Malicious Prosecution Action

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WI Supreme Court

Case Name: Cheyne Monroe v. Chad Chase

Case No.: 2021 WI 66

Focus: Malicious Prosecution Action

This case is about the tort of malicious prosecution. Our focus is on the third element of a malicious-prosecution action, the “favorable termination” element, wherein a malicious-prosecution plaintiff must prove that the prior proceeding was terminated in his or her favor. Our task is to decide whether Cheyne Monroe’s complaint can survive a motion to dismiss when her complaint relies upon Chad Chase’s withdrawal of the prior proceeding to satisfy the favorable-termination element.

The circuit court dismissed Monroe’s complaint for failure to state a claim, concluding that the complaint failed to establish that the prior proceeding was terminated in her favor. Relying on Pronger v. O’Dell, 127 Wis. 2d 292, 379 N.W.2d 330 (Ct. App. 1985), the circuit court ruled that when a party brings a lawsuit and then withdraws it——prior to an adjudication of the merits——that withdrawal can never satisfy the favorable termination element of a malicious-prosecution action. The court of appeals certified the appeal to this court, pursuant to Wis. Stat. § (Rule) 809.61, and posed the question as “whether the malicious prosecution defendant’s [withdrawal] of a prior proceeding can ever satisfy the third element of a malicious prosecution claim——that the prior proceeding terminated in the malicious prosecution plaintiff’s favor.”

We reverse the order of the circuit court because a withdrawal of a prior proceeding may satisfy the favorable termination element of a malicious-prosecution action. We also adopt the approach of the Restatement (Second) of Torts § 674 cmt. j (1977), which is consistent with our cases and focuses on the circumstances of the termination to determine whether it was favorable. We remand this case to the circuit court to apply the analysis set forth in this opinion.

Reversed and remanded

Concur:

Dissent:

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Derek A Hawkins is Corporate Counsel, at Salesforce.