
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        December 4, 1995        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                         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                                         -2-            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                                         -3-            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);                                         -4-            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.                                    ______                                         -5-
