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Blandino v. McIlvaine1/30/2002
Argued and submitted June 18, 2001.
Affirmed.
Defendants, Robert Fischel and James Chaney, initiated an action for malicious prosecution against plaintiff Anthony J. Blandino. After obtaining a dismissal of all claims, Blandino returned the favor and initiated this action against Fischel and Chaney for wrongful initiation of civil proceedings. The trial court dismissed that claim on summary judgment, and Blandino appeals. We affirm.
We state the facts in the light most favorable to the nonmoving party and review to determine whether there is a genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law. ORCP 47 C; Jones v. General Motors Corp., 325 Or 404, 420, 939 P2d 608 1997.
This litigation version of tit-for-tat began when, in 1993, Virginia Douglas sued George Ledbury for injuries sustained in a motor vehicle accident. Douglas retained Blandino, a chiropractor, to testify on her behalf. Ledbury retained Robert Fischel, also a chiropractor, to testify on his behalf. At trial, both Blandino and Fischel were questioned about their qualifications. Although their answers appear not to have had any significance to the personal injury trial, as it turns out, they became extremely significant to the unfolding of the disputes in this case. In a nutshell, Blandino testified that he had a medical degree, and Fischel testified that, although he had an expired chiropractic license in Hawaii, he had active licenses in California and Oregon. The jury found in favor of Douglas, albeit for a relatively small amount of damages, small enough that Douglas could not afford to pay Blandino for his testimony.
Douglas contemplated an appeal and asked Blandino to review the record and, in particular, Fischel's testimony. In the process of reviewing the record, Blandino discovered that Fischel's testimony about his qualifications had not been entirely accurate: Fischel did not have an active license to practice chiropractic in California but, rather, had an inactive license in that state.
Blandino called the office of the Jackson County District Attorney to report what he believed to be "false swearing." The district attorney presented the matter to a grand jury, which returned an indictment for perjury and false swearing. In response to the indictment, Fischel's attorney wrote a letter to the district attorney explaining that he simply had misspoken at the trial and that Blandino's actions were a product of longstanding personal and professional animosity. According to Fischel, when he said that he had an "active" license in California and Oregon, he meant only to draw a contrast between the expired Hawaii license and the unexpired licenses in California and Oregon. The district attorney, upon receiving the additional information, dismissed the charges against Fischel. According to the district attorney, Blandino had misled him about the facts and, had he been aware of all the facts, he would not have pursued criminal charges.
Meanwhile, Blandino experienced some problems of his own concerning his resumé. In 1994, the Oregon Department of Justice notified him that it had reviewed his testimony in the 1993 personal injury trial and that he had falsely represented that he had a medical license. The department warned him that if he continued to misrepresent his credentials it would pursue claims under the Unlawful Trade Practices Act. That same year, the Oregon Board of Chiropractic Examiners also was made aware of that testimony and, on the basis of that testimony, suspended Blandino from practice for 30 days and ordered him to pay a fine.
In 1995, Fischel turned the tables on Blandino a
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