Misjoinder and nonjoinder of parties.
Substitution of parties.
Ch. 803 Note
NOTE: Chapter 803 was created by Sup. Ct. Order, 67 Wis. 2d 585, 638 (1975), which contains explanatory notes. Statutes prior to the 1983-84 edition also contain these notes.
Parties plaintiff and defendant; capacity. 803.01(1)(1)
Real party in interest.
No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.
A personal representative, guardian, bailee, or trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in the party's name without joining the person for whose benefit the action is brought. A partner asserting a partnership claim may sue in the partner's name without joining the other members of the partnership, but the partner shall indicate in the pleading that the claim asserted belongs to the partnership.
(3) Minors or individuals alleged or adjudicated incompetent. 803.01(3)(a)(a)
Appearance by guardian or guardian ad litem.
If a party to an action or proceeding is a minor, or if a party is adjudicated incompetent or alleged to be incompetent, the party shall appear by an attorney, by the guardian of the estate of the party who may appear by attorney, or by a guardian ad litem who may appear by an attorney. A guardian ad litem shall be appointed in all cases in which the minor or individual alleged to be incompetent has no guardian of the estate, in which the guardian fails to appear and act on behalf of the ward or individual adjudicated incompetent, or in which the interest of the minor or individual adjudicated incompetent is adverse to that of the guardian. Except as provided in s. 807.10
, if the guardian does appear and act and the interests of the guardian are not adverse to the minor or individual adjudicated incompetent, a guardian ad litem may not be appointed. Except as provided in s. 879.23 (4)
, if the interests of the minor or individual alleged to be or adjudicated incompetent are represented by an attorney of record, the court shall, except upon good cause stated in the record, appoint that attorney as the guardian ad litem.
The guardian ad litem shall be appointed by a circuit court of the county where the action is to be commenced or is pending, except that the guardian ad litem shall be appointed by a circuit court commissioner of the county in actions to establish paternity that are before the circuit court commissioner.
When the plaintiff is a minor 14 years of age or over, the guardian ad litem shall be appointed upon the plaintiff's application or upon the state's application under s. 767.407 (1) (c)
; or if the plaintiff is under that age or is adjudicated incompetent or alleged to be incompetent, upon application of the plaintiff's guardian or of a relative or friend or upon application of the state under s. 767.407 (1) (c)
. If the application is made by a relative, a friend, or the state, notice thereof must first be given to the guardian if the plaintiff has one in this state; if the plaintiff has none, then to the person with whom the minor or individual adjudicated incompetent resides or who has the minor or individual adjudicated incompetent in custody.
When the defendant is a minor 14 years of age or over, the guardian ad litem shall be appointed upon the defendant's application made within 20 days after the service of the summons or other original process; if the defendant is under that age or neglects to so apply or is adjudicated incompetent or alleged to be incompetent, then upon the court's own motion or upon the application of any other party or any relative or friend or the defendant's guardian upon such notice of the application as the court directs or approves.
If the appointment, for a plaintiff or a defendant, is after the commencement of the action, it shall be upon motion entitled in the action. If the appointment is for a plaintiff and is made before the action is begun, the petition for appointment shall be entitled in the name of the action proposed to be brought by the minor or individual adjudicated incompetent or alleged to be incompetent, and the appointment may be made before the summons is served. Upon the filing of a petition for appointment before summons, the clerk may impose the fee required for the commencement of an action, but in that event no additional commencement fee may be imposed when the summons is filed.
The motion or petition under subd. 4.
shall state facts showing the need and authority for the appointment. The hearing on the motion or petition under subd. 4.
, if made by a minor or an individual adjudicated incompetent or alleged to be incompetent for the minor's or individual's guardian ad litem, may be held without notice and the appointment made by order. If the motion or petition is made for a minor or an individual adjudicated incompetent or alleged to be incompetent who is an adverse party, the hearing shall be on notice.
If a compromise or a settlement of an action or proceeding to which an unrepresented minor or individual adjudicated incompetent or alleged to be incompetent is a party is proposed, a guardian ad litem shall be appointed, upon petition in a special proceeding, to protect the interest of the minor or individual even though commencement of an action is not proposed. Any compromise or settlement shall be subject to s. 807.10
If at any time prior to the entry of judgment or final order, the court finds that either a minor, or a person believed by the court to be mentally incompetent to have charge of his or her affairs, has not been represented in the action or proceeding as provided in par. (a)
, there shall be no further proceedings until a guardian ad litem is appointed. In making such appointment, the court shall fix a reasonable time within which the guardian ad litem may move to vacate or strike any order entered or action taken during the period when a guardian ad litem was required; and as to all matters to which objection is not made, the guardian ad litem and the ward shall be bound. Any such motion by a guardian ad litem shall be granted as a matter of right.
If the court finds after the entry of judgment or final order that a person, who at the time of entry of judgment or final order was a minor or an individual adjudicated or alleged to be incompetent, was not represented in the action or proceeding by an attorney of record or otherwise represented as provided in par. (a)
the judgment or order shall be vacated on motion of:
The minor or individual adjudicated or alleged to be incompetent, for whom no appointment was made, at any time prior to the expiration of one year after the disability is removed; or
The personal representative of the minor or individual adjudicated or alleged to be incompetent at any time prior to the expiration of one year after the death of the minor or individual.
The county in which proceedings are brought must pay the fee of the appointed guardian ad litem. Romasko v. Milwaukee, 108 Wis. 2d 32
, 321 N.W.2d 123
Sub. (3) (a) requires that, in all cases, a minor who is a party to an action must have a court-appointed general guardian of the property or a guardian ad litem. To be general guardians, parents must to be appointed by the court. The parent's attorney does not represent the minor unless the attorney has also been appointed guardian ad litem or general guardian. Jensen v. McPherson, 2002 WI App 298
, 258 Wis. 2d 962
, 655 N.W.2d 487
Joinder of claims and remedies. 803.02(1)(1)
A party asserting a claim to relief as an original claim, counterclaim, cross claim, or 3rd-party claim, may join, either as independent or as alternate claims, as many claims, legal or equitable, as the party has against an opposing party.
Whenever a claim is one heretofore cognizable only after another claim has been prosecuted to a conclusion, the 2 claims may be joined in a single action; but the court shall grant relief in that action only in accordance with the relative substantive rights of the parties. In particular, a plaintiff may state a claim for money and a claim to have set aside a conveyance fraudulent as to the plaintiff, without first having obtained a judgment establishing the claim for money.
Sup. Ct. Order, 67 Wis. 2d 585, 642 (1975); 1975 c. 218
; 2005 a. 253
; 2007 a. 97
Joinder of persons needed for just and complete adjudication. 803.03(1)(1)
Persons to be joined if feasible.
A person who is subject to service of process shall be joined as a party in the action if:
In the person's absence complete relief cannot be accorded among those already parties; or
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:
As a practical matter impair or impede the person's ability to protect that interest; or
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.
(2) Claims arising by subrogation, derivation and assignment. 803.03(2)(a)(a)
Joinder of related claims.
A party asserting a claim for affirmative relief shall join as parties to the action all persons who at the commencement of the action have claims based upon subrogation to the rights of the party asserting the principal claim, derivation from the principal claim, or assignment of part of the principal claim. For purposes of this section, a person's right to recover for loss of consortium shall be deemed a derivative right. Any public assistance recipient or any estate of such a recipient asserting a claim against a 3rd party for which the public assistance provider has a right of subrogation or assignment under s. 49.89 (2)
shall join the provider as a party to the claim. Any party asserting a claim based upon subrogation to part of the claim of another, derivation from the rights or claim of another, or assignment of part of the rights or claim of another shall join as a party to the action the person to whose rights the party is subrogated, from whose claim the party derives his or her rights or claim, or by whose assignment the party acquired his or her rights or claim.
Agree to have his or her interest represented by the party who caused the joinder.
If the party joined chooses to participate in the prosecution of the action, the party joined shall have an equal voice with other claimants in the prosecution.
Except as provided in par. (bm)
, if the party joined chooses to have his or her interest represented by the party who caused the joinder, the party joined shall sign a written waiver of the right to participate that shall express consent to be bound by the judgment in the action. The waiver shall become binding when filed with the court, but a party may withdraw the waiver upon timely motion to the judge to whom the case has been assigned with notice to the other parties. A party who represents the interest of another party and who obtains a judgment favorable to the other party may be awarded reasonable attorney fees by the court.
If the party joined moves for dismissal without prejudice as to his or her claim, the party shall demonstrate to the court that it would be unjust to require the party to prosecute the claim with the principal claim. In determining whether to grant the motion to dismiss, the court shall weigh the possible prejudice to the movant against the state's interest in economy of judicial effort.
Joinders because of implication of medical assistance.
If the department of health services is joined as a party pursuant to par. (a)
and s. 49.89 (2)
because of the provision of benefits under subch. IV of ch. 49
, the department of health services need not sign a waiver of the right to participate in order to have its interests represented by the party that caused the joinder. If the department of health services makes no selection under par. (b)
, the party causing the joinder shall represent the interests of the department of health services and the department of health services shall be bound by the judgment in the action.
Scheduling and pretrial conferences.
At the scheduling conference and pretrial conference, the judge to whom the case has been assigned shall inquire concerning the existence of and joinder of persons with subrogated, derivative or assigned rights and shall make such orders as are necessary to effectuate the purposes of this section. If the case is an action to recover damages based on alleged criminally injurious conduct, the court shall inquire to see if an award has been made under subch. I of ch. 949
and if the department of justice is subrogated to the cause of action under s. 949.15
(3) Determination by court whenever joinder not feasible.
If any such person has not been so joined, the judge to whom the case has been assigned shall order that the person be made a party. If the person should join as a plaintiff but refuses to do so, the person may be made a defendant, or, in a proper case, an involuntary plaintiff. If a person as described in subs. (1)
cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include:
To what extent a judgment rendered in the person's absence might be prejudicial to the person or those already parties;
The extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided;
Whether a judgment rendered in the person's absence will be adequate; and
Whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.
(4) Pleading reasons for nonjoinder.
A pleading asserting a claim for relief shall state the names, if known to the pleader, of any persons as described in subs. (1)
who are not joined, and the reasons why they are not joined.
(5) Exception of class actions.
This section is subject to s. 803.08
When the constitutionality of a statute is challenged in an action other than a declaratory judgment action, the attorney general must be served, but failure to do so at the trial level was cured by service at the appellate level. In Matter of Estate of Fessler, 100 Wis. 2d 437
, 302 N.W.2d 414
Sub. (2) (b) requires a subrogated party to choose one of the listed options or risk dismissal with prejudice. Radloff v. General Casualty Co. 147 Wis. 2d 14
, 432 N.W.2d 597
(Ct. App. 1988).
The mere presence of a party does not constitute “participation" under sub. (2) (b). A subrogated insurer who exercises none of the 3 options under sub. (2) (b) must pay its fair share of attorney fees and costs if it has notice of and does nothing to assist in the prosecution of the action. Ninaus v. State Farm Mutual Automobile Insurance Co. 220 Wis. 2d 869
, 584 N.W.2d 545
(Ct. App. 1998), 97-0191
Failure to comply with the technical requirement under sub. (2) (b) that a joined party must file a written waiver of the right to participate in the trial does not prevent the joined party's assertion that it had a representation agreement with the joining party. Gustafson v. Physicians Insurance Co. 223 Wis. 2d 164
, 588 N.W.2d 363
(Ct. App. 1998), 97-3832
Whether a party is an “indispensable party" requires a 2-part inquiry. First it must be determined if the party is “necessary" for one of the 3 reasons under sub. (1). If not, the party cannot be “indispensable" under sub. (3). If the party is found necessary, then, whether “in equity and good conscience" the action should not proceed in the absence of the party must be determined. Dairyland Greyhound Park, Inc. v. McCallum, 2002 WI App 259
, 258 Wis. 2d 210
, 655 N.W.2d 474
If a person has no right of intervention under s. 803.09 (1), the courts have no duty to join that person sua sponte
as a necessary party under sub. (1) (b) 1. The inquiry of whether a movant is a necessary party under sub. (1) (b) 1. is in all significant respects the same inquiry under s. 803.09 (1) as to whether a movant is entitled to intervene in an action as a matter of right, including the requirement that the interest of the movant is adequately represented by existing parties. A movant who fails to meet that requirement for intervention as of right may not simply turn around and force its way into the action by arguing that the court must join the movant, sua sponte
, as a necessary party under s. 803.03 (1) (b) 1. Helgeland v. Wisconsin Municipalities, 2008 WI 9
, 307 Wis. 2d 1
, 745 N.W.2d 1
If the plaintiff was required to join a party holding a “constituent part” of a cause of action under sub. (2) (a), but failed to do so, then the unjoined subrogation, derivative, or assigned claims were deemed timely when made by the other party by virtue of the s. 802.09 (3) relation-back doctrine — as long as such claims were asserted in the original action. However, if the plaintiff was not required to join the other party's cause of action under sub. (2) (a) — i.e., the other party's claims did not arise by subrogation, derivation, or assignment, and therefore were not part of the plaintiff's claim in chief — the other party's claims do not relate back to the date of the original filing and are time-barred. Town of Burnside v. City of Independence, 2016 WI App 94
, 372 Wis. 2d 802
, 889 N.W.2d 186
Permissive joinder of parties. 803.04(1)(1)
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.
In any action for damages caused by negligence, any insurer which has an interest in the outcome of such controversy adverse to the plaintiff or any of the parties to such controversy, or which by its policy of insurance assumes or reserves the right to control the prosecution, defense or settlement of the claim or action, or which by its policy agrees to prosecute or defend the action brought by plaintiff or any of the parties to such action, or agrees to engage counsel to prosecute or defend said action or agrees to pay the costs of such litigation, is by this section made a proper party defendant in any action brought by plaintiff in this state on account of any claim against the insured. If the policy of insurance was issued or delivered outside this state, the insurer is by this paragraph made a proper party defendant only if the accident, injury or negligence occurred in this state.
If an insurer is made a party defendant pursuant to this section and it appears at any time before or during the trial that there is or may be a cross issue between the insurer and the insured or any issue between any other person and the insurer involving the question of the insurer's liability if judgment should be rendered against the insured, the court may, upon motion of any defendant in the action, cause the person who may be liable upon such cross issue to be made a party defendant to the action and all the issues involved in the controversy determined in the trial of the action or any 3rd party may be impleaded as provided in s. 803.05
. Nothing herein contained shall be construed as prohibiting the trial court from directing and conducting separate trials on the issue of liability to the plaintiff or other party seeking affirmative relief and on the issue of whether the insurance policy in question affords coverage. Any party may move for such separate trials and if the court orders separate trials it shall specify in its order the sequence in which such trials shall be conducted.
(3) Actions affecting marital property.
In an action affecting the interest of a spouse in marital property, as defined under ch. 766
, a spouse who is not a real party in interest or a party described under s. 803.03
may join in or be joined in the action.
(4) Separate trials.
The court may make such orders as will prevent a party from being embarrassed, delayed, or put to expense by the inclusion of a party against whom the party asserts no claim and who asserts no claim against the party, and may order separate trials or make other orders to prevent delay or prejudice.
Sup. Ct. Order, 67 Wis. 2d 585, 646 (1975); 1975 c. 218
; 1985 a. 37
See s. 632.24
as to insurers being made defendants.
See s. 775.10
providing that the state may be made a party in an action to quiet title to land.
In an action for injuries allegedly sustained as a result of 3 separate surgical procedures performed by 2 unassociated doctors residing in different counties, separate places of trial were required and joinder of separate causes of action was improper. Voight v. Aetna Casualty & Surety Co. 80 Wis. 2d 376
, 259 N.W.2d 85
When an insurer made a good-faith request for a bifurcated trial under sub. (2) (b) on the issue of coverage, the trial court erred in finding that the insurer acted in bad faith by refusing to settle. Mowry v. Badger State Mutual Casualty Co. 129 Wis. 2d 496
, 385 N.W.2d 171
That a policy is one of indemnity rather than liability does not prevent direct action against the insurer. Decade's Monthly Fund v. Whyte & Hirschboeck, 173 Wis. 2d 665
, 495 N.W.2d 335
Joinder of one tortfeasor who causes an injury and a successive tortfeasor who aggravates the injury is permitted by this section. Kluth v. General Casualty Co. 178 Wis. 2d 808
, 505 N.W.2d 442
(Ct. App. 1993).
There is neither a statutory nor a constitutional right to have all parties identified to a jury, but as a procedural rule, the court should in all cases apprise the jurors of the names of all the parties. Stoppleworth v. Refuse Hideaway, Inc. 200 Wis. 2d 512
, 546 N.W.2d 870
(Ct. App. 1996), 93-3182
If the issue of insurance coverage involves a party not a party to the underlying lawsuit, coverage may be determined by either a bifurcated trial or a separate declaratory judgment action. The plaintiff and any other party asserting a claim in the underlying suit must be named, and consolidation with the underlying action may be required. Fire Insurance Exchange v. Basten, 202 Wis. 2d 74
, 549 N.W.2d 690
The federal compulsory counterclaim rule precluded an action against an insurer under the state direct action statute when the action directly against the insured was barred by rule. Fagnan v. Great Central Insurance Co. 577 F.2d 418
In order to join an insurer under sub. (2) (a), the accident must have occurred in this state or the policy must have been issued or delivered in the state. Utz v. Nationwide Mutual Insurance Co. 619 F.2d 7
Sub. (2) (a) is limited to negligence claims, which do not include implied warranty claims. Rich Products Corporation v. Zurich American Insurance Co. 293 F.3d 981
A breach of fiduciary duty was negligence for purposes of Wisconsin's direct action and direct liability statutes. Federal Deposit Insurance Corp. v. MGIC Indemnity Corp. 462 F. Supp. 759
Actions to satisfy spousal obligations. 803.045(1)(1)
Except as provided in sub. (2)
, when a creditor commences an action on an obligation described in s. 766.55 (2)
, the creditor may proceed against the obligated spouse, the incurring spouse or both spouses.
In an action on an obligation described in s. 766.55 (2) (a)
, a creditor may proceed against the spouse who is not the obligated spouse or the incurring spouse if the creditor cannot obtain jurisdiction in the action over the obligated spouse or the incurring spouse.
After obtaining a judgment, a creditor may proceed against either or both spouses to reach marital property available for satisfaction of the judgment.
This section does not affect the property available under s. 766.55 (2)
to satisfy the obligation.