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Culbert v. Ciresi6/17/2003
of limitations as a defense in the second Wisconsin case. Whether to apply estoppel to preclude a party from raising a defense is within the trial court's discretion. Gonzalez v. Teskey, 160 Wis. 2d 1, 13, 465 N.W.2d 525 (Ct. App. 1990). We affirm the trial court's discretionary determinations if it applied the correct law to the record and, through a logical process, reached a result a reasonable judge could reach. Rodak v. Rodak, 150 Wis. 2d 624, 631, 442 N.W.2d 489 (Ct. App. 1989).
. A trial court is to consider six factors in deciding whether to apply equitable estoppel. One of these is: "The doctrine may be applied to preclude a defendant who has been guilty of fraudulent or inequitable conduct from asserting the statute of limitations[.]" Hester v. Williams, 117 Wis. 2d 634, 644-45, 345 N.W.2d 426 (1984). In applying these factors, the trial court in the present case determined the "defendants here did not lie in the weeds, waiting until the last moment to strike, and are not responsible for the jurisdictional defects associated with this action and the earlier case." Further, the court noted the "Catch-22" situation the defendants were in. This "Catch-22" was that the defendants' attorneys needed to conduct discovery until the statute of limitations ran in the event Culbert corrected the procedural error. However, they could not alert Culbert to her noncompliance with the Wisconsin statutes because they could have been accused of not zealously representing their clients' best interests. Consequently, the court found that equitable estoppel did not apply.
. Culbert relies primarily on Ocasio v. Froedtert Mem'l Luth. Hosp., 2002 WI 89, , 24, 254 Wis. 2d 367, 646 N.W.2d 381, where our supreme court stated that a defendant may not engage in "game playing" or "lie in the weeds until the statute of limitations [runs]." Culbert maintains that this is what the defendants did in this case.
. Culbert points to the communications between her attorney and Ciresi and Luther's attorney that took place before the first Wisconsin case was filed. Culbert claims that Ciresi and Luther's attorney solicited service and lead Culbert's attorney to believe the service was valid. Additionally, Culbert argues that engaging in seventeen months of discovery amounted to lying in the weeds, waiting for the statute of limitations to run. Applying these circumstances to the factors from Hester, Culbert argues the defendants' conduct was inequitable and that she relied on the conduct to her detriment.
. We reject Culbert's attempt to compare this case with the circumstances in Ocasio. To begin with, Culbert had adequate notice that there were procedural defects. Each defendant raised the affirmative defenses of insufficient process and lack of personal jurisdiction in their answers to the complaint. As a result, Culbert knew the defendants were claiming a procedural defect, yet she never attempted to determine what that defect was. While the defendants were required to plead their affirmative defenses, they were not required to do more. A defendant need not alert and spell out a defect in a case, especially when the defect is dispositive. In fact, to do so would conflict with the defense attorney's duty to zealously represent the client. Hester, 117 Wis. 2d at 643-44. This is the "Catch-22" situation that the trial court referred to in its written order.
. Culbert argues that the defendants' "key defenses were buried in lists of `boilerplate.'" The legal significance of this argument is unclear. Nevertheless, we observe that although each provider's answer contained a number of defenses, the ones relevant here were by no means "buried." The defenses regarding service of proc
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