803.03.Joinder of persons needed for just and complete adjudication.

History: Sup. Ct. Order, 67 Wis. 2d 585, 643 (1975); 1975 c. 218; 1979 c. 189, 221; 1983 a. 192; 1985 a. 29; 1989 a. 31; 1995 a. 27; 1997 a. 35; 1999 a. 9; 2001 a. 103; 2005 a. 253; 2007 a. 20 ss. 3752, 9121 (6) (a). If the constitutionality of a statute is challenged in an action other than a declaratory judgment action, the attorney general must be served, but, in this case, the failure to do so at the trial level was cured by service at the appellate level. William B. Tanner Co. v. Estate of Fessler, 100 Wis. 2d 437, 302 N.W.2d 414 (1981). Sub. (2) (b) requires a subrogated party to choose one of the listed options or risk dismissal with prejudice. Radloff v. General Casualty Co. of Wisconsin, 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 three 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. of Wisconsin, 223 Wis. 2d 164, 588 N.W.2d 363 (Ct. App. 1998), 97-3832. Whether a party is an “indispensable party” requires a two-part inquiry. First, it must be determined if the party is “necessary” for one of the three 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, 021204. In determining what type of interest a potential party must claim in order to be deemed a necessary party under sub. (1) (b), the relevant inquiry 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. Dairyland Greyhound Park, Inc. v. McCallum, 2002 WI App 259, 258 Wis. 2d 210, 655 N.W.2d 474, 02-1204. 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 factor of whether 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 sub. (1) (b) 1. Helgeland v. Wisconsin Municipalities, 2008 WI 9, 307 Wis. 2d 1, 745 N.W.2d 1, 05-2540. If a plaintiff is required to join a party holding a “constituent part” of a cause of action under sub. (2) (a) but fails to do so, then the unjoined subrogation, derivative, or assigned claims are deemed timely when made by the other party by virtue of the s. 802.09 (3) relation-back doctrine—as long as such claims are asserted in the original action. However, if the plaintiff is not required to join the other party’s cause of action under sub. (2) (a)—i.e., the other party’s claims do not arise by subrogation, derivation, or assignment, and therefore are 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, 16-0034. Sub. (1) (a) refers to relief as between the persons already parties, not as between a party and the absent person whose joinder is sought. Nelson v. Loessin, 2020 WI App 72, 394 Wis. 2d 784, 951 N.W.2d 605, 18-2448. At the time the third-party complaint was filed by the defendants in this case, the potential parties had not engaged in negotiations with the defendants, made a demand of them, or filed suit against them. Even if the potential parties “may” have had a claim that they could potentially bring against the defendants simply by virtue of being injured in the crash that was the subject of the lawsuit, they were not actually claiming an interest related to the subject of the plaintiffs’ suit, which was required for sub. (1) (b) to apply. Nelson v. Loessin, 2020 WI App 72, 394 Wis. 2d 784, 951 N.W.2d 605, 18-2448. When a person makes a legally valid request for records in the exclusive custody of a member of an authority who refuses to relinquish control of the records to the authority, despite requests by the authority that records be turned over, the member of the authority is a necessary party under sub. (1) (a) in an action under the public records law. Midwest Environmental Advocates, Inc. v. Prehn, 2025 WI App 55, 418 Wis. 2d 212, 26 N.W.3d 347, 23-1478.