Henry J. Kaplan, M.D. v. University of Louisville ( 2022 )

RENDERED: JANUARY 28, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0166-MR
HENRY J. KAPLAN, M.D. APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE ANGELA MCCORMICK BISIG, JUDGE
ACTION NO. 20-CI-004885
UNIVERSITY OF LOUISVILLE;
TONI M. GANZEL;
RONALD I. PAUL;
AND GREGORY C. POSTEL APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, DIXON, AND MAZE, JUDGES.
MAZE, JUDGE: Appellant, Henry J. Kaplan, M.D., appeals the Jefferson Circuit
Court’s order dismissing his complaint for tortious interference with business
relationship and expectancies against Appellees, University of Louisville (the
“University”), Toni M. Ganzel, M.D., Ronald I. Paul, M.D., and Gregory C. Postel,
M.D. For the following reasons, we affirm.
BACKGROUND
Dr. Kaplan came to the University in 2000 to serve as chair of the
Department of Ophthalmology and Visual Sciences (“Department”). Dr. Kaplan
was also a professor, research scientist, and clinician, as well as the chief executive
officer and president of the University of Louisville Physician-Eye Specialists (the
“Practice”), which is the Department’s clinical practice.
In 2018, the University announced “cost controls” for all departments
due to budget shortfalls, including a salary cut for faculty clinicians in 2019. To
avoid salary reductions, Dr. Kaplan began exploring potential revenue sources for
the Department, including selling the Practice to a private equity group. Dr.
Kaplan communicated with four investment groups, but did not enter into any
agreements with these groups.
Around this same time, the Department had multiple medical offices
under the Practice’s name. The Department’s busiest office was in the Springs
Medical Center (“SMC”) on Dutchmans Parkway in Louisville, Kentucky. Dr.
Kaplan worked to secure a lease for more space at SMC. However, in May 2018,
SMC’s landlord said that the space was going to another tenant because the
Department had yet to agree to a new lease. Thus, on May 21, 2018, Dr. Kaplan
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entered into a new lease with SMC on behalf of the Department. Shortly
thereafter, on May 31, 2018, Dr. Kaplan met with Dr. Postel, the University’s
interim executive vice president, and told him about the lease with SMC.
Several months later, on October 16, 2018, Dr. Postel and Dr. Ganzel,
the dean of the University’s School of Medicine, met with Dr. Kaplan and told him
that a special chair review committee would be formed to investigate complaints
regarding Dr. Kaplan’s aforementioned financing and leasing efforts. Dr. Ganzel
summarized the meeting in a letter to Dr. Kaplan on October 25, 2018:
As we discussed in the meeting, several concerns have
been brought to our attention in recent weeks regarding
your actions and alleged actions as Chair. . . .
Specifically, we discussed your unauthorized execution
of a lease on behalf of [the Practice], failure to honor
your initial obligation of the Department to occupy space
and use equipment in the PMOB resulting in expense to
re-stock equipment, alleged attempt to seek a loan to
fund operations outside of [the Practice’s] regular
financing that could compromise [the Practice’s] debt
covenant agreement and the creation of an LLC, that if
intended to spin-off the clinical practice of the
Department into an outside entity, would violate the
Practice Plan.
In the meeting, Dr. Kaplan was told he would be administratively suspended from
his chair position.
The following month, Dr. Ganzel and Dr. Paul, the vice dean of
faculty affairs for the University, informed Dr. Kaplan that the special chair review
had been terminated and the issues were instead being investigated by the
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University’s Audit Services. They also informed Dr. Kaplan that he was
immediately suspended and prohibited from engaging in any University-related
activity in any capacity, which meant he could not contact University personnel or
enter University property. Dr. Kaplan alleges that his fellow faculty and research
collaborators were warned not to communicate with him under threat of dismissal.
The University also took Dr. Kaplan’s desktop computer from his office and
ordered him to return his University laptop, which Dr. Kaplan alleges effectively
ended his medical practice and scientific career.
When the investigation ended, Dr. Kaplan was informed that Dr.
Ganzel was beginning the process to terminate him from the University. And, on
April 23, 2020, the University officially terminated him.
Initially, Dr. Kaplan filed suit in federal court alleging Defendants
terminated him without due process and violated his Fourteenth Amendment
liberty interests in his reputation and career along with his First Amendment right
to academic freedom. The federal court dismissed Dr. Kaplan’s claims and
declined to exercise supplemental jurisdiction over Dr. Kaplan’s state-law claims.
Kaplan v. Univ. of Louisville, 10 F.4th 569 (6th Cir. 2021).
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Dr. Kaplan then filed the underlying action for tortious interference
with business relationships and expectancies in Jefferson Circuit Court. Pursuant
to CR1 12.02, Defendants moved to dismiss Dr. Kaplan’s claim.
In their motion to dismiss, Defendants argued that the University
enjoyed governmental immunity because the Department’s work was in
furtherance of the University’s legislative mandate to become a nationally
recognized metropolitan research university and, therefore, it was performing a
governmental function of statewide concern. Defendants further argued that Dr.
Kaplan failed to state a claim for tortious interference with business relationships
because the research grants and patients at issue belonged to the University and,
thus, could not serve as a basis for a valid tortious interference claim against it.
Moreover, Defendants argued that Dr. Kaplan had not identified any specific
anticipated business relationship with which they interfered; he had not made
allegations connecting Defendants’ conduct to failed employment opportunities;
they could not have interfered with Dr. Kaplan’s book deal because they did not
know about it; Dr. Kaplan had not alleged any improper motive for their conduct;
and Dr. Kaplan failed to allege any improper conduct by Dr. Postel or that he
caused Dr. Kaplan any damages sufficient to state a claim against him.
1
Kentucky Rules of Civil Procedure.
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In response, Dr. Kaplan asserted that the University was not entitled
to immunity because it had not shown it was performing a governmental function
of statewide concern. Further, Dr. Kaplan claimed he could properly base his
claim on the University’s interference with research grants on which he worked
and, by cutting him off from his computers, office, and research collaborators,
Defendants interfered with those grants, as well as the entirety of his research and
scholarship. Dr. Kaplan also alleged that a January 2019 letter from Dr. Ganzel
reflected that Defendants were aware of his book deal; that he had a personal
relationship with patients due to his expertise in the treatment of their conditions;
that the question of whether the University acted with improper motive was a
question for the jury and malice could be inferred from the lack of justification for
Defendants’ actions; and that Dr. Postel was a proper Defendant because he was
Dr. Ganzel’s superior and participated in the events at issue.
After briefing was complete, the circuit court held a hearing and, on
January 13, 2021, granted Defendants’ motion. The circuit court held that Dr.
Kaplan’s asserted business relationships and expectancies were not the type from
which he could stand to realize pecuniary gain beyond the scope of his University
employment. Rather, such relationships were attendant to that employment.
Moreover, to the extent the University was a party to the relationships, it could not
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tortiously interfere with its own relationships. Finally, the court found that the
University enjoyed immunity.
Dr. Kaplan now appeals. Additional facts will be developed as
necessary.
STANDARD OF REVIEW
“It is well settled in this jurisdiction when considering a motion to
dismiss under [CR 12.02] that the pleadings should be liberally construed in a light
most favorable to the plaintiff and all allegations taken in the complaint to be
true.” Mims v. Western-Southern Agency, Inc., 226 S.W.3d 833, 835 (Ky. App.
2007) (citing Gall v. Scroggy, 725 S.W.2d 867, 869 (Ky. App. 1987)). “Since a
motion to dismiss for failure to state a claim upon which relief may be granted is a
pure question of law, a reviewing court owes no deference to a trial court’s
determination; instead, an appellate court reviews the issue de novo.” Fox v.
Grayson, 317 S.W.3d 1, 7 (Ky. 2010) (citing Morgan v. Bird, 289 S.W.3d 222, 226
(Ky. App. 2009)). Finally, this Court made clear in James v. Wilson that “[t]he
court should not grant the motion unless it appears the pleading party would not be
entitled to relief under any set of facts which could be proved in support of
his claim.” 95 S.W.3d 875, 883-84 (Ky. App. 2002) (citations omitted).
Accordingly, the critical inquiry is whether “if the facts alleged in the complaint
can be proved, would the plaintiff be entitled to relief?” Id. at 884.
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ANALYSIS
As an initial matter, we examine the meaning of the phrase “without
prejudice” in the circuit court’s dismissal order and any effect it may have on this
appeal, as raised by Defendants. While the circuit court dismissed certain bases of
Dr. Kaplan’s claim with prejudice, other bases of his claim were dismissed without
prejudice:
WHEREFORE, IT IS HEREBY ORDERED AND
ADJUDGED that the Motion of the Defendants,
University of Louisville, Toni M. Ganzel, Ronald I. Paul,
and Gregory C. Postel, to Dismiss is GRANTED. Dr.
Kaplan’s claim against Defendant University of
Louisville is DISMISSED WITH PREJUDICE. To the
extent Dr. Kaplan’s tortious interference claim against
the remaining Defendants is based upon patient care,
research grant proposals, participation, or renewals,
communication and collaboration with colleagues,
research activities, listing on national websites, and
attendance at scientific conferences, those claims are
likewise DISMISSED WITH PREJUDICE. To the
extent Dr. Kaplan’s tortious interference claim against
the remaining Defendants is based upon interference with
employment opportunities or his book deal, it is
DISMISSED WITHOUT PREJUDICE.
This is a final and appealable Order and there is no just
cause for delay in its entry or execution.
(Emphasis in original.)
Accordingly, the circuit court dismissed the University with prejudice
because it enjoyed governmental immunity but broke down Dr. Kaplan’s claim
against the remaining Defendants into certain bases. Specifically, the court
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dismissed Dr. Kaplan’s tortious interference claim based on patient care or
research grants, with prejudice, because those relationships were between the
University and third parties instead of Dr. Kaplan himself. Likewise, the court
dismissed Dr. Kaplan’s tortious interference claim based on communications and
collaboration with colleagues, research activities, listing on a national website, and
attendance at scientific conferences, with prejudice, because those are not the types
of relationship upon which tortious interference may be based. However, the court
dismissed Dr. Kaplan’s tortious interference claim based on employment
opportunities and his book deal, without prejudice, because he did not allege facts
sufficient to state a claim.
Dr. Kaplan does not address this distinction in his briefs. However,
Defendants argue that Dr. Kaplan’s complaint contained a single claim, “Count I”
for “tortious interference with business relationships and expectancies,” and
because the court granted their motion to dismiss Dr. Kaplan’s entire complaint
with prejudice, any language to the contrary has no effect.
We interpret the circuit court’s use of the phrase “without prejudice”
to simply indicate that these two bases of Dr. Kaplan’s tortious interference claim
(employment opportunities and his book deal) were not rendered on the merits
because Dr. Kaplan failed to allege facts sufficient to state a claim. “Dismissed
without prejudice” is defined as “[r]emoved from the court’s docket in such a way
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that the plaintiff may refile the same suit on the same claim.” Commonwealth v.
Sowell, 157 S.W.3d 616, 617 (Ky. 2005) (citation omitted). The use of this phrase
does not change the fact that the order was final, however. CR 54.01 defines a
final order or judgment as “adjudicating all the rights of all the parties in an action
or proceeding. . . .” While Dr. Kaplan’s claim based on employment opportunities
and his book deal was dismissed without prejudice, the January 13, 2021, order of
dismissal still adjudicated all rights of all the parties. As such, it was a final
appealable order. CR 54.01; see Wood v. Downing’s Admr., 62 S.W. 487 (Ky.
1901) (holding an order dismissing without prejudice “fixed absolutely and finally
the rights of the parties in this suit in relation to the subject-matter of the litigation,
and put an end to the suit. It was a final appealable order.”).
With that issue clarified, we now address Dr. Kaplan’s two arguments
on appeal. First, he argues the circuit court erred in dismissing the University on
immunity grounds because the University’s actions were not legitimate
governmental functions of statewide concern. Second, he claims the circuit court
erred in granting Defendants’ motion to dismiss because he alleged facts, which, if
taken as true, support his intentional interference claim.
I. The University is entitled to governmental immunity.
Dr. Kaplan claims the University is not entitled to governmental
immunity because Defendants’ interference with his career could not have a
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legitimate statewide function or purpose. Dr. Kaplan further criticizes the circuit
court for not explaining why the University’s conduct served a legitimate
governmental function and was a matter of statewide concern.
In response, Defendants argue that, under University of Louisville v.
Rothstein, 532 S.W.3d 644, 647 (Ky. 2017), the University is a state agency
entitled to governmental immunity and that Kentucky courts have repeatedly
recognized that state agencies, like the University, are immune to tort claims like
Dr. Kaplan’s.
In its order, the circuit court held that the University’s employment of
Dr. Kaplan as chair of the department, professor, clinician, and research scientist
was in furtherance of its mission as a nationally recognized research university.
The court further concluded that function was governmental rather than proprietary
in nature and was certainly of statewide concern. See Franklin-Simpson Cty. Bd.
of Zoning Adjustment v. Drakes Creek Holding Co., LLC, 603 S.W.3d 687, 691
(Ky. App. 2020) (citing Coppage Construction Company, Inc. v. Sanitation
District No. 1, 459 S.W.3d 855, 862 (Ky. 2015)).
“The issue of whether a defendant is entitled to the defense of
sovereign or governmental immunity is a question of law.” Univ. of Louisville,
532 S.W.3d at 647 (citations omitted). Under the law, the University is, indeed, “a
state agency entitled to governmental immunity[.]” Id. And, such immunity exists
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where the University is performing a governmental function of statewide concern.
We agree with the circuit court’s holding that the University’s employment of Dr.
Kaplan as chair, professor, clinician, and research scientist was in furtherance of its
mission as a nationally recognized research university. That function is
governmental rather than proprietary in nature and is of statewide concern. Thus,
the University was entitled to governmental immunity. Moreover, Dr. Kaplan cites
no evidence that the legislature has limited or waived the University’s immunity.
See Withers v. Univ. of Kentucky, 939 S.W.2d 340, 344 (Ky. 1997) (only the
legislature can limit or waive immunity once the judiciary has determined that an
entity is entitled to it).
II. Dr. Kaplan’s intentional interference claim
To prevail on a claim for intentional interference, Dr. Kaplan had to
show 1) the existence of a valid business relationship or expectancy; 2) that
Defendants were aware of this relationship or expectancy; 3) that Defendants
intentionally interfered; 4) that the motive behind the interference was improper; 5)
causation; and 6) special damages. Seeger Enterprises, Inc. v. Town and Country
Bank & Trust Co., 518 S.W.3d 791, 797 (Ky. App. 2017).
First, Dr. Kaplan argues that the circuit court’s decision focused solely
on the first element – the existence of a valid business relationship or expectancy –
and, thus, the other elements are presumed adequately pled. We disagree. While
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the circuit court focused on Dr. Kaplan’s relationships, the other elements were
also discussed. More importantly, as Dr. Kaplan’s brief acknowledges, this Court
reviews an order of dismissal under a de novo standard of review. As such, we
owe no deference to the circuit court and do not “presume” all other elements were
adequately pled.
Next, Dr. Kaplan argues the circuit court incorrectly interpreted
RESTATEMENT (SECOND) OF TORTS § 766B as requiring him to plead that
Defendants interfered with business relationships and expectancies from which he
would realize a pecuniary value. He claims the RESTATEMENT only requires the
“loss of the benefits” of the relationship, not a certain amount of money or value.
Moreover, if viewed from his perspective, then Dr. Kaplan claims he properly pled
a loss of his ongoing and future patient relationships, scientific research, grant
activities, research collaborations, and medical activities, as well as his book deal
and employment opportunities.
In response, Defendants argue that “pecuniary value” is defined as the
reasonable probability of a future economic benefit, and “personal, social and
political relations” are not covered by this definition. Because Dr. Kaplan was on
paid leave and never alleged any lost income, Defendants claim he did not suffer a
pecuniary loss. Moreover, Defendants argue that Dr. Kaplan’s interest in his
former work responsibilities at the University are not valid business expectancies
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and he is merely trying to repurpose his failed property and liberty interest
constitutional claims from his federal case into a tortious interference claim in this
state case.
We examine the language of the RESTATEMENT (SECOND) OF TORTS §
766B (1979),2 which provides:
One who intentionally and improperly interferes with
another’s prospective contractual relation . . . is subject to
liability to the other for the pecuniary harm resulting
from loss of the benefits of the relation, whether the
interference consists of (a) inducing or otherwise causing
a third person not to enter into or continue the
prospective relation or (b) preventing the other from
acquiring or continuing the prospective relation.
Based on the RESTATEMENT, Dr. Kaplan had to allege that Defendants intentionally
and improperly interfered with his valid or expected business relationship and
those Defendants were liable for the pecuniary harm resulting from that loss of the
benefits of those relationships. While we agree with Dr. Kaplan that he did not
need to allege a certain amount of realized money damages to state a claim for
tortious interference, he did need to allege that Defendants intentionally interfered
with his valid or expected business relationships.
2
This section of the RESTATEMENT was adopted by the Kentucky Supreme Court in National
Collegiate Athletic Association By and Through Bellarmine College v. Hornung, 754 S.W.2d
855 (Ky. 1988).
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With that in mind, we analyze the valid or expected relationships with
which Dr. Kaplan alleges Defendants interfered and caused him damages. His
alleged relations include: (1) a relationship with his medical practice through the
Practice and with his patients; (2) a relationship with his ongoing and future
scientific research programs, scientific grants, and collaborators; (3) a relationship
with employment opportunities; and (4) a relationship with his book deal.
First, there is no factual dispute regarding Dr. Kaplan’s relationship
with his medical practice and patients. Dr. Kaplan acknowledges that the
University is the owner of the Practice and that he treats patients exclusively
through the Practice. While Dr. Kaplan’s expertise in ophthalmology may have
attracted patients to see him, that does not convert those patients into his patients.
Dr. Kaplan saw patients through the Practice and, thus, the patients had business
relationships with the University, not Dr. Kaplan. Dr. Kaplan’s personal
physician-patient relationship with those patients does not equate to a business
relationship that is actionable under a tortious interference claim.
We reviewed the two cases Dr. Kaplan cites in support of his
argument that Defendants intentionally interfered with his physician-patient
relationship and find those cases distinguishable. In the unpublished case of Estela
v. Bristol Hospital, Inc., 2015 WL 5134798 (Conn. Super. Ct. Jul. 31, 2015), the
plaintiff was a physician with medical staff privileges at the defendant hospital
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who alleged that the hospital wrongfully retained his patients or referred his
patients to other physicians. However, in that case, the plaintiff/physician was not
an employee of the hospital. Here, of course, Dr. Kaplan was an employee of the
University through which he saw patients. Thus, the patients were not his and he
did not have a business relationship with these patients. And, in Moore &
Associates v. Metropolitan Life Insurance Company, 604 S.W.2d 487 (Tex. Civ.
App. 1980), an association of anesthesiologists sued a medical insurer for
tortiously interfering with its physician-patient relationships when the insurer sent
letters advising patients that their medical claims would not be paid in full because
plaintiff’s charges were excessive. In that case, the association of anesthesiologists
sued a third party that was not its employer for tortious interference. Again, in this
case, Dr. Kaplan sued his employer for intentionally interfering with patients, but
the patients were not his and he did not have a business relationship with the
patients.
We believe the case of United States ex rel. Doe v. Jan-Care
Ambulance Service, 187 F. Supp. 3d 786 (E.D. Ky. 2016), is more applicable. In
that case, two ambulance services bid for a contract with the Department of
Veterans Affairs (“VA”). Trans-Star was located in Kentucky, while Jan-Care was
located in West Virginia. Jan-Care won the contract and transported patients from
a West Virginia VA hospital to different locations in West Virginia, Ohio, and
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Kentucky. Initially, Jan-Care hired Trans-Star to conduct the transports in
Kentucky, but later began performing those transports itself. Trans-Star then sued
Jan-Care arguing that Jan-Care interfered with its prospective business relationship
with Jan-Care when Jan-Care began performing the Kentucky transports itself. Id.
at 793. The court held that, “under Kentucky law, one cannot tortiously interfere
with one’s own prospective business relationship.” Id. at 794 (emphasis in
original). The court explained that, under the RESTATEMENT, one must improperly
interfere with another’s prospective relation to be liable. Id. (citing RESTATEMENT
(SECOND) OF TORTS § 766B (1979)). Because a crucial element of tortious
interference was not satisfied, the court held that the claim must be dismissed. Id.
Likewise, Dr. Kaplan’s claim based on a relationship with the Practice
and patients must be dismissed. The Practice and patients belonged to the
University, not Dr. Kaplan. Dr. Kaplan cannot allege that the University interfered
with its own business relationship and caused him damages.
Second, Dr. Kaplan alleges that Defendants intentionally interfered
with his expectancy for his entire research career and ongoing projects as a tenured
professor. He cites Klaassen v. University of Kansas School of Medicine, 84 F.
Supp. 3d 1228 (D. Kan. 2015), for support. In Klaassen, a medical professor sued
the university and several other defendants. For his tortious interference claim, the
plaintiff/professor alleged that five individual defendants intentionally interfered
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with his business relationship with the National Institutes of Health (NIH) by
requesting that the professor be removed as principal investigator on certain NIH
grants. However, in that case, the NIH grants funded not only the professor’s
research, but also part of his salary. Id. at 1235. Thus, the court reasoned that the
NIH arguably had a business relationship with both the university and the
professor.
Here, Dr. Kaplan has not made any such allegations like in Klaassen.
Instead, he claims that his entire research career is a valid, continuing business
expectancy with which Defendants intentionally interfered by suspending and,
eventually, terminating him. While such actions prevented Dr. Kaplan from
performing his job duties, that is not tortious interference. That is an everyday
occurrence for anyone who is placed on leave from their job or terminated.
Next, we address Dr. Kaplan’s claim that Defendants intentionally
interfered with his employment opportunities and book deal. Under comment c to
the RESTATEMENT (SECOND) OF TORTS § 766B, interference with a plaintiff’s
prospective employment opportunities may give rise to a tortious interference
claim. However, the plaintiff must identify with specificity the particular
opportunity with which the defendants interfered and how they interfered to state a
claim for tortious interference. Here, Dr. Kaplan failed to identify any particular
employment opportunity with which Defendants interfered. His complaint merely
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states: “[w]hile the . . . prohibitions were pending against Dr. Kaplan, he did
inquire/apply for other positions. He was not offered an interview for any
position.” Complaint ¶ 126. Dr. Kaplan had to allege a more concrete injury than
a lost opportunity for unknown “positions.” See Kennedy v. American Airlines
Inc., 195 F. Supp. 3d 646, 657-58 (D.N.J. 2016). Because he failed to state
allegations sufficient to support his tortious interference claim based on
employment opportunities and did not attempt to amend his complaint to identify
those opportunities, we conclude that he failed to state a claim on this basis.
Regarding Dr. Kaplan’s book deal, he had to allege and prove that
Defendants intended to interfere with the book deal. This required Defendants to
either desire to interfere with the book deal or know their conduct was certain or
substantially certain to interfere with it. RESTATEMENT (SECOND) OF TORTS § 766B
cmt. d (“The interference with the other’s prospective contractual relation is
intentional if the actor desires to bring it about or if he knows that the interference
is certain or substantially certain to occur as a result of his action.”).
In his complaint, Dr. Kaplan alleges that Defendants interfered with
his “then-current publishing contract” and states:
90. Dr. Kaplan and one of his Department colleagues
were under contract to write a book relating to their
ophthalmology specialty, Uveitis. On December 18,
2018, Dr. Kaplan’s colleague was told that he was not
allowed to communicate with Dr. Kaplan for any reason
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until after the University’s “investigation” of Dr. Kaplan
was complete.
91. The interference adversely impacted the ability of
Dr. Kaplan and his colleague to meet contract deadlines,
such as submitting a finalized chapter author list for the
book, given their inability to collaborate on their work
for the book. Dr. Kaplan and his colleague missed the
publisher’s extended deadline (January 15, 2019) for
submitting their list of chapter authors as a result of the
continued prohibition of communications with Dr.
Kaplan.
In its order, the circuit court held that Dr. Kaplan failed to prove that
Defendants intended to interfere with his book deal. The court discussed the fact
that Dr. Kaplan attached the January 2019 letter from Dr. Ganzel to Dr. Kaplan to
his complaint and how Dr. Kaplan argued that this letter evidenced Defendants’
awareness of the book and their intention to interfere with it.3 However, the circuit
court held that, even construed in the light most favorable to Dr. Kaplan, the letter
3
The parties do not address whether the January 2019 letter and other documents attached to Dr.
Kaplan’s complaint converted Defendants’ motion to dismiss into a motion for summary
judgment under CR 56. In its order, the circuit court specifically noted that it “can consider Dr.
Ganzel’s January 2019 letter and other documents attached to the Complaint without converting”
Defendants’ motion to one for summary judgment, citing Netherwood v. Fifth Third Bank, Inc.,
514 S.W.3d 558, 564 (Ky. App. 2017), as support. We conclude that Netherwood is, indeed,
supportive. In that case, the court granted the defendant’s motion to dismiss and, on appeal, the
plaintiff argued the court applied an incorrect standard because it addressed factual issues and
made conclusions based upon facts not in the record. Id. The Court of Appeals held that the
circuit court relied only upon the information attached to the pleadings, including documents
attached to the plaintiff’s complaint and, thus, the court did not go outside the record to reach
any of its conclusions. Id. Here, the circuit court relied on information contained within the
January 2019 letter, which was attached to and referenced in Dr. Kaplan’s complaint. The court
did not go outside the record to reach any of its conclusions and, thus, the circuit court properly
applied the CR 12.02 standard.
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merely references the book and, without more, does not support an inference that
Defendants intended to interfere with the book deal. The court further noted that
the letter explicitly states that Dr. Kaplan may communicate with University
personnel to secure due acknowledgement for the work on the book.
In his brief, Dr. Kaplan argues that the circuit court misunderstood the
context of the January 2019 letter. He claims the letter proves Defendants knew
about his work on the book and that their prohibitions on him were interfering with
Dr. Kaplan’s work on the book. Moreover, he claims “acknowledgement” in the
academic world simply means that his name could be included on publications and
presentations and, thus, the letter proves that the prohibitions on Dr. Kaplan were
still in effect.
After review of the record, we agree with the circuit court. While we
understand Dr. Kaplan’s argument that being prohibited from speaking with his
Department colleague may have affected his ability to meet contract deadlines on
the book, these allegations do not prove that Defendants knew their conduct was
“certain or substantially certain” to interfere with the book deal. RESTATEMENT
(SECOND) OF TORTS § 766B cmt. d. Indeed, Dr. Kaplan’s complaint merely states
that “[t]he interference adversely impacted” his and his unnamed colleague’s
ability to collaborate on the book. That does not equate to allegations that
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Defendants knew that Dr. Kaplan had a book deal, with which they intended to
interfere, with an improper motive, and caused the book deal to fail.
CONCLUSION
Although Dr. Kaplan suggests that his claim should not have been
dismissed at the CR 12.02 dismissal stage and he should have been allowed to
conduct discovery instead, we disagree. Under CR 12.02, instead of filing an
answer to a plaintiff’s complaint, a defendant may file a motion to dismiss the
complaint for failure to state a claim upon which relief can be granted. That
motion admits the material facts of the complaint as true. Upchurch v. Clinton
County, 330 S.W.2d 428, 429-30, 432 (Ky. 1959). And, when ruling on a motion
to dismiss, the court’s “attention . . . should be directed only to the sufficiency of
the allegations in the complaint.” Ewell v. Central City, 340 S.W.2d 479, 480 (Ky.
1960). However, if a plaintiff would not be entitled to relief under any statement
of facts which could be proved in support of the claim, then the law allows for
tortious interference claims to fail at the pleading stage. See, e.g., Seiller
Waterman, LLC v. RLB Properties, Ltd., 610 S.W.3d 188, 195 (Ky. 2020), reh’g
denied (Sep. 24, 2020).
In this case, Dr. Kaplan failed to state a claim for tortious interference
upon which relief can be granted and for the foregoing reasons, we affirm the
circuit court’s order.
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ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Dennis D. Murrell Donna King Perry
Kevin L. Chlarson Jeremy S. Rogers
Louisville, Kentucky Matthew Barszcz
Chase M. Cunningham
Louisville, Kentucky
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