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Broadway v. Peak Medical Oklahoma No. 56/24/2005
put Nursing Home on notice of the action and her substitution as personal representative is permissible under §2017 and relates back to the original filing. We emphasize, however, that we only hold summary judgment was improper; we do not hold substitution is required in this case. Nursing Home raised questions of fact regarding whether Broadway originally filed the petition as personal representative in error or intentionally misrepresented her status to the court and to Nursing Home to avoid the statute of limitations bar. Substitution of parties is liberally granted pursuant to 12 O.S. 2001 §2017 "where mistake or inadvertent error has caused the improper party to file an action." Weeks, , 895 P.2d at 733; see also Estate of Mills v. Trizec Properties, 965 F.2d 113, 114-15 (6 th Cir. 1992) (material facts regarding whether plaintiff acted in good faith and had reasonable belief that she possessed authority to pursue wrongful death action precluded summary judgment on statute of limitations issue). This opinion does not foreclose this issue from being considered on remand.
The trial court also awarded summary judgment on Broadway's breach of contract claim. Broadway waived appellate review of this issue by failing to raise the issue in her motion for reconsideration. 12 O.S. 2001 §991(b). We thus affirm the trial court's award of summary judgment on this issue.
For these reasons, we affirm the award of summary judgment on the breach of contract claim, reverse the award of summary judgment on the remaining claims, and remand for further proceedings consistent herewith.
AFFIRMED IN PART; REVERSED IN PART AND REMANDED.
ADAMS, P.J., and HANSEN, J. (sitting by designation), concur.
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