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Torts — abuse of process

By: WISCONSIN LAW JOURNAL STAFF//June 20, 2012//

Torts — abuse of process

By: WISCONSIN LAW JOURNAL STAFF//June 20, 2012//

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Wisconsin Court of Appeals

Civil

Torts — abuse of process

A defendant who obtains a restraining order based on false information can be liable for abuse of process, even though she dismissed the action before the order was served on the plaintiff.

“It is the second element—subsequent misuse of the process—that Patterson argues cannot be met. She bases her argument on the fact that she dismissed her complaint and petitions without serving them. Thus, she contends that the process was never really misused. We disagree. When Patterson went to the courthouse on August 27, 2009, she filed a complaint with allegations that were somewhere between grossly exaggerated and patently false, as evidenced by her own deposition testimony.”

“If Patterson had stopped with the filing of the complaint and then voluntarily dismissed the lawsuit without doing anything more, she might have prevailed with her argument that she corrected her mistake before an abuse of process occurred. But she took the complaint one step further by petitioning for temporary restraining orders against Wanda and Greggory based on the allegations in the complaint. The temporary restraining orders were granted and signed by a judge ex parte. So despite the lack of service, Patterson used the court’s time and resources. In addition to that, the filing of the petitions and complaint created a public record available on CCAP, which Wanda claims has drastically reduced her business which involves caring for people in their homes. So, that part of the process which was used by Patterson had immediate consequences to the court and to the defendants. She cannot now argue that her voluntary dismissal prior to service negates the misuse of process that had already occurred. The proverbial train left the station when she petitioned for (and obtained) temporary restraining orders based on false allegations.”

Affirmed in part, and Reversed in part.

Recommended for publication in the official reports.

2011AP334 Keller v. Patterson

Dist. II, Ozaukee County, Wolfgram, J., Brown, J.

Attorneys: For Appellant: Davey, Bruce M., Middleton; Goldman, Lisa, Middleton; For Respondent: Walrath, James A., Milwaukee

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