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USCA1 Opinion
December 4, 1995 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1610
JEAN A. GUAY,
Plaintiff, Appellant,
v.
PIERRE R. KAPPELLE,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Francis J. Boyle, Senior U.S. District Judge] __________________________
____________________
Before
Selya, Stahl and Lynch,
Circuit Judges. ______________
____________________
Jean A. Guay on brief pro se. ____________
Mark H. Grimm and Wistow & Barylick Incorporated on brief for ______________ _______________________________
appellee.
____________________
____________________
Per Curiam. Appellant, Dr. Jean Guay, appeals from __________
the dismissal of his complaint pursuant to Fed. R. Civ. P.
12(b)(6). The district court determined that Dr. Guay failed
to state a claim for malicious prosecution because he could
not show that the prior medical malpractice action initiated
by appellee, Pierre Kappelle, had ended in his (Dr. Guay's)
favor. We agree.
Under Rhode Island law, a claim of malicious
prosecution requires a plaintiff to show that the prior
proceeding was initiated maliciously and without probable
cause, finally terminated in his or her favor, and resulted
in some special injury to him or her. Salvadore v. Major _________ _____
Elec. & Supply, Inc., 469 A.2d 353, 357 (R.I. 1983). The ______________________
magistrate judge determined that the jury verdict had
"terminated" the malpractice action in Kappelle's favor.
However, we note that Kappelle did not prevail on the
negligence claim. Nonetheless Kappelle prevailed on a claim
of lack of informed consent, and we conclude, on this basis,
that, for purposes of malicious prosecution, the malpractice
action did not terminate in Dr. Guay's favor.
Only if these two claims represented two distinct
causes of action could Dr. Guay have maintained a malicious
prosecution suit based on the negligence verdict.
Specifically, if Kappelle had filed an action based on
negligence, res judicata would have barred him from
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maintaining a later action for lack of informed consent; that
is, it would be considered the same cause of action. See ___
Town of Johnston v. Bendick, 658 A.2d 914, 914 (1995) (res _________________ _______
judicata bars the relitigation of the same cause of action).
Thus, Kappelle prevailed in the action as a whole when he was
awarded damages for his injury. See Freidberg v. Cox, 197 ___ _________ ___
Cal. App. 3d 381, 388, 242 Cal. Rptr. 851, 855 (1987) (where
there were several theories of recovery in the underlying
suit -- contract, joint venture and interference with
contract -- but only one injury -- nonpayment of fees -- the
fact that the malicious prosecution plaintiff had prevailed
on two of the theories did not mean that the prior action had
terminated in his favor; the malicious prosecution defendant
won a judgment for damages in the cause of action as a whole
and res judicata would have barred him from splitting the
various claims).
We reach the same result considering the settlement
agreement as the final termination of the state action. "[A]
termination based on a compromise or settlement is not deemed
favorable." Nagy v. McBurney, 120 R.I. 925, 931, 392 A.2d ____ ________
365, 368 (1978). The malpractice case here was settled with
the release of Dr. Guay from liability in exchange for a
payment to Mr. Kappelle of a little over $70,000. Whether a
settlement agreement is a termination in favor of a litigant
depends, in part, on whether it represents "an inconclusive
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result that cannot be characterized as either a victory or a
defeat." C.N.C. Chem. Corp. v. Pennwalt Corp., 690 F.Supp. ___________________ ______________
139, 141 (D.R.I. 1988). To be favorable, then, a termination
"must be reflective of the merits of the action and of the
plaintiff's innocence of the misconduct alleged therein."
Villa v. Cole, 4 Cal. App. 4th 1327, 1335, 6 Cal. Rptr. 2d _____ ____
644, 648-49 (1992). The language of the "Release of All
Claims" indicates nothing about the merits of the malpractice
action and, in particular, nothing (much less anything
favorable) about Dr. Guay's liability. Thus, it is not a
termination on the merits in Dr. Guay's favor.
We also reject Dr. Guay's argument that because Mr.
Kappelle allegedly engaged in fraud in the malpractice
action, he (Mr. Kappelle) is prohibited from relying on the
unfavorable termination of that action. Although the two
cases cited by Dr. Guay hold that an exception to this
requirement exists where a prior judgment was fraudulently
obtained, these cases involved situations where the
plaintiffs in the original actions had misrepresented the
very facts they needed to show in order to secure the relief
they were seeking. See Tyler v. Central Charge Serv., Inc., ___ _____ __________________________
444 A.2d 965 (App. D.C. 1982) (to obtain attachment of the
malpractice plaintiff's wages, the malpractice defendant
falsely told the court in the prior action that plaintiff had
not paid a debt and that a stay of execution existed);
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Lockett & Williams v. Gress Mfg. Co., 8 Ga. App. 772, 70 S.E. __________________ ______________
255 (Ga. App. 1911) (to obtain an injunction, the malpractice
defendant made statements of fact it knew were false). Here,
Dr. Guay's allegations go, at most, to Mr. Kappelle's
credibility as a witness and the qualifications of a
physician who testified for Mr. Kappelle. These actions do
not stand on the same footing as those engaged in by the
plaintiffs in the above cases.
Because we find that the malpractice action did not
terminate in Dr. Guay's favor, we need not address the
question of special injury.
The judgment of the district court is affirmed. The ________
motion for sanctions is denied. ______
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Document Info
Docket Number： 95-1610
Filed Date： 12/4/1995
Precedential Status： Precedential
Modified Date： 3/3/2016