LAMBERT, Judge.
Amy Harmon has appealed from the Nelson Circuit Court's April 18, 2013, order denying her motion to alter, amend, or vacate its order entered March 14, 2013. In the earlier order, the circuit court granted Hidgon's Appliance Center's motion to dismiss the complaint and General Electric Company's motion for summary judgment, and dismissed Harmon's complaint with prejudice. The question before this Court is the effect of the misidentification of the plaintiff in the underlying action. Finding no error or abuse of discretion, we affirm the circuit court's orders.
Amy's mother, Paula Kay Harmon, purchased a washing machine manufactured by General Electric (GE) from Higdon's Appliance Center (HAC) in 2010. The washing machine malfunctioned on August 1, 2011, and Paula had an employee from HAC repair it. However, the washing machine had apparently not been repaired; it overflowed after the employee left, and Paula slipped and fell on the water that had come out of the washer. Paula incurred injuries for which she sought treatment.
On July 31, 2012, the day before the one-year statute of limitations expired, Amy — not Paula — filed a complaint in Nelson Circuit Court against HAC, GE, and an unknown defendant who had worked on the washing machine. Amy sought damages for personal injuries she had sustained from the slip and fall incident that she claimed was due to the defective washing machine. Both of the named defendants answered Amy's complaint and filed motions to dismiss on grounds unrelated to the issue raised in this appeal. The circuit court denied both of these motions, and pre-trial discovery continued.
In December 2012, HAC filed a second motion to dismiss Amy's complaint. The motion arose from answers to the Interrogatories and Requests for Production of Document HAC had propounded to Amy. In these responses, Amy's attorney identified Paula as the person responding to the discovery requests. Medical records were also provided, related to chiropractic treatment Paula received at Back-In-Shape Chiropractic beginning in August 2011 for injuries she had sustained when she slipped and fell. On the patient information page, Paula was listed as the patient, and Amy was listed as the person who referred her as well as Paula's emergency contact. As the reason for her visit, Paula stated: "When I fell in utility room of [sic] overflowed water from washer, I felt my head hit floor & upper back hit floor; felt cold water around me; head hurt; neck, back, shoulders, leg on right, foot on right — intense pain; aching; instant nausea." The note, dated August 3, 2011, listed a history of a slip and fall in water on August 1, 2011, after the washing machine had overflowed.
Despite the medical records establishing that Paula had been allegedly injured because of the overflowing washer, Paula had not filed a complaint against HAC. Therefore, HAC argued that Amy's complaint should be dismissed as a matter of law because the lawsuit had been brought on behalf of the wrong party and Amy lacked standing to maintain the cause of action. Furthermore, the statute of limitations for Paula to bring her own claim had expired on August 1, 2012, one year after her alleged injury, pursuant to Kentucky Revised Statutes (KRS) 413.140. On January 2, 2013, GE filed a motion for summary judgment on the same ground, arguing that there were no disputed issues of material fact and that it was entitled to judgment as a matter of law.
On January 15, 2013, a motion to file a first amended complaint was filed by Amy's attorney "to correct the spelling of Plaintiff's first name." In the caption of the motion and in the amended complaint tendered later, Paula was listed as the plaintiff rather than Amy. The motion also recited that "[t]his First Amended Complaint will in no way alter the Plaintiff's causes of action against the Defendants." In response to GE's motion, Amy stated that it was clear that Paula had been injured in the incident as described in the complaint and that the complaint had been filed on Paula's behalf: "The original complaint listing Amy Harmon was simply a misspelling of the Plaintiff's first name." Both HAC and GE objected to amending the complaint and disputed that this was simply a misspelling of the plaintiff's first name. Rather, the complaint had been filed on behalf of the wrong plaintiff.
The motions were discussed during a court hearing on January 31, 2013,
On March 14, 2013, the circuit court entered an order granting HAC's and GE's respective motions, denying the motion to file a first amended complaint, and dismissing Amy's complaint with prejudice. In granting the defendants' motions, the court stated:
The circuit court then addressed Amy's motion to amend her complaint. The court considered Kentucky Rules of Civil Procedure (CR) 15.03(2) in light of the defendants' arguments that Paula's claims were barred by the one-year statute of limitations. The court concluded that CR 15.03(2)'s relation back provision only applied to defendants, not plaintiffs. And Amy's citations to cases upholding changing plaintiffs were distinguishable from the facts of this case. The court ultimately found it inappropriate to permit Amy to amend the complaint:
Amy moved the court to alter, amend, or vacate its order pursuant to CR 59.05, continuing to argue that Paula was the true plaintiff. The court denied Amy's CR 59.05 motion on April 18, 2013, and this appeal now follows.
On appeal, Amy continues to argue that the circuit court erred in granting summary judgment and dismissing her complaint based upon the affidavits establishing that Paula was the true plaintiff in the case. She also argued that her motion to file a first amended complaint did not constitute a new cause of action and that she did not have the opportunity to complete discovery prior to the grant of summary judgment. Both HAC and GE dispute Amy's arguments and contend that the circuit court properly dismissed the complaint.
Regarding our standard of review, we agree with Amy that we must review the circuit court's ruling on HAC's motion to dismiss under the summary judgment standard because the court considered matters outside of the pleadings in making its ruling. See CR 12.02; Cabinet for Human Resources v. Women's Health Services, Inc., 878 S.W.2d 806, 807 (Ky. App. 1994) ("CR 12.02 and CR 12.03 require that a motion in which matters outside the pleadings are considered is to be treated as a motion for summary judgment. Craft v. Simmons, Ky.App., 777 S.W.2d 618 (1989).").
An appellate court's standard of review from an order granting a motion for summary judgment is well-settled in the Commonwealth. "The standard of review on appeal when a trial court grants a motion for summary judgment is `whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law.'" Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky. App. 2001), citing Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996); Palmer v. Int'l Ass'n of Machinists & Aerospace Workers, 882 S.W.2d 117, 120 (Ky. 1994); CR 56.03. "Because summary judgment involves only legal questions and the existence of any disputed material issues of fact, an appellate court need not defer to the trial court's decision and will review the issue de novo." Lewis, 56 S.W.3d at 436, citing Scifres, 916 S.W.2d at 781; Estate of Wheeler v. Veal Realtors & Auctioneers, Inc., 997 S.W.2d 497, 498 (Ky. App. 1999); Morton v. Bank of the Bluegrass & Trust Co., 18 S.W.3d 353, 358 (Ky. App. 1999).
Amy contends that a disputed issue of material fact remains as to the identity of the proper plaintiff. We disagree that this is an issue of fact that would preclude the entry of summary judgment. There is no question that Paula should have been named as the plaintiff in the complaint; however, Amy was listed as the plaintiff. Accordingly, Amy is the plaintiff below and the appellant in this appeal.
While not specifically argued, we also hold that the circuit court did not abuse its discretion in denying Amy's motion for leave to file an amended complaint. CR 15.01 provides that, with exceptions not applicable here, "a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." This Court addressed the application of this rule in Kenney v. Hanger Prosthetics & Orthotics, Inc., 269 S.W.3d 866, 869-70 (Ky. App. 2007), explaining:
The circuit court agreed with HAC and GE that the amendment would be futile because adding Paula as a plaintiff would constitute a new cause of action, which would not relate back to the filing of the original complaint. Therefore, Paula could not bring her claim within the applicable one-year limitations period.
Amy contends that because Paula was the injured person and because it was always Paula's cause of action, the amended complaint did not constitute a new cause of action and there would be no harm to HAC or GE. However, Amy's citations to Dr. Pepper Bottling Co. of Kentucky v. Hazelip, 144 S.W.2d 798 (Ky. 1940), Fuson v. VanBebber, 454 S.W.2d 111 (Ky. 1970) overruled on other grounds by Barrett v. Stephany, 510 S.W.2d 524 (Ky. 1974), Skaggs v. Vaughn, 550 S.W.2d 574 (Ky. App. 1977), and Massengale v. Lester, 403 S.W.2d 697 (Ky. 1966), do not support her position that she should be permitted to amend the complaint to add a new plaintiff.
Rather, we agree with the circuit court's, as well as HAC's and GE's, reliance upon Asher v. Unarco Material Handling, Inc., 596 F.3d 313 (6th Cir. 2010), in which the Sixth Circuit Court of Appeals addressed "whether Rule 15(c) permits relation back of an amendment adding otherwise untimely plaintiffs and their claims to a timely-filed complaint[.]" Id. at 317. The Court did not find tenable the appellants' argument that the application of the rule should be changed, holding:
Id. at 318. The Court went on to explain:
Id. The Asher Court concluded:
Asher, 596 F.3d 313 at 320. Likewise, Kentucky's counterpart to Rule 15(3), CR 15.03, does not support relation back when a new plaintiff is added.
Accordingly, we hold that the circuit court did not abuse its discretion in denying Amy's motion to file an amended complaint to add Paula as a plaintiff because to do so would have been futile. The amendment would not relate back to the filing of the original complaint the day before the statute of limitations expired, and therefore Paula's claim would not have been timely.
Finally, we hold that the circuit court did not abuse its discretion in denying Amy's CR 59.05 motion to alter, amend, or vacate.
Gullion v. Gullion, 163 S.W.3d 888, 893 (Ky. 2005) (footnotes omitted). Amy has not demonstrated that any of these grounds exist to support her CR 59.05 motion.
For the foregoing reasons, the order of the Nelson Circuit Court is affirmed.
ALL CONCUR.