Dean, CB&T still waiting on Supreme Court

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No decision handed down on case with CB&T over

By Lisa King

Shelbyville attorney Mark Dean and Commonwealth Bank & Trust will have to wait until at least May for a decision from the Kentucky Supreme Court in a lawsuit Dean brought against the bank.

The court publishes decisions once a month, and when April’s decisions were released Thursday, again there was no news for Dean or CB&T.

The suit, filed in 2009, accuses the bank of a violation of a Kentucky Uniform Commercial Code, as well as aiding and abetting fraud and illegal activity and breach of duty of ordinary care following his discovery that his secretary, Jody Wills, was writing counter checks and cashing them at CB&T.

Oral arguments in the case were presented to the Supreme County in June and a decision had been expected by October, attorneys said then.

Over the past nine months, attorneys for both sides – John McGarvey for CB&T and Larry Zielke for Dean – had not expressed surprise that the decision was taking so long.

McGarvey said Thursday he thought that maybe the court being very busy could be a factor, as well as other considerations.

“There are a couple of issues of first impression in Kentucky law, there’s the secondary issue involving lawyer’s escrow accounts,” he said. “It’s one that I suspect is getting a lot of attention. Also, their docket, generally, they’re taking a lot of cases on review, so I think their docket’s gotten a little behind, but I don’t particularly attribute anything to it.”

Neither Zielke nor Dean could be reached for comment.

The suit was first dismissed in 2010 by Shelby County Circuit Judge Charles Hickman in a summary judgment, a decision upheld in 2011 by the Kentucky Court of Appeals, with the court writing that Dean should have been aware of Wills’ activities.

Dean then petitioned the Supreme Court and last year was granted a discretionary review, when the court decided the case had the merits to be heard.

In 2008, Dean learned that his secretary, Wills, who had been with him since he opened his office in 1998, had diverted more than $800,000 from his clients’ escrow accounts, thefts that had been occurring from 2003 to 2005.

Wills wrote herself duplicate payroll checks and paid her credit card bills and mortgage payments on her home with funds stolen from the accounts. To cover up those thefts, she floated checks among numerous banks, which involved more than $2.6 million.

Wills had pleaded guilty and had received probation for the theft of $720,000 from Dean’s escrow account.

The suit says the bank knew or should have known that Wills was engaged in suspicious activity, was negligent in not advising him of the check-cashing scheme and failed to contact Dean about very large amounts of money and the repeated use of counter checks.

The Supreme Court’s next decision day will be May 22.