William Helm, mb.bchir v. Allison Ratterman, Phd ( 2022 )

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NOT TO BE PUBLISHED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.
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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).
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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.
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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
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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
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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.
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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
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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
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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).
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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
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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.
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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).
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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
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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.
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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.
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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,
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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.
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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.
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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
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