a). Moreover, where two suits arising from
the same incident involve different causes of action, defendants
are not faced with the potential for double liability because
separate suits have different consequences and different measures
of damages.

Delgado v. Plaza Las Americas, Inc., 139 F.3d 1, 3 (1st Cir. 1998) (citations omitted).

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No. 2018AP2448

WIS. STAT. § 803.04

¶27 At the hearing on the Rosenthals and Eastons’ motion to dismiss and
in its written order, the circuit court stated that it was denying the motion and
sustaining the joinder of the Rosenthals and Eastons in the Nelsons’ suit based solely
on WIS. STAT. § 803.04, “Permissive joinder of parties.” Despite Loessin and
Allstate making no mention of § 803.04 in their third-party complaint, they argue
on appeal that § 803.04 provides another basis for joinder. They are mistaken.

¶28 Whether a matter is permissibly joinable under WIS. STAT. § 803.04
is a question of law we review independently. See Kluth v. General Cas. Co., 178
Wis. 2d 808, 815, 505 N.W.2d 442 (Ct. App. 1993); Bourne v. Melli Law, S.C.,
No. 2017AP1166, unpublished slip op. ¶¶18-20 (WI App Nov. 21, 2018).

¶29 WISCONSIN STAT. § 803.04(1) provides:

(1) PERMISSIVE JOINDER. All persons may join in one action
as plaintiffs if they assert any right to relief jointly, severally,
or in the alternative in respect of or arising out of the same
transaction, occurrence, or series of transactions or
occurrences and if any question of law or fact common to all
these persons will arise in the action. All persons may be
joined in one action as defendants if there is asserted against
them jointly, severally, or in the alternative, any right to
relief in respect of or arising out of the same transaction,
occurrence, or series of transactions or occurrences and if
any question of law or fact common to all defendants will
arise in the action. A plaintiff or defendant need not be
interested in obtaining or defending against all the relief
demanded. Judgment may be given for one or more of the
plaintiffs according to their respective rights to relief, and
against one or more defendants according to their respective
liabilities.

(Emphasis added.) In their briefing, Loessin and Allstate make scant reference to
the actual language of § 803.04 and fail to sufficiently develop an argument for why
the Rosenthals and Eastons are joinable to the Nelsons’ suit under this statute. See

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No. 2018AP2448

Barakat v. DHSS, 191 Wis. 2d 769, 786, 530 N.W.2d 392 (Ct. App. 1995)
(reviewing court need not address “amorphous and insufficiently developed”
arguments). Nevertheless, we will address § 803.04.

¶30 The first two sentences provide the operative basis for permissive
joinder, and neither applies to this case. As to the first sentence, it does not apply
because at the time the third-party complaint was filed, the Rosenthals and Eastons
were not seeking to “join in” the Nelsons’ suit “as plaintiffs” and were not
“assert[ing] any right to relief.” See Field, 626 F.2d at 299 (expressing that under
FED. R. CIV. P. 20, upon which WIS. STAT. § 803.04 is based, see Kluth, 178 Wis. 2d
at 817-18, “joinder of plaintiffs ‘is at the option of the plaintiffs;’ it cannot be
demanded as a matter of right by the defendant” (emphasis added)). As to the
second sentence, it does not apply because the Rosenthals and Eastons were not
joined in the Nelsons’ suit as “defendants” but as third-party defendants. We see
no basis under which § 803.04 supports the joining of the Rosenthals and Eastons
in the Nelsons’ suit.

¶31 Because Loessin and Allstate have presented no lawful basis for their
third-party complaint joining the Rosenthals and Eastons in the Nelsons’ suit as
third-party defendants, we remand this matter to the circuit court for dismissal of
the third-party complaint.

By the Court.—Order reversed and cause remanded with directions.

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