04-0464 Adler v. D&H Industries, Inc.

By: dmc-admin//February 14, 2005//

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“Based on the foregoing, we conclude that the common-law exception requires a final judgment in the initial action. Both parties recognize the potential for inconsistent judgments, at least insofar as they agree that D&H’s partial rescission remedy is inconsistent with the Adlers’ breach of contract claim. However, we do not know whether D&H will prevail in the initial action. Thus, at this point it is clear only that the judgment for D&H in the first action could later be nullified by a judgment favorable to the Adlers in the second action, not that it would be so undermined if the Adlers succeed. At this point, it is premature to deem the Adlers’ claims compulsory.”

Reversed and remanded.

Recommended for publication in the official reports.

Dist II, Waukesha County, Gempeler, J., Brown, J.

Attorneys:

For Appellant: Terry E. Johnson, Milwaukee; Heidi M. Biasi, Milwaukee

For Respondent: James R. Gass, Milwaukee; Amelia L. McCarthy, Milwaukee; Beth E. Hanan, Milwaukee

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