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:
2

Appellant

ATTORNEYS: On behalf of the plaintiffs-appellants and involuntary plaintiffsappellants, the cause was submitted on the briefs of Kent A. TessMattner 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.
2020 WI App 72

COURT OF APPEALS

DECISION

DATED AND FILED

October 28, 2020

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

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

2

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.
No. 2018AP2448

3

¶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.
No. 2018AP2448

4

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 
No. 2018AP2448

5

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:
No. 2018AP2448

6

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.
No. 2018AP2448

7

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 
No. 2018AP2448

8

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.
No. 2018AP2448

9

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. 
No. 2018AP2448

10

¶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. 
No. 2018AP2448

11

¶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 
No. 2018AP2448

12

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.
No. 2018AP2448

13

 ....

 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.
No. 2018AP2448

14

¶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:
No. 2018AP2448

15

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). 
No. 2018AP2448

16

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
No. 2018AP2448

17

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.