Summary
In Van Dien v. Riopelle (1968), 40 Wis.2d 719, 723, 162 N.W.2d 615, this court indicated in dicta that if there is a conflict between sec. 260.10, Stats. (who may join as plaintiffs) and sec. 263.04 (joinder of causes of action), then sec. 260.10 prevails.
Summary of this case from Schlosser v. Allis-Chalmers Corp.Opinion
No. 52.
Argued October 31, 1968. —
Decided November 26, 1968.
APPEALS from an order of the circuit court for Milwaukee county: ROBERT C. CANNON, Circuit Judge. Affirmed.
For the appellants there was a brief by Lichtsinn, Dede, Anderson Ryan, and oral argument by Peter Haensel, all of Milwaukee.
For the respondents there was a brief by Petrie, Stocking, Meixner Zeisig, attorneys, and Earl L. Meixner of counsel, all of Milwaukee, and oral argument by Earl L. Meixner.
This suit in the nature of a suit in equity for an accounting was brought by two individuals and a corporation. As we read the complaint, this suit is brought by the plaintiff Structural Products Corporation on its own behalf and the plaintiffs James P. Van Dien and Warren Danaher, each individually and on behalf of Badger Builders, Inc., and W. J. Riopelle Associates, Inc.
The defendant Wilfred J. Riopelle is alleged to be the president, director and major stockholder of both the defendant Badger Builders, Inc. (Badger), and the defendant W. J. Riopelle Associates, Inc. (Associates), the president and director and sole stockholder of the defendant U.S. Investment Corporation (Investment), and major stockholder of Structural Products Corporation (Products) and was its president and director until December 1, 1965. The complaint generally alleges that Riopelle breached his fiduciary duties to the stockholders of Badger, Associates and Products and that the several plaintiffs were damaged by this conduct. It is alleged that Riopelle acted for his personal gain and to the damage of all plaintiffs by pursuing a deliberate and continuous course of conduct in his dealing with the three defendant corporations and with Products while he was an officer and director thereof; that such activities "produced overlapping of interest and activities and utter confusion" of assets not only in respect to the corporations but also between the corporations and his personal affairs. Specific acts of diversion, appropriation of assets and misconduct are alleged. In short, as we view the allegations, Riopelle so mixed his personal business and the businesses of the corporations without regard to corporate identity that only an accounting can unravel what the plaintiffs call "the mess in which the plaintiffs find themselves."
The defendants separately demurred to the complaint on the ground that each plaintiff has a cause of action which is improperly joined with the others. The plaintiffs, on the other hand, assert they together have only one primary right or cause of action for an accounting against all the defendants and argue that Badger, Associates, and Investment were joined as parties defendant to insure a determination of their rights in the accounting as against each other and Riopelle.
We think there are three causes of action, one vested in each of the plaintiffs but that these causes are properly joined. According to the complaint, each of the plaintiffs has been separately wronged and seeks from the defendants an accounting so he and the other plaintiffs may recover damages to the extent of their respective and interdependent rights.
Sec. 263.04, Stats., relating to what causes of action may be united in the same complaint, has not been violated. Each of the three causes of action for an accounting affect "all the parties to the action" and this is the only element of sec. 263.04 which is challenged. Likewise, the plaintiffs were properly joined under sec. 260.10. which must be read with sec. 263.04. Whaling v. Stone Construction Co. (1958), 5 Wis.2d 113, 92 N.W.2d 278.
"263.04 Uniting causes of action. The plaintiff may unite in the same complaint several causes of action, whether they be such as were formerly denominated legal or equitable or both. But the causes of action so united must affect all the parties to the action and not require different places of trial, and must be stated separately."
"260.10 Who may be joined as plaintiffs. All persons having an interest in the subject of the action or in obtaining the relief demanded may be joined as plaintiffs."
All the plaintiffs have an interest in the subject matter of the action and are also interested in obtaining the accounting relief demanded. The three accounting actions are so interrelated in subject matter that in many respects they would be duplicitous if the accountings were had separately. The intermixing of the assets of the corporations among the corporations and with Riopelle's personal assets created a situation where the relief of accounting is of interest and a necessity to all three plaintiffs.
This interest is also based upon the fact the amount of recovery of each plaintiff is relative and dependent upon the amount of recovery by the other plaintiffs. This interrelationship, while not amounting to a single cause of action, is sufficient to justify the joining of the causes of action for an accounting under sec. 263.04, Stats. True, the purpose of the accounting is to restore to each plaintiff only that which belongs to him. This relief, however, is "incidental, auxiliary, or germane to the principal controversy." Whaling v. Stone Construction Co., supra. See also Boerschinger v. Elkay Enterprises, Inc. (1965), 26 Wis.2d 102, 132 N.W.2d 258, 133 N.W.2d 333. In Rogers v. Oconomowoc (1962), 16 Wis.2d 621, 115 N.W.2d 635, we stated that sec. 260.11, Stats., [who can be joined as defendants] prevails over sec. 263.04 if there is a conflict between them. This rationale is equally applicable to a construction of sec. 260.10 [who may be joined as plaintiffs] and sec. 263.04. If there is a conflict between those statutes, sec. 260.10 must prevail. The incidental relief need not be identical in an accounting case.
This reasoning, of course, does not apply to an automobile accident where several persons are involved because in such a case the recovery of each individually injured person has no relationship and does not depend upon the amount of the recovery of the other. Such cases give rise to separate causes of action which often may be tried together for purposes of trial but may not be joined in one suit. Similarly, a plaintiff cannot join separate causes of action against different defendants. Caygill v. Ipsen (1965), 27 Wis.2d 578, 135 N.W.2d 284; Fitzwilliams v. O'Shaughnessy, ante, p. 123, 161 N.W.2d 242.
While the defendant Investment, by its demurrer, argues the complaint fails to state a cause of action because there is no allegation that Investment committed any improper acts, still Investment is properly joined as a party defendant. Sec. 260.11(1), Stats., provides, in part, that any person may be made a defendant who is necessary "to a complete determination or settlement of the questions involved therein." Its assets and liabilities are involved in the accounting because of the actions of its president and director Riopelle and a complete determination by an accounting cannot be had without Investment.
By the Court. — Order affirmed.