¶1 dissenting.
¶2 I must respectfully dissent from the decision of the majority holding that the trial court erred in denying appellant Davis’s motion to dismiss for failure to comply with Civ.R. 17(A).
¶3 The general rule implicit in Civ.R. 17(A) is that all co-owners of a single claim are parties united in interest, and as such they must be joined as co-claimants in the same action or the action will not be prosecuted in the name of the “real party in interest.” But the second sentence of the rule carves out an express exception, stipulating that a party authorized by statute may sue in his own name as representative of a real party in interest without joining that party to the action.
¶4 R.C. 1775.08(A) provides that every partner is an agent for the partnership and that the act of every partner binds the partnership, unless, in fact, the partner lacks the authority he purports to have. The Davis-Linden partnership agreement clearly gives Oda the authority to bring this action. Therefore, he brings the action as an agent of the partnership and the judgment he obtained is binding on the partnership in any future action, pursuant to statute. Thus, Oda is a “representative” of the partnership and may, pursuant to Civ.R. 17(A), bring this action in his own name.
¶5 Oda’s complaint styles the action as one brought by him personally, not as the representative of the partnership. However, that is not a defect. Civ.R. 9(A) provides that it is not necessary to aver the authority of a party to sue or be sued in a representative capacity. Furthermore, it is clear that the cause of action is one held by the partnership and that the relief is granted to the partnership and not to Oda personally. Oda will hold any proceeds in constructive trust for the partnership and payment by Davis will discharge his debt to the partnership. There is sufficient unity of parties and interests that any subsequent judgment in favor of Oda, another partner, or the partnership on the same debt will be barred by the doctrine of res judicata, if Davis properly pleads and proves it.
¶6 Civ.R. 9(A) also provides that when a party “desires to raise an issue as to … the authority of any party to sue or be sued in a representative capacity, he shall do so by specific negative averment … Davis, instead, presented *562 his argument in the form of a motion to dismiss, which generally questions the power or jurisdiction of the court. Civ.R. 12(B)(7) specifically concerns the “failure to join a party under Rule 19 or Rule 19.1.” Those rules concern parties who are “necessary” or “indispensable” to the litigation. The Davis-Linden partnership is neither because Oda has the contractual and statutory authority to sue in his representative capacity. By presenting his argument as a motion to dismiss instead of by negative averment, Davis has raised issues of jurisdiction and “capacity to sue” that are not contemplated by the “real party in interest” requirement.
¶7 It may be that the trial court should have treated the motion to dismiss as a “negative avérment” and permitted joinder of the partnership pursuant to Civ.R. 20. It didn’t, but I see no prejudice to Davis as a result.
¶8 I would overrule the assignments of error sustained by the majority and affirm the trial court.