Cited by

Accordingly, we overrule Tyman, and disapprove Sundevil Power and O’ to the extent they are inconsistent with our Rule 15(c) analysis here.

plaintiffs deliberate, though ultimately erroneous or unwise, tactical choice cannot be considered a ‘mistake’_” O’-66 , -91 (App.1992).

at 76, ¶ 21 (citation omitted); see also O’–66 (App. 1992) (noting that a “‘mistake concerning the identities of the proper party’ does not include a mistake of law by counsel regarding whom to name in a lawsuit .

See O’ (citing Transamerica Ins.

That is, when the action arises out of a statutory obligation and is “based on a statute rather than a contract, the peripheral involvement of a contract does not support the application of the fee statute.” Id.; see also O’-73 , -98 (App.1992).

The tribal court then determined the amended complaint did not relate back to the date of the original complaint, citing O’-66, -91 (App. 1992), in which Division One of this court found: Where a plaintiff knows of the existence and identity of a defendant before the statute of limitations runs, and makes a conscious election about whom to sue, that plaintiff’s deliberate

O’ accord Leonard, 219 F.3d at 31.

In O’ , we held that “a ‘mistake concerning the identities of the proper party’ does not include a mistake of law by counsel regarding whom to name in a lawsuit.” , (App.1994

(quoting O’-73 , -98 (App.1992)).

Fund, , (citing O’-73 , -98 (App.1992)).

O’ , see also Kennedy v. Linda Brock Automotive Plaza, Inc., , (section 12-341.01(A) inapplicable if contract is merely factual predicate to, but not essential basis of, action).

Similarly, when the cause of action arises from statutory rather than contractual obligations, the “peripheral involvement of a contract does not require the application of § 12-341.01(A).....” O’-73 , -98 (App.1992).

Instead of applying Rule 17(a), however, the trial court misapplied O’ , holding plaintiffs deliberate, tactical decision did not permit relation back of amended complaint.