Pender

Francine Y. Pender and Gisele Pender (the Penders) appeal a summary judgment on their first amended complaint for malicious prosecution against Irene Radin. The Penders were among three defendants in Radin’s lawsuit for breach of contract, fraud and misrepresentation that was settled when the third defendant paid Radin $25,000 and all parties agreed to waive any claim for attorney fees or costs against the opposing parties. The principal assignment of error deals with whether the settlement of the earlier suit represented a termination in favor of the Penders; the Penders contend this presented a question of material fact that precluded summary judgment. The Penders also contend the trial court, which denied Radin’s first motion for summary judgment, acted without legal justification in hearing Radin’s second motion for summary judgment.

Facts

In March 1990 Radin entered into two contracts with Herbert Pender III to remodel her home. Herbert, a licensed contractor who operated the Work Store, is the son of Gisele Pender and the brother of Francine Pender.

On August 13, 1990, Radin filed a complaint for breach of contract, fraud and misrepresentation against Herbert…