concurring and dissenting:
¶ 1 While I concur in the result of the majority’s resolution of the Colonna and Catalone appeals, I dissent as to the majority’s resolution of the Price, Sackett and Marther appeals. I disagree with the majority’s conclusion that Appellant was not the real party in interest. The documents entitled “ASSIGNMENT OF CLAIMS” and “SUBROGATION AGREEMENT” when read together, evidence a clear intent to merely provide Steven P. Cole with security for the repayment of his *236$80,000.00 loan. The form of security contemplated was the proceeds or judgments flowing from the success of the suits Dr. Cole had already instituted or would institute against his former patients. The brothers never intended for Steven to succeed to the right to prosecute the actions for unpaid medical services. Such an agreement would be nonsensical, as Dr. Cole would be a necessary witness in any such action. This arrangement appears to be more like a pledge of the doctor’s accounts receivable to secure repayment of a loan. Under these circumstances there is no assignment of a cause of action. The fact the drafter of these documents was not skilled in the use of the proper legal terminology should not be held against him, especially in light of the familial relationship of the parties and the fact the court is not being asked to enforce the brothers’ agreement. Viewed in this light, this is not a true real party in interest controversy.
¶ 2 We should keep in mind the purpose of the real party in interest rule is to prevent a fraud upon the court. An examination of the record does not reveal any attempt by the plaintiff to commit a fraud upon the court or to deceive the defendants as to who is behind the suit. Moreover, a judgment in favor of Dr. Cole will not subject these defendants to further suits regarding the same claims prosecuted in the name of Steven Cole. Our substantive law would provide protection from any such attempt. This Court should not engage in a hypertechnical interpretation of certain terms used in these documents to deny the plaintiff his day in court. In doing so the majority elevates form over substance. We should not blindly apply a procedural rule where the substantive law provides sufficient guidance for analyzing whether the proper party has brought the action.
¶ 3 The majority decision does not further the goal of judicial economy. Provided the statute of limitations on these claims have not run, Steven Cole need only grant Dr. .Cole his power of attorney to reinstate and prosecute these claims. However in the more likely event the statute has run, I would find, under the circumstances of this case, Dr. Cole is the real party in interest here in a suit seeking to recover unpaid fees for medical services rendered by him. Although Steven Cole has a beneficial interest in the cause of action and may, ultimately, be entitled to any recovery obtained, the defendants remain subject to the satisfaction of but one judgment. The facts of this case simply do not constitute sufficient justification for the trial court’s grant of the defendants’ Motion to Dismiss with prejudice. At most the trial court should have ordered substitution of Steven Cole as plaintiff or joinder as a co-plaintiff.
¶ 4 Accordingly, I disagree with the Majority’s resolution of the Price, Sackett and Marther appeals. I concur in the result of the majority’s resolution of the Colonna and Catalone appeals.
¶ 5 DEL SOLE, J. and LALLY-GREEN, J. join in this Concurring and Dissenting Statement.