Henry J. Kaplan, M.D. v. University of Louisville

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NOT TO BE PUBLISHED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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