Nicholas Slowik v. Guardian Savings Bank, Inc.

• Court: Court of Appeals of Kentucky
• Decided: June 5, 2026
• Docket: 2025-CA-0468
• Status: Unpublished

Opinion

RENDERED: JUNE 5, 2026; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2025-CA-0468-MR

NICHOLAS SLOWIK AND SPRING SLOWIK APPELLANTS

APPEAL FROM KENTON CIRCUIT COURT v. HONORABLE PATRICIA M. SUMME, JUDGE ACTION NO. 23-CI-01374

GUARDIAN SAVINGS BANK, INC. APPELLEE

OPINION AFFIRMING

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BEFORE: THOMPSON, CHIEF JUDGE; ECKERLE AND MOYNAHAN, JUDGES.

MOYNAHAN, JUDGE: Appellants Nicholas and Spring Slowik (the “Slowiks”),

appeal from a Kenton Circuit Court order granting summary judgment to Appellee

Guardian Savings Bank, Incorporated (“Guardian”). After careful review, we

AFFIRM. BACKGROUND

The Slowiks set out to build a home in Kenton County in 2021. They

chose Adam Miller Homes, LLC (“Miller Homes”), to construct a house in the

small city of Villa Hills. The total project cost was estimated to be $576,889. The

Slowiks tendered a $15,000 downpayment and contracted with Guardian to finance

the remainder of the project. Under the terms of the resulting construction loan

agreement, Miller Homes submitted draw requests to Guardian after key portions

of the project were completed. A Guardian employee then inspected the premises

to ensure the draw request was proportionate to the stage of work completed and

generated a report detailing the inspection findings for Guardian’s recordkeeping.

Upon receiving this verification, Guardian would issue a check in the amount of

the draw request. All of the checks were made out to the Slowiks who had to

affirmatively sign them over to Miller Homes, before the latter could access the

funds. The Slowiks chose to deal directly with their builder and did not employ a

project manager, general contractor, designer, or homeowner’s representative to

oversee the building process.

Between June 2021 and March 2022, Guardian issued three checks,

totaling approximately $484,000, to the Slowiks. Miller Homes informed the

Slowiks contemporaneously with the first draw request that the project would not

be completed within the original timeline. According to Mr. Slowik, the couple

-2- was then informed of delays “constantly” throughout the project. (Trial Record

(“T.R.”) p. 244). Despite the delays, the Slowiks still co-signed each of the three

draw checks, allowing Miller Homes full access to the proceeds as scheduled.

In May 2022, Miller Homes requested payment for multiple change

orders that had accrued on the project.1 The Slowiks expressed unwillingness to

pay for the change orders due to continued project delays. Consequently, Miller

Homes and the Slowiks negotiated to a lower amount that the couple personally

funded and paid in June 2022. At this point approximately $78,000 remained in

the Guardian construction loan account. Miller Homes offered to complete the

house for the remaining undisbursed loan funds. The Slowiks declined this offer,

terminated Miller Homes, and hired a different builder. Guardian disbursed the

remaining money in the account to the Slowiks who paid it to their new builder.

The Slowiks then sued Guardian for breach of contract and fraudulent

misrepresentation.

PROCEDURAL HISTORY

The Slowiks filed a complaint against Guardian in August of 2023.

Guardian moved for summary judgment in February 2025, and a hearing on that

motion was held the next month. On April 1, 2025, the Kenton Circuit Court

1 Per the terms of the construction loan agreement, the Slowiks were financially responsible for all change orders.

-3- granted summary judgment in favor of Guardian. The Slowiks timely filed a

notice of appeal less than two weeks later.

STANDARD OF REVIEW

“The proper standard of review on appeal when a trial judge has

granted a motion for summary judgment is whether the record, when examined in

its entirety, shows there is no genuine issue as to any material fact and the moving

party is entitled to a judgment as a matter of law.” Motorists Mutual Ins. Co. v.

First Specialty Ins. Corp., 706 S.W.3d 120, 124 (Ky. 2024) (internal quotation

marks and citations omitted). As the appropriateness of summary judgment is

ultimately a legal question that involves no factual determinations, a trial court’s

grant of summary judgment is reviewed de novo. Lewis v. B & R Corp., 56

S.W.3d 432, 436 (Ky. App. 2001). Further, “[t]he record must be viewed in a light

most favorable to the party opposing the motion for summary judgment and all

doubts are to be resolved in his favor.” Steelvest, Inc. v. Scansteel Serv. Ctr., Inc.,

807 S.W.2d 476, 480 (Ky. 1991).

ANALYSIS

I. Noncompliant Filing

The Slowiks’ brief states that, since this case involves interpretation

of a contract, “[T]here is no reason to include any legal authority in this Brief.”

The Kentucky Rules of Appellate Procedure (“RAP”) beg to differ. Specifically,

-4- RAP 32(A)(4) states that an Appellant’s brief must contain an argument

conforming to a statement of points and authorities, with ample reference to the

specific location in the record and citations of authority pertinent to each issue of

law. Grants or denials of summary judgment, as well as matters of contract

interpretation, are questions of law subject to de novo review at the appellate level.

Stowe v. Realco Ltd. Liab. Co., 551 S.W.3d 462, 465 (Ky. App. 2018). Therefore,

the Slowiks’ refusal to tender legal authority is particularly striking since their

entire appeal is based solely on matters of law. We note that it is not the role of the

appellate court to research and construct a party’s legal arguments. Hadley v.

Citizen Deposit Bank, 186 S.W.3d 754 (Ky. App. 2005).

Despite this obvious omission, the Slowiks did cite to specific

locations in the record and advanced arguments based upon those citations.

Therefore, we decline to grant Guardian’s request to strike the Slowiks’ brief from

consideration due to noncompliance. However, counsel for the Slowiks is

reminded that “[f]ailing to comply with the civil rules is an unnecessary risk the

appellate advocate should not chance.” Curty v. Norton Healthcare, Inc., 561

S.W.3d 374, 378 (Ky. App. 2018). With this preliminary matter addressed, we

turn to the merits of the appeal.

-5- II. Breach of Contract

Three basic elements are required to support a finding of breach of

contract: (1) existence of a contract, (2) breach of the contract, and (3) damages

flowing from that breach. Barnett v. Mercy Health Partners-Lourdes, Inc., 233

S.W.3d 723, 727 (Ky. App. 2007). Both parties herein agree that a valid contract

existed. Therefore, our analysis turns on whether that existing contract was

breached.

The Slowiks and Guardian executed three agreements to govern the

terms of their contractual relationship. The first was the overall construction loan

agreement (“Loan Agreement”), that established the basic financing framework for

the project. The second and third agreements were Guardian’s standard guidelines

for construction draws (“Guidelines”) and their construction inspection and

disbursement procedures (“Procedures”), respectively. The Guidelines stated: “No

funds will be disbursed in advance of work being completed.” (T.R. p. 386). The

Procedures stated: “No funds will be released prior to work being completed.”

(T.R. p. 221).

The dispute turns on the nature of the parties’ contractual relationship

and whether the Guidelines and Procedures were inherent promises that Guardian

made to the Slowiks or simply procedural descriptions of the draw process. We

find that they were the latter. This interpretation results from our review of the

-6- Loan Agreement. At its core, the Loan Agreement is a straightforward contract

between a for-profit financial institution that lends money in order to realize a

profit and an individual borrower planning to build a house. Guardian did not gift

the Slowiks money to build a house; they lent them money with an eye toward

being able to mortgage the finished house and turn a profit on the transaction.

Guardian and the Slowiks had a clear creditor-debtor relationship. Accordingly,

the Loan Agreement was drafted to protect Guardian’s financial interest in the

collateral property with provisions that required the Slowiks to construct a house

valued at a certain dollar amount, as well as provisions that expressly reserved

Guardian’s right to waive its Guidelines and Procedures at any time with or

without the Slowiks’ input or consent.2 The Slowiks argue that the Guidelines and

Procedures were promises to them that the project would be completed according

to their expectations, but this is a mischaracterization of the nature of the parties’

underlying relationship. Guardian’s reassuring name notwithstanding, the Loan

Agreement, as written, does not contain any discernible intent to forge a fiduciary

relationship. And courts have repeatedly found that—in almost all

circumstances—banks do not have fiduciary relationships with their debtors. See,

e.g., Scott v. Forcht Bank, NA, 521 S.W.3d 591 (Ky. App. 2017) (citing De Jong v.

Leitchfield Deposit Bank, 254 S.W.3d 817, 822 (Ky. App. 2007)); see also Sparks

2 See Loan Agreement, § 2, Paragraph 1 and Paragraph 3.

-7- v. Fifth Third Mortgage Company, No. 5:17-450-KKC, 2018 WL 6424699, at *2-3

(E.D. Ky. Dec. 6, 2018) (bank administering a construction loan is not an insurer

or a fiduciary of its debtor). The contractual terms here established a typical

creditor-debtor relationship, and Guardian met all its contractual obligations.

Therefore, there was no breach.

Finding that no breach occurred, it is unnecessary to determine

whether damages ensued. However, to the extent the Slowiks allege they sustained

losses, any such damages were self-inflicted. Miller Homes was willing to

complete the house—at a loss—for the $78,000 remaining in the loan account and

communicated their willingness to do so to the Slowiks. The Slowiks, however,

refused this offer, terminated Miller Homes, and procured a new builder who,

presumably, charged the full completion cost for the remaining work. Just as

Guardian cannot be charged with fiduciary responsibility for the project’s timeline

or alignment with the Slowiks’ personal preferences, it likewise cannot be charged

with financial responsibility for an independent decision that compounded, rather

than mitigated, the Slowiks’ potential financial deficit.

III. Fraudulent Misrepresentation

The Slowiks also assert a tort claim for fraudulent misrepresentation.

A finding of fraud requires clear and convincing proof of six elements: (1) a

material representation made to the plaintiff, (2) the representation was false, (3)

-8- the declarant knew the representation was false or made it recklessly, (4) the

declarant induced the plaintiff to act upon the false representation, (5) the plaintiff

relied upon the misrepresentation, and (6) the misrepresentation injured the

plaintiff in some way. Flegles, Inc. v. TruServ Corp., 289 S.W.3d 544 (Ky. 2009).

The Slowiks specifically alleged that Guardian misrepresented the

amount of work completed, prematurely issued draw checks based on these alleged

misrepresentations, and failed to obtain required documentation before issuing

checks. The evidence shows that Guardian’s disbursement policy is based on

completion of major project benchmarks, i.e., 25% for the laying of a foundation,

25% for installation of the roof and windows, 25% for interior framing and

drywall, and 25% upon final project completion. Individual line items like the hot

water heater and kitchen backsplash that the Slowiks referenced, do not factor into

the bank’s disbursement methodology. The reports the Slowiks characterize as

fraudulent representations are actually internal working documents compiled for

Guardian’s in-house recordkeeping. (T.R. p. 219; T.R. p. 227). Those reports

were never intended to serve as a progress check or punch list for the Slowiks’

personal reference. Despite some acknowledged errors in the inspection reports

regarding individual components, there is no evidence that Guardian ever deviated

from its established disbursement policy that ties construction draws to project

-9- benchmarks. Nor is there any evidence that these project benchmarks had not been

met when the draw checks were issued to the Slowiks.

Additionally, given their access and ability to inspect the project for

themselves, the Slowiks assertion that they relied to their detriment on Guardian’s

representations is unavailing. The contract terms did not imbue Guardian’s in-

house inspection reports with an express warranty or assurance that certain project

components beyond the benchmarks had been completed. Guardian’s actions also

in no way prohibited the Slowiks from performing their own inspections or some

other level of basic due diligence during the building process. Further, it was not

Guardian’s responsibility to shepherd the project to completion by a certain date.

The bank’s role here was to disburse funds when key project benchmarks were

reached in order to protect its collateral interest.

As to the Slowiks’ claim that Guardian failed to procure required

documentation prior to issuing draw checks, the record shows that Guardian

obtained a sworn builder’s affidavit from Miller Homes for each of the three

checks issued as well as reviewed photographs of the site’s progress taken by its

own inspector. Ultimately, however, the Slowiks’ fraudulent misrepresentation

claim primarily fails due to their inability to identify any specific fraudulent

misrepresentation. The complaint did not identify any such misrepresentation.

-10- And, most notably, when Mr. Slowik was questioned under oath, he could not

identify a single fraudulent misrepresentation put forth by Guardian. (T.R. p. 250).

Thus, the record supports the trial court’s determination that Guardian

made no false representations of past or present material facts to the Slowiks.

Therefore, the summary judgment standard as set forth in Steelvest was satisfied.

CONCLUSION

For the foregoing reasons, the Kenton Circuit Court’s order granting

summary judgment to Guardian is hereby AFFIRMED.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Steven A. Taylor Daniel J. Knecht Fort Mitchell, Kentucky N. Kathleen Dudgeon Jeffrey M. Hendricks Fort Wright, Kentucky

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