## Facts

- Milo Myhre sued Mark Hessey (and another defendant) seeking damages for malicious prosecution arising out of (1) a series of civil actions Hessey filed against Myhre and (2) a later criminal prosecution that Hessey allegedly instigated.
- The civil litigation between the parties grew out of their dispute over farm operations and livestock; Hessey brought multiple civil suits against Myhre (including actions involving possession of farm property and livestock).
- In the civil actions, Myhre was not arrested or otherwise restrained, and his property was not seized or taken into custody through the process in those cases.
- Myhre claimed that even without an arrest or seizure, the civil suits were maliciously brought and caused him loss, including expenses of defending the litigation.
- Separately, Hessey complained to law enforcement and the district attorney, leading to a criminal charge against Myhre connected to livestock transactions.
- The criminal matter terminated in Myhre’s favor (it was dismissed), and Myhre alleged it had been initiated without probable cause and with malice.
- The circuit court entered a judgment dismissing the malicious-prosecution claim based on the civil suits and, on the criminal-prosecution claim, set aside the plaintiff’s verdict by granting a new trial.
- Myhre appealed from both the judgment dismissing the civil-suit claim and the order granting a new trial on the criminal-prosecution claim.

## Issues

1. Whether Wisconsin recognizes a malicious-prosecution action based solely on the institution of civil lawsuits when there was no arrest, no seizure or special interference with property, and no special injury beyond the ordinary burdens of defending civil litigation.
2. Whether the circuit court properly exercised its discretion in granting a new trial on Myhre’s malicious-prosecution claim arising out of the criminal proceeding.

## Decision

- The Wisconsin Supreme Court affirmed the judgment dismissing the cause of action based on the prior civil suits.
- The court held that malicious prosecution does not lie for the institution of a civil action where there has been neither an arrest nor a seizure (or comparable special interference) with the plaintiff’s property.
- The court affirmed the order granting a new trial on the malicious-prosecution claim based on the criminal proceeding.

## Legal Principles

- Malicious prosecution generally is not available in Wisconsin for the bringing of ordinary civil actions unless the civil process results in an arrest of the person, seizure of property, or other special injury of the same general kind.
- The ordinary expense, annoyance, and inconvenience of defending civil litigation are not enough, by themselves, to supply the special injury required for a civil-suit malicious-prosecution claim.
- A trial court’s order granting a new trial is reviewed with deference; the appellate court will uphold it absent error of law or a misuse of discretion.

## Conclusion

Myhre v. Hessey holds that Wisconsin does not permit a malicious-prosecution claim based on civil lawsuits that do not involve arrest or seizure/special interference with property, and it leaves the plaintiff to pursue only those malicious-prosecution theories that fit the traditional requirements, while also affirming the circuit court’s decision to grant a new trial on the separate claim tied to the prior criminal prosecution.


Myhre v. Hessey, 9 N.W.2d 106, 242 Wis. 638 (1943)