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Culbert v. Ciresi6/17/2003
ess and jurisdiction were each among the first defenses listed in a section clearly labeled "Affirmative Defenses." Even a cursory reading should have alerted Culbert to the issues.
. Additionally, accepting service of a defective complaint does not waive the right to challenge procedural defects. Falkner v. Guild, 10 Wis. 563, 575 (1860). Consequently, Culbert could not rely on the communication from Ciresi and Luther's attorney to cure defective service. Further, we note that any action by Ciresi and Luther's attorney, even if it did amount to estoppel, would not bind the other defendants, Cochrane and Eau Claire Anesthesiologists.
. Finally, the fact that the defendants engaged in discovery until the statute of limitations ran does not estop them from using the statute of limitations as a defense. Moving forward with discovery is not equivalent to representation that a party is not going to pursue the defenses it asserted in its answer. Lord v. Hubbell, Inc., 210 Wis. 2d 150, 161, 563 N.W.2d 913 (Ct. App. 1997).
. The first thing that must be shown under the Hester factors is that the defendants are guilty of fraudulent or inequitable conduct. Id. at 644-45. The record shows, and the trial court reasonably concluded, that the defendants did not engage in any fraudulent or inequitable conduct. Thus, the trial court correctly determined that estoppel does not apply.
By the Court. -- Order affirmed.
Recommended for publication in the official reports.
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