Strid v. Converse

• Decision Date: 29 March 1983
• Docket Number: No. 82-018,82-018
• Citation: 111 Wis.2d 418,331 N.W.2d 350
• Parties: Patti H. STRID, Plaintiff-Appellant, v. Attorney Edward E. CONVERSE, Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 350

331 N.W.2d 350

111 Wis.2d 418

Patti H. STRID, Plaintiff-Appellant, v. Attorney Edward E. CONVERSE, Defendant-Respondent.

No. 82-018.

Supreme Court of Wisconsin.

Argued March 1, 1983.

Decided March 29, 1983.

James R. Long, Appleton, for plaintiff-appellant.

Stephen J. Everson, Green Bay, for defendant-respondent.

BEILFUSS, Chief Justice.

This is an appeal from an order of the trial court dismissing the plaintiff's complaint for failure to state a claim. We accepted the case upon certification from the court of appeals.

The plaintiff, Patti Strid, and her husband, Dean Strid, were divorced in 1977. Pursuant to the divorce judgment custody of the minor children was awarded to Patti Strid, and Dean Strid was afforded visitation on weekends and alternate holidays.

In March of 1979, Mrs. Strid signed a petition alleging that her husband abused his visitation rights by consuming alcoholic beverages and requested that his visitation rights be suspended. ¹ This petition was scheduled for an Order to Show Cause hearing on April 20, 1979, by Judge Thomas W. Grover. The Order to Show Cause was served on Mr. Strid and forwarded to his attorney, Edward Converse, the defendant in this action. Because Converse was going to be out of town on that date he requested an adjourned hearing date. Judge James W. Byers replaced Judge Grover and set August 13, 1979, as the new hearing date, but again Converse requested an alternate date. Judge Byers then set the hearing for October 30, 1979.

Mrs. Strid would not allow Mr. Strid to exercise his visitation rights beginning in September of 1979. On October 9, 1979, Judge Byers entered an ex parte order ordering Mrs. Strid to allow Mr. Strid to visit the parties' minor children pursuant to the terms of the divorce judgment and subsequent court orders. This order further provided that a bench warrant would issue in the event Mrs. Strid refused to allow visitation. The order was based on the affidavit of Mr. Strid which stated that Mrs. Strid was wilfully refusing visitation in violation of the divorce judgment. On October 22, 1979, Judge Byers issued an Order to Show Cause ordering Mrs. Strid to demonstrate why she should not be found in contempt for failure to allow the ordered visitation. The hearing on this Order to Show Cause was set for the same time as the hearing on the Order to Show Cause on Mrs. Strid's petition to suspend Mr. Strid's visitation.

Attorney Converse then wrote Mrs. Strid's attorney and informed him that Judge Byers had cancelled the October 30th hearing and that the judge would set up a conference call in the near future to reschedule the matter. On November 2, 1979, Converse prepared a bench warrant directing the sheriff to arrest Mrs. Strid for failure to obey the court's ex parte order ordering visitation. The warrant was signed by Converse and issued by Judge Byers. On November 5, 1979, the plaintiff was arrested, booked and held until she appeared without counsel before Judge Byers on the same day.

At the hearing on the bench warrant Judge Byers rescheduled the hearing date on the issue of visitation for November 21, 1979. ² Mr. Strid had obtained custody of the children following Mrs. Strid's arrest, and the court ordered that the children were to remain in their father's custody until the next day. He further ordered Mrs. Strid to allow Mr. Strid weekend visitation pursuant to the divorce judgment and subsequent court orders until the full hearing on visitation rights was held. Judge Byers stayed the bench warrant and released Mrs. Strid, but stated that it would be reinstated if she failed to permit visitation.

In July of 1980, Mrs. Strid commenced this action against Attorney Converse for malicious prosecution and false imprisonment. ³ The trial court dismissed the complaint, concluding that it failed to state a claim upon which relief could be granted. It held that in order to state a claim for malicious prosecution the former proceedings must have been initiated by the defendant in the malicious prosecution action. The court found that Converse's client, not Converse, initiated the former proceedings. Mrs. Strid appealed contending that the complaint stated a claim for malicious prosecution and abuse of process. We accepted the appeal on certification from the court of appeals.

The issue on appeal is whether the complaint states a claim upon which relief can be granted. In determining whether the complaint was properly dismissed for failure to state a claim, we apply the familiar test that the pleadings are to be liberally construed to do substantial justice between the parties, and the complaint should be dismissed as legally insufficient only if it appears to a certainty that no relief can be granted under any set of facts that the plaintiff can prove in support of her allegations. La Fleur v. Mosher, 109 Wis.2d 112, 113, 121, 325 N.W.2d 314 (1982).

On appeal the plaintiff contends that the complaint states a claim for malicious prosecution and abuse of process. The defendant contends that because the words "abuse of process" do not appear in the complaint and the plaintiff indicated in the trial court that she was proceeding under the theory of malicious prosecution, she can not on appeal assert that the complaint also states a claim for abuse of process. This contention is incorrect.

A plaintiff is not required to put labels on the allegations in the complaint in order to state a valid claim. It is the sufficiency of the facts alleged that control the determination of whether a claim for relief is properly plead. As stated in Jost v. Dairyland Power Cooperative, 45 Wis.2d 164, 169-70, 172 N.W.2d 647 (1969):

"We do not agree--a cause of action is not constituted by labeling the operative facts with the name of a legal theory. The operative facts themselves, if they show the invasion of a protected right, constitute the cause of action. What they are called is immaterial. If the facts reveal an apparent right to recover under any legal theory, they are sufficient as a cause of action--and there is no violation of the rules of pleading if the facts lead to the defendant's liability on more than one legal theory."

Thus if the facts alleged state a claim for abuse of process alternatively or in addition to malicious prosecution, the complaint should not be dismissed even though the theory was not explicitly argued in the trial court.

We first examine the complaint to determine if it states a claim for malicious prosecution. The six essential elements of a claim for malicious prosecution are:

" '1. There must have been a prior institution or continuation of some regular judicial proceedings against the plaintiff in this action for malicious prosecution.

" '2. Such former proceedings must have been by, or at the instance of, the defendant in this action for malicious prosecution.

" '3. The former proceedings must have terminated in favor of the defendant therein, the plaintiff in the action for malicious prosecution.

" '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.

" '6. There must have been injury or damage resulting to the plaintiff from the former proceedings.' " Maniaci v. Marquette University, 50 Wis.2d 287, 298-98, 184 N.W.2d 168 (1971); Elmer v. Chicago & N.W. Ry. Co., 257 Wis. 228, 231, 43 N.W.2d 244 (1950).

These elements apply to the unjustifiable institution of civil judicial proceedings as well as to the institution of criminal proceedings. Maniaci, 50 Wis.2d at 298, 184 N.W.2d 168. All six elements must be present in order to state a valid claim for malicious prosecution, and the absence of any one element is fatal to the claim. Yelk v. Seefeldt, 35 Wis.2d 271, 277, 151 N.W.2d 4 (1967). Thus, if we find one element lacking we do not need to examine the other elements.

An examination of the complaint leads to the conclusion that it fails to allege the third element of a claim for malicious prosecution--that the complained of proceedings terminated in favor of the defendant, who then became the plaintiff in the subsequent malicious prosecution action. The proceedings complained of by the plaintiff in this action are the issuance of the bench warrant and her subsequent arrest and appearance before Judge Byers pursuant to this warrant. The complaint merely alleges that Mrs. Strid was arrested and brought without counsel before Judge Byers as a result of this bench warrant. The complaint does not allege either that Judge Byers determined that the bench warrant was improperly issued or that he ruled in her favor on the subject of the bench warrant--Mrs. Strid's continued violation of his ex parte order requiring her to comply with the visitation requirements of the divorce judgment and subsequent court orders. Either of these two alternatives would have been a termination in Mrs. Strid's favor in the complained of proceeding.

In addition to her failure to allege facts meeting this third element, the record before us demonstrates that Mrs. Strid can not so allege. ⁴ The transcript of the hearing held on the issuance of the bench warrant shows that the trial court deemed the issuance of the bench warrant to be proper. Although the legality of the bench warrant was not specifically litigated at the hearing, the court stayed the enforcement of the warrant, stating that it would be reinstated if Mrs. Strid continued to refuse visitation in violation of the court's order. We believe that this indicates at least an implicit, if not express, recognition of the validity of the bench warrant. ⁵

Further, at the hearing the trial court ordered Mrs. Strid to allow Mr. Strid weekend visitation, as required under the terms of the divorce judgment and subsequent court orders, pending the full hearing on the visitation issues raised by both parties. Mr. Strid's present visitation rights, pending a...