BARBARA GIBSON v. CITIZENS NATIONAL CORPORATION; Estate of MARY FERN MESSICK
Annotate this Case
Download PDF
RENDERED: JULY 2, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-000243-MR
BARBARA GIBSON
APPELLANT
APPEAL FROM JOHNSON CIRCUIT COURT
HONORABLE STEPHEN N. FRAZIER, JUDGE
ACTION NO. 00-CI-00138
v.
CITIZENS NATIONAL CORPORATION;
and JOHN ROGER BOWLIN, Individually,
and his capacity as Executor of the
Estate of MARY FERN MESSICK
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, MINTON, AND VANMETER, JUDGES.
VANMETER, JUDGE.
Barbara Gibson, appellant, appeals from orders
of the Johnson Circuit Court entered on December 20, 2001 and
May 16, 2002 granting summary judgment, respectively, in favor
of the appellees, John Roger Bowlin and Citizens National
Corporation.
Finding that the trial court did not err in
granting summary judgment, this Court affirms.
The facts presented in this matter are undisputed and
straightforward.
Gibson is the sole daughter of Lynn Curtis
Messick, who died intestate on or about August 14, 1993.
Messick was also survived by his wife, Mary Fern Messick.
Mary
Fern was appointed as administratrix of her husband’s estate by
order of the Johnson District Court entered August 26, 1993.
While acting in her capacity as administratrix, Mary
Fern closed an account with the Signet Bank,1 and received a
check dated December 19, 1994, in the amount of $136,487.91
payable to the order of the Estate of Lynn C. Messick.
Mary
Fern presented this check, along with her order of appointment
as administratrix to Citizens National.
Mary Fern endorsed the
check as follows: “Mary Fern Messick, Adm Estate of Lynn Curtis
Messick.” Mary Fern deposited the proceeds of the check directly
into her personal checking account.2
The appellant alleges Mary Fern initially told
appellant that she, the appellant, would receive the funds in
the Washington D.C. bank account, but that Mary Fern
subsequently refused to honor this “commitment.”
disburse the sum of $51,579.62 to appellant.
1
Mary Fern did
Mary Fern filed a
Gibson contends that this account was a joint survivorship account between
her father and her. For whatever reason, Signet Bank, the successor bank to
Security National Bank, Washington, D.C., the original depository bank, was
unable to locate the original depository agreement or signature card.
Therefore, for purposes of this appeal, Gibson’s claims will be accepted as
true.
2
The deposit was apparently made on December 31, 1994.
-2-
Final Settlement of the Estate of Lynn C. Messick on or about
April 17, 1995.
Appellant filed no objection to the settlement
of her father’s estate.
Mary Fern died on June 2, 1996.
The appellee, John
Roger Bowlin, Mary Fern’s nephew, was appointed administrator of
Mary Fern’s estate on June 12, 1996.
The appellant filed a
claim against Mary Fern’s Estate on January 30, 1997.
The
Johnson District Court dismissed the claim, ruling that the
claim should have been filed within six months of the date of
appointment.
Apparently, Mary Fern’s Estate was settled on
October 12, 1997.
The appellant appealed this settlement to the
Johnson Circuit Court.
By judgment entered on November 24,
1997, the Johnson Circuit Court dismissed the action as res
judicata.
Appellant filed the instant action on March 15, 2000
against both Citizens National Corporation and John Roger Bowlin
for conversion.
The Johnson Circuit Court granted the
appellees’ separate motions for summary judgment.
The trial
court denied the appellant’s motion to alter, amend or vacate,
and this appeal followed.
While the claims against the appellees arise out of
common facts, the grounds for the summary judgment and the
arguments both for and against, are quite distinct.
Claim against John Roger Bowlin.
-3-
Appellant argues the summary judgment was improperly
granted as the trial court applied the wrong statute of
limitations to her claim against John Roger Bowlin.
The trial
court held that the two year limitation imposed by KRS 396.205
barred the action.
Appellant argues the five year limitation of
KRS 413.120(6), applicable to claims of conversion, should
apply.
KRS 396.205 is explicit:
Notwithstanding any other statute to the
contrary, no cause of action on any claim
not otherwise barred by the provisions of
KRS 396.011 and KRS 396.055(1), or any other
applicable statute of limitations, shall be
brought against the personal representative
or against any distributee after the
expiration of two (2) years from the date of
the order of discharge of the personal
representative. The foregoing limitation
shall not preclude an action by any claimant
against the personal representative or any
distributee for fraud. (Emphasis added).
As correctly noted by the trial court, this statute leaves
little room for interpretation.
While appellant cites a number
of cases for the proposition that the five year statute of
limitation applies to the conversion of property by a fiduciary,3
3
Stacy’s Administrator v. Stacy, 296 Ky. 619, 178 S.W.2d 42 (1944); Williams
Administrator v. Union Bank and Trust Co., 283 Ky. 644, 143 S.W.2d 297
(1940); Patton v. Coldiron, 213 Ky. 709, 281 S.W. 812 (1926); Fidelity &
Columbia Trust Co. v. McCabe, 169 Ky. 613, 184 S.W. 1124 (1916); Withers
Administratrix v. Withers Heirs, 30 Ky. L. Rptr. 1099, 100 S.W. 253 (1907).
-4-
all of these cases predate the comprehensive revision of KRS
Chapter 396 in 1988, of which KRS 396.205 was a part.4
In this case, Mary Fern was discharged as
administratrix of Lynn Messick’s estate in April, 1995.
Any
action against her, as fiduciary or as a distributee of the Lynn
Messick estate, should have been brought within two years, or by
April 1997.
Even assuming the limitations could have been
tolled by her death, the appellee, John Roger Bowlin, was
discharged as administrator of her estate in October 1997.
At
the very latest, any action against John Roger Bowlin should
have been filed by October 1999.
The Johnson Circuit Court
properly granted summary judgment in favor of the appellee, John
Roger Bowlin.
Claim against Citizens National Corporation.
Appellant’s claim for conversion against appellee,
Citizens National Corporation proceeds from a slightly different
point of view, and stems from Mary Fern’s actions in endorsing a
check payable to the Estate of Lynn C. Messick, and depositing
that check into an account in her individual name.
Appellant’s
claim is that based on the name of the payee on the check, the
bank was on notice of Mary Fern’s fiduciary status and,
therefore, had an obligation to see that the check was deposited
into an estate account.
4
The trial court ruled that KRS 386.120,
1988 Ky. Acts ch. 90, § 26.
-5-
absent any evidence of bad faith or notice of a breach of
fiduciary duty, protected the bank from liability.
KRS 386.120 states as follows:
If a fiduciary makes a deposit in a bank or
trust company to his personal credit of
checks drawn by him upon an account in his
own name as fiduciary, or of checks payable
to him as fiduciary, or of checks drawn by
him upon an account in the name of his
principal if he is empowered to draw checks
thereon, or of checks payable to his
principal and endorsed by him if he is
empowered to endorse them, or if he
otherwise makes a deposit of funds held by
him as fiduciary, the bank or trust company
receiving the deposit is not bound to
inquire whether the fiduciary is committing
thereby a breach of his obligation as
fiduciary. The bank or trust company may pay
the amount of the deposit or any part
thereof upon the personal check of the
fiduciary without being liable to the
principal, unless it receives the deposit or
pays the check with actual knowledge that
the fiduciary is committing a breach of his
obligation as fiduciary in making the
deposit or in drawing the check or with
knowledge of such facts that its action in
receiving the deposit or paying the check
amounts to bad faith.
Again, and as noted by the trial court, the statute absolves a
bank of liability for cashing a check made payable to a
fiduciary in his or her fiduciary capacity.
The statute
addresses the situation in which a fiduciary deposits a check
payable in his or her fiduciary capacity, and deposits the check
-6-
in his or her individual account.5
And, as noted by the trial
court, the record contains no evidence of bad faith or knowledge
of breach of fiduciary duty. See Taylor v. Citizens Bank, 290
Ky. 149, 151-52, 160 S.W.2d 639, 640-41 (1942).
While a trial court is admonished under Steelvest,
Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, (1991)
that the standard for granting a summary judgment is high,6 the
court in Steelvest also noted that “a party opposing a properly
supported summary judgment motion cannot defeat it without
presenting at least some affirmative evidence showing that there
is a genuine issue of material fact for trial.” 807 S.W.2d at
482 (citing Gullett v. McCormick, Ky., 421 S.W.2d 352 (1967);
Continental Casualty Co. v. Belknap Hardware & Manufacturing
Co., Ky., 281 S.W.2d 914 (1955)).
The only evidence, apparently, supporting appellant’s
position is the fact that a check payable to Mary Fern in a
fiduciary capacity was deposited to an individual account.
KRS
5
The origin of KRS 386.120 is in the Uniform Fiduciaries Act § 9. Only a
portion of the Uniform Fiduciaries Act was enacted in Kentucky. See 1930 Ky.
Acts ch. 14. The commentary to the section states that “[b]y the weight of
authority a depository of fiduciary funds is not bound to inquire into the
authority of the fiduciary to make the deposit even where the deposit is made
in the personal account of the fiduciary.” Uniform Fiduciaries Act (U.L.A.) §
9 comment (2002).
6
As the court held in Steelvest, “summary judgment is to be cautiously
applied and should not be used as a substitute for trial” and “should only be
used ‘to terminate litigation when, as a matter of law, it appears that it
would be impossible for the respondent to produce evidence at the trial
warranting a judgment in his favor and against the movant.’” 807 S.W.2d at
483 (quoting Paintsville Hospital Co. v. Rose, Ky., 683 S.W.2d 255, 256
(1985)).
-7-
386.120, however, explicitly absolves the bank of liability
without additional evidence of bad faith or knowledge of breach
of fiduciary duty.
For the foregoing reasons, this Court affirms the
orders of the Johnson Circuit Court granting appellees’
respective motions for summary judgment.
ALL CONCUR.
BRIEF FOR APPELLANT:
Michael S. Endicott
Paintsville, Kentucky
BRIEF FOR APPELLEE CITIZENS
NATIONAL CORPORATION:
P. Franklin Heaberlin
Prestonsburg, Kentucky
BRIEF FOR APPELLEE JOHN ROGER
BOWLIN:
Michael D. Osborne
Paintsville, Kentucky
-8-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
