2021 WI 66

SUPREME COURT OF WISCONSIN

CASE NO.: 2019AP1918

COMPLETE TITLE: Cheyne Monroe,

 Plaintiff-Appellant,

 v.

Chad Chase,

 Defendant-Respondent.

ON CERTIFICATION FROM THE COURT OF APPEALS

OPINION FILED: June 22, 2021 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: March 3, 2021 

SOURCE OF APPEAL:

COURT: Circuit 

COUNTY: Dane 

JUDGE: Valerie Bailey-Rihn 

JUSTICES:

KAROFSKY, J., delivered the majority opinion for a unanimous 

Court.

NOT PARTICIPATING:

 

ATTORNEYS:

For the plaintiff-appellant, there were briefs filed by 

Richard J. Auerbach and Auerbach & Porter, S.C., Middleton. There 

was an oral argument by Richard J. Auerbach.

For the defendant-respondent, there was a brief filed by 

Christopher J. Dodge and Fuhrman & Dodge, S.C., Middleton. There 

was an oral argument by Jeanne M. Armstrong.
2021 WI 66

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2019AP1918

(L.C. No. 2019CV790)

STATE OF WISCONSIN : IN SUPREME COURT

Cheyne Monroe,

 Plaintiff-Appellant,

 v.

Chad Chase,

 Defendant-Respondent.

FILED

JUN 22, 2021

Sheila T. Reiff

Clerk of Supreme Court

KAROFSKY, J., delivered the majority opinion for a unanimous Court.

APPEAL from an order of the Circuit Court for Dane County, 

Valerie Bailey-Rihn, Judge. Reversed and cause remanded. 

¶1 JILL J. KAROFSKY, J. 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 
No. 2019AP1918 

2

of the prior proceeding to satisfy the favorable-termination 

element.1 

¶2 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.2 

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 favorabletermination 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 

 

1 The term "favorable termination" describes the favorable 

conclusion of a case, regardless of which party initiated that 

termination or in what manner. The Restatement (Second) of Torts 

§ 674 cmt. j (1977) describes four types of "termination": 

(1) favorable adjudication; (2) withdrawal; (3) dismissal of 

proceedings because of failure to prosecute; and (4) abandonment. 

The facts in this case present us with the second type of 

termination, a withdrawal. Therefore, we will refer to Chase's 

unilateral, voluntary dismissal of the prior proceeding against 

Monroe as a withdrawal. However, we will use the word "dismissal" 

when discussing criminal cases, because that term is consistent 

both with our cases and the Wisconsin statutes. See, e.g., Wis. 

Stat. §§ 971.31(6)-(8), 971.315 (2019-20). All subsequent 

references to the Wisconsin Statutes are to the 2019-20 version 

unless otherwise indicated.

2 The Honorable Valerie Bailey-Rihn of the Dane County Circuit 

Court presided.
No. 2019AP1918 

3

prosecution claim——that the prior proceeding terminated in the 

malicious prosecution plaintiff's favor." 

¶3 We reverse the order of the circuit court because a 

withdrawal of a prior proceeding may satisfy the favorabletermination 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. 

I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

¶4 This case is the third of three lawsuits in which Monroe 

and Chase are opposing parties. The first lawsuit was their 

divorce, which occurred in Minnesota in 2013. As a result of that 

divorce, the court issued a custody and placement order granting 

primary placement of the parties' minor child to Chase and periods 

of non-primary placement to Monroe. In 2016, after Monroe filed 

a motion to establish a regular placement schedule for herself 

with the child, the court accepted a stipulation which set forth 

an interim placement schedule and transferred jurisdiction of the 

case to the Dane County Circuit Court. 

¶5 Chase then filed the second lawsuit——a termination of 

parental rights (TPR) action against Monroe——in the Dane County 

Circuit Court, alleging abandonment. In the second lawsuit, 

Chase's allegation of abandonment was based on claims that Monroe 

failed to have contact with their child in person or by telephone 

calls or letters for approximately three years. While the second 
No. 2019AP1918 

4

lawsuit was pending, the court in the first lawsuit stayed the 

proceedings for approximately nine months. During that nine-month 

stay, as Monroe's complaint in the instant action alleges, she 

incurred legal fees, suffered emotional distress, and most 

significantly, was unable to visit with her child. On March 28, 

2017, Chase withdrew the second lawsuit. 

¶6 In March 2019, Monroe filed the third lawsuit——the 

instant malicious-prosecution action——against Chase, alleging that 

Chase initiated the second lawsuit with malice and on false 

grounds. According to Monroe's complaint, Chase made the 

abandonment allegation in the second lawsuit knowing it to be 

false, because Chase was aware that Monroe had cared for their 

child at home for roughly 17 months after the child's birth and 

that Monroe and Chase had exercised equal placement for a period 

of time after their separation. Monroe's complaint further stated 

that Chase's abandonment allegation contradicted both his sworn 

affidavit and the existing stipulation of shared placement in the 

first lawsuit. Despite Monroe's requests and the guardian ad 

litem's recommendation that Chase dismiss the second lawsuit, he 

refused to do so until right before a court-scheduled hearing.3

¶7 In the instant case——the third lawsuit——Chase filed a 

motion to dismiss, arguing that Monroe's complaint failed to 

satisfy two of the six elements of malicious prosecution: (1) the 

 

3 The amount of time between Chase's withdrawal of his 

complaint in the second lawsuit and the court-scheduled hearing is 

absent from the record. Monroe's complaint in the instant case 

alleges that the withdrawal took place "on the cusp of" that 

hearing——that is to say, at the 11th hour. 
No. 2019AP1918 

5

termination of the prior proceeding in favor of the maliciousprosecution plaintiff; and (2) injury or damage resulting to that 

plaintiff from the prior proceeding. After a hearing, the circuit 

court granted Chase's motion, reasoning that a withdrawal that 

prevents a court from "adjudicat[ing] the merits" could not 

constitute a favorable termination of the preceding case.4 

Pronger, 127 Wis. 2d 292, 296 n.2. 

¶8 Monroe appealed the circuit court's order. The court of 

appeals certified the appeal to this court, and we accepted 

certification. 

II. STANDARD OF REVIEW

¶9 A motion to dismiss tests the legal sufficiency of the 

complaint. Serv. Emps. Int'l Union, Loc. 1 v. Vos, 2020 WI 67, 

¶26, 393 Wis. 2d 38, 946 N.W.2d 35. For purposes of this court's 

review, we treat all allegations in the complaint as true. Id. 

We then determine whether the facts alleged in the complaint could 

state a viable cause of action, a legal question we review de novo. 

Id.

III. ANALYSIS

¶10 The narrow question presented to us is whether a 

withdrawal can satisfy the favorable-termination element of a 

malicious-prosecution action. We begin our analysis with a brief 

overview of the tort of malicious prosecution and survey the 

 

4 After ruling that Monroe's pleadings were insufficient with 

respect to the favorable-termination element, the circuit court 

stated that, had that element been met, the court would have denied 

Chase's motion to dismiss with respect to the damages element.
No. 2019AP1918 

6

relevant Wisconsin cases that address the disputed element. We 

then adopt the approach of the Restatement (Second) of Torts § 674 

cmt. j, which is consistent with our cases. Last, we remand the 

case to the circuit court to apply the analysis set forth in this 

opinion.

A. The Tort of Malicious Prosecution

¶11 A malicious-prosecution plaintiff must prove each of the 

following six elements:

1. There must have been a prior institution or 

continuation of judicial proceedings against the 

plaintiff;

2. Such former proceedings must have been by, or at the 

instance of the defendant;

3. The former proceedings must have terminated in favor 

of the plaintiff;

4. There must have been malice in instituting the former 

proceedings;

5. There must have been want of probable cause for the 

institution of the former proceedings; and

6. There must have been injury or damage resulting to 

the plaintiff from the former proceedings. 

Elmer v. Chicago & N.W. Ry. Co., 257 Wis. 228, 231, 43 N.W.2d 244 

(1950). It is only the third——the favorable-termination element—

—that is at issue here. We are to determine whether the withdrawal 

of the prior proceeding can satisfy that element. To do so, we 

must first analyze and then clarify Wisconsin law regarding 

favorable terminations. 

¶12 We begin our analysis by examining Wisconsin's 

foundational favorable-termination case, Lechner v. Ebenreiter, 
No. 2019AP1918 

7

235 Wis. 244, 292 N.W. 913 (1940). In that case, the district 

attorney moved to dismiss larceny charges against Lechner, who 

agreed to turn over the disputed property to a third party. Id.

at 253. Later, when Lechner sued the district attorney for 

malicious prosecution, the circuit court determined that a 

dismissal in a criminal case could serve as a favorable termination 

in a malicious-prosecution action, except when the original 

proceeding had been terminated: (1) "without regard to its 

merits . . . by agreement or settlement of the parties"; or

(2) "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."5 Id. at 252 (quoted source omitted). 

The basis for this rule is that a termination resulting from a 

settlement or agreement between parties signifies that the 

malicious-prosecution plaintiff made an "admission that there was 

probable cause" to initiate the action that he or she cannot later 

retract. Id. 

 

5 In addition to contesting whether a withdrawal can be a 

favorable termination, Chase also contends that his withdrawal 

constitutes an "act . . . preventing action and consideration by 

the court." Lechner v. Ebenreiter, 235 Wis. 244, 252, 

292 N.W. 913 (1940). This argument ignores the fact that, like 

the exception for terminations obtained "as a matter of favor," 

the exception for terminations "as a result of some act, trick, or 

device" is likewise applicable where such terminations are 

obtained "solely by the procurement of the accused." Id. This 

exception would be applicable in the instant case if Monroe had 

obtained the withdrawal through an "act, trick, or device," but it 

is unavailable here, where the withdrawal was obtained by Chase, 

the complainant in the prior proceeding. 
No. 2019AP1918 

8

¶13 In Lechner, we concluded that Lechner's agreement to 

turn over the disputed property did not bar his maliciousprosecution action because the agreement was solely an admission 

that he had no right to possess the property, rather than an 

admission to the crime of larceny. Id. at 254-55. Said 

differently, even though Lechner turned over the property, he never 

conceded that the prosecutor had probable cause to charge him in 

the first place. As a result, he was not barred from filing a 

malicious-prosecution action against the district attorney. 

¶14 We were presented with a similar issue in Bristol v. 

Eckhardt, 254 Wis. 297, 299, 36 N.W.2d 56 (1949), in which Bristol, 

who had defaulted on a tractor loan, moved that tractor to the 

state of Oregon in order to avoid its repossession. The district 

attorney dismissed the complaint at the request of Bristol's 

attorney, so that upon Bristol's release from custody he might 

refinance the tractor and settle with the bank. Id. at 300. 

Consistent with Lechner, we held that the termination of the 

proceedings against Bristol was not favorable to him for two 

reasons. First, the dismissal was obtained "at [Bristol's] 

procurement." Id. at 301. Second, the circumstances demonstrated 

that the district attorney's dismissal was based not on a lack of 

probable cause for initiating the proceedings, but on his desire 

to avoid the expense of extraditing Bristol from Oregon to 

Wisconsin. Id. at 301-02. The district attorney still believed 

the criminal charge against Bristol to be "sustainable." Id. 

¶15 The following year, we decided Elmer which, like Lechner

and Bristol, was a criminal case. In Elmer, 257 Wis. at 233-34, 
No. 2019AP1918 

9

the district attorney filed a complaint against Elmer for stealing 

railroad rails and later dismissed the charges due to insufficient 

evidence. Elmer then sued the district attorney for malicious 

prosecution. Id. at 231-32. In Elmer, we reiterated the Lechner

rule: "The discharge by an examining magistrate, or a [dismissal] 

by the district attorney except under circumstances . . . relating 

to compromises[], is a sufficient termination of the action to 

support an action for malicious prosecution." Id. at 234 (quoted 

source omitted). We remanded the case for a fact-finder to assess 

the circumstances of the dismissal to determine whether the 

district attorney's dismissal was a favorable termination. Id. 

¶16 Later, in Thompson v. Beecham, 72 Wis. 2d 356, 241 N.W.2d 

163 (1976), we were presented with another malicious-prosecution 

action that ended in a compromise and settlement. Applying 

Lechner, we reiterated that "[a] voluntary compromise . . . is not 

a favorable termination" because "[e]ach party gave up a claim, 

and each party received a benefit." Id. at 360-61. 

¶17 The court of appeals subsequently applied the Lechner

rule in Tower Special Facilities, Inc. v. Investment Club, Inc., 

104 Wis. 2d 221, 228, 311 N.W.2d 225 (Ct. App. 1981), in which the 

parties terminated the prior proceeding by entering into a 

stipulation for dismissal with prejudice and without costs. 

Because the case was dismissed pursuant to the stipulation, the 

court of appeals held that the proceeding was not terminated in 

favor of the malicious-prosecution plaintiff. Id. Reiterating 

our holding in Lechner, the court of appeals concluded that the 

stipulated dismissal could not satisfy the favorable-termination 
No. 2019AP1918 

10

element because the stipulation constituted "an admission that 

there was probable cause that the plaintiff [could not] afterwards 

retract . . . and try the question, which by settling he waived." 

Id. (quoted source omitted).

¶18 After Tower Special Facilities, the court of appeals 

analyzed the favorable-termination element in another case 

involving a withdrawal, Pronger, 127 Wis. 2d 292. In that case, 

Pronger filed a sexual-harassment suit in state court, and the 

defendant, O'Dell, counterclaimed for malicious prosecution. Id.

at 294. Pronger then withdrew her complaint in order to proceed 

with an identical action in federal court. Id. The court of 

appeals held that O'Dell prematurely filed the maliciousprosecution action since he instituted it as a counterclaim, before 

the sexual-harassment action had terminated in any way——favorable 

or unfavorable. Id. at 296. In reaching its decision, the court 

of appeals did not analyze the circumstances surrounding Pronger's 

withdrawal. In a footnote, the court stated, "[i]n addition, we 

note that a [withdrawal] 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. 

¶19 In the present case, the circuit court relied on the 

Pronger footnote, deciding that Pronger mandated the dismissal of 

Monroe's complaint. The circuit court read Pronger as barring any

malicious-prosecution action where the underlying action 

terminated in a withdrawal that did not "adjudicate the merits of 

the claim." Id. The circuit court reached this conclusion despite 
No. 2019AP1918 

11

our consistent line of cases permitting, with only a few 

explicitly-delineated exceptions, a malicious-prosecution action 

based on the withdrawal of the prior proceeding. Read in context,

the Pronger footnote does not mandate a result that is inconsistent 

with our cases. The Pronger court's holding was narrow and only 

addressed situations in which the previous case was still pending—

—not terminated. 

B. Adoption of the Restatement (Second) of Torts Approach

¶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.6 

¶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 

 

6 See, e.g., Nelson v. Miller, 660 P.2d 1361, 1363-65 (Kan. 

1983); Frey v. Stoneman, 722 P.2d 274, 279 n.7 (Ariz. 1986); 

Barrett Mobile Home Transp., Inc. v. McGugin, 530 So.2d 730, 735-

36 (Ala. 1988); Christian v. Lapidus, 833 S.W.2d 71, 74 (Tenn. 

1992); Cult Awareness Network v. Church of Scientology, Intern., 

685 N.E.2d 1347, 1355 (Ill. 1997). 
No. 2019AP1918 

12

upon the circumstances under which the proceedings are 

withdrawn.[7] 

¶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. 

¶23 Having adopted the Restatement (Second) of Torts § 674 

cmt. j, we next address Chase's arguments disfavoring the 

Restatement's approach. Chase urges us to join the minority of 

jurisdictions, reject the Restatement's approach, and adopt a 

blanket rule that a withdrawal can never serve as a favorable 

termination underlying a malicious-prosecution action. He 

maintains that a contrary holding would hinder free access to the 

courts and have a "chilling effect" on plaintiffs who wish to 

withdraw their actions when appropriate. He raises the specter of 

plaintiffs pushing on with litigation despite a lack of resources 

or change of heart, for fear of being subject to a maliciousprosecution action if they withdraw. We are unpersuaded by these 

arguments. 

¶24 We do not agree with Chase that adopting the 

Restatement's approach lowers the bar for malicious-prosecution 

 

7 A separate subsection of the Restatement (Second) of Torts, 

§ 672(1), enumerates a different set of elements to be proven by 

a malicious-prosecution plaintiff when the underlying action is 

criminal in nature. Because the prior proceeding before us is a 

civil action, and neither party has argued that we adopt § 672(1), 

we do not address that section here.
No. 2019AP1918 

13

actions. The Restatement's approach balances free access to the 

courts with an individual's right not to be haled into court 

without reason, and prevents bona fide malicious-prosecution 

defendants from escaping responsibility simply by withdrawing at 

the last moment. 

¶25 Further, the remaining five elements of a maliciousprosecution action provide an additional safeguard against the 

pursuit of baseless actions. A successful malicious-prosecution 

plaintiff must still satisfy, among others, the requirements that 

the prior proceeding was brought with malice and without probable 

cause for its initiation, i.e., the fourth and fifth elements of 

a malicious-prosecution action. If the prior proceeding is truly 

valid but a party withdraws the claim due to a lack of funds, 

change of heart, or some other innocuous reason, a maliciousprosecution plaintiff will be likewise unable to satisfy those 

elements. 

C. Remand to the Circuit Court

¶26 Having adopted the Restatement's approach and concluded 

that a withdrawal of a prior proceeding may satisfy the favorabletermination element of a malicious-prosecution action, our inquiry 

stops. The record before us is devoid of any evidence as to why 

Chase withdrew the second lawsuit. Monroe's complaint alleges 

that Chase falsely claimed in the second lawsuit that Monroe had 

not contacted their child for approximately three years, while 

admitting contact and communication between Monroe and the child 

in an affidavit filed in the first lawsuit. Whether or not Chase's 

withdrawal of the second lawsuit constitutes a favorable 
No. 2019AP1918 

14

termination remains a question for a fact-finder. For that reason, 

we reverse the order of the circuit court and remand the case to 

apply the analysis set forth in this opinion. 

IV. CONCLUSION

¶27 We reverse the order of the circuit court because a 

withdrawal of a prior proceeding may satisfy the favorabletermination element of a malicious-prosecution action. We also 

adopt the approach of the Restatement (Second) of Torts § 674 cmt. 

j, 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. 

By the Court.——The order of the circuit court is reversed and 

the cause is remanded.
No. 2019AP1918 

1