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SCOW to review claim for malicious prosecution of a TPR action

Cheyne Monroe v. Chad Chase, 2019AP1918, certification granted 10/21/20; case activity (including briefs)

Issue for review (derived from the COA’s certification)

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 issue is whether this element is met 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).

Footnote 2 of Pronger states: “a voluntary dismissal that does not adjudicate the merits of the claim does not constitute a favorable judicial termination of an action sufficient to support a claim for malicious prosecution.” Id. at 296 n.2.  According to the court of appeals, this statement appears to conflict with Lechner v. Ebenreiter, 235 Wis. 244, 252, 292 N.W. 913 (1940), which held in part that a prosecutor’s decision to dismiss criminal charges, foreclosing a court decision on the merits, can support a claim for malicious prosecution.

The rationale for Lechner‘s rule seems clear. 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.

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