Faucheaux v. Provo City

2018 UT App 150
THE UTAH COURT OF APPEALS
K EVIN F AUCHEAUX ,
Appellant,
v.
PROVO C ITY ,
Appellee.
Opinion
No. 20160738-CA
Filed August 9, 2018
Fourth District Court, Provo Department
The Honorable Fred D. Howard
No. 100401999
Sara Pfrommer, Ronald D. Wilkinson, Nathan S. Shill,
and Marianne P. Card, Attorneys for Appellant
Robert D. West, J. Brian Jones, and Gary D. Millward,
Attorneys for Appellee
JUDGE GREGORY K. O RME authored this Opinion, in which
JUDGE M ICHELE M. C HRISTIANSEN F ORSTER concurred. JUDGE JILL
M. POHLMAN concurred in the result.
ORME, Judge:
¶1 	Kevin Faucheaux appeals the dismissal of his suit against
Provo City. The district court dismissed the suit for lack of
subject matter jurisdiction on the basis that Faucheaux, who
seemingly brought this action as personal representative of the
estate of Helen M. Faucheaux, did not have legal authority to
bring a wrongful death suit. We reverse.
¶2 	In 2009, Faucheaux called 911 after finding his wife, Helen
Faucheaux, 	“unable 	to 	even 	complete 	a 	full 	sentence,”

Faucheaux v. Provo City
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“stumbling 	around 	the 	house,” 	and 	“stumbl[ing] 	into 	the
bathroom” 	where 	he 	“heard 	snorting 	noises.”1 	Faucheaux
informed the 911 operator that Helen had a history of drug
abuse and that he was concerned that she “had overdosed.”
Provo 	City 	police 	officers 	were 	dispatched, 	arrived 	at 	the
Faucheaux home, and concluded that Helen was intoxicated and
needed to “sleep it off.” They also advised Faucheaux to “leave
her alone” since she was upset with him. Faucheaux insisted that
his wife needed to be evaluated by a medical professional
because she had previously attempted suicide and was possibly
overdosing. Despite his pleas, the officers told him “to have a
good 	night” 	and 	left. 	He 	did 	not 	have 	a 	good 	night.
Approximately two hours later, Faucheaux went to check on his
wife and found her dead.
¶3 	Faucheaux brought a wrongful death suit against Provo
City, claiming its officers “negligently failed to protect” Helen
when they responded to “his request for a welfare check”
because, in answering that request, they “undertook a specific
action to protect” Helen. Provo City, then discerning no problem
with standing or subject matter jurisdiction, simply answered
the complaint and later filed a motion for summary judgment on
the grounds that “its police officers had no legal duty to take
[Helen] 	into 	custody 	against 	her 	will 	and 	deliver 	her 	for
involuntary commitment” and that “[t]he discretionary acts of
[Provo City’s] police officers also provide [Provo City] with
governmental 	immunity.” 	Granting 	summary 	judgment 	to
Provo City, the district court ruled that the city owed no duty of
care to Helen and that, even if it did, it was immune from suit.
Faucheaux appealed.
1. “On appeal from a motion to dismiss, we review the facts only
as they are alleged in the complaint. We accept the factual
allegations as true and draw all reasonable inferences from those
facts in a light most favorable to the plaintiff.” Peck v. State, 2008
UT 39, ¶ 2, 191 P.3d 4 (citation and internal quotation marks
omitted).

Faucheaux v. Provo City
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¶4 	On appeal from the initial summary judgment against
Faucheaux, 	we 	determined 	that 	the 	district 	court 	erred 	in
concluding that “the public-duty doctrine shields Provo from
liability.” Faucheaux v. Provo City, 2015 UT App 3, ¶ 37, 343 P.3d
288. And we concluded “that the Governmental Immunity Act
does not immunize Provo from [responsibility for] the officers’
actions and omissions.” Id. We then remanded the case for
further proceedings, id., expecting the case would proceed to the
discovery phase and then on to settlement or trial.
¶5 	But on remand, Provo City instead latched on to a new
procedural bar to Faucheaux’s suit and moved to dismiss the
case because “the Estate of Helen M. Faucheaux had no capacity
to sue for wrongful death, and no real party in interest may be
substituted.” Faucheaux filed a response to the city’s motion,
arguing that Provo City forfeited the right to file a motion to
dismiss when it filed its answer and that he brought his claim
against Provo City as a personal representative of the heirs of
Helen’s estate, with the caption of his complaint identifying the
estate as the party bringing the suit being merely a technical
error. The district court dismissed the case, concluding it lacked
subject matter jurisdiction because the estate did not have legal
authority to bring a wrongful death suit under Utah Code
section 	78B-3-106(1) 	(LexisNexis 	2012).2 	Faucheaux 	again
appeals.
2. An estate is not a legal entity that can bring suit. See 31 Am.
Jur. 2d Executors & Administrators § 1085 (2012). It is a decedent’s
bundle of property rights that, once claims against the decedent
have been settled or paid, might be bequeathed, devised, or
transferred to a decedent’s heirs or devisees. See Utah Code Ann.
§ 75-1-201(14) (LexisNexis Supp. 2017); id. § 75-3-101 (Michie
1993). If the executor or administrator believes a decedent has a
cause of action that survives her death, he may bring suit on
behalf of the estate. See 31 Am. Jur. 2d Executors & Administrators
§ 1085 (2012). A wrongful death action is not such an action. It is
(continued…)

Faucheaux v. Provo City
20160738-CA 	4 	2018 UT App 150
¶6 	“Because 	the 	propriety 	of 	a 	motion 	to 	dismiss 	is 	a
question of law, we review for correctness, giving no deference
to the decision of the trial court.” Krouse v. Bower, 2001 UT 28,
¶ 2, 20 P.3d 895. And “the question of whether subject matter
jurisdiction exists is one of law,” which we likewise review
without deference to the trial court. Van Der Stappen v. Van Der
Stappen, 815 P.2d 1335, 1337 (Utah Ct. App. 1991).
¶7 	Faucheaux argues that the district court’s rationale for
dismissing his complaint on remand “conflated a standing issue
with the issue of real party in interest, and wrongly concluded
that it lacks jurisdiction to determine . . . the real party in interest
in this case.” He argues that “real party in interest” is not a
question of subject matter jurisdiction that can be raised at any
time, but rather one of legal capacity to sue, and for that reason,
Provo City waived its objection when it failed to raise it in a
timely way.3
(…continued)
a claim that is personal to the decedent’s heirs and not one that
accrued to the decedent, that survived her death, and that may
be 	pursued 	on 	behalf 	of 	the 	estate. 	See 	Utah 	Code 	Ann.
§ 78B-3-106 (LexisNexis 2012).
In the prior appeal, we appear to have recognized the
technicality of the defect in the complaint to some extent. The
complaint identified “Estate of Helen M. Faucheaux” as the
plaintiff, but our prior opinion names Kevin Faucheaux as the
plaintiff and appellant.
3. Faucheaux also raises two other issues on appeal. However,
for both issues, he essentially argues that the district court erred
by not recognizing that the caption of his complaint merely
contained 	a 	technical 	error. 	Faucheaux 	asserts 	that 	he
substantially complied with Utah Code section 78B-3-106(1) in
bringing 	suit 	against 	Provo 	City, 	albeit 	purportedly 	as 	the
personal representative of his wife’s estate, because the body of
(continued…)

Faucheaux v. Provo City
20160738-CA 	5 	2018 UT App 150
¶8 	Rule 17 of the Utah Rules of Civil Procedure requires that
“[e]very action shall be prosecuted in the name of the real party
in interest.” Utah R. Civ. P. 17(a). “The real party in interest is
the person entitled under the substantive law to enforce the right
(…continued)
his complaint states, with our emphasis, that “Kevin Faucheaux
is 	the 	personal 	representative, 	or 	will 	soon 	be 	named 	the
personal representative, of the Estate of Helen M. Faucheaux and
brings this action on behalf of and for the benefit of Helen M.
Faucheaux’s 	heirs.” 	See 	Utah 	Code 	Ann. 	§ 	78B-3-106(3)
(LexisNexis 2012) (“The [wrongful death] action may be brought
by either the personal representatives of the adult deceased
person, for the benefit of the person’s heirs, or by the guardian
for the benefit of the heirs[.]”). He argues that the complaint’s
caption, naming the plaintiff as “Estate of Helen M. Faucheaux,”
was a technical error which he should be allowed to correct
under rule 15(c) of the Utah Rules of Civil Procedure so that the
caption reflects the substance of his complaint.
Nevertheless, it is clear to us from the complaint and the
record as a whole that Faucheaux purportedly brought this suit
on behalf of the estate, and therefore in the first appeal we noted
that 	Faucheaux 	was 	bringing 	the 	suit 	as 	the 	“personal
representative of Helen’s estate.” Faucheaux v. Provo City, 2015
UT App 3, ¶¶ 1, 10, 343 P.3d 288. But we recognize that there is a
fine line in a case where the decedent dies intestate between a
recovery for the estate, which will be distributed to the heirs
once any bills have been paid, and a recovery directly for the
heirs. 	The 	line 	is 	even 	finer 	where, 	as 	here, 	the 	personal
representative who brought the suit is also the primary—if not
exclusive—heir. In sum, Faucheaux’s technical-error argument
takes him only so far. It supports our conversion of the plaintiff
named in the caption in the earlier appeal from “Estate of Helen
M. 	Faucheaux” 	to 	Kevin 	Faucheaux 	but 	does 	not 	warrant
ignoring the complaint’s references, and our prior opinion’s
recognition, that he brought the action as personal representative
of the estate, albeit expressly for the benefit of Helen’s heirs.

Faucheaux v. Provo City
20160738-CA 	6 	2018 UT App 150
sued upon and who generally, but not necessarily, benefits from
the action’s final outcome.” Orlob v. Wasatch Med. Mgmt., 2005
UT App 430, ¶ 17, 124 P.3d 269 (citation and internal quotation
marks omitted). As we recognized in Haro v. Haro, 887 P.2d 878
(Utah Ct. App. 1994), the real party in interest for a wrongful
death suit is the decedent’s heirs because Utah’s wrongful death
statute intends “to provide compensation to those who were
dependent upon the decedent as a sole or supplemental means
of economic and emotional support.” Id. at 879 (citation and
internal quotation marks omitted). Utah’s wrongful death statute
therefore permits only the heirs of the decedent, the personal
representative of the decedent for the benefit of the decedent’s
heirs, or the heirs’ guardian to bring a wrongful death suit. See
Utah Code Ann. § 78B-3-106(1) (LexisNexis 2012). A wrongful
death action on behalf of a decedent’s estate, per se, has no legal
basis under the statute. See Haro, 887 P.2d at 879.
¶9 	Accordingly, 	the 	district 	court 	in 	the 	present 	case
concluded that the estate—and by implication, Kevin Faucheaux
as 	personal 	representative 	on 	behalf 	of 	the 	estate—lacked
standing and that the court was therefore unable to exercise
subject matter jurisdiction over the suit. But “subject matter
jurisdiction concerns a court’s broad authority to hear the sort of
case before it.”4 Iota LLC v. Davco Mgmt. Co., 2016 UT App 231,
¶ 44, 391 P.3d 239. It also encompasses issues of justiciability,
such as whether a party has standing. In re adoption of B.B., 2017
UT 59, ¶ 121, 417 P.3d 1. See also Alpine Homes, Inc. v. City of West
Jordan, 2017 UT 45, ¶ 2 (“Standing is a question of subject matter
jurisdiction 	that 	raises 	fundamental 	questions 	regarding 	a
4. Utah courts have broad authority over wrongful death claims.
See Utah Code Ann. § 78A-5-102(1) (LexisNexis 2012) (“The
district court has original jurisdiction in all matters civil and
criminal, 	not 	excepted 	in 	the 	Utah 	Constitution 	and 	not
prohibited by law.”); id. § 78B-3-106(1) (creating a cause of action
“when the death of a person is caused by the wrongful act or
neglect of another”).

Faucheaux v. Provo City
20160738-CA 	7 	2018 UT App 150
court’s basic authority over the dispute.”) (brackets, citation, and
internal 	quotation 	marks 	omitted). 	Had 	Faucheaux 	lacked
standing in this sense, the court would have been correct in
dismissing 	the 	suit 	for 	lack 	of 	subject 	matter 	jurisdiction,
notwithstanding Provo City’s dereliction in raising the issue so
late 	in 	the 	game. 	See 	Utah 	R. 	Civ. 	P. 	12(h) 	(permitting 	a
defendant to raise the issue of subject matter jurisdiction at any
time during the proceedings).
¶10 	But as we explained in Elite Legacy Corp. v. Schvaneveldt,
2016 UT App 228, 391 P.3d 222, “standing is not the same as
legal capacity to sue.” Id. ¶ 51 (citation and internal quotation
marks omitted). “A plaintiff has standing when it is personally
aggrieved, 	regardless 	of 	whether 	it 	is 	acting 	with 	legal
authority,” whereas “a party has capacity when it has the legal
authority to act, regardless of whether it has a justiciable interest
in the controversy.” Id. (emphases in original) (citation and
internal quotation marks omitted). Questions about whether a
party is authorized by statute to bring suit on behalf of the real
party in interest “affects a plaintiff’s capacity to sue, not its
standing,” and therefore “the failure is not jurisdictional.” Id.
¶ 54.
¶11 	Consequently, 	the 	lack 	of 	capacity 	to 	sue 	“is 	an
affirmative defense, which may be waived . . . by failure to bring
it before the trial court.” Id. ¶ 53 (omission in original) (citation
and internal quotation marks omitted). Cf. Wall Inv. Co. v. Garden
Gate Distrib., Inc., 593 P.2d 542, 544 (Utah 1979) (“[F]ailure to
comply with the assumed name statute does not disqualify [a
party] as a plaintiff in this suit.”). Because capacity to sue is not a
jurisdictional issue, the suit is merely voidable, not void.5 See
5. Our holding in Haro v. Haro, 887 P.2d 878 (Utah Ct. App.
1994), stated that when a party “does not have the capacity to
sue on behalf of the ‘real party in interest,’ the suit is a nullity.”
Id. at 880. But the lack of capacity to sue makes an action
voidable, not void. In Haro the motion to dismiss was timely
(continued…)

Faucheaux v. Provo City
20160738-CA 	8 	2018 UT App 150
Schvaneveldt, 2016 UT App 228, ¶ 54. Moreover, an objection on
real-party-in-interest grounds must be timely. And when it is
clear on the face of the complaint that the party lacks the
capacity to sue on behalf of the real party in interest, the defense
must be raised early in the pleading stage since “there is no good
reason why the claimed defect should not be treated as waived”
if it is not asserted in timely fashion, as would be the case in “all
other civil proceedings.” Taslich v. Industrial Comm’n of Utah, 262
P. 281, 286 (Utah 1927) (Straup, J., dissenting).6
¶12 	Because the error of which Provo City now complains
was evident on the face of Faucheaux’s complaint, Provo City, if
truly concerned about Faucheaux’s capacity to sue as an heir or
on behalf of Helen’s heirs, should have presented the issue as an
affirmative defense in its answer or in an early motion to
dismiss. Given its failure to do so, Provo City has waived the
defense that Faucheaux does not have the capacity to sue on
behalf 	of 	the 	real 	party 	or 	parties 	in 	interest, 	Helen 	M.
Faucheaux’s heirs, of which he is one and perhaps the only one.
(…continued)
because 	the 	defendant 	brought 	the 	motion 	soon 	after 	the
amended complaint was filed, see id. at 879, not, as here, years
later and only after summary judgment on an unrelated ground
had been entered, the judgment reversed on appeal, and the case
remanded.
6. Faucheaux also contends that rule 17(a) of the Utah Rules of
Civil 	Procedure 	should 	have 	prohibited 	the 	court 	from
dismissing the complaint “until a reasonable time has been
allowed after objection for ratification, joinder or substitution of
the real party in interest.” While the general proposition has
merit, because Provo City waived the issue of real party in
interest and Faucheaux is already before the court—with the
capacity in which he brought the action being comparatively
insignificant in the context of this case—it is unnecessary for us
to reach this issue.

Faucheaux v. Provo City
20160738-CA 	9 	2018 UT App 150
¶13 	Accordingly, we reverse and remand for resolution of
Faucheaux’s complaint on the merits.