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NOT TO BE PUBLISHED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 
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“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:

Dennis D. Murrell

Kevin L. Chlarson

Louisville, Kentucky

BRIEF FOR APPELLEE:

Donna King Perry

Jeremy S. Rogers

Matthew Barszcz

Chase M. Cunningham

Louisville, Kentucky