RENDERED: SEPTEMBER 18, 2026; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2025-CA-0447-MR
LISA DRIVER, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF WANDA SLUDER APPELLANT
APPEAL FROM MCCRACKEN CIRCUIT COURT v. HONORABLE JOSEPH ROARK, JUDGE ACTION NO. 24-CI-00713
CONSOLIDATED RESOURCES HEALTH CARE FUND, I, L.P. D/B/A PARKVIEW NURSING & REHABILITATION CENTER APPELLEE
OPINION AFFIRMING IN PART, REVERSING IN PART,
AND REMANDING
** ** ** ** **
BEFORE: EASTON, ECKERLE, AND MCNEILL, JUDGES. EASTON, JUDGE: The Appellant, now designated as “Lisa Driver, Individually and as Executrix of the Estate of Wanda Sluder” seeks reversal of the dismissal of this case by the McCracken Circuit Court. The circuit court dismissed the case
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because Lisa Driver (Driver), as an individual, was not a real party in interest. In doing so, the circuit court also denied a motion to amend the Complaint. We affirm the dismissal of Driver individually but otherwise reverse and remand for further adjudication.
FACTUAL AND PROCEDURAL BACKGROUND Driver is the daughter of Wanda Sluder (Sluder). In her final years, Sluder’s health declined. In 2017, Sluder gave Driver a “Durable Power of Attorney” (POA). Sections 3.12 and 5.01 of the POA1 gave Driver the authority to file suit on Sluder’s behalf.
In 2021, Sluder began a three-year residence at the facility of the Appellee (Parkview). The claims in this case arise from that residence.
The problem starts and ends with the caption of the Complaint. The Complaint lists “Lisa Driver, individually and as Power of Attorney for Wanda Sluder” as “Plaintiffs.” Other than repeating the caption language in the introductory paragraph at the beginning of the Complaint, Driver is never mentioned again.2 Instead, the 46 paragraphs of the Complaint detail claims of negligence injuring Sluder and violation of Sluder’s personal rights as a long-term-
1 Trial Record (TR) at 75, 83.
2 In the separate Certificate of Merit attached to the Complaint, the introductory language is again repeated, and the attorney uses the word “claimants.”
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care resident under KRS3 216.515. The Complaint concludes with a Request for Relief: “Plaintiff WANDA SLUDER, demands.” Driver individually asked for nothing.
Parkview’s Answer did not specifically assert an issue of failure to name the real party in interest under CR4 17.01. Among the 15 defenses asserted in the Answer is failure to include an indispensable party under CR 19. A couple of weeks after filing its Answer, Parkview filed a Motion to Dismiss then asserting a real-party-in-interest argument. Parkview argued Driver was not a real party in interest and so the case should be dismissed.
Counsel for the Plaintiffs filed a response specifically including a Motion to Amend the Complaint. Citing CR 60.02(a), counsel claimed a clerical error on his part. He said he meant to caption the case as: “Wanda Sluder, individually, and by her Power of Attorney, Lisa Driver.”
To further complicate matters, Sluder died on December 19, 2024.
Due to the closeness of the death to the holidays, the Plaintiffs’ counsel did not learn of the death until a few days after the new year had begun. He immediately notified opposing counsel by email on January 6, 2025.5 The Notice of Death of
3 Kentucky Revised Statutes.
4 Kentucky Rules of Civil Procedure.
5 Video Record 2-7-25.
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Party was filed by the Clerk on January 14, 2025. Counsel stated the intention to revive the case under KRS 395.278.
In the meantime, the circuit court, unaware of the death, entered an Order on January 9, 2025, dismissing the case based on CR 17.01. In response, Plaintiffs’ counsel filed a timely “Motion Pursuant to CR 59.05 and CR 60.02.” In this Motion, counsel asserted that any action after the death of a plaintiff was void, even if the circuit court was unaware of the death. Another assertion was that Driver could at least file the Complaint on Sluder’s behalf under CR 17.01. With no stated analysis, the circuit court entered a one-sentence order tendered by Parkview denying the reconsideration Motion. This appeal follows. The briefs filed by the parties are sufficiently compliant with the Rules of Appellate Procedure (RAP) for our review.
STANDARD OF REVIEW
As we will explain in our analysis, we have two issues. First is the granting of the motion to dismiss. Such a motion presents a legal question, and we review that question de novo. Fox v. Grayson, 317 S.W.3d 1, 7 (Ky. 2010). When a defendant asks for a complaint to be dismissed, that defendant admits, for the purposes of the motion, that all allegations in the Complaint are true. Upchurch v. Clinton County, 330 S.W.2d 428, 429-30 (Ky. 1959). And the motion must be denied unless a “plaintiff would not be entitled to relief under any state of facts
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which could be proved in support of his claim.” Ewell v. Central City, 340 S.W.2d 479, 480 (Ky. 1960).
Second, we address the decision not to allow amendment of the Complaint. The trial court’s denial of a motion for leave to amend pleadings is reviewed for abuse of discretion. McGaha v. McGaha, 664 S.W.3d 496, 500 (Ky. 2022). “The test for abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000).
ANALYSIS
We may eliminate at the outset any contention argued under CR 60.02. That rule applies only to final judgments. In this case, a timely motion was filed under CR 59.05 before the dismissal order became final, and that is the applicable rule. Unlike CR 60.02, CR 59.05 does not require predicate showings and does not have the limitations listed in CR 60.02.
Also, we cannot disagree with the conclusion that Driver, individually, was not a real party in interest as required by CR 17.01. To the extent the circuit court dismissed such an individual claim, there was no error. The problem is that the entire case was dismissed, and it should not have been.
A complaint “shall contain (a) a short and plain statement of the claim showing that the pleader is entitled to relief and (b) a demand for judgment for the
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relief to which he deems himself entitled.” CR 8.01. Kentucky embraces “notice” pleading:
Long ago, in 1953, we abandoned the old rules of common law pleadings and adopted modern Rules of Civil Procedure. We no longer approach pleadings searching for a flaw, a technicality upon which to strike down a claim or defense, as was formerly the case at common law. . . . [N]ow the rule of construction is ‘that the Rules of Civil Procedure with respect to stating a cause of action should be liberally construed and that much leniency should be shown in construing whether a complaint . . . states a cause of action.’
Smith v. Isaacs, 777 S.W.2d 912, 915 (Ky. 1989) (citations omitted).
The Complaint in this case plainly stated a cause of action for Sluder.
The decision of the circuit court disregarded the content of the allegations in the Complaint, focusing solely on the wording of the caption. When analyzing the caption, the use of the coordinating conjunction “and” was also disregarded. The caption referred to Driver individually and the claims of Sluder. “Arguably, the Complaint lacks clarity” because of the caption, but that simply is not enough to dismiss it. Smith, 777 S.W.2d at 913. It states claims for Sluder upon which relief could be granted. The dismissal of the Complaint to the extent it stated claims for Sluder was erroneous.
Parkview insists that Sluder was never a party and further that Driver could not proceed for Sluder, the real party in interest. CR 17.01 allows listed people to proceed in court for another without the other being a necessary and
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separate party. This rule does not necessarily preclude an authorized POA from filing a claim for an individual and adding the party represented.
Under CR 17.01, “a person expressly authorized by statute to do so”
may file an action for another even without the other party as a separate named party. KRS 457.350, a provision in Kentucky’s Uniform Power of Attorney Act, authorizes one holding power of attorney to bring suit, unless the POA document states otherwise. Here, the POA not only has no such limitation but also specifically gives such authority. Driver was authorized to bring this suit for Sluder. In that capacity only, Driver was making a claim for Sluder - the real party in interest.
Before we address the propriety of amendment of the Complaint, we note a procedural oddity of our own making. Plaintiffs’ counsel filed a motion with this Court to substitute Sluder with her estate. Driver had become the administratrix of Sluder’s estate. Despite objection by Parkview, who pointed out that this substitution might have a bearing on the substance of the appeal, the Chief Judge of this Court granted the substitution motion – with important limitations.
Citing RAP6 8(A)(3), the Order simply substituted the estate so that the appeal could proceed properly. Although an attorney may file a notice of
6 Kentucky Rules of Appellate Procedure.
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appeal for a deceased party before a representative is appointed (a process which may take some time), once a representative is appointed, the substitution is mandatory under the rule. Only a personal representative could continue with the case after Sluder’s death to the extent Sluder had a claim, which was for the merits panel to decide. The Order simply allowed the case to proceed to the merits panel.
The Order plainly states that “it shall not be construed as addressing the merits of the underlying action in any manner.” The Order further states the merits panel will still review this question of the caption because the Order was not dispositive. The entry of this Order has no bearing on our decision. While this Court may need to review its process for submission of non-dispositive motions to a judge who will not necessarily be on the panel randomly selected to decide the appeal, the Order entered makes no difference in this case, and we need not comment on it further.
Another ground was asserted to reverse the circuit court. Plaintiffs’
counsel insists that this case was abated automatically when Sluder died and that the dismissal order entered after that date was void. We cannot agree.
Our case law may have created some confusion about the status of a case when a party dies. Under the common law, a case died with the plaintiff, and there was no way to revive it. Hardin County v. Wilkerson, 255 S.W.3d 923, 925- 26 (Ky. 2008). But KRS 395.278 and the concomitant CR 25.01 changed that.
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Whether the case is “dead” or “abated” or “in limbo,” the statute and rule provide a process and timeframe for a representative of a deceased party to get the case going again. 255 S.W.3d at 926-27.
The death of a party certainly has an impact on a case, and a trial court must examine whether and how it should proceed, assuming it is aware of the death. But the death of a plaintiff does not necessarily prevent dismissal of a case. If the dispositive issue has been submitted to the court prior to the death, the court still has the power to resolve the case against the plaintiff. “It is well established that if a party dies after a case has been submitted for ruling, revival is not required unless further steps are to be taken in the case.” Theisen v. Estate of Wilson, 226 S.W.3d 59, 62 (Ky. 2007).
Since it was not prohibited for the circuit court to rule on the pending motion to dismiss, despite the intervening death of a plaintiff, we next must move to the denial of the Motion to Amend the Complaint. As we have explained, it is not clear whether an amendment was required at all since the claim of Sluder through her POA was stated in the Complaint, but we will assume for the sake of argument (without agreeing) that Parkview was initially right when it argued that Driver failed to properly plead a case for Sluder because of the caption.
When the Motion to Amend was renewed, it was with a timely motion under CR 59.05. By the time the circuit court considered these motions, it knew
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that Sluder had died. It would have been quite natural to allow an amendment to the Complaint which resulted in no prejudice to Parkview – they knew from the Complaint what Sluder was claiming. So, even if the Complaint was unclear as to Sluder’s initial status as a party, the requested amendment simply would have cleared things up. On the other hand, prejudice to Sluder’s claims may be shown. An amendment instead of a new suit removes any potential challenge to the timeliness of Sluder’s personal injury claims asserted in this suit before her death.
Basically, Parkview insists on a hyper-technical approach focusing solely on the caption of the Complaint and ignoring the contents. In support of its argument, Parkview relied on an unpublished case from a federal district court in Kentucky. Cody through Szabo v. Kenton County Public Schools, Civil Action No. 2:20-CV-103, 2023 WL 1952791 (E.D. Ky. Feb. 10, 2023).7 But this federal case counsels for the opposite result than that advocated by Parkview.
The Codys were teenagers who had turned 18. After having reached the age of majority, they gave POAs to the Szabos. The POAs gave the Szabos the power to bring a lawsuit on behalf of the Codys. But when the Szabos filed the suit for the Codys, they sued as “next friends,” a procedural device to allow the
7 Kentucky’s state courts “are not bound by a federal court’s interpretation of state law.” LKS Pizza, Inc. v. Com. ex rel. Rudolph, 169 S.W.3d 46, 49 (Ky. App. 2005).
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institution of a suit for minors until a proper guardianship can be established.8 Except for small settlements, only court-appointed guardians may resolve a case for minors.9 The defendants in the case filed for the Codys argued (as Parkview essentially argues here about Driver) that the Szabos had no standing to make a claim, and the case should be dismissed. The federal court, applying Kentucky law, disagreed. The issue was capacity to act as a representative, not standing. 2023 WL 1952791, at *6-7. The POAs gave the Codys (and Driver here) the capacity to sue for another who has standing.
In a further irony for a case upon which Parkview relies, the federal court noted that the Szabos had filed a motion to amend their complaint. The Szabos basically conceded an error in how they styled the case. 2023 WL 1952791, at *6 n.2. But their motion was procedurally deficient, unlike in the present case. Despite this, the federal court granted the motion to amend and proceeded to rule on the merits of the case, which was found to be meritless. In doing so, the court noted that the Szabos’ response containing the amendment request: “provides clarity on the narrow and specific amendment Plaintiffs are
8 A next friend is an agent for a minor, and the minor is the real party interest in the case. Branham v. Stewart, 307 S.W.3d 94, 97-98 (Ky 2010). 9 Jones by and through Jones v. Cowan, 729 S.W.2d 188, 190 (Ky. App. 1987).
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seeking and that amendment will not prejudice Defendants, as it changes only the caption of the case without altering the causes of action or the alleged facts supporting them.” 2023 WL 1952791, at *5 n.5. In this same note, the federal court also cited the federal counterpart to our CR 15.01, which contains the same principle. Amendment of pleadings “shall be freely given when justice so requires.” CR 15.01.
The caption in the Complaint unfortunately identifies Driver as making an individual claim, but any reading of the Complaint would reveal no such claim. The wording of the caption uses the conjunction “and” to identify a separate claim made for Sluder by her POA, who clearly had the authority to make such a claim. The body of the Complaint clearly sets forth only claims for Sluder.
Then we have the added circumstance of Sluder’s death which would have required an amendment of the Complaint anyway. Given all these circumstances, including the circuit court’s knowledge of Sluder’s death when asked to allow an amendment of the Complaint, the silent refusal of the circuit court to allow the amendment was an abuse of discretion. Any other result would elevate or exalt form over substance. It would be a misapplication of the policy for notice pleading and would be contrary to the freedom given amendment of pleadings, especially for non-substantive amendments.
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CONCLUSION
We AFFIRM the dismissal of Driver individually because she stated no claim for herself. We REVERSE the denial of the Motion to Amend the Complaint. An amendment will recognize the capacity of Driver as the personal representative of her late mother to proceed with the claims asserted in the Complaint and any claims for wrongful death that, if meritorious, may now be made due to Sluder’s death. We REMAND for further proceedings after proper amendment has been submitted and ordered by the circuit court.
MCNEILL, JUDGE, CONCURS.
ECKERLE, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
ECKERLE, JUDGE, DISSENTING: Respectfully, I must dissent from the majority’s decision to reverse and remand the McCracken Circuit Court’s Order dismissing this case. I cannot agree with the majority’s intimation that Driver’s complaint adequately joined Sluder as the real party in interest to Driver’s suit by including in the caption “Lisa Driver, Individually and as Power of Attorney for Wanda Sluder.” Read as a whole, the majority’s analysis seems to suggest that Kentucky’s notice-pleading standard relieves a plaintiff from properly identifying the necessary parties to a suit and bringing a complaint in the party’s name. Echoing Driver, the majority relegates to a mere clerical mistake or question of
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semantics Driver’s clear error in describing Sluder’s role in the complaint. Appellant’s Brief at 2-3.
While “Kentucky law ‘favors the right of litigants to have their rights disposed of on the merits rather than technicalities[,]’” this leniency is not boundless. Nami Resources Company, L.L.C. v. Asher Land and Mineral, Ltd., 554 S.W.3d 323, 343 (Ky. 2018) (quoting Kentucky Mut. Life Ins. Co. v. Hardin, 126 S.W.2d 427, 431 (Ky. 1938)); see also Smith v. Isaacs, 777 S.W.2d 912, 915 (Ky. 1989). “Despite the informality with which pleadings are nowadays treated, and despite the freedom with which pleadings may be amended, . . . the central purpose of pleadings remains notice of claims and defenses.” Hoke v. Cullinan, 914 S.W.2d 335, 339 (Ky. 1995) (citing Lee v. Stamper, 300 S.W. 2d 251 (Ky. 1957)). Thus even with our liberal notice-pleading standard, we nonetheless have bodies of rules and binding case law setting forth basic pleading requirements, which must be followed to ensure fundamental notions of fairness, due process, and well, actual notice.
The third chapter of the Kentucky Rules of Civil Procedure (“CR”)
mandates the form and contents of pleadings and motions by which parties must conduct a suit. And the general rules of pleading direct that “[a] pleading which sets forth a claim for relief . . . shall contain (a) a short and plain statement of the claim showing that the pleader is entitled to relief and (b) a demand for judgment
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for the relief to which he deems himself entitled.” CR 8.01(1) (emphasis added). Obvious in the very text of this rule is the principle that a claim must necessarily include the identity of the pleader and the grounds for which that pleader seeks relief.
Because the available claims and defenses involved in a suit rely heavily on the identity of the parties and any legal relationships between them, the Civil Rules dedicate the very next chapter to the process of determining the proper parties, joining those parties to a suit, and substituting or removing parties when circumstances require. CR 17.01 opens the chapter, which requires a suit to be brought by the real party in interest or one falling under one of the authorized exceptions. Its application in the case sub judice demonstrates the fundamental reason for the rule’s existence and its natural requirements in conducting litigation.
In considering the purpose of CR 17.01, this Court has favorably cited commentary on the corresponding federal rule noting that “the modern function of the rule in its negative aspect is simply to protect the defendant against a subsequent action by the party actually entitled to recover, and to ensure generally that the judgment will have its proper effect as res judicata.” Kentucky Center for the Arts v. Whittenberg Engineering & Const. Co., 746 S.W.2d 71, 73 (Ky. App. 1987) (quoting C. Wright and A. Miller, Federal Practice and Procedure, Civil § 1543 (1971)). To achieve these ends, which are safeguards at their center, and to
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satisfy the requirements of CR 8.01 that the pleader must identify her claim and her grounds for relief, the claim certainly must identify the proper plaintiff. This pinpointing responsibility is core, and it cannot be shifted to the defendant to intuit from the substance of a complaint or for a Court to infer from ambiguity between its caption and body.
Although they may appear somewhat formulaic in nature, the choice of words identifying the plaintiff in a complaint must be given ordinary meaning and corresponding substance. This is particularly true when filing suit on behalf of another, as our precedent makes clear that “the right to bring an action is not always tantamount to the right to benefit from that action[.]” Pete v. Anderson, 413 S.W.3d 291, 299 (Ky. 2013) (citing Branham v. Stewart, 307 S.W.3d 94 (Ky. 2010) (emphasis in original)). Simply put, and as all lawyers are very well aware, language matters.
Both parties in this case cited, and the majority discussed at length, a federal case in which that Court allowed the original named plaintiffs to amend their complaint to reflect accurately their capacity to bring suit in the name of their adult child and former ward through their valid powers of attorney. Cody through Szabo v. Kenton County Public Schools, Civil Action No. 2:20-CV-103, 2023 WL 1952791 (E.D. Ky. Feb. 10, 2023). Although not binding precedent on Kentucky’s Courts, this decision clearly illustrates that even a “captioning error” can affect the
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validity of a claim if the pleader is not the actual or proper plaintiff. While the majority suggests that this case illustrates the need for flexibility in correcting errors in a complaint, I find it most instructive in its application of the principle that the proper identification of parties and their roles in a suit cannot simply be inferred from the body of a complaint. Though the Federal District Court ultimately did allow amendment of the complaint, the opinion certainly offers no compelling argument that it was required to do so when exercising its discretion to address an obvious error in the identified power of those plaintiffs to file suit against the school board.
It is on this point that the majority and I must further diverge. The error of failing to name the correct plaintiff is so fundamental to determining a claim’s validity that I cannot reasonably discount it as minor. Pleadings simply must be brought in the name of an actual, real party with standing. Lacking that essential component, the case must be dismissed for want of jurisdiction. See Commonwealth Cabinet for Health and Family Services, Dep’t for Medicaid Services v. Sexton by and through Appalachian Reg’l Healthcare, Inc., 566 S.W.3d 185 (Ky. 2018) (adopting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992)). Otherwise, defendants would not be able to defend themselves meaningfully and reasonably against the shifting sands of differing parties, claims, and agendas; and once-firm deadlines for suits to be
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brought and defended would be blurred – all resulting in prejudice to the litigants, the legal system, and binding precedent and rules.
This difference in perspective on the severity of Driver’s failure to bring suit in her mother’s name rests at the heart of my dissent from the majority’s conclusion that the Circuit Court erred in effectively denying Driver’s motion to amend her complaint. Although Driver and the majority note that CR 15.01 directs that Circuit Courts should “freely” allow leave to amend a pleading “when justice so requires,” Courts must consider the interests of fairness and justice to both parties when ruling on a request to amend a complaint. Even under the more liberally construed notice-pleading standard, defendants in a suit are entitled to notice and certainty of, not just the nature of the claims, but also the correct identity of the parties in interest who have filed the complaints against them. As Parkview has persuasively argued below and on appeal, this interest is substantial and fundamental to questions of a Court’s ability to hear and decide a case or controversy.
In reviewing a Trial Court’s denial of a motion to amend, the ruling “will not be disturbed on appeal unless there has been a clear abuse of discretion.” Bowling v. Commonwealth, 981 S.W.2d 545, 548 (Ky. 1998) (citing Graves v. Winer, 351 S.W.2d 193 (Ky. 1961)). The majority correctly cites the test for an abuse of discretion as whether the Trial Court’s decision was “arbitrary,
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unreasonable, unfair, or unsupported by sound legal principles.” Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 571 (Ky. 2000). In applying this test, the majority finds Driver’s error to be “non-substantive” and emphasizes repeatedly its version of the problem as lying only in the complaint’s caption, as it states: “The problem starts and ends with the caption of the Complaint.” However, as it acknowledges in a footnote, the substantial error of failing to name the proper plaintiff also occurs in fact in the body of the complaint and the certificate of merit. The error here is replete, and I strongly disagree that the failure to bring a claim in the name of the real party in interest can be categorized as anything other than a fundamental flaw affecting the fairness of the proceedings. Therefore, I cannot find the denial of Driver’s motion to amend to be unfair or unreasonable, as the majority concludes, as dismissal was warranted for failure to name the proper party.
Although Driver cites multiple authorities confirming that it was within the Circuit Court’s discretion to allow the amendment, she has offered no persuasive authority for the proposition that the Circuit Court was required to exercise its considerable discretion only in her favor in this case. Given the potential time and expense required to defend a suit, it is not arbitrary or unreasonable for a Court to deny a plaintiff’s motion for leave to amend to correct the total absence of the only real party in interest. To conclude that the more
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permissive notice-pleading standards require otherwise thwarts the very purpose of those rules in granting a measure of certainty to defendants in requiring they be given notice of the particular claims and parties involved. Therefore, while I agree with the majority that the Circuit Court properly dismissed Driver’s complaint in her individual capacity, I would affirm the Circuit Court’s Order granting Parkview’s motion to dismiss Driver’s complaint in toto and declining to allow amendment of the complaint. BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Daryl T. Dixon Mark E. Hammond Flint Cooper Kathryn D. Williams Paducah, Kentucky Louisville, Kentucky