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Supreme Court: Withdrawal may satisfy favorable-termination element of malicious-prosecution action

Supreme Court: Withdrawal may satisfy favorable-termination element of malicious-prosecution action

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The Wisconsin Supreme Court has ruled that a withdrawal may satisfy the favorable-termination element of a tort of malicious prosecution.

The unanimous decision in Cheyne Monroe v. Chad Chase announced on Tuesday also adopted the approach of the Restatement (Second) of Torts § 674 cmt. j.

Monroe v. Chase focused on the third element of a malicious-prosecution action, the favorable-termination element. This element requires a plaintiff to prove that the prior proceeding was terminated in his or her favor.

Cheyne Monroe and Chad Chase have been opposing parties in three lawsuits: their divorce in 2013, a termination of parental rights action that Chase filed against Monroe and an instant malicious-prosecution action that Monroe filed against Chase as a result of the second lawsuit.

Chase withdrew the second lawsuit in 2017. The third lawsuit followed in 2019, and Chase filed a motion to dismiss, arguing Monroe’s complaint failed to satisfy two of the six elements of malicious prosecution — termination of the prior proceeding in favor of the malicious-prosecution plaintiff, and injury or damage resulting to that plaintiff from the prior proceeding.

The circuit court granted the motion, but Monroe appealed. The Court of Appeals then certified the appeal to the state Supreme Court, which accepted certification.

The justices considered the narrow question of whether a withdrawal can satisfy the favorable-termination element of a malicious-prosecution action. Justice Jill Karofsky, who wrote the opinion for the unanimous court, cited previous case law and the Restatement (Second) of Torts § 674 cmt. j in the decision. Both establish that a favorable termination as a result of a withdrawal depends on the circumstances of the withdrawal.

“In this case, it is undisputed that Chase’s withdrawal was a final termination of the second lawsuit,” Karofsky wrote. “Whether it was favorable to Monroe, however, depends upon the circumstances of the withdrawal.”

The opinion said the state Supreme Court’s inquiry stops with the conclusion that withdrawal of a prior proceeding may satisfy the favorable-termination element of a malicious-prosecution action.

“The record before us is devoid of any evidence as to why Chase withdrew the second lawsuit,” Karofsky wrote. “… Whether or not Chase’s withdrawal of the second lawsuit constitutes a favorable termination remains a question for a fact-finder.”

The justices reversed the order of the circuit court and remanded the case to the circuit court to apply the analysis set forth in the opinion.

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