One of the elements of a claim for malicious prosecution is that the baseless prior action must have terminated in favor of the party asserting malicious prosecution. The supreme court holds this element may be met even when the party accused of malicious prosecution voluntarily dismissed the allegedly baseless proceeding before it was decided on the merits.
During divorce proceedings, Chase acknowledged that Monroe had had recent contact with their child, and they agreed on terms for placement. Afterward, Chase filed a petition to terminate Monroe’s parental rights on grounds of abandonment, and Monroe defended against it. Just before a TPR hearing, Chase voluntarily dismissed the proceeding. There was no settlement.
Due to the TPR action, Monroe incurred substantial damages, including loss of time with their child, litigation costs, and emotional distress. She sued for malicious prosecution claiming that Chase had initiated the TPR proceeding with malice and on false grounds. The circuit court dismissed the action for failure to state a claim because Monroe could not prove that the TPR proceeding terminated in her favor under Pronger v. O’Dell, 127 Wis. 2d 292, 379 N.W.2d 330 (Ct. App. 1985).
A unanimous supreme court reverses:
¶20 Having surveyed the relevant cases, we next look to the Restatement (Second) of Torts § 674 cmt. j, which is consistent with our cases, and which we now adopt. Several courts in other jurisdictions have also adopted the Restatement’s approach….
¶21 The Restatement (Second) of Torts § 674 cmt. j, provides as follows:
Termination in favor of the person against whom civil proceedings are brought. Civil proceedings may be terminated in favor of the person against whom they are brought . . . by (1) the favorable adjudication of the claim by a competent tribunal, or (2) the withdrawal of the proceedings by the person bringing them, or (3) the dismissal of the proceedings because of his [or her] failure to prosecute them. . . . Whether a withdrawal or abandonment constitutes a final termination of the case in favor of the person against whom the proceedings are
brought, and whether the withdrawal is evidence of a lack of probable cause for their initiation, depends upon the circumstances under which the proceedings are withdrawn….
¶22 According to both our cases and the Restatement (Second) of Torts § 674 cmt. j, whether a withdrawal constitutes a favorable termination depends upon the circumstances of the withdrawal. In this case, it is undisputed that Chase’s withdrawal was a final termination of the second lawsuit. Whether it was favorable to Monroe, however, depends upon the circumstances of the withdrawal.
The case is remanded to the circuit court for findings on why Chase withdrew the suit. (¶26).
This is a good, common-sense result. As we noted when the supreme court accepted the certification, if claims like Monroe’s cannot proceed, then there is no meaningful way for a parent in her position to prevent a parent like Chase from filing a TPR proceeding on false grounds, inflicting damage, and then dismissing it.