William Helm, mb.bchir v. Allison Ratterman, Phd

                RENDERED: FEBRUARY 18, 2022; 10:00 A.M.
                       NOT TO BE PUBLISHED

                Commonwealth of Kentucky
                           Court of Appeals

                              NO. 2020-CA-1434-MR


C. WILLIAM HELM, MB.BCHIR                                        APPELLANT



                APPEAL FROM JEFFERSON CIRCUIT COURT
v.              HONORABLE A.C. MCKAY CHAUVIN, JUDGE
                        ACTION NO. 20-CI-001068



ALLISON RATTERMAN, PH.D.; ANGELA
KOSHEWA; PAMELA FELDHOFF, PH.D.;
AND ELEANOR LEDERER, M.D.                                         APPELLEES



                                    OPINION
                                   AFFIRMING

                                   ** ** ** ** **

BEFORE: CLAYTON, CHIEF JUDGE; CETRULO AND McNEILL, JUDGES.

CETRULO, JUDGE: This is an appeal from Jefferson Circuit Court granting the

Appellees’ motion for summary judgment. For reasons that will be set forth

herein, we affirm the judgment of the circuit court.
                       FACTUAL AND PROCEDURAL HISTORY

                 Dr. C. William Helm (“Appellant Helm”) was a professor, clinician,

and researcher at the University of Louisville School of Medicine (“University”)

from 2000 to 2010. In February 2010, the University notified Appellant Helm that

it would not renew his annual employment contract, which would expire at the end

of July 2010. Shortly before that notification, in 2009, Dr. Douglas Taylor

(“Complainant Taylor”) accused Appellant Helm of research misconduct.

Complainant Taylor, also a professor and researcher at the University, accused

Appellant Helm of plagiarism. Complainant Taylor alleged that portions of his

NIH1 grant proposal were used in Appellant Helm’s CEGIB2 grant proposal.

Complainant Taylor ultimately notified the University’s Office of Research

Integrity (“ORI”) Director, Appellee Dr. Jennifer Ratterman (“Director

Ratterman”), about the alleged plagiarism.

                 Director Ratterman testified in her November 2015 deposition

(“Deposition”) that at that time, when the University received such an allegation, it

would determine whether the grant involved United States Public Health Service

(“PHS”) support or was “internal.” The University closely monitored grants


1
    National Institutes of Health is an agency of the United States Public Health Service.
2
 Center on Environmental Genomics and Integrative Biology is a center on the University’s
campus that is funded through a National Institute of Environmental Health Sciences (“NIEHS”)
award. NIEHS is a NIH research center.



                                                  -2-
involving PHS support because 42 Code of Federal Regulations (“C.F.R.”) Part 93

(“Part 93”) outlines specific guidelines for addressing research misconduct

allegations that utilize such funds. To ensure the University properly managed

PHS supported grants and adhered to Part 93, the University created its ORI

policy, which implemented the regulatory guidelines.3

              Complainant Taylor first contacted Director Ratterman regarding the

plagiarism allegation against Appellant Helm in mid-July 2009. Director

Ratterman testified in her deposition that after that first meeting, she contacted the

University’s Office of Industry Contracts to get a copy of Appellant Helm’s grant

and begin reviewing the allegation. That office informed Director Ratterman that

it did not have a copy of Appellant Helm’s grant because the CEGIB grants were

“internal,” and it did not have paperwork on them. Based on that discussion,

Director Ratterman decided that the University’s ORI policy would not be used to

review Appellant Helm’s case and would instead be used as guidance (i.e.,

incorporating some components of the policy while ignoring others).

              Director Ratterman testified that the determination to use a review

process separate from the University’s ORI policy was based on her belief that

Complainant Taylor’s claims against Appellant Helm were outside the scope of



3
 The University was not required to use the ORI policy for allegations concerning grants that
were not PHS supported (i.e., what the University considered “internal” grants).

                                              -3-
that policy (i.e., “internal” and therefore not involving PHS support). Director

Ratterman understood Part 93 to apply only when the grant that incorporated the

alleged plagiarism was PHS supported.4

               Next, the University assigned an Associate Research Integrity

Ombudsperson to oversee each allegation. In August 2009, Director Ratterman

met with Appellee Dr. Eleanor Lederer, the Associate Research Integrity

Ombudsperson (“Ombud Lederer”) assigned to Complainant Taylor’s allegation.

Aside from that initial meeting and a few subsequent discussions concerning the

creation of an inquiry panel to review the allegation, the case made little progress

for nearly a year.

               In September 2010, Director Ratterman became aware that CEGIB

was NIH-funded (and therefore PHS supported), and she became concerned that

Complainant Taylor’s allegation may have met the scope of the University’s ORI

policy.5 That month, Director Ratterman met with her supervisor, Appellee Dr.

Pamela Feldhoff, (“Supervisor Feldhoff”) and University counsel, Appellee

Angela Koshewa, (“Counsel Koshewa”) to discuss those concerns.




4
 At the time, Ratterman did not realize that the University-based CEGIB was actually funded by
NIH, making it PHS supported.
5
  Later, in a January 2016 letter, the federal ORI informed Ratterman that Part 93 applies when
either the allegedly plagiarized grant or the grant incorporating the alleged plagiarism are PHS
supported. Therefore, Complainant Taylor’s allegation fell under the ORI policy.

                                               -4-
             Then, in December 2010, Ombud Lederer sent a letter to Appellant

Helm to notify him that there was an ORI investigation underway. The letter

informed Appellant Helm that a complaint had been submitted to the University’s

Research Integrity Program and involved an allegation of plagiarism in his CEGIB

grant. The letter further informed Appellant Helm that a panel of University

professors had been selected to conduct an inquiry on the matter and to make a

recommendation as to whether a full investigation was warranted. The letter

notified Appellant Helm that the panel members may reach out to him for

additional information and welcomed him to send supporting documentation, as he

felt necessary. Lastly, the letter welcomed Appellant Helm to contact Ombud

Lederer if he had any questions.

             The inquiry panel met and determined that the allegation warranted

further investigation. Shortly thereafter, an investigation committee was formed.

In April 2011, Ombud Lederer sent a second letter to Appellant Helm to request

his curriculum vitae for the investigation committee to review. The next month,

the committee interviewed Appellant Helm and three months after that, in August

2011, the University exonerated Appellant Helm of Complainant Taylor’s

plagiarism allegation.

             In the years that followed, Appellant Helm filed multiple federal and

state lawsuits, a University faculty grievance, a Board of Claims action, and an


                                        -5-
Equal Employment Opportunity Commission (“EEOC”) charge against the

University and/or various University employees concerning the events of 2009-

2011. See Helm v. Eells, 642 F. App’x 558 (6th Cir. 2016); Helm v. Ratterman,

778 F. App’x 359 (6th Cir. 2019); Helm v. Cook and Parker, Jefferson Cir. Ct.,

Civil Action No. 10-CI-05997 (filed Aug 25. 2010); Helm v. Univ. of Louisville,

Jefferson Cir. Ct., Civil Action No. 15-CI-001410 (filed Mar. 25, 2015); Helm v.

Univ. of Louisville, EEOC Charge No. 474-2010-00803; and Helm v. Univ. of

Louisville, Board of Claims Claim No. BC-2010-00640.

             In the most recent case, Helm v. Ratterman, 778 F. App’x 359,

Appellant Helm claimed, in relevant part, that he had a viable fraud by omission

claim against the Appellees because the parties had a fiduciary relationship that

created a duty to disclose the University’s failure to use its ORI policy. The

United States Sixth Circuit Court of Appeals (“Sixth Circuit”) disagreed and found

the parties did not have a fiduciary relationship, but concluded that the United

States District Court for the Western District of Kentucky (“District Court”) could

analyze the remaining theories to support Appellant Helm’s fraud by omission

claim on remand. Further, the Sixth Circuit found that if Appellant Helm could

successfully develop the fraud by omission claim under one of the other theories,

Kentucky’s equitable tolling statute may save his remaining state law claims from

being untimely. Although the Sixth Circuit remanded for further proceedings in


                                         -6-
the District Court, the District Court decided not to exercise its supplemental

jurisdiction over the state law claims and declined to address the Sixth Circuit’s

remaining questions.

                 Appellant Helm then filed those remaining claims in Jefferson Circuit

Court in the present action. Appellant Helm argued that his fraud by omission

claim was viable because the Appellees had a duty to disclose based on each of the

remaining theories: (1) statutory; (2) partial disclosure; and (3) “superior

knowledge” in a contract. Appellant Helm then argued that because he had a

viable fraud by omission claim, Kentucky’s equitable tolling statute applied and

his state law tort claims were timely.6 The Appellees disagreed and filed a motion

to dismiss Appellant Helm’s claims, which the court treated as one for summary

judgment and disposed of it under Kentucky Rules of Civil Procedure (“CR”) 56.

                 As to Appellant Helm’s fraud by omission claim, the circuit court held

that none of the theories were valid: (1) there were no statutes imposing any duty

on the Appellees; (2) Ombud Lederer’s letters to Appellant Helm were not partial

disclosures that created an impression of full disclosure; and (3) there was no

record of a contract between Appellant Helm and the individual Appellees.

Further, because the circuit court found no viable fraud by omission claim, it



6
    Helm’s tort claims have five-year statutes of limitations.



                                                  -7-
concluded Kentucky’s equitable tolling statute did not apply and the tortious

interference claims were time-barred. We agree with the circuit court.

                            STANDARD OF REVIEW

              An appellate court’s role in reviewing a summary
              judgment is to determine whether the trial court erred in
              finding no genuine issue of material fact exists and the
              moving party was entitled to judgment as a matter of law.
              Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996). A
              grant of summary judgment is reviewed de novo because
              factual findings are not at issue. Pinkston v. Audubon
              Area Community Services, Inc., 210 S.W.3d 188, 189
              (Ky. App. 2006) (citing Blevins v. Moran, 12 S.W.3d
              698, 700 (Ky. App. 2000)).

Feltner v. PJ Operations, LLC, 568 S.W.3d 1, 3 (Ky. App. 2018).

              Further, we must view the record 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

              First, Appellant Helm argues that he has a viable fraud by omission

claim against the Appellees, which, if proven, would constitute an act of

concealment. Next, Appellant Helm argues that because of that alleged act of

concealment, Kentucky’s equitable tolling statute should apply, and his tort claims

should no longer be barred by the applicable statutes of limitations. We will first

address Appellant Helm’s fraud by omission claim because the remainder of his

                                         -8-
claims depend on its viability. We will then turn to the applicability – or lack

thereof – of Kentucky’s equitable tolling statute and the remaining tort claims.

             A.     Fraud by Omission

             The Kentucky Supreme Court laid out the requirements for a fraud by

omission claim in Giddings and Lewis, Inc. v. Industrial Risk Insurers: “To

prevail, a plaintiff must prove: (1) the defendant had a duty to disclose the material

fact at issue; (2) the defendant failed to disclose the fact; (3) the defendant’s failure

to disclose the material fact induced the plaintiff to act; and (4) the plaintiff

suffered actual damages as a consequence.” 348 S.W.3d 729, 747 (Ky. 2011)

(citation omitted). Therefore, the claim is “grounded in a duty to disclose.” Id.

(citing Republic Bank & Trust Co. v. Bear, Stearns & Co. Inc., 707 F. Supp. 2d

702, 710 (W.D. Ky. 2010) (“The gravamen of the tort is breach of a duty to

disclose . . . .”)). Whether there is a duty to disclose is a matter of law for the

court. See Smith v. General Motors Corp., 979 S.W.2d 127, 129 (Ky. App.

1998). See also RESTATEMENT (SECOND) OF TORTS § 551 cmt. m (1977)

(“Whether there is a duty to the other to disclose the fact in question is always a

matter for the determination of the court.”).

             In Kentucky, there are four circumstances in which a duty to disclose

may arise: (1) where “provided by statute,” (2) “when a defendant has partially

disclosed material facts to the plaintiff but created the impression of full


                                           -9-
disclosure,” (3) “where one party to a contract has superior knowledge and is relied

upon to disclose the same,” and (4) “from a confidential or fiduciary

relationship[.]” Giddings, 348 S.W.3d at 747-48. We will discuss circumstances

1-3,7 in turn.8

              1)      Statute did not provide a duty to disclose

              Appellant Helm first argues the Appellees had a statutory duty to

disclose that they planned to use a research misconduct policy other than the

University’s written ORI policy. Appellant Helm bases his claim on 42 United

States Code (“U.S.C.”) 289b; more specifically, on the guidelines of its

corresponding regulation, Part 93.

              An extensive search of Kentucky case law provides no example in

which a Kentucky state court found a state law duty to disclose based upon a

federal statute, much less a federal regulation. Appellant Helm provides no

examples of his own. Instead, Kentucky case law references only Kentucky

statutes when determining whether there is a statutory duty to disclose. See Keeton




7
  Appellant Helm does not raise circumstance 4 because the Sixth Circuit rendered a thorough
analysis explaining why the relationship between Appellant Helm and the Appellees is not
fiduciary in nature. Helm v. Ratterman, 778 F. App’x at 374.
8
  Appellees argue that Appellant Helm properly raised only circumstance 2 in the circuit court
and this Court should not address circumstances 1 and 3; however, the circuit court rendered
findings for circumstances 1, 2, and 3, so we have authority to (and will) review each. Ten
Broeck Dupont, Inc. v. Brooks, 283 S.W.3d 705, 734 (Ky. 2009) (citation omitted).

                                              -10-
v. Lexington Truck Sales, Inc., 275 S.W.3d 723 (Ky. App. 2008); Smith, 979

S.W.2d 127; Bear, Inc. v. Smith, 303 S.W.3d 137 (Ky. App. 2010).

             Nevertheless, it is clear neither the federal statute nor the regulation

provides a duty for the Appellees to disclose to Appellant Helm that they did not

use the University’s ORI policy. 42 U.S.C. § 289b simply establishes that

institutions that receive PHS support shall have an administrative process to review

research misconduct claims involving such funds:

             the [PHS] Secretary shall by regulation require that each
             entity that applies for financial assistance under [Chapter
             6A – Public Health Service] . . . submit . . . (1)
             assurances . . . that such entity has established and has in
             effect (in accordance with regulations which the
             Secretary shall prescribe) an administrative process to
             review reports of research misconduct . . . (2) an
             agreement that the entity will report to the [federal ORI]
             Director any investigation of alleged research misconduct
             in connection with projects for which funds have been
             made available under this chapter that appears
             substantial; and (3) an agreement that the entity will
             comply with regulations issued under this section.

42 U.S.C. § 289b(b).

             The statute goes no further to describe what such an “administrative

process” must entail, and it does not discuss a “duty to disclose” to respondents

when such process is not used. Id. In fact, the statute does not discuss any specific

requirements of such an administrative process. Id. Instead, the corresponding




                                         -11-
federal regulation, Part 93, sheds light on what is required of universities. 42

C.F.R. 93.304(b).9

                Although this regulation details what an institution’s policies must

include (e.g., notice and confidentiality requirements), it does not discuss a duty to

disclose when an institution does not use the policy. Id. The only affirmative duty

listed in Part 93 is a duty to protect PHS funds from misuse: “Institutions and

institutional members have an affirmative duty to protect PHS funds from misuse

by ensuring the integrity of all PHS supported work, and primary responsibility for

responding to and reporting allegations of research misconduct, as provided in this

part.” 42 C.F.R. § 93.100(b). See also Helm, 778 F. App’x at 374 (“42 C.F.R. §

93.100(b) . . . show[s] that [Appellees’] duties under the policy ran to several

different persons and institutions; thus, [Appellant] Helm has not adequately

shown that [Appellees’], through the ORI policy, promised to act primarily for his

benefit . . . .”).

                Further, the regulation lists no duties that an institution owes to a

respondent in a misconduct allegation; and certainly, none that relate to the

institution’s failure to use such administrative process altogether. Instead, the

regulation states that when a respondent to a misconduct allegation argues an

institution violated the regulations during an inquiry, the federal ORI may review


9
    The University met these requirements when it implemented its ORI policy.

                                               -12-
the misconduct proceedings. 42 C.F.R. § 93.403(c). Here, the federal ORI did just

that. Appellant Helm contacted the federal ORI and claimed the University

violated the regulations. So, in 2015, the federal ORI conducted its own review of

Complainant Taylor’s allegation, concurred with the University’s determination,

and administratively closed the case without further action.10

                Part 93 further lists actions the U.S. Department of Health and Human

Services (“HHS”)11 may take to address an institution’s noncompliance, none of

which reference a duty owed to a respondent.12 42 C.F.R. § 93.412. Again, all

duties in the regulation are owed to PHS (or, as an extension, HHS). The guidance

of the regulations is clear: where there is noncompliance with the misconduct

allegation regulations, the institutions owe all duties to HHS. 42 C.F.R. § 93.413.

                Even if Kentucky precedence suggested a federal statute and

regulation could create a statutory duty to disclose, those that Appellant Helm

bases his argument on do not create such a duty on the University or its actors.



10
  The federal ORI did clarify, however, that contrary to Director Ratterman’s understanding of
the regulation, Complainant Taylor’s 2009 allegation against Appellant Helm did fall under its
jurisdiction.
11
     HHS is the Department that oversees PHS.
12
  Noncompliance actions include: (1) issue a letter of reprimand; (2) direct that research
misconduct proceedings be handled by HHS; (3) place the institution on special review status;
(4) place information on the institutional noncompliance on the ORI website; (5) require the
institution to take corrective actions; (6) require the institution to adopt and implement an
institutional integrity agreement; (7) recommend that HHS debar or suspend the entity; (8) any
other action appropriate to the circumstances. 42 C.F.R. § 93.413(c).

                                                -13-
             2)    Partial disclosure did not create impression of full disclosure

             Next, Appellant Helm argues the two letters Ombud Lederer sent to

him – dated December 6, 2010 and April 20, 2011 – created a duty to disclose

because both letters referenced the research misconduct allegation, but neither one

mentioned the decision to use a policy other than the University’s ORI policy. To

find that a duty to disclose arose from those letters, each must have created the

impression of full disclosure. Morris Aviation, LLC v. Diamond Aircraft Indus.,

Inc., 536 F. App’x 558, 568 (6th Cir. 2013). This Court has further elaborated that

“[m]ere silence does not constitute fraud [by omission] where it relates to facts

open to common observation or discoverable by the exercise of ordinary diligence,

or where means of information are as accessible to one party as to the

other.” Giddings, 348 S.W.3d at 749 (emphasis added) (quoting Bryant v.

Troutman, 287 S.W.2d 918, 920-21 (Ky. 1956)).

             Here, as the Appellees correctly point out, the first letter made no

mention of what policy, if any, the University would use in the inquiry. It simply

notified Appellant Helm that someone made a plagiarism allegation against him,

an inquiry panel had been formed to review the allegation, and there could be a

forthcoming investigation. Ombud Lederer then invited Appellant Helm to contact

her with any questions. That one-page letter did not serve, and would not

reasonably have been construed, as an all-encompassing outline of the allegation or


                                        -14-
the procedures which would be employed to address it. Further, the policy used

would have been “discoverable by the exercise of ordinary diligence” (e.g., by

taking Ombud Lederer up on her invitation to reach out with questions). The

second letter clearly had one purpose: to request a copy of Helm’s curriculum

vitae. Appellant Helm, in his brief, fails to explain how either of Ombud Lederer’s

letters created an impression of full disclosure and therefore he does not establish a

duty to disclose.

                 3)     A party to a contract did not have “Superior Knowledge”

                 Lastly, Appellant Helm claims the Appellees had superior knowledge

of the fact that they did not use the University’s ORI Policy and therefore owed

him a duty to disclose such fact. However, Appellant Helm fails to successfully

argue that there was a contract between him and the Appellees (neither

individually nor as a group). The Sixth Circuit, in analyzing Kentucky case law,

recognized that the “superior knowledge” duty requires contractual privity. Morris

Aviation, 536 F. App’x at 568-69 (“Unlike the ‘superior knowledge’ duty, it

appears likely the Kentucky courts would recognize a ‘partial disclosure’ duty

regardless of contractual privity.”).

                 Appellant Helm claims the joint expectation that all University

personnel adhere to the Code of Conduct, ORI policy, and The Redbook13 created


13
     The Redbook is an internal policy that governs employees’ annual employment contracts.

                                               -15-
a “contract” between all parties. However, Kentucky law is clear that a contract

exists only where there is “offer and acceptance, full and complete terms, and

consideration.” Energy Homes, Div. of S. Energy Homes, Inc. v. Peay, 406 S.W.3d

828, 834 (Ky. 2013) (quoting Commonwealth v. Morseman, 379 S.W.3d 144, 149

(Ky. 2012)). As the Appellees correctly point out, the generally applicable policies

that the University outlines in its employment contracts do not create a binding

contract between all employees and administrative officials of the University.

Generalized references to a communal effort to conduct oneself with integrity and

professionalism do not meet the necessary elements of a contract.

             It is evident from Appellant Helm’s annual contracts with the

University that neither Director Ratterman, Ombud Lederer, Supervisor Feldhoff,

nor Counsel Koshewa are parties to the contracts. Appellant Helm has failed to

provide evidence that suggests otherwise. Because there is no contractual privity

between any of the parties, “superior knowledge” in a contract could not have

created a duty to disclose.

             Therefore, Appellant Helm has failed to provide any viable argument

that the Appellees had a duty to disclose which policy they intended to use in the

research misconduct allegation. Consequently, Appellant Helm’s fraud by

omission claim is not viable as a matter of law.




                                        -16-
             B.     Equitable Tolling

             As discussed, if Appellant Helm could not establish a viable fraud by

omission claim, there would be no act of concealment to trigger Kentucky’s

equitable tolling statute. Further, if the equitable tolling statute did not apply, the

remainder of Appellant Helm’s claims would be time-barred. Here, Appellant

Helm did not establish a duty to disclose and therefore did not successfully argue

that there was an act of concealment. Consequently, Kentucky’s equitable tolling

statute does not apply, and the remaining tort claims are time-barred. Appellant

Helm raised both a tortious interference with contract claim and a tortious

interference with prospective business advantage claim.

             A tortious interference with contract claim requires Appellant Helm to

show: “(1) the existence of a contract; (2) [Appellees’] knowledge of the contract;

(3) that [Appellees] intended to cause a breach of that contract; (4)

that [Appellees’] actions did indeed cause a breach; (5) that damages resulted to

[Appellant Helm]; and (6) that [Appellees] had no privilege or justification to

excuse its conduct.” Snow Pallet, Inc. v. Monticello Banking Co., 367 S.W.3d 1,

5-6 (Ky. App. 2012) (citing Ventas, Inc. v. Health Care Property Investors,

Inc., 635 F. Supp. 2d 612, 619 (W.D. Ky. 2009)).

             Tortious interference with prospective business advantage, on the

other hand, does not require the existence of a contract. Instead, for this claim,


                                          -17-
Appellant Helm “must prove: (1) the existence of a valid business relationship or

expectancy; (2) that [Appellees were] aware of this relationship or expectancy; (3)

that [Appellees] intentionally interfered; (4) that the motive behind the interference

was improper; (5) causation; and (6) special damages.” Id. at 6 (citing

Monumental Life Ins. Co. v. Nationwide Ret. Sols., Inc., 242 F. Supp. 2d 438, 450

(W.D. Ky. 2003)). As Snow Pallet details, this analysis “turns primarily on

motive.” Id. (citing Nat’l Collegiate Athletic Ass’n By and Through Bellarmine

Coll. v. Hornung, 754 S.W.2d 855, 859 (Ky. 1988)). “To prevail under this theory

of liability, the party seeking recovery must show malice or some significantly

wrongful conduct.” Id. (internal quotation marks omitted).

                However, as discussed, both tort claims have a five-year statute of

limitations. KRS14 413.120(6). As the events surrounding these claims took place

a decade or so ago, the statutes of limitations have run, and the claims are time-

barred. Appellant Helm argues that Kentucky’s equitable tolling statute applies

and therefore makes the tort claims timely. The circuit court correctly explains the

equitable tolling issue in its order and opinion filed October 12, 2020:

                [A] cause of action is equitably tolled against a person
                who, by absconding or concealing himself or any indirect
                means, obstructs the prosecution of the action. KRS
                413.190(2).



14
     Kentucky Revised Statute.

                                           -18-
             For equitable tolling to apply to [Appellant] Helm’s
             claims based on fraudulent concealment, mere silence is
             insufficient; the [Appellees] must have engaged in some
             act or conduct which mislead or deceived [Appellant]
             Helm and obstructed or prevented him from instituting
             the suit in a statutorily timely manner. Emberton v.
             GMRI, Inc., 299 S.W.3d 565, 573 (Ky. 2009).

             Specifically, Appellant Helm must show “some act or conduct which

in point of fact misleads or deceives [him] and obstructs or prevents him from

instituting his suit while he may do so.” Helm v. Eells, 642 F. App’x at

563 (quoting Munday v. Mayfair Diagnostic Lab., 831 S.W.2d 912, 914 (Ky.

1992)). See also Adams v. Ison, 249 S.W.2d 791, 793 (Ky. 1952) (“the

representation, or act, intentional or otherwise, must hav[e] been calculated to

mislead or deceive and to induce inaction by the injured party.”).

             Here, Appellant Helm attempted to establish a viable fraud by

omission claim, which could have constituted “some act or conduct . . . which

[misled] or deceive[d]” and “prevent[ed] him from instituting his suit while he may

do so.” Id. at 792. However, as thoroughly detailed, Appellant Helm’s attempt

falls short. He does not show that there was a duty to disclose and therefore does

not establish an act of concealment or deception. Accordingly, Appellant Helm

did not establish an act or conduct that prevented him from instituting his tortious

interference claims within the five-year statute of limitations.




                                         -19-
             The circuit court correctly concluded there is no evidence which

would allow the court to find it possible for Appellant Helm to prevail at trial on its

claims, even when viewing that evidence in the light most favorable to Appellant

Helm and considering all allegations he raised to be true.



                                    CONCLUSION

             For these reasons, this Court finds Appellant Helm did not present a

viable fraud by omission claim as a matter of law; therefore, Kentucky’s equitable

tolling statute does not apply, and the remaining tortious interference claims are

time-barred. The circuit court’s order granting the Appellee’s motion for summary

judgment is AFFIRMED.



             ALL CONCUR.



 BRIEFS FOR APPELLANT:                    BRIEF FOR APPELLEES:

 Michael W. Oyler                         Craig C. Dilger
 Louisville, Kentucky                     Amy L. Miles
                                          Chadler M. Hardin
                                          Louisville, Kentucky




                                         -20-