Cheyne Monroe v. Chad Chase

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Appeal No. 2019AP1918 Cir. Ct. No, 20190790
WISCONSIN COURT OF APPEALS

DISTRICT IV
CHEYNE MONROE,
PLAINIIFF-APPELLANT, FILED
Vv. AUG 13, 2020
CHAD CHASE, Sheila T. Reiff

Clerk of Supreme Court

DEFENDANT-RESPONDENT.

CERTIFICATION BY WISCONSIN COURT OF APPEALS

Before Fitzpatrick, PJ., Kloppenburg, and Graham, JJ.

Pursuant to WIS. STAT. RULE 809.61 (2017-18), this appeal is
certified to the Wisconsin Supreme Court for its review and detennination.

ISSUE

This appeal concerms the allegations necessary to state a claim for
the common law tort of malicious prosecution.! The specific issue is whether the

' Malicious prosecution claims usually involve at least two separate proceedings, with
the events of an earlier action forming the basis for a later action for malicious prosecution. Party
designations can be confusing in any malicious prosecution case because the plaintiff in the
melicious prosecution action wes usually the defendant in the prior action. Likewise, the
defendant in the malicious prosecution action was usually either the plaintiff in a prior civil
action, or a complainant whose allegations led a prosecutor to file ciminal charges. For the sake
of clarity and consistency, we use the terms “malicious prosecution plaintiff’ and “malicious
prosecution defendant” throughout this certification, even when referring to a party’s actions in

the prior proceeding that gave rise to the malicious prosecution claim.

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2
malicious prosecution defendant’s unilateral voluntary dismissal 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.
Precedent from the Wisconsin Supreme Court extending as far back as 1940
suggests that the answer to this question may be “yes.” However, one of our
decisions contains language that arguably points in the opposite direction, and
suggests that a prior proceeding that was terminated in a unilateral voluntary
dismissal can never be the basis for a malicious prosecution claim.
We certify this appeal to the Wisconsin Supreme Court because its
resolution may require the court to resolve a conflict between Wisconsin
precedents, and because it presents an opportunity to clarify and develop the
common law.
BACKGROUND
This is a review of an order dismissing Cheyne Monroe’s malicious
prosecution claim against Chad Chase for failure to state a claim upon which relief
can be granted. Monroe and Chase are the divorced parents of a minor child, and
they have been parties to three separate court proceedings that are relevant here:
the family court case in which they were divorced, a separate action to terminate
Monroe’s parental rights that Chase initiated and then voluntarily dismissed, and
the instant action for malicious prosecution. We discuss each case briefly, with all
facts taken from Monroe’s complaint and assumed to be true for purposes of this
appeal.
In the family court case, the parties stipulated that Chase would be
granted primary placement of their minor child, C.C., and that Monroe would be
granted periods of non-primary placement to be determined by agreement of the

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3
parties. When Monroe contacted Chase to establish a regular placement schedule,
Chase would not agree to any terms. Monroe then filed a motion asking the
family court to establish a placement schedule.
Around the same time Monroe’s motion for placement was pending,
Chase commenced a separate action in which he sought to terminate Monroe’s
parental rights on the grounds that Monroe had abandoned C.C. and had never had
a substantial parental relationship with her. See WIS. STAT. § 48.415(1), (6)
(2017-18). This action, which we refer to as the TPR action, is the basis for the
malicious prosecution claim that is the subject of this appeal.
According to Monroe, Chase took contradictory positions in these
two actions. In the TPR action, Chase averred that there had been no contact
between Monroe and C.C. for approximately three years. Yet, in the family court
action, he acknowledged that there had been recent contact between Monroe and
C.C.
After Chase filed the TPR action, the family court stayed all
proceedings on Monroe’s motion for placement pending the resolution of the TPR
action. Nine months later, just before a hearing in the TPR action, Chase
unilaterally withdrew his complaint and the TPR action was dismissed.2 The
dismissal was not the result of any settlement or stipulation. As a result of the
TPR action and dismissal, Monroe incurred damages including the loss of months
2 It is not clear from the complaint—or from anything else in the record before us—
whether the circuit court entered an order dismissing the TPR action, and if so, the contents of
that order.

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4
of time with C.C., significant litigation costs to defend against the TPR action, and
emotional distress.
Monroe then brought this malicious prosecution action, alleging that
Chase had initiated the TPR action with malice and on false grounds. Chase
moved to dismiss Monroe’s complaint for failure to state a claim for relief.
Among other things, he argued that Monroe must show that the prior proceeding
terminated in her favor and that, as a matter of law, his voluntary dismissal of the
TPR action cannot satisfy that requirement. The circuit court agreed, citing
Pronger v. O’Dell, 127 Wis. 2d 292, 379 N.W.2d 330 (Ct. App. 1985) as a basis
for its decision.
DISCUSSION
There are six elements in a malicious prosecution claim: (1) there
was a prior legal proceeding against the malicious prosecution plaintiff, (2) the
prior proceeding was brought by the malicious prosecution defendant, (3) the prior
proceeding terminated in favor of the malicious prosecution plaintiff, (4) the
malicious prosecution defendant initiated the prior proceeding with malice,
(5) there was a lack of probable cause to initiate the prior proceeding, and (6) the
prior proceeding harmed the malicious prosecution plaintiff. Wisconsin Pub.
Serv. Corp. v. Andrews, 2009 WI App 30, ¶23, 316 Wis. 2d 734, 766 N.W.2d 232.
At issue in this appeal is the third element, which requires that the
prior proceeding terminated in the malicious prosecution plaintiff’s favor. For our
purposes, the key Wisconsin decisions regarding this element are Lechner v.
Ebenreiter, 235 Wis. 244, 292 N.W. 913 (1940), Tower Special Facilities, Inc. v.
Investment Club, Inc., 104 Wis. 2d 221, 228, 311 N.W.2d 225 (Ct. App. 1981),
and Pronger, 127 Wis. 2d 292.

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5
Lechner is the seminal Wisconsin decision on this issue. In that
case, Lechner was the malicious prosecution plaintiff, and he had been accused of
larceny by Ebenreiter, the malicious prosecution defendant. Lechner, 235 Wis. at
247. As a result of Ebenreiter’s allegations, the district attorney filed a criminal
complaint against Lechner and then ultimately moved to dismiss those charges.
Id. at 252-53. During the hearing on the district attorney’s motion, Lechner
agreed to turn over the property that had been the subject of the larceny charge to a
third party. Id. at 253. In the subsequent action for malicious prosecution,
Ebenreiter argued that Lechner could not show that the criminal case had
terminated in Lechner’s favor. Id. at 252.
In discussing what it means for a prior proceeding to have
terminated in Lechner’s favor, the supreme court explained that a prosecutor’s
decision to dismiss a criminal case3 is normally “sufficient termination of the
action to support an action for malicious prosecution.” Id. But it also explained
that there could be no claim for malicious prosecution where the prior proceeding
“has been terminated without regard to its merits or propriety by agreement or
settlement of the parties, or solely by the procurement of the accused as a matter of
favor, or as a result of some act, trick, or device preventing action and
consideration by the court.” Id. As the court explained, the reason for this rule is
that an agreement or settlement is “an admission that there was probable cause,”
and that a malicious prosecution plaintiff “cannot afterwards retract [that
admission] and try the question, which by settling he waived.” Id. Applying this
3 The Lechner court referred to the district attorney’s dismissal as a “nolle prosequi.”
Lechner v. Ebenreiter, 235 Wis. 244, 252, 292 N.W. 913 (1940). See also State v. Kenyon, 85
Wis. 2d 36, 43, 270 N.W.2d 160 (1978) (using the same term to refer to a prosecutor’s motion to
dismiss a criminal case).

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rule, the court declined to determine as a matter of law whether any “agreement”
Lechner made about the property during the dismissal hearing was “an admission
of probable cause.” Id. at 254. Instead, it determined that whether the prior
criminal case had terminated in Lechner’s favor was a question of fact for the jury.
Id. at 254.
In sum, Lechner set forth at least two principles that appear relevant
to this appeal. First, a prosecutor’s decision to dismiss criminal charges, which
forecloses any court decision on the merits, can be a termination in favor of the
malicious prosecution plaintiff sufficient to support a malicious prosecution claim.
Second, a termination of a case “without regard to its merits or propriety by
agreement or settlement” cannot support such a claim. Lechner has been cited
favorably in subsequent cases.4 It has never been overruled by the Wisconsin
Supreme Court, and it appears to be a leading Wisconsin decision on the issue of
what malicious prosecution plaintiffs must show to satisfy the requirement that the
prior proceeding terminated in their favor.
One of the decisions that applies these principles from Lechner is
Tower Special Facilities, 104 Wis. 2d 221. In that case, Tower was the malicious
4 See, e.g., Bristol v. Eckhardt, 254 Wis. 297, 300, 36 N.W.2d 56 (1949) (citing Lechner
and explaining that the malicious prosecution plaintiff’s release from jail was “at his
procurement” as part of an agreement with the district attorney “amounting to a compromise or
settlement,” and that “this is not such a termination of the proceedings favorable to plaintiff as
can form the basis for an action for malicious prosecution”); Elmer v. Chicago & N.W. Ry. Co.,
257 Wis. 228, 234, 43 N.W.2d 244 (1950) (citing Lechner and explaining that “[t]he discharge
by an examining magistrate, or a nolle prosequi by the district attorney except under
circumstances as above stated (relating to compromises), is a sufficient termination of the action
to support an action for malicious prosecution”); Thompson v. Beecham, 72 Wis. 2d 356, 360,
241 N.W.2d 163 (1976) (citing Lechner for the proposition that “[a] voluntary compromise and
settlement of the prior suit is not a favorable termination, and in such circumstances a suit for
malicious prosecution cannot be maintained”); Tower Special Facilities, Inc. v. Investment Club,
Inc., 104 Wis. 2d 221, 228, 311 N.W.2d 225 (Ct. App. 1981).

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prosecution plaintiff, and it had entered into a settlement resulting in the dismissal
of the prior action that formed the basis of its malicious prosecution claim. Id. at
227. We determined that the complaint failed to state a claim. Id. at 227-28.
Citing Lechner, we explained that there had been “no termination of the original
proceeding in favor of Tower” because “the dismissal was ordered pursuant to
stipulation [between Tower and the defendants], without regard to the merits or
propriety of the proceeding.” Id. at 228.
The final decision that is important to this appeal is Pronger, 127
Wis. 2d 292. In that case, O’Dell was the party alleging malicious prosecution,
and Pronger was the party defending against the claim. Id. at 294. The “prior
proceeding” upon which the claim was based was Pronger’s civil lawsuit, initially
filed in state court, which claimed that O’Dell had sexually harassed her. Id.
O’Dell denied the allegations and, in the same state court action, he
counterclaimed for malicious prosecution. Id. at 296. Pronger later voluntarily
dismissed her state court complaint so that she could file an identical suit in
federal court. Id. at 294. The dismissal of Pronger’s sexual assault claim left only
the counterclaim pending in the original state court action. Id.
The circuit court dismissed O’Dell’s counterclaim for malicious
prosecution, and we affirmed. We first concluded that “[a] claim for malicious
prosecution cannot be interposed into the very proceedings that form the basis for
the claim,” and that O’Dell’s counterclaim “was premature since it was instituted
prior to a favorable termination of the proceedings upon which it was based.” Id.
at 296. Then, in a footnote, we added the following: “In addition, we note that 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. In support of this proposition, we cited

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Tower Special Facilities, which, as discussed above, involved a dismissal
pursuant to a settlement. We also cited Savage v. Seed, 81 Ill. App. 3d 744, 750,
401 N.E.2d 984 (1980), a decision of the Illinois Court of Appeals that was
subsequently overruled by the Illinois Supreme Court. See Cult Awareness
Network v. Church of Scientology Int’l, 177 Ill. 2d 267, 273, 275, 277, 685
N.E.2d 1347 (1997) (expressly overruling Savage in holding that a voluntary
dismissal can support a malicious prosecution claim).
Here, the circuit court expressly relied on Pronger’s footnote 2 in
dismissing Monroe’s complaint, and the parties dispute the meaning of this
footnote. Monroe argues that it is an incomplete statement of Wisconsin law
because it does not distinguish between voluntary dismissals that result from
compromise and settlement between the parties, and those that do not. According
to Monroe, if the footnote in Pronger meant that no proceeding that terminates by
voluntary dismissal can ever be the basis for a malicious prosecution claim,
Pronger would conflict with the Wisconsin Supreme Court’s decision in Lechner.
Chase contends that Lechner’s rule extends to any proceeding that terminates
“without regard to its merits,” that Pronger’s footnote 2 accurately states
Wisconsin law, and that it binds us to conclude that his unilateral voluntary
dismissal of the TPR action cannot satisfy the third element of malicious
prosecution. For the reasons that follow, we believe the parties raise issues that
our supreme court is best suited to answer.
We are to certify cases that present a conflict between Wisconsin
precedents, see Marks v. Houston Cas. Co., 2016 WI 53, ¶80, 369 Wis. 2d 547,
881 N.W.2d 309, and Pronger’s footnote 2 could be taken to conflict with
Lechner in at least two ways. First, Pronger’s language could be read to bar any
malicious prosecution claim where the prior proceeding terminated in a dismissal

No. 2019AP1918
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that does not “adjudicate the merits of the claim,” and indeed that is the
interpretation Chase advances. But such a rule could conflict with Lechner’s rule
that a dismissal by a prosecutor can support a malicious prosecution claim.5
Second, Lechner’s rule was grounded on its conclusion that, by settling, the
opposing party admits there was “probable cause” for the prior action.6 But at
least some voluntary dismissals are unilateral, and therefore do not necessarily
constitute any statement by the opposing party, much less an admission that the
proceeding had merit.
Additionally, the law regarding the tort of malicious prosecution
should be clarified and developed, and the Wisconsin Supreme Court is best suited
to that role. See Blum v. 1st Auto & Cas. Ins. Co., 2010 WI 78, ¶49, 326 Wis. 2d
729, 786 N.W.2d 78. The parties cite, and we have found, no Wisconsin
precedent that provides a considered analysis of whether a civil case that
terminates in a unilateral voluntary dismissal can support a malicious prosecution
5 A prosecutor’s dismissal does not necessarily “adjudicate the merits” of the dismissed
charge. Wisconsin prosecutors have great discretion “as to the way in which [they] exercise[]
power to prosecute complaints,” State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58,
¶30, 271 Wis. 2d 633, 681 N.W.2d 110, and to dismiss a case after the filing of the complaint,
they need only show that it is in the “public interest” to do so, State v. Dums, 149 Wis. 2d 314,
322, 440 N.W.2d 814 (Ct. App. 1989).
6 “[I]n the context of a malicious prosecution suit,” probable cause means “that quantum
of evidence which would lead a reasonable layman ... to honestly suspect that another person had
committed a crime.” Pollock v. Vilter Mfg. Corp., 23 Wis. 2d 29, 42, 126 N.W.2d 602 (1964).
Other jurisdictions have articulated standards that expressly address what “probable cause” means
when the prior suit is civil, not criminal. See, e.g., Shannahan v. Gigray, 131 Idaho 664, 668,
962 P.2d 1048 (1998) (when the prior proceeding in a malicious prosecution case is civil, that
proceeding needs to be supported by “less [probable cause] than that required in a criminal
action”). We are unaware of any Wisconsin authority that clearly addresses this issue.

No. 2019AP1918
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claim,7 and this may be a question of first impression in Wisconsin.8 The parties
also point to competing policy rationales to support their respective positions.
Monroe argues that unless claims such as hers can go forward, there is no
meaningful way to prevent a parent from misusing the judicial system by
maliciously filing termination of parental rights proceedings on false grounds.
Chase argues that the law of malicious prosecution should be drawn narrowly,
because a permissive rule could prevent parties from filing meritorious actions out
of fear of retaliation. This appeal presents the opportunity to develop the common
law in light of these weighty considerations.
For all these reasons, we certify this appeal to the supreme court.
7 Pronger v. O’Dell, 127 Wis. 2d 292, 379 N.W.2d 330 (Ct. App. 1985) is the closest fit,
but as discussed above, the voluntary dismissal in that case did not “terminate” the proceeding
because it was only dismissed so that it could be re-filed in federal court.
8 Other jurisdictions have addressed this question, and they have almost universally held
that a malicious prosecution defendant’s voluntary dismissal of a prior civil action can support a
malicious prosecution claim. See Vitauts M. Gulbis, Nature of Termination of Civil Action
Required To Satisfy Element of Favorable Termination To Support Action for Malicious
Prosecution, 30 A.L.R. 4th 572 § 2[a] (2020) (noting that “the authorities are evidently agreed
that a voluntary dismissal entered by the plaintiff in the underlying proceedings constitutes a
favorable termination”); see also id. § 15 (collecting cases).

No. 2019AP1918