Estoppel Analysis

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The holding that the statute of limitations is not tolled pending a voluntarily dismissed federal action, but not a state one, creates a trap for the unwary that attorneys must pay attention to.

Prior to this decision, even a very cautious attorney may have been justified in believing that federal actions do toll the statute. The decision in Johnson v. County of Crawford, 195 Wis.2d 374, 536 N.W.2d 167 (Ct.App.1995), was not only decided five years after Robinson v. Willow Glen Acad., 895 Fd.2d 1168 (7th Cir. 1990), but expressly rejected the Seventh Circuit’s reasoning.

However, that does not make this decision in the case at bar and in Johnson incompatible. As noted by the court, Robinson involved a federal action, and Johnson a state one.

More significant, however, is that the Seventh Circuit in Robinson rested its decision on two grounds: FRCP 41(a)(1), which provides that a voluntarily dismissed action in federal court is a nullity; and the Seventh Circuit’s interpretation of sec. 893.15.

In Johnson, the court of appeals only rejected the latter reasoning, but did not criticize the Seventh Circuit’s interpretation of FRCP 41(a)(1).

Accordingly, for an attorney to have thought that Robinson was no longer valid law would be a mistake, albeit a fairly reasonable one.

The second half of the court’s holding though — concerning estoppel — does not merely create a trap for the unwary, but gives a hunting license to the bloodthirsty.

There is nothing unreasonable in the court’s conclusion that it is perfectly acceptable for attorneys to go along with years of discovery, all the while just waiting for the day when the statute of limitations has run, and then to move to dismiss for defective service.

Thus, the dismissal in favor of Dr. Cochrane and Eau Claire Anesthesiologists is a correct one. Probably, the dismissal of the other defendants is proper, too, but for failure to join necessary parties, rather than the statute of limitations.

It cannot reasonably be said that there is nothing inequitable in letting Dr. Ciresi and Luther Hospital raise that defense after their attorney expressly solicited service upon herself, rather than her clients.

The court cursorily glides over this aspect of the case in two sentences: “Additionally, accepting service of a defective complaint does not waive the right to challenge procedural defects. Falkner v. Guild, 10 Wis. 563 (1860). Consequently, Culbert could not rely on the communication from Ciresi and Luther’s attorney to cure defective service.”

The case at bar is much different than Falkner, however, in that the defendants did not merely accept service, but solicited it, and then sent a subsequent letter confirming acceptance.

The elements of equitable estoppel are as follows: (1) an action or non-action (2) on the part of one against whom estoppel is asserted (3) which induces reasonable reliance thereon by the other, either in action or non-action, and (4) which is to his or her detriment. Milas v. Labor Ass’n of Wisconsin, Inc., 214 Wis.2d 1, 571 N.W.2d 656 (1997). It is then within the trial court’s discretion whether to actually invoke the doctrine. Nugent v. Slaght, 2001 WI App 282, 249 Wis.2d 220, 638 N.W.2d 594.

The first, second, and fourth elements of estoppel are indisputably present. The only question is whether the third is met, a question turning on whether or not is was “reasonable” for Culbert’s attorney to rely on the defendants’ solicitation of service.

It is true that, for 140 years, it has been established that a party does not waive procedural objections by accepting service. But, as noted above, the attorney did more than merely accept defective service; she solicited it.

Furthermore, the decision in Falkner predates the doctrine of equitable estoppel (not that it would have been applicable under those facts, anyway — “utter failure to comply with the most material requirements of the statute [governing partition of property]”).

Obviously, when it comes to something as important as service of the complaint and summons, it can be argued that it is unreasonable to rely on the opposing attorney’s word that the service was proper. Neverthe-less, it just as obviously a shock to the conscience for an attorney to solicit service in a particular manner, then argue that service was defective, and gain thereby.

The conduct was clearly inequitable, satisfying the test in Hester v. Williams, 117 Wis.2d 634, 345 N.W.2d 426 (1984), for invoking equitable estoppel; the only real question is whether the reliance by Culbert’s attorney was reasonable.

	Links Wisconsin Court of Appeals Related Article Party can challenge service despite request

It should be noted that the Supreme Court has previously applied equitable estoppel to bar a defendant from asserting a statute of limitations after far less egregious conduct. In State ex rel. Susedik v. Knutson, 52 Wis.2d 593, 191 N.W.2d 23 (1971), the court applied the doctrine to bar a defendant in a paternity action from asserting the statute of limitations after he continually made the plaintiff believe he would marry her and support the child.

The court stated, “The record in the present appeal reveals an outrageous situation. Here a man lived a woman for almost seven years [the statute of limitations for paternity actions was then only five years]. He fathered her child and made an extraordinary attempt to appear to be married. He made numerous representations to respondent of the possibility of marriage. On the basis of this record we have no hesitation in finding appellant’s conduct bars him from asserting the statue of limitation.… It is precisely for situations such as the present case that the exception to the doctrine of limitations for actions was carved out. Public policy requires it.” Susedik, 52 Wis.2d at 597-598.

The last two sentences of this passage apply with equal force to the case at bar, notwithstanding that the plaintiff’s attorney should have known better than to take chances with the service of process. The decision makes a mockery of all the efforts that the profession devotes to promoting “professional civility.”

— David Ziemer

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David Ziemer can be reached by email.