No Supreme Court decision for Attorney Mark Dean

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Ruling involving his suit against CB&T was expected a month ago

By Lisa King

The Kentucky Supreme Court didn’t announce a decision Thursday in a high-profile case involving a lawyer and his bank.

Oral arguments in the suit that Shelbyville Attorney Mark Dean brought against Commonwealth Bank & Trust for not noticing that his secretary was embezzling million of dollars from him went to the high court in June, with a decision expected by September.

The Supreme Court publishes its decisions monthly, with October’s announcement coming Thursday.

Dean, who had several court cases Thursday, was unavailable for comment, but opposing attorneys had differing opinions on why justices have not made a decision.

Larry Zielke, attorney for Dean, said he regards the lack of a decision as a good sign for his client.

“I think it’s a unique case, and I think the Supreme Court justices are giving it through consideration,” he said. “Considering the nature of this case, I don’t think it’s unusual. I think it could set a precedent about the responsibilities of banks in dealing with their depositors and how they give out these blank checks and it’s their responsibility when something like this happens.”

John McGarvey, attorney for CB&T, said he just thinks that justices have not gotten around to making a decision on the suit because of hectic schedules.

“I wouldn’t say it’s unusual,” he said. “It was argued in June. It gets assigned to a justice to write the decision, and, ordinarily, they [justices] traditionally take some time off during the summer. After the justice writes the decision, they circulate it to the other justices, who can comment on it and get it in final form and the next time they have a court session, they all get together and decide whether they are going to adopt it or not.

“So it doesn’t surprise me a whole lot. I wouldn’t interpret it as meaning anything at this point.”

Dean filed suit in January 2009, accusing 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.

In 2008, Dean learned that his secretary, Jody 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 that involved more than $2.6 million.

The lawsuit was 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’ check-kiting scheme.

Dean then petitioned the Supreme Court and last year was granted a discretionary review, which is the authority of the court to decide if a case merits being heard.

During oral arguments before Supreme Court justices in June, Zielke argued that Dean had no way of knowing that Wills was stealing money from him because her embezzlement scheme was so elaborate.

Wills had pleaded guilty and had received probation for the theft of $720,000 from Dean’s escrow account. She was jailed by Hickman at the beginning at 2012 for falling behind on her restitution schedule of $600 per week to Dean, but she was paroled in March and her restitution significantly reduced.

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.

But McGarvey told justices he did not think the bank was negligent toward Dean because not only was Wills an authorized signer on the account, but that Dean did not ever contact the bank to inform them  was that any of the checks had been paid improperly.

The Supreme Court’s next decision day will be on Nov. 21.