Neely v. First State Bank, Harrah ( 1998 )

¶ 1 KAUGER, C.J.,

concurring:

¶2 I concur in the majority’s finding that, under the facts presented, the arbitration proceeding before the New York Stock Exchange constituted a “favorable termination” for the broker. The Banks have not asserted that the arbitration proceeding was not “an adjudication” for purposes of a claim for malicious prosecution.

¶ 3 Although the Court does not address the issue of whether an arbitration award is sufficient to satisfy the requirement in a malicious prosecution claim of an award in a court of competent jurisdiction, it is worth noting that the issue has been addressed in other jurisdictions. In Sagonowsky v. More, 64 Cal.App.4th 122, 75 Cal.Rptr.2d 118, 122 (1998), rehearing/review denied, the California Court distinguished between a “contractual arbitration” and a “judicial arbitration.” Indicating that it would not find that the arbitration award was competent if it arose from a purely “contractual arbitration;” but it would find a “judicial arbitration” to be sufficient for a malicious prosecution claim. Here, the arbitration proceeding was before the New York Stock Exchange. In Taylor v. Peoples Gas Light & Code Co., 275 Ill.App.3d 655, 656 N.E.2d 134, 140, 211 Ill.Dec. 942 (1995) cert. denied 165 Ill.2d 566, 214 Ill.Dec. 866, 662 N.E.2d 432, the Illinois Court essentially found that absent an unfair proceeding or a conflicting principle of law which would be incompatible with giving the arbitration award effect, the award would be sufficient to constitute an award by a court of competent jurisdiction for malicious prosecution purposes. It appears that whether an arbitration award will be considered a judgment by a court of competent jurisdiction may depend on the facts. Here, there has been no challenge to the award being characterized as an “adjudication” for purposes of the malicious prosecution claim.