Background
Samantha Fredach underwent cosmetic surgery performed by Dr. Thomas Korkos in June 2021 and later alleged that the surgery and follow-up care caused extensive, permanent injuries. Samantha and Jon Fredach filed suit in September 2024 against Illume Cosmetic Surgery & Medspa LLC, several physicians and their service corporations, insurers, and the Injured Patients and Families Compensation Fund, asserting negligence, medical negligence, and loss-of-consortium-related claims.
On the filing date, the Fredachs’ attorney emailed defense counsel a “courtesy copy” of the authenticated summons and complaint and asked whether counsel could accept service. Defense counsel initially said he would find out and, five days later, stated that he “can accept service” for Illume, the doctors, and their service corporations. The Fredachs took no further action to confirm acceptance or serve the defendants. Defense counsel later pleaded insufficient service as an affirmative defense, and the statutory service period and limitations period expired. The circuit court granted summary judgment and dismissed the complaint with prejudice.
The Court’s Holding
The Court of Appeals affirmed, holding that the Fredachs did not properly serve Illume and the doctors. Defense counsel lacked authority to accept service when the documents were emailed on September 5, and his September 10 statement that he “can accept service” established only that he had become an authorized agent—not that he had accepted service of documents already in his inbox. The Fredachs needed some additional act confirming that service had been made or accepted after counsel obtained authority.
The court also held that the email exchange did not satisfy Wisconsin’s electronic-service statute because neither side mentioned or gave written consent to electronic service. Defense counsel’s later notice requesting electronic service of filed documents did not retroactively authorize electronic service of the initiating documents. Because proper service was never completed and the limitations period had expired, dismissal with prejudice was appropriate.
Equitable estoppel did not save the claims. Defense counsel did not engage in fraudulent or inequitable conduct: he never represented that service had been accepted, expressly pleaded insufficient service in the answer, and had no obligation to identify or explain the defect further. The Fredachs therefore failed to establish the threshold requirement for estopping the defendants from asserting the service and limitations defenses.
Key Takeaways
- An attorney’s statement that the attorney “can accept service” confirms authority to do so but does not, standing alone, establish that service has actually been accepted.
- Electronic service of initiating documents requires written consent specifically addressing electronic service; a general willingness to accept service is insufficient.
- Actual notice does not replace strict compliance with Wisconsin’s service statutes, and defective service is fatal regardless of prejudice.
- A defendant who pleads insufficient service need not explain the defect, and doing no more ordinarily does not support equitable estoppel.
Why It Matters
The decision underscores that Wisconsin litigants must affirmatively confirm acceptance of service and should not rely on ambiguous email exchanges, actual notice, or an attorney’s possession of courtesy copies. A short written confirmation that service is accepted may suffice, but the record must establish both the agent’s authority and actual acceptance.
The consequences are especially severe when the limitations period expires during the service window: failure to perfect service deprives the circuit court of personal jurisdiction and may require dismissal with prejudice, eliminating the opportunity to refile otherwise potentially meritorious claims.