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Tisdale v. ITW Ramset/Red Head6/3/2003
Mandate Issued: 10/02/2003
__ P.3d __
Tom and Bertha Tisdale appeal from the district court's order dismissing their claim against ITW Ramset/Red Head. The issue in this action for personal injury is whether the district court erred in holding the Tisdales' claim time-barred as a matter of law. Upon review of the record and applicable law, we conclude that the court erred and we reverse.
FACTS AND PROCEDURAL HISTORY
On March 16, 2000, Tom Tisdale was injured in the course of his employment when a nail gun malfunctioned, sending a nail into his right eye. On March 13, 2002, Tom and his wife sued Hilti, Inc., Hilti Group, Hilti International, Hilti Corporation, and "John Doe" on theories of negligence, manufacturers products liability, and breach of warranty. On September 9, 2002, the Tisdales filed an amended petition substituting ITW as a defendant in place of "John Doe."
ITW filed a motion to dismiss, asserting that the Tisdales' claim against it was barred by the statute of limitations. Following the exchange of briefs and a hearing, the district court granted ITW's motion. The Tisdales dismissed their claims against the other defendants and appeal.
STANDARD OF REVIEW
Although ITW filed a motion to dismiss, the Tisdales attached an affidavit to their supplemental response. As the affidavit was not excluded by the trial court, we treat ITW's motion as one for summary judgment. 12 O.S. Supp. 2002 § 2012(B); see also Kang v. Kang, 2000 OK CIV APP 89, 3, 11 P.3d 218, 219. "Summary judgment is proper only when the pleadings, affidavits, depositions, admissions or other evidentiary materials establish that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Davis v. Leitner, 1989 OK 146, 9, 782 P.2d 924, 926. In reviewing the grant or denial of summary judgment, we must view all inferences and conclusions to be drawn from the evidentiary materials in a light most favorable to the party opposing the motion. Id. Although a trial court considers factual matters when deciding whether summary judgment is appropriate, its ultimate decision is purely legal: whether one party is entitled to judgment as a matter of law because there are no material disputed facts. Carmichael v. Beller, 1996 OK 48, 2, 914 P.2d 1051, 1053. Therefore, our standard of review on appeal is de novo. Id.
DISCUSSION
There is no dispute that the Tisdales' amended petition was filed after the limitations period expired. See 12 O.S.2001 § 95(3). Their claim against ITW is timely only if the amended petition relates back to the date of the original petition.
An amendment of a pleading relates back to the date of the original pleading when:
2. The claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading; or
3. The amendment changes the party or the naming of the party against whom a claim is asserted if paragraph 2 of this subsection is satisfied and, within the period provided by subsection I of Section 2004 of this title for service of the summons and petition, the party to be brought in by amendment:
a. Has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits; and
b. Knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.
12 O.S.2001 § 2015(C).
Service of process must be made withi
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