REBECCA SHARER ADMINISTRATRIX OF THE ESTATE OF JACK SHARER APPELLANT v. EVAN GRAY LLC FLORENCE PARK CARE CENTER CENTRAL ACCOUNTING SYSTEMS HEALTHCARE MANAGEMENT GROUP AND BURLINGTON REALTY LLC APPELLEES (2026)

OPINION REVERSING AND REMANDING

Rebecca Sharer, Administratrix of the Estate of Jack Sharer (“Sharer”), appeals from a Boone Circuit Court order dismissing her complaint against multiple defendants for failure to comply with Kentucky Revised Statute (“KRS”) 411.167. Upon careful review, we are compelled to reverse and remand.

Jack Sharer was admitted to the Florence Park Care Center, a long-term-care facility, in March 2022. He resided there until October 3, 2024, when he was admitted to the hospital. He passed away six days later.

On April 4, 2025, Sharer filed a complaint alleging multiple counts of negligence against the licensee of the facility, Evan Gray, LLC, d/b/a Florence Park Care Center; and the owners or operators of the facility, Central Accounting Systems d/b/a Healthcare Management Group, and Burlington Realty, LLC (collectively “Florence Park”). It is undisputed that this complaint did not comply with KRS 411.167 because it failed to include a certificate of merit or any of the alternatives provided by the statute.

On May 15, 2025, Florence Park filed a motion pursuant to Kentucky Rule of Civil Procedure (“CR”) 12.02 to dismiss the complaint as a matter of law for failure to comply with KRS 411.167. On the next day, Sharer filed an amended complaint pursuant to CR 15.01, including a certificate of merit. Following a hearing, the circuit court granted the motion to dismiss with prejudice, on the grounds that KRS 411.167, as interpreted by the Kentucky Supreme Court in McMillin v. Sanchez, 686 S.W.3d 145 (Ky. 2024), requires strict compliance with its terms. This appeal followed.

STANDARD OF REVIEW

“A motion to dismiss for failure to state a claim upon which relief may be granted ‘admits as true the material facts of the complaint.’ ” Fox v. Grayson, 317 S.W.3d 1, 7 (Ky. 2010) (quoting Upchurch v. Clinton County, 330 S.W.2d 428, 429–30 (Ky. 1959)). Thus, “a court should not grant such a motion ‘unless it appears the pleading party would not be entitled to relief under any set of facts which could be proved[.]’ ” Id. (quoting Pari-Mutuel Clerks’ Union of Kentucky, Local 541, SEIU, AFL-CIO v. Kentucky Jockey Club, 551 S.W.2d 801, 803 (Ky. 1977)). “Since a motion to dismiss for failure to state a claim upon which relief may be granted is a pure question of law, ․ an appellate court reviews the issue de novo.” Id. (citation omitted).

ANALYSIS

In 2019, the Kentucky General Assembly passed House Bill 429 (“HB 429”), which was codified as KRS 411.167. McMillin, 686 S.W.3d at 147. The legislation, which was passed “in an attempt to alleviate the perceived problem of frivolous lawsuits[,]” requires claimants alleging medical or nursing home negligence or malpractice to file a certificate of merit from an expert with their complaint. Id. KRS 411.167(1) states as follows:

A claimant commencing any action identified in KRS 413.140(1)(e), or against a long-term-care facility as defined in KRS 216.510 alleging that the long-term-care facility failed to provide proper care to one (1) or more residents of the facility, shall file a certificate of merit with the complaint in the court in which the action is commenced.

Generally, a certificate of merit is defined in the statute as an affidavit or declaration by an expert who has reviewed the facts of the case and has concluded there is a reasonable basis to commence the action. KRS 411.167(2).

As in the case at bar, the plaintiff in McMillin, Sanchez, failed to file an affidavit with the complaint as required by statute. Id. at 147. In response to a motion to dismiss, Sanchez argued: 1) that the requirements of KRS 411.167 only apply to pro se litigants, not those represented by counsel; and 2) that the responses provided to McMillin's request for admissions supplied the requisite information to be contained in the certificate thereby substantially complying with the statute. The trial court rejected Sanchez's arguments and dismissed the action. Id. at 150.

In their argument presented to the Supreme Court, Sanchez urged the Court to find KRS 411.167 merely directory and not mandatory. Id. at 149. Put another way, Sanchez argued that only substantial compliance with the statute was required rather than strict compliance. In its opinion rejecting this interpretation of the statute, the Supreme Court opined, “[s]hould this Court determine that the requirements of this statute were merely directory, as Sanchez urges, then this would render the statute completely toothless.” Id. The Court went on to state:

The intent of the legislature was to protect medical professionals from having to defend themselves against frivolous or “nuisance” lawsuits. Should this Court validate Sanchez's interpretation it would frustrate the intent of the legislature by requiring defendants to hire an attorney, subject themselves to discovery, and only then could they avail themselves of the protection afforded by this statute.

Id. at 150. Relying on McMillin, the circuit court in the case sub judice held that dismissal with prejudice was appropriate because Sharer's complaint failed to comply strictly with the terms of the statute because the initial complaint did not include a certificate of merit, or any of the other alternatives listed in KRS 411.167(2).

However, McMillin is distinguishable from the case at bar because unlike Sanchez, Sharer filed an amended complaint pursuant to CR 15.01 before any pleadings were filed by the opposing party.¹ The Rule provides, in relevant part, as follows:

A party may amend his pleading once as a matter of course at any time before a responsive pleading is served ․ Otherwise 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. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be longer, unless the court otherwise orders.

CR 15.01.

Sharer argues that the circuit court erred as a matter of law because her amended complaint, which did include a certificate of merit, had the effect of completely superseding the initial complaint, and thereby met the requirements of KRS 411.167. We agree.

CR 15.01 permits a plaintiff to amend her complaint as a matter of right, if the plaintiff does so before a responsive pleading is served by the opposing party. Notably, Florence Park's motion to dismiss did not constitute a responsive pleading. “CR 15.02 only applies to pleadings. CR 7.01 sets forth an inclusive list of documents that constitute ‘pleadings’ within the context of our civil rules.” Fratzke v. Murphy, 12 S.W.3d 269, 272 (Ky. 1999) (citations omitted). A motion to dismiss “does not fall within this category as mentioned in CR 7.01[.]” Vincent v. City of Bowling Green, 349 S.W.2d 694, 696 (Ky. 1961).

Sharer relies on Brown v. Funk, 697 S.W.3d 739 (Ky. App. 2024), discretionary review denied (Oct. 16, 2024), to support her argument that her amended complaint started the litigation anew and is the only operative complaint. In that case, Brown brought a personal injury claim against Funk, a city public works employee, after tripping on the stub of a sign protruding from a sidewalk. Funk did not respond, and the trial court granted a default judgment. Over one year later, Funk moved to set aside the default judgment. On the same day, Brown filed an amended complaint, raising new claims. The trial court granted Funk's motion to set aside the default judgment. This Court affirmed, holding that setting aside the default judgment under CR 60.02(e) was proper because Brown's amended complaint effectively superseded the original complaint. Brown, 697 S.W.3d at 745. The Court explained that the amended complaint was a “substituted petition complete in itself.” Id. (citation omitted). It concluded that because “the original complaint was null, or void, the default judgment based on that nonoperative pleading was also null or void.” Id. at 746. Similarly, Sharer argues, her amended complaint rendered the original complaint null and void, and the amended complaint, with the certificate of merit attached, is now the only operative complaint.

Florence Park maintains that Sharer's amended complaint should not be construed as a superseding complaint as it merely reiterates the allegations of the original complaint. However, we disagree. The amended complaint includes new allegations regarding Sharer's consultation with an expert before ever filing suit and the “reasonable basis to commence the action.” We therefore agree with Sharer that the original complaint was rendered null and void when, pursuant to CR 15.01, Sharer filed the amended complaint.

In Powers v. Kentucky Farm Bureau Mutual Insurance Co., 694 S.W.3d 361 (Ky. 2024), the Supreme Court explained the relevance of a complaint which had been nullified. Following an automobile accident, Powers filed suit against the alleged tortfeasor, Fendol Carruthers, Jr.

[H]owever, Carruthers had actually died, and administration of his Estate dispensed with, two years earlier in March 2016. Carruthers's death is relevant as ‘[a] suit filed against a party who is deceased at the time of filing is a nullity as to that party. Unless proper amendments are made prior to the expiration of the statute of limitations ․ the claim is generally barred.’ Jackson v. Est. of Day, 595 S.W.3d 117, 122–23 (Ky. 2020).

Id. at 367. Powers failed to amend the complaint in a timely manner and the Court held that “Powers was aware of Carruthers's death and should have been aware that her claim against Carruthers, being null and void, had no settlement value.” Id. at 372. Similar to the case sub judice, Powers’ complaint was ineffectual and had no value.

Florence Park counters that such an application of the rule would result in a failure to strictly comply with KRS 411.167 because a trial court, in its discretion, could, at nearly any point throughout litigation, allow the amended complaint to be filed with the late certificate of merit attached. However, this analysis of CR 15.01 is flawed. The rule only permits a plaintiff to amend her complaint as a matter of right, if the plaintiff does so before a responsive pleading is served by the opposing party. Thus, it does not provide unlimited opportunities for a plaintiff to submit a certificate of merit. And there is no dispute, sub judice, that Florence Park had not filed a responsive pleading prior to the filing of the amended complaint. Contrary to the argument put forth by Florence Park, application of CR 15.01 in no way renders KRS 411.167 impotent. Rather, it enforces the province of good jurisprudence.

Rather than reading CR 15.01 and KRS 411.167 as in conflict with each other as suggested by Florence Park, the appropriate manner in which to apply them is in concert with each other. The directives in question are separate and distinct; one promulgated by the Supreme Court and the other by the General Assembly. CR 15.01 provides the rules by which a complaint is filed. In contrast, KRS 411.167 mandates the necessary legal support which must accompany the complaint. Thus, we agree with Sharer that the filing of the amended complaint pursuant to CR 15.01 rendered the original complaint null and void.² As such, the original complaint had no legal effect in relation to the requirements set out in KRS 411.167. Invoking CR 15.01, Sharer's filing of the amended complaint with the mandated certificate of merit attached, restarted the litigation and satisfied all statutory requirements. However, even under an alternate analysis to determine whether a court rule or promulgated statute governed the case sub judice, the result is the same.

The Supreme Court in Davenport v. Kindred Hospitals Limited Partnership, 709 S.W.3d 137 (Ky. 2024), reh'g denied (Feb. 20, 2025), laid the groundwork for determining when a rule supersedes a statute. Davenport, the personal representative of a patient's estate, filed a medical malpractice/wrongful death suit against Kindred in Jefferson Circuit Court on behalf of the Estate. Id. at 140. A conflict between a court rule and a contradictory statute became the deciding factor as to whether the Estate missed the statute of limitations for filing suit. Specifically, KRS 413.180 provides a 1-year window for the personal representative to bring claims on behalf of an estate and KRS 395.105 directs that the appointment of a personal representative becomes effective upon application of a judicial signature. KRS 395.105 conflicts with CR 58(1) which requires the clerk to note receipt of an order in the civil docket before an order becomes effective. “The notation shall constitute the entry of the judgment or order, which shall become effective at the time of such notation[.]” CR 58(1).

It is not unusual for a judge to sign an order and have that order sit several days prior to its notation in the docket. Such was the circumstance in which Davenport found himself. Specifically, on September 11, 2018, the district court signed an order appointing Davenport to be the personal representative of the Estate. On September 21, 2018, the county clerk entered this order. Then on September 20, 2019, Davenport filed a medical malpractice/wrongful death suit against Kindred in Jefferson Circuit Court on behalf of the Estate. Davenport, 709 S.W.3d at 140. Therefore, if KRS 395.105 governed, the suit should be dismissed as having been filed outside the statute of limitations. However, if CR 58(1) governed, the suit could proceed.

Davenport argued that the legislature violated the separation of powers enshrined in the Kentucky Constitution by setting forth a rule of procedure in probate cases that conflicts with the Supreme Court's duly promulgated Kentucky Rules of Civil Procedure. Id. at 141. The Supreme Court opined:

Facially, this argument appears to have merit. CR 58(1) clearly provides that an order becomes effective at the time the clerk notes it in the civil docket. CR 58(1) (“[t]he notation [into the civil docket] shall constitute the entry of the judgment or order, which shall become effective at the time of such notation[ ]”). To the extent KRS 395.105 provides for a different effective date for an order, in this case the time the order is signed by the judge, the statute conflicts with the constitutional prerogative of the Supreme Court to set our rules of procedure. However, our Civil Rules also recognize that in special statutory proceedings we cede to the legislature the ability to set procedural requirements that conflict with the general Rules of Civil Procedure. CR 1(2). Thus, for the last sentence of KRS 395.105 to survive a separation of powers challenge, we must be convinced that probate and the appointment of a personal representative qualifies as a “special statutory proceeding.”

“A ‘special statutory proceeding’ is one that is ‘complete within itself having each procedural detail prescribed.’ ” McCann v. Sullivan Univ. Sys., Inc., 528 S.W.3d 331, 334 (Ky. 2017) (quoting C.C. v. Cabinet for Health & Fam. Servs., 330 S.W.3d 83, 87 (Ky. 2011)). “[T]his Court determines the existence of a special statutory proceeding by evaluating whether the statute in question provides for a comprehensive, wholly self-contained process that prescribes each procedural detail of the cause of action.” Id. Examples of special statutory proceedings include election contests, Brock v. Saylor, 300 Ky. 471, 189 S.W.2d 688, 689 (1945); forcible entry and detainer, Shinkle v. Turner, 496 S.W.3d 418, 420–21 (Ky. 2016); and cases that originate from administrative agencies such as the Unemployment Insurance Commission. W. Ky. Coca-Cola Bottling Co. v. Runyon, 410 S.W.3d 113, 116 (Ky. 2013).

Id. at 141-42.

In affirming the trial court, the Supreme Court held that probate practice was subject to a robust statutory framework contained in Kentucky Revised Statutes, Title XXXIV. “The comprehensiveness with which the statutes [within this title] address these matters is akin to other proceedings we have determined to be of the special statutory variety.” Id. at 142. Once this was determined, it was a simple analysis to decide that the Estate had indeed filed the complaint outside the statute of limitations. Id. at 143. Thus, in the case sub judice, in order for this Court to determine which takes precedence, CR 15.01 governing the filing of amended complaints or KRS 411.167 governing the certificate of merit for medical malpractice actions, we must discern if the certificate of merit statute falls within a statutory framework that qualifies a “special statutory proceeding.”

In the case at bar, the statute in question, KRS 411.167, falls within Kentucky Revised Statutes, Title XXXVI – Statutory Actions and Limitations. Within this section of the Kentucky Revised Statutes, the General Assembly promulgated laws governing various topics including actions for assault, libel, unmanned aircraft, recreational land use, and much more. Any argument that the rules contained in this chapter constitute a wholly self-contained process that prescribes each procedural detail of the cause of action is unfounded. Conversely, the statute in question in Davenport, fell under a specific area of the law – KRS Title XXXIV – Descent, Wills, and Administration of Decedents’ Estates. Thus, an analysis to determine whether CR 15.01 or KRS 411.167 governs Sharer's complaint mandates this Court defer to the rule over the statute. Thus, Sharer's amended complaint pursuant to CR 15.01 complied with the requirements of KRS 411.167 and was dismissed by the trial court in error.

We view any remaining contentions of errors as moot or without merit.

CONCLUSION

For the reasons stated, the order of the Boone Circuit Court is reversed, and the case remanded for proceedings consistent with this Opinion.

FOOTNOTES

1.   Following the dismissal, Sanchez requested an extension of time within which to file an amended complaint. However, the Supreme Court found that Sanchez failed to adequately request such relief. McMillin, 686 S.W.3d at 150. He neither cited the appropriate rule, CR 6.02, which allows an amended complaint to be filed due to excusable neglect, nor provided the trial court with any facts on which the court could determine whether his failure to file was actually the result of excusable neglect. “Sanchez had his opportunity to present any facts or argument to support his contention that his failure to file a certificate of merit was due to ‘excusable neglect’ under CR 6.02 to the trial court. He failed to do so.” Id. at 151.

2.   Notably, this Court recently rendered an opinion in Wright v. Deaconess Union County Hospital, No. 2025-CA-0186-MR, 2025 WL 2989808, at *1 (Ky. App. Oct. 24, 2025), discretionary review denied (Apr. 15, 2026), wherein Wright failed to file a certificate of merit with his original complaint but did so with an amended complaint. However, this opinion is not published and has no precedential value. Moreover, unlike the case sub judice, Wright referenced the first complaint in the amended complaint. Sharer, in contrast, made no such reference.

KAREM, JUDGE:

ALL CONCUR.