Estate of Carey v. Spencer

2026 UT App 142
THE UTAH C OURT OF APPEALS
THE ESTATE OF DOREEN JO C AREY ,
Appellee,
v.
TERRY R. S PENCER AND TR S PENCER & ASSOCIATES , I NC .,
Appellants.
Opinion
No. 20250147-CA
Filed September 11, 2026
Third District Court, Salt Lake Department
The Honorable Robert P. Faust
No. 230905967
Cameron L. Sabin and Joshua B. Cutler,
Attorneys for Appellants
Brent W. Hastings, Attorney for Appellee
JUDGE JOHN D. L UTHY authored this Opinion, in which J UDGES
GREGORY K. O RME and M ICHELE M. C HRISTIANSEN F ORSTER
concurred.
LUTHY, Judge:
¶1 	James M. Gibbons III and Doreen Jo Carey lived together
as 	partners 	before 	Doreen 	died.1 After 	her 	death, 	Gibbons
retained attorney Terry R. Spencer of the firm TR Spencer &
Associates, Inc. (TR Spencer2) to file a petition in the probate court
1. Because several individuals discussed herein share the surname
Carey, when referring to them individually, we use their given
names, with no disrespect intended by the apparent informality.
2. We refer to Spencer, TR Spencer, or both as “TR Spencer.”
Spencer denies that he personally represented Gibbons in any
(continued…)

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20250147-CA 	2 	2026 UT App 142
for 	Gibbons 	to 	be 	appointed 	as 	personal 	representative 	of
Doreen’s estate 	(the Estate). 	The 	probate court 	granted 	the
petition 	and 	appointed 	Gibbons 	as 	Doreen’s 	personal
representative.
¶2 	Gibbons was later removed as personal representative, but
before that happened, TR Spencer recorded an attorney’s lien on
property within the Estate. The Estate, through the successor
personal representative, filed in the probate court a motion to
nullify the attorney’s lien on the basis that it was a wrongful lien,
but the probate judge denied that motion. The Estate then filed
this separate action in the district court, asserting (among other
things) a wrongful lien claim against TR Spencer. The district
court granted judgment on the pleadings against TR Spencer on
the wrongful lien claim, ruling that the doctrine of res judicata did
not bar the district court’s decision despite the probate court’s
earlier denial of the motion to have the attorney’s lien declared a
wrongful lien.
¶3 	TR Spencer appeals, arguing that we do not have subject
matter jurisdiction over this case because the listed plaintiff—the
Estate—lacks standing. However, this issue, as presented, is
actually one of capacity to sue and was not preserved, so we do
not address its merits. On the wrongful lien claim, we agree with
the district court that issue preclusion does not apply here. But we
disagree that TR Spencer’s defense fails as a matter of law.
Statutorily created liens are not wrongful under the Wrongful
Lien Act unless the lien claimant lacked “a good-faith basis for
capacity. Instead, he maintains that he acted solely as an agent of
the firm when he performed work for Gibbons. Because we
ultimately vacate the relevant portion of the judgment against
Spencer and TR Spencer, we do not reach the issue of whether it
was error to include Spencer, as an individual, in the judgment.
Our use of “TR Spencer” should not be interpreted as this court
taking a position on that issue.

Estate of Carey v. Spencer
20250147-CA 	3 	2026 UT App 142
claiming a statutory lien.” Bay Harbor Farm, LC v. Sumsion, 2014
UT App 133, ¶ 12, 329 P.3d 46. Attorney’s liens are authorized by
statute, and TR Spencer has pleaded facts sufficient to show that
it had a good-faith basis for claiming a lien on the Estate’s
property. 	Accordingly, 	the 	district 	court 	erred 	in 	granting
judgment on the pleadings in favor of the Estate on its wrongful
lien claim. We therefore reverse the relevant order and vacate the
associated judgment.
BACKGROUND
The Probate Petitions and Related Litigation
¶4 	Doreen died intestate on August 10, 2021. For several years
prior to Doreen’s death, Gibbons had lived with Doreen in what
Gibbons claimed was “an unsolemnized marital relationship.”
¶5 	Three days after Doreen’s death, Gibbons entered into an
attorney-client 	relationship 	with 	TR 	Spencer 	“for 	a 	probate
proceeding related to the death of Doreen.” That same day, TR
Spencer filed a probate petition on behalf of Gibbons, requesting
that Gibbons be appointed personal representative of the Estate
(the Probate Case). Two or three days later, Doreen’s mother and
brother—Peggy and Steven Carey (collectively, the Careys)—
filed a competing probate petition seeking to have themselves
appointed 	as 	co-personal 	representatives 	of 	the 	Estate. 	In
September 2021, TR Spencer also filed a separate case on behalf
of 	Gibbons, 	seeking 	to 	have 	his 	relationship 	with 	Doreen
recognized as an unsolemnized marriage (the Marriage Case).
Judge Kara Pettit presided over both the Probate Case and the
Marriage Case.
¶6 	In November 2021, Gibbons and the Careys entered a
settlement agreement regarding the Probate Case, the Careys’
probate petition, and the Marriage Case. Under that agreement,
Gibbons promised to pay $57,500 in installments to the Careys,

Estate of Carey v. Spencer
20250147-CA 	4 	2026 UT App 142
the 	Careys 	agreed 	to 	Gibbons 	being 	appointed 	personal
representative 	of 	the 	Estate, 	and 	the 	Careys 	agreed 	not 	to
oppose Gibbons’s petition to have his and Doreen’s relationship
recognized as an unsolemnized marriage.3 Judge Pettit entered
an order in the Probate Case appointing Gibbons as personal
representative of the Estate and requiring Gibbons and the
Careys to 	comply 	with 	the 	other 	terms of 	their 	settlement
agreement.
¶7 	In February 2022, the Careys sued Gibbons for breach of
the 	settlement 	agreement 	(the 	Contract 	Case). 	TR 	Spencer
represented Gibbons in the Contract Case as well. Judge Pettit,
who also presided over the Contract Case, subsequently found
that Gibbons had materially breached the settlement agreement.
¶8 	In April 2022, the Careys filed a motion in the Probate Case,
requesting, among other things, that the court hold Gibbons in
contempt for violating the order requiring compliance with the
terms of the settlement agreement. Gibbons was subsequently
held in contempt.
TR Spencer’s Attorney’s Lien
¶9 	In June 2022, TR Spencer recorded a notice of an attorney’s
lien in the amount of $20,168 on a parcel of real property held by
the Estate. TR Spencer later amended the amount of its attorney’s
lien to $98,742. Dale Carey (another of Doreen’s brothers) filed an
objection—in the Probate Case—to the attorney’s lien and a
motion to compel an accounting. Dale argued that “the amount of
attorney fees alleged [was] not reasonable” and was likely based
3. Ultimately, in June 2023, Judge Pettit issued a final judgment in
the Marriage Case, ruling that Gibbons and Doreen’s relationship
did not qualify for recognition as an unsolemnized marriage.

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20250147-CA 	5 	2026 UT App 142
on work performed in “other legal actions brought by or against
Gibbons, which are not chargeable against the Estate.”
The Probate Court’s Denial of the Successor Personal Representative’s
Motion to Declare the Attorney’s Lien a Wrongful Lien
¶10 	In September 2022, Gibbons was removed for cause as
personal representative of the Estate, and Dale was appointed as
successor personal representative. In December 2022, Dale—
acting as personal representative—filed a motion in the Probate
Case asking the court to declare that TR Spencer’s attorney’s lien
was a wrongful lien and to nullify the lien. He argued:
The 	[attorney’s 	lien] 	is 	rife 	with 	material
misstatements, asserting amounts due that were not
(and are not) due, as established by [TR Spencer’s]
own 	billing 	statements. 	The 	[attorney’s 	lien]
incorrectly includes thousands of dollars of attorney
fees 	rendered 	for 	legal 	services 	provided 	to
Gibbons, 	personally, 	in 	separate 	cases. 	The
[attorney’s lien] incorrectly includes attorney fees
related to Gibbons’ contempt of this [c]ourt and
failure 	to 	perform 	his 	duties 	as 	[personal
representative], which are not chargeable against
the Estate. The [attorney’s lien] is filed on property
owned by the Estate and not owned by Gibbons.
Accordingly, the Estate respectfully requests that
the [c]ourt nullify the [attorney’s lien] . . . .
Regarding the “separate cases” in which TR Spencer provided
legal services for Gibbons, Dale stated:
Gibbons was appointed [p]ersonal [r]epresentative
on May 4, 2022, and was removed for cause on
September 9, 2022. Yet, [TR Spencer] has included,
in the [attorney’s lien], attorney fees from August
13, 2021[,] to May 3, 2022, for attorney fees rendered

Estate of Carey v. Spencer
20250147-CA 	6 	2026 UT App 142
to Gibbons prior to his appointment as [p]ersonal
[r]epresentative. These attorney fees include fees in
the 	Marriage 	Case, the 	Contract 	Case, 	and 	for
mediation, all [of] which were incurred outside of
Gibbons’ 	appointment 	as 	[p]ersonal
[r]epresentative.
¶11 	On December 7, 2022, Judge Pettit held a hearing in the
Probate Case. We have not been provided with a transcript of that
hearing, but the minutes state that one of the issues Judge Pettit
considered—after entertaining oral argument on the subject—
was the “petition to nullify attorney’s lien.”4 The minutes then
state, “The [c]ourt provides its ruling on the petition to nullify
attorney’s lien as set forth on the record. The petition is denied.”
We see no corresponding written order among the documents in
the Probate Case, and none has been provided to us.
The Estate’s Separate Lawsuit Seeking to Have TR Spencer’s
Attorney’s Lien Declared a Wrongful Lien
¶12 	In August 2023, a separate action—the case from which this
appeal arises—was filed against TR Spencer. This case was
presided over by Judge Robert Faust. The complaint in this case
(the 	Complaint) 	alleged 	claims 	of 	fraud, 	wrongful 	lien,
unenforceable 	lien, 	and 	legal 	malpractice. 	The 	Complaint’s
caption 	listed 	the 	Estate 	as 	the 	plaintiff. 	The 	body 	of 	the
Complaint alleged, as is relevant to this appeal, the following:
• 	“The Estate of Doreen Jo Carey, (the ‘Estate,’ or ‘Plaintiff’),
complains . . . as follows . . . .”
• 	“Plaintiff is the Estate who owns property located in Salt
Lake County, Utah.”
4. Although the court referred to this as a petition, it was titled as
a motion and filed within the Probate Case.

Estate of Carey v. Spencer
20250147-CA 	7 	2026 UT App 142
• 	“Doreen’s brother, Dale Carey (‘Dale’), was appointed
successor [p]ersonal [r]epresentative.”
• 	“[T]he Estate is left with no other choice than to commence
this action against [TR Spencer].”
• 	“The Estate has been damaged . . . .”
• 	“The Estate prays for relief . . . .”
¶13 	In answering the Complaint, TR Spencer alleged that its
client was Gibbons in his role as personal representative of the
Estate and that it never represented the Estate “either directly or
separate and apart from its representation of [Gibbons], in his role
as the [p]ersonal [r]epresentative of the Estate.” TR Spencer
further asserted that in Gibbons’s role as personal representative
of the Estate, he was statutorily granted “the same power over
title to property of [the Estate] as an absolute owner would have.”
See Utah Code § 75-3-710. TR Spencer also alleged that the only
fees associated 	with 	its attorney’s lien 	were 	those 	Gibbons
incurred while acting as personal representative of the Estate and
while he sought appointment as such.
¶14 	The Estate filed a motion for partial judgment on the
pleadings, asking the court to declare the attorney’s lien a
wrongful lien under the Wrongful Lien Act, to “nullify[] and/or
remov[e]” the attorney’s lien, and to award the Estate “$10,000 or
. . . treble actual damages” plus fees and costs. The Estate argued,
among 	other 	things, 	that 	the 	attorney’s 	lien 	was 	wrongful
because, 	notwithstanding 	that 	Utah 	Code 	section 	75-3-718
“contemplates 	the 	filing 	of 	a 	petition 	. 	. 	. 	by 	a 	personal
representative . . . seeking attorney compensation,” Gibbons had
filed no such petition in the Probate Case. The Estate also argued
that although an attorney may be compensated from an estate for
the “value of the services rendered to the estate,” id. § 75-3-718(1),
because TR Spencer admitted in its answer that it “never acted as

Estate of Carey v. Spencer
20250147-CA 	8 	2026 UT App 142
legal counsel for the Estate,” it was “not . . . entitled to any
compensation.”
¶15 	In opposition to the Estate’s motion, TR Spencer argued
that the doctrine of issue preclusion barred the Estate’s wrongful
lien claim, based on Judge Pettit’s December 7, 2022 denial of the
motion in the Probate Case to declare the attorney’s lien a
wrongful lien. TR Spencer also contended that, res judicata aside,
its attorney’s lien was not a wrongful lien under the Wrongful
Lien Act. Among other things, it noted that the Utah Code
“expressly authorizes an attorney to record a lien . . . as follows”:
An attorney shall have a lien for the balance of
compensation due from a client on any money or
property owned by the client that is the subject of or
connected 	with 	work 	performed 	for 	the 	client,
including . . . any real, personal, or intangible
property that is the subject of or connected with the
work performed for the client . . . .
(Quoting Utah Code § 38-2-7(2).) TR Spencer then argued that
under this statute, its lien was not wrongful because “Gibbons,
acting in his role as [p]ersonal [r]epresentative of the Estate,” was
TR Spencer’s client and that in his role as personal representative,
Gibbons was “to be treated as the owner of the Estate’s real
property.”
¶16 	In its reply memorandum in support of its motion for
partial judgment on the pleadings, the Estate asserted that issue
preclusion did not apply because that doctrine requires a final
judgment on the merits and “[t]here ha[d] been no final judgment
on the merits in the [P]robate [C]ase on any issue, let alone the
attorney[’s] lien issue.” The Estate also reemphasized that it “was
never a client” of TR Spencer.
¶17 	At a hearing in March 2024 on the Estate’s motion for
partial judgment on the pleadings, Judge Faust inquired as to

Estate of Carey v. Spencer
20250147-CA 	9 	2026 UT App 142
whether Judge Pettit “ever receive[d] a petition for approval for
the payment of attorney[] fees for work that was . . . done for and
on behalf of the [E]state.” TR Spencer responded that it had not
filed such a petition but that it still had time under the statute to
do so. Judge Faust expressed his view that if TR Spencer included
in its lien amount “any work outside of what legitimately could
be billed to or incurred against the [E]state,” then the lien would
be wrongful. He then explained that because TR Spencer had not
“submitted [its] fees for approval [by] the probate judge,” he
could not determine whether the attorney’s lien was wrongful.
Judge Faust continued, “I think [TR Spencer is] entitled to an
attorney’s lien once the [c]ourt approves, in the [Probate Case],
[its] fees for work that [it] did for the [E]state.” But Judge Faust
said he thought the attorney’s lien was “premature.” TR Spencer
responded, “Your Honor, that’s already been ruled upon by Judge
Pettit, that it’s not a wrongful lien.” Judge Faust then stated that
he felt it was up to Judge Pettit to “make a determination as to the
validity and the scope of the work that was performed on behalf
of the [E]state,” and he indicated that he would speak to Judge
Pettit about potentially taking over this case. Following the
hearing, Judge Faust issued a ruling denying the Estate’s motion
for partial judgment on the pleadings and stating,
[TR Spencer] shall immediately prepare and file [its]
petition for attorney[] fees and file the same in the
[P]robate [C]ase . . . . Judge Pettit will determine and
approve any appropriate fees that should be paid by
the [E]state. Further, Judge Pettit is determining if
this matter should be reassigned to her. If Judge
Pettit does not reassign this matter to her, this
[c]ourt shall continue with a determination on the
issue of wrongful lien.
¶18 	Judge Faust held another hearing on this issue in January
2025. During this hearing, the attorney for the Estate informed
Judge Faust that TR Spencer still had not filed a petition for

Estate of Carey v. Spencer
20250147-CA 	10 	2026 UT App 142
attorney fees in the Probate Case. He also reiterated the Estate’s
position that because TR Spencer admitted the Estate was never
its client, its attorney’s lien against the Estate’s property was
wrongful. 	Neither 	Judge 	Faust 	nor 	the 	parties’ 	attorneys
mentioned 	Judge 	Pettit 	or 	any 	decision 	by 	her 	regarding
reassignment of the case. Following this hearing, Judge Faust
issued an order (the Order) granting the Estate’s motion for
partial judgment on the pleadings. The Order stated:
[TR Spencer] repeatedly admit that the Estate was
never [its] client. Accordingly, the attorney[’s] lien
statute provides no authority for [it] to lien the
Estate’s [p]roperty. Moreover, Gibbons lacks the
authority to authorize [TR Spencer] to place a lien
on the Estate’s [p]roperty, and such action would be
voidable under Utah statute due to a conflict of
interest. [TR Spencer’s] ability to lien property is
limited to any property owned by Gibbons, the
person that [it] state[s] was [its] client. Finally, res
judicata 	does 	not 	preclude 	litigation 	of 	the
attorney[’s] lien because there has been no final
judgment and order regarding the attorney[’s] lien
in the [Probate Case].
¶19 	Within days of issuance of the Order, TR Spencer recorded
a notice of release of the attorney’s lien. In that notice, TR Spencer
said that it was still of the position that the attorney’s lien “[WAS]
NOT WRONGFUL” and that it was releasing the lien “based solely
on the oral order issued by the [c]ourt.”
¶20 	In February 2025, Judge Faust issued a final judgment (the
Judgment) against TR Spencer, disposing of “all claims . . . in this

Estate of Carey v. Spencer
20250147-CA 	11 	2026 UT App 142
matter”5 	and 	awarding 	$10,000 	in 	statutory 	damages 	and
$16,650.30 in attorney fees under the Wrongful Lien Act. TR
Spencer filed a timely notice of appeal.
TR Spencer’s Petition for Fees in the Probate Case
¶21 	In June 2025, TR Spencer filed a petition in the Probate
Case, finally asserting a claim against the Estate for payment of
the fees Gibbons incurred during the time that TR Spencer
“provided legal services to [Gibbons] for the benefit of the Estate.”
The Estate opposed the petition. And Judge Pettit initially denied
it, ruling that Utah Code section 75-3-806 required written notice
5. 	The 	court’s 	disposal 	of 	the 	Estate’s 	claims 	of 	fraud,
unenforceable lien, and legal malpractice appears to have been
based 	on 	the 	Estate’s 	failure 	to 	timely 	provide 	its 	initial
disclosures. After the Estate failed to timely provide its initial
disclosures, TR Spencer moved for summary judgment on all the
Estate’s claims, arguing that the Estate should be precluded from
presenting any undisclosed witnesses or evidence. See generally
Utah R. Civ. P. 26(d)(4) (“If a party fails to disclose . . . , that party
may not use the undisclosed witness, document, or material at
any hearing or trial unless the failure is harmless or the party
shows good cause for the failure.”). The court granted TR
Spencer’s motion in part, ruling that the Estate would not be
allowed to “put[] on evidence . . . that it should have disclosed,”
but also ruling that the Estate would be allowed to “present
[evidence] which it received from [TR Spencer], namely [TR
Spencer’s] billing statements, which [would] establish what work
was or was not done for the [E]state versus [which work was done
for Gibbons] personally.” This ruling apparently had the practical
effect of disposing of all the Estate’s claims except for its wrongful
lien claim, which was then resolved in favor of the Estate through
its motion for partial judgment on the pleadings.

Estate of Carey v. Spencer
20250147-CA 	12 	2026 UT App 142
that the personal representative allowed the claim, which notice
was not provided by TR Spencer.
¶22 	TR 	Spencer 	subsequently 	filed 	a 	motion 	requesting
reconsideration of this ruling. In January 2026, Judge Pettit issued
an order granting the motion for reconsideration. In her order,
Judge Pettit stated, “The [c]ourt’s denial of TR Spencer’s [p]etition
on the ground that Utah Code [section] 75-3-806 requires written
notice was error. Section 75-3-806 does not require written notice
in order for a claim to be allowed.” Accordingly, Judge Pettit
indicated that she would “proceed with [TR Spencer’s petition]
and treat it as a proper claim for attorney compensation under
Utah Code [section] 75-3-718 or [section] 75-3-804.” Thereafter,
Dale, acting as personal representative of the Estate, filed a motion
for summary judgment, asking Judge Pettit to “deny[] in its
entirety” TR Spencer’s petition for payment of its attorney fees
from the Estate. That motion remains pending in the Probate
Case.
ISSUES AND STANDARDS OF REVIEW
¶23 	TR Spencer’s first argument on appeal is that this court
lacks subject matter jurisdiction (and that the district court
likewise 	lacked 	subject 	matter 	jurisdiction) 	because 	the
named 	plaintiff—the 	Estate—“is 	not 	a 	legal 	entity 	and,
therefore, is not capable of . . . bringing suit.” “Questions of
subject matter jurisdiction may be raised at any time and are
addressed before resolving other claims.” Decker v. Rolfe, 2008 UT
App 70, ¶ 8, 180 P.3d 778 (cleaned up). “The determination of
whether a court has subject matter jurisdiction is a question of
law.” Id. (cleaned up).
¶24 	In the event that subject matter jurisdiction exists, TR
Spencer asserts that the district court erred by granting the
Estate’s 	motion 	for 	partial 	judgment 	on 	the 	pleadings 	for

Estate of Carey v. Spencer
20250147-CA 	13 	2026 UT App 142
several reasons. “[W]e review the grant of a motion for judgment
on the pleadings for correctness, giving no deference to the trial
court’s ruling.” Kirkham v. Widdison, 2019 UT App 97, ¶ 17, 447
P.3d 89.
ANALYSIS
I. Jurisdiction
¶25 	As a threshold matter, TR Spencer argues that “[t]he Order
and [the] Judgment should be vacated and dismissed due to a lack
of subject matter jurisdiction.” TR Spencer asserts that the Estate
lacked standing to bring the present case because the Estate “is
not a legal entity” and “cannot defend or prosecute legal claims
on its own behalf.” On this basis, TR Spencer argues that the
district court lacked subject matter jurisdiction over the case and,
accordingly, 	“the 	Order 	and 	[the] 	Judgment 	entered 	are 	a
‘nullity.’” Relatedly, TR Spencer further contends that the “case
was moot from its inception” because “no requested judicial relief
[could] affect the rights of the litigants” given that “the Estate, as
[a] party, cannot obtain a valid judgment and does not have the
capacity to enforce a judgment.”
¶26 	The case of Estate of Faucheaux v. City of Provo, 2019 UT 41,
449 P.3d 112, provides an instructive backdrop to this issue. That
case involved a wrongful death action brought against the city. Id.
¶ 1. The caption of the complaint indicated that the plaintiff was
the 	decedent’s 	estate, 	rather 	than 	the 	decedent’s 	surviving
husband, who was serving as personal representative of the
estate. Id. ¶ 5. The district court granted summary judgment in
favor of the city on the grounds that the city either owed no duty
of care to the decedent or was immune from suit. Id. This court
heard an appeal from that ruling and reversed the grant of
summary judgment. Id. ¶ 6.

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20250147-CA 	14 	2026 UT App 142
¶27 	On remand, the city argued—for the first time—that the
complaint should be dismissed because the estate “‘had no
capacity to sue for wrongful death, and no real party in interest
[could] 	be 	substituted’ 	in 	its place.” 	Id. 	¶ 	7. 	The 	personal
representative contended that he brought the suit in his role as
personal representative of the estate and that the caption’s
naming of the estate as the plaintiff “was a mere technical error
subject to correction.” Id. The district court agreed with the city
and dismissed the case. Id. We again heard the resulting appeal.
Id. ¶ 8. We held that because the alleged error was “evident on the
face of [the] complaint,” the city “should have presented the issue
as an affirmative defense in its answer or in an early motion to
dismiss” and that because it did not do so, it had waived the
argument about the estate’s capacity to sue. Id. (quoting Faucheaux
v. Provo City, 2018 UT App 150, ¶ 12, 436 P.3d 104).
¶28 	Our supreme court granted certiorari. Id. ¶ 9. It cited the
wrongful death statute, which states, “[W]hen the death of a
person is caused by the wrongful act or neglect of another, his
heirs, or his personal representatives for the benefit of his heirs,
may maintain an action for damages against the person causing
the death . . . .” Id. ¶ 10 (quoting Utah Code § 78B-3-106(1)). Based
on this language, the court explained, “Our code thus limits the
appropriate plaintiffs in a wrongful death suit to either heirs or
personal representatives of an estate suing on behalf of the heirs.
The estate is not a proper party.” Id. However, the court stated
that while the estate was the sole plaintiff listed in the complaint’s
caption, “captions alone are not determinative” and “[t]he body
of the complaint shows that the suit was brought by [the personal
representative] on behalf of [the decedent’s] heirs.” Id. ¶¶ 17–18.
It reasoned:
The caption is the only place where the plaintiff is
identified as the [estate]. The first allegation in the
complaint 	asserts 	that 	“[the 	husband] 	is 	the
personal representative of the [estate] and brings

Estate of Carey v. Spencer
20250147-CA 	15 	2026 UT App 142
this action on behalf of and for the benefit of [the
decedent’s] heirs.” Later the complaint states that
“[the personal representative] is entitled to bring
this cause of action and may maintain this cause of
action for the damages incurred as a result of the
[city’s] wrongful acts.” The damages sought include
“pain and suffering” and “loss of consortium.”
These are damages suffered by the heirs, not the
estate. So outside of the caption, nothing in the
pleadings indicates that the [estate] is a party to this
action. And nothing suggests that the [estate] is
seeking to initiate this suit on its own behalf.
Id. ¶ 19 (cleaned up). Accordingly, the court concluded that
“[t]here [was] no genuine lack of capacity problem” because the
personal representative actually brought the suit and was “a
proper party.” Id. ¶ 17.
¶29 	The supreme court said of this court’s holding (namely,
that the city had waived its defense based on the estate’s lack of
capacity to sue) that “[t]his conclusion may be correct as a matter
of our law of civil procedure,” but the court “decline[d] to
endorse” that holding “because it implicate[d] a difficult question
in the law of standing, which may raise a jurisdictional question
that would not be subject to waiver.” Id. ¶ 25. The court explained,
If the estate had sought to advance this wrongful
death claim, it could be said that there was no
cognizable 	injury 	asserted 	by 	the 	plaintiff, 	or,
alternatively, 	that 	any 	alleged 	injury 	is 	not
redressable. And that sort of defect could present
both a procedural capacity problem and also a
standing question.
That sort of standing problem, moreover, at
least arguably would not be subject to waiver. If the
party 	who 	files 	and 	advances 	a 	claim 	has 	no

Estate of Carey v. Spencer
20250147-CA 	16 	2026 UT App 142
cognizable 	injury, 	then 	that 	party 	may 	lack
standing. And such a lack of standing may not be
cured by forfeiture or waiver by the parties.
Id. ¶¶ 26–27 (cleaned up). In making this point, the court cited
cases indicating that the wrongful death statute is not intended to
compensate estates but, rather, to benefit heirs. Id. ¶ 26 n.6.
But the court determined that it did not need to definitively
address the standing issue because, as explained above, the body
of the complaint demonstrated that the party bringing suit was
the 	personal 	representative, 	acting 	for 	the 	heirs. 	Id. 	¶ 	28.
Accordingly, the court said, “[W]e vacate the court of appeals’
holding on waiver and reserve this question for a future case.”
Id. ¶ 25.
¶30 	The instant case requires us to address the standing
question that the supreme court avoided in Faucheaux. This is true
because where in Faucheaux the body of the complaint made clear
that the personal representative was bringing the suit on behalf of
the estate for the benefit of the heirs, see id. ¶ 19, such clarity is not
present here. As recounted above, see supra ¶ 12, the body of the
Complaint repeatedly states that the plaintiff is the Estate, that the
alleged damages are damages to the Estate, and that the Estate is
seeking relief. The only mentions of Dale are these: “Doreen’s
brother, Dale Carey (‘Dale’), was appointed successor [p]ersonal
[r]epresentative,” and “On June 27, 2022, Dale Carey, through his
legal counsel, sent a written demand letter to [TR Spencer] to
remove the improper . . . [l]ien.” In other words, it is not clear from
the body of the Complaint that the personal representative is the
party bringing suit and doing so on behalf of the Estate.
¶31 	With 	the 	standing 	question 	squarely 	before 	us, 	we
conclude that in this instance, the Estate does not lack standing;
rather, it arguably lacks capacity to sue. And because the lack of
capacity argument was not raised in the district court, we decline
to address it on appeal.

Estate of Carey v. Spencer
20250147-CA 	17 	2026 UT App 142
¶32 	As we have previously explained, “standing is not the
same as legal capacity to sue.” Elite Legacy Corp. v. Schvaneveldt,
2016 UT App 228, ¶ 51, 391 P.3d 222 (cleaned up). “A plaintiff has
standing when it is personally aggrieved, regardless of whether it
is acting with legal authority; a party has capacity when it has the
legal authority to act, regardless of whether it has a justiciable
interest in the controversy.” Id. (cleaned up). “Thus, for example,
minors, though they may have standing, have no legal capacity to
sue.” Id. (cleaned up).
¶33 	As our supreme court recognized in Faucheaux, a primary
reason why our code precludes an estate from being a proper
plaintiff in a wrongful death lawsuit is that the injuries such a suit
are meant to redress—namely, the loss of “financial support
furnished; loss of affection, counsel, and advice; loss of [the]
deceased’s care and solicitude for the welfare of the family; and
loss of the comfort and pleasure the family of the deceased would
have received”—are not injuries suffered by the estate. 2019 UT
41, ¶¶ 10–11 (cleaned up). In other words, an estate is not
“personally aggrieved,” Elite Legacy, 2016 UT App 228, ¶ 51, when
it comes to the injuries a wrongful death action is designed to
redress. Thus, an estate lacks standing to assert a wrongful death
claim on its own behalf. See id.; Faucheaux, 2019 UT 41, ¶ 21
(explaining that the personal representative could have properly
“filed the case in the name of the ‘[estate], by and through its
personal representative, for the benefit of her heirs’” and that “if
an ‘estate’ brings a claim for wrongful death ‘on behalf of the
heirs,’ it is always a representative of the decedent bringing the
claim”).
¶34 	On the other hand, our supreme court also recognized in
Faucheaux that an “estate itself could conceivably suffer damages
of some sort”—such as “medical expenses or other expenses
incurred by the decedent that the estate is now responsible for”—
and that “the cause of action for these damages is separate and
distinct from the wrongful death cause of action.” 2019 UT 41,

Estate of Carey v. Spencer
20250147-CA 	18 	2026 UT App 142
¶ 12. Because an estate is “personally aggrieved” by these sorts of
injuries incurred directly by the estate, it has standing as to these
injuries, even if it may lack legal capacity to pursue their redress.
See Elite Legacy, 2016 UT App 228, ¶ 51.
¶35 	Here, TR Spencer has made no meaningful argument that
an estate is not personally aggrieved by the injuries a wrongful
lien claim is meant to redress. Instead, TR Spencer’s assertions as
to standing rely entirely on the proposition that the Estate cannot
be a party to the suit because it is not a legal entity, with the sole
possible exception of this parenthetical assertion: “(indeed, as a
non-entity it cannot be said to have suffered any injury).” If by
this brief aside TR Spencer intended to argue that an estate is not
personally aggrieved by the injuries that flow from an allegedly
wrongful 	lien 	recorded 	against 	property 	of 	the 	estate, 	its
argument is inadequately briefed. See, e.g., Cottam v. IHC Health
Services Inc., 2024 UT App 19, ¶ 15, 544 P.3d 1051 (“An appellant’s
claim is inadequately briefed when the overall analysis of the
issue is so lacking as to shift the burden of research and argument
to the reviewing court.” (cleaned up)). Both statute and caselaw
contemplate injury directly to an estate. See Utah Code § 63G-7-
102(8) (“‘Injury’ means death, injury to a person, damage to or loss
of property, or any other injury that a person may suffer to the
person or estate . . . .”); Faucheaux, 2019 UT 41, ¶ 12 (“The estate
itself could conceivably suffer damages of some sort.”). And we
see no occasion to hold upon this briefing that an estate is not
personally aggrieved by the injuries stemming from a wrongful
lien that is placed upon property of the estate.
¶36 	TR Spencer’s argument about mootness, too, is really just
an argument that the Estate should not have been named as
plaintiff. Its principal 	brief states, “As explained above, no
requested judicial relief can affect the rights of the litigants in
[this] case because the Estate, as [a] party, cannot obtain a valid
judgment and does not have the capacity to enforce a judgment.”
This argument merely faults Dale for naming as plaintiff the

Estate of Carey v. Spencer
20250147-CA 	19 	2026 UT App 142
Estate rather than himself in his role as personal representative of
the Estate. TR Spencer does not contend that a judgment obtained
by Dale in that role would be legally invalid. Accordingly, unlike
the wrongful death situation in Faucheaux, which we conclude
implicates both capacity to sue and standing, the issue here is one
of capacity to sue alone. See Elite Legacy, 2016 UT App 228, ¶ 51.
In short, TR Spencer’s arguments on this point boil down to an
assertion that the Estate lacked legal capacity to sue and the case
should 	have 	been 	brought 	by 	Dale, 	acting 	as 	personal
representative.
¶37 	This potential naming error is not fatal. As our supreme
court also explained in Faucheaux, “A mere lack of capacity makes
a case voidable, not void. And when faced with this defect, the
proper remedy is substitution under rule 17(a) of the Utah Rules
of Civil Procedure.” 2019 UT 41, ¶ 29. Therefore, the relief TR
Spencer requests—vacating the Order and the Judgment and
dismissing the case due to a lack of subject matter jurisdiction—is
inappropriate. Moreover, because this issue is not jurisdictional,
see Elite Legacy, 2016 UT App 228, ¶ 54 (“Because failure to comply
with the Assumed Name Statute affects a plaintiff’s capacity to
sue, not its standing, the failure is not jurisdictional.”), it should
have been raised to the district court. Because TR Spencer failed
to do so, this issue is unpreserved and we will not consider it
further. See State v. Johnson, 2017 UT 76, ¶ 15, 416 P.3d 443 (“When
a party fails to raise and argue an issue in the [district] court, it
has failed to preserve the issue, and an appellate court will not
typically 	reach 	that 	issue 	absent 	a 	valid 	exception 	to
preservation.”).
II. The Propriety of the Order and the Judgment in Light of
Judge Pettit’s Denial in the Probate Case of the Motion to
Declare the Attorney’s Lien a Wrongful Lien
¶38 	TR Spencer next argues that the Order and the Judgment
were improper in light of Judge Pettit’s denial—in the Probate

Estate of Carey v. Spencer
20250147-CA 	20 	2026 UT App 142
Case—of Dale’s motion, as successor personal representative of
the Estate, to have the attorney’s lien declared a wrongful lien. TR
Spencer advances three theories in support of this argument:
(1) the Order and the Judgment are barred by issue preclusion,
(2) the probate court has exclusive authority to issue orders
relative to the Estate, and (3) the Order “violated principles of
comity.” We address these theories in turn.
A. 	Issue Preclusion
¶39 	“The 	doctrine 	of 	res 	judicata 	embraces 	two 	distinct
theories: claim preclusion and issue preclusion.” Oman v. Davis
School Dist., 2008 UT 70, ¶ 28, 194 P.3d 956 (cleaned up). TR
Spencer relies on the latter theory of issue preclusion. “Issue
preclusion, which is also known as collateral estoppel, prevents
parties or their privies from relitigating facts and issues in [a]
second suit that were fully litigated in [a preceding] suit.” Id.
(cleaned up). Our supreme court has explained that “issue
preclusion applies only when the following four elements are
met”:
(i) 	the 	party 	against whom 	issue 	preclusion 	is
asserted must have been a party to or in privity with
a party to the prior adjudication; (ii) the issue
decided in the prior adjudication must be identical
to the one presented in the instant action; (iii) the
issue in the first action must have been completely,
fully, and fairly litigated; and (iv) the first suit must
have resulted in a final judgment on the merits.
Id. ¶ 29 (cleaned up).
¶40 	We need not consider the first three elements because the
fourth is not satisfied here. TR Spencer’s argument is that Judge
Pettit’s decision at the December 7, 2022 hearing in the Probate
Case resulted in a final judgment on the merits on the issue of
whether TR Spencer’s attorney’s lien was wrongful. However, we

Estate of Carey v. Spencer
20250147-CA 	21 	2026 UT App 142
have not been provided with a transcript of this hearing, and it is
not clear from the minutes that Judge Pettit’s decision was a final
judgment on the merits. The minutes state, “The [c]ourt provides
its ruling on the petition to nullify attorney’s lien as set forth on
the record. The petition is denied.” We cannot determine from this
minute entry whether Judge Pettit’s decision was based on the
merits or on another reason. See generally State v. Case, 2020 UT
App 81, ¶ 19, 467 P.3d 893 (“A party bringing a claim of error
before this court has the duty and responsibility to support such
allegation by an adequate record.” (cleaned up)). Moreover, there
is no corresponding written order among the case documents, and
none has been provided to us on appeal. Thus, we are unable to
conclude that what TR Spencer points us to is a final judgment on
the merits.
¶41 	In resisting this conclusion, TR Spencer contends that due
to the unique nature of probate cases, “once an issue raised in a
petition has been finally and fully resolved, that proceeding is
concluded and the order resolving the issue is considered final.”
As an initial point, TR Spencer does not grapple with the fact that
the issue of the wrongful lien was raised in the Probate Case
through a motion, not a petition. But beyond that, TR Spencer’s
contention is inconsistent with our supreme court’s holding in In
re Estate of Heater, 2021 UT 66, 498 P.3d 883. There, the petitioner
argued that because an “order determining heirs said no further
proceedings [were] necessary to determine the heirs of the
[estate], 	it 	was 	final 	for 	purposes 	of 	appeal 	under 	Utah’s
pragmatic case-by-case approach to finality in probate matters.”
Id. ¶ 15 (cleaned up). But the supreme court disagreed, stating,
“We take the opportunity to disavow the pragmatic test and
clarify that a nonfinal order in a probate case may be appealed
only 	through 	the 	mechanisms 	delineated 	in 	our 	civil 	and
appellate rules or statutory exemptions. Under the applicable
procedural 	rules, 	[the 	petitioner] 	should 	have 	pursued 	an
interlocutory appeal or sought a [rule] 54(b) certification from the
district 	court 	judge.” 	Id. 	¶ 	19 	(cleaned 	up). 	Applying 	this

Estate of Carey v. Spencer
20250147-CA 	22 	2026 UT App 142
reasoning, we conclude that Judge Pettit’s decision on Dale’s
motion 	did 	not 	equate 	to 	a 	final 	judgment 	on 	the 	merits.
Because the fourth element is unsatisfied, issue preclusion does
not apply.
B. 	The Probate Court’s Exclusive Authority over the Estate
and Comity
¶42 	TR Spencer advances two additional theories for why the
Order and the Judgment are improper: (1) that under Utah Code
section 75-1-303(1), the probate court had the exclusive authority
over the Estate’s property and (2) that “the district court’s express
decision to disregard the decision of the Probate Court should be
reversed as an abuse of discretion because it violated the principle
of comity.” However, TR Spencer points to no place in the
proceedings below where it presented either of these arguments
to Judge Faust or where Judge Faust ruled on these issues.
Instead, TR Spencer makes only the following single assertion of
preservation as to all three of its arguments regarding the
impropriety of the Order and the Judgment: “This issue was
preserved 	by 	[TR 	Spencer’s] 	opposition 	to 	the 	Motion 	for
Judgment on the Pleadings . . . and the district court’s express
ruling.”
¶43 	But TR Spencer’s opposition to the motion for judgment on
the pleadings contained neither a reference to Utah Code section
75-1-303(1) nor a reference to principles of comity. Instead, the
only argument TR Spencer advanced on this topic was that of
issue preclusion. Similarly, as to the propriety of ruling on this
issue despite Judge Pettit’s earlier decision, the Order addressed
only 	the 	topic 	of 	res 	judicata. 	Accordingly, 	the 	additional
arguments TR Spencer now advances—that the Order violated
either the probate court’s exclusive authority over the Estate
pursuant 	to 	Utah 	Code 	section 	75-1-303(1) 	or 	principles 	of
comity—are unpreserved. See, e.g., Ahhmigo, LLC v. Synergy Co. of
Utah, 2022 UT 4, ¶ 18, 506 P.3d 536 (indicating that appellate

Estate of Carey v. Spencer
20250147-CA 	23 	2026 UT App 142
courts “view issues narrowly” and “recognize that an appellant
raises a new issue when the appellant raises a legal theory entirely
distinct from the legal theory the appellant raised to the district
court” (cleaned up)); True v. Utah Dep’t of Transp., 2018 UT App
86, ¶ 32, 427 P.3d 338 (“An argument based upon an entirely
distinct legal theory is a new claim or issue and must be separately
preserved.” (cleaned up)). Accordingly, we do not address these
issues. See Ahhmigo, 2022 UT 4, ¶ 20 (“Because the district court
was not asked to rule on that theory, our preservation rules
prevent us from reaching it.”).
III. The District Court’s Wrongful Lien Ruling
¶44 	TR Spencer next asserts that to the extent issue preclusion,
the probate court’s exclusive authority over the Estate’s property,
and principles of comity did not preclude Judge Faust from
issuing an independent ruling as to whether the attorney’s lien
was 	wrongful, 	Judge 	Faust’s 	conclusion 	that 	TR 	Spencer’s
attorney’s lien was wrongful was simply in error. On this front,
we agree that it was error for the district court to grant judgment
on the pleadings in favor of the Estate on its wrongful lien claim.
¶45 	The Wrongful Lien Act indicates that a “wrongful lien” is
“a document that purports to create a lien . . . on an owner’s
interest in real property and at the time the document is recorded
is not: (i) expressly authorized by this chapter or another state or
federal statute; (ii) authorized by or contained in an order or
judgment of a court with jurisdiction in the state; or (iii) signed by
or authorized in accordance with a document signed by the owner
of the real property.” Utah Code § 38-9-102(12). TR Spencer
asserts, “[T]he lien is not wrongful because it is authorized by
statute. 	Utah 	Code 	[section] 	38-2-7 	expressly 	authorizes 	an

Estate of Carey v. Spencer
20250147-CA 	24 	2026 UT App 142
attorney to record a lien.”6 Both this court and our supreme court
have previously considered the meaning of the phrase “expressly
authorized by . . . statute” in the Wrongful Lien Act. See Hutter v.
Dig-It, Inc., 2009 UT 69, ¶¶ 44–52, 219 P.3d 918; Bay Harbor Farm,
LC v. Sumsion, 2014 UT App 133, ¶¶ 9–12, 329 P.3d 46. The
holdings in those cases dictate the outcome here.
¶46 	In Hutter, a mechanic’s lien claimant argued that “because
the right to file a mechanic’s lien is granted by statute, all
mechanic’s liens—even if they ultimately prove unenforceable—
are 	expressly 	authorized 	by 	statute 	and 	therefore 	are 	not
wrongful 	liens.” 	2009 	UT 	69, 	¶ 	46. 	The 	property 	owners
responded 	“that 	an 	unenforceable 	lien 	cannot 	be 	expressly
authorized by statute since the statute only allows liens to be
recorded that comply with the statutory terms.” Id. Our supreme
court determined that the phrase “expressly authorized by . . .
statute” was ambiguous and looked to the statute’s legislative
history for guidance. Id. ¶ 49. Ultimately, the supreme court
concluded that “the legislature intended that the definition of
‘wrongful lien’ should encompass only common law liens” and,
thus, that “the phrase ‘not expressly authorized by . . . statute’ in
the Wrongful Lien Act does not include statutorily created liens,”
even those “that ultimately prove unenforceable.” Id. ¶ 52. The
court then ruled that because the lien claimant “filed a mechanic’s
lien, which [was] expressly authorized by statute, the lien, though
unenforceable . . . , [was] not wrongful.” Id.
¶47 	The facts of Bay Harbor Farm were “[c]losely analogous to
the circumstances presented in Hutter,” except that Bay Harbor
6. TR Spencer further contends that “the lien was not wrongful
because . . . Gibbons, as personal representative of the Estate, was
aware of the lien and authorized its filing, he had title to the Estate
assets, and he was represented by TR Spencer.” Because we
resolve the issue in favor of TR Spencer on the basis of statutory
authorization, we need not address this argument.

Estate of Carey v. Spencer
20250147-CA 	25 	2026 UT App 142
Farm involved an attorney’s lien rather than a mechanic’s lien.
2014 UT App 133, ¶ 11. There, we likewise held that because an
attorney’s lien is “expressly authorized by statute,” the attorney’s
lien at issue was “not wrongful.” Id. This was true, we said, even
if the attorney’s lien “ultimately prove[d] unenforceable, whether
because [the plaintiff] was not [the attorney’s] client, because the
[subject] property was unconnected to the [work the attorney
performed], or on some other basis.” Id. In short, we recognized
that an unenforceable lien is not necessarily a wrongful lien, and we
explained that “an expedited hearing under the Wrongful Lien
Act is not the right vehicle for analyzing [a] lien’s enforceability
under the attorney’s lien statute.” Id.
¶48 	But our analysis in Bay Harbor Farm went a step further.
Specifically, we explained:
This is not to say that a lien claimant may escape the
reach of the Wrongful Lien Act simply by alleging
that his or her lien is expressly authorized by
statute. 	Although 	a 	court 	may 	not, 	within 	the
context 	of 	a 	summary 	proceeding 	under 	the
Wrongful Lien Act, analyze whether a statutory lien
is 	ultimately 	unenforceable, 	it 	may 	consider
whether a lien claimant has a good-faith basis for
claiming a statutory lien. . . . If a lien claimant has no
plausible claim to the property that is the subject of
the lien, a court may declare the lien wrongful under
the Wrongful Lien Act even if it purports to be one
falling into the category of statutorily authorized
liens. For example, a person who is not an attorney
could have no plausible basis for recording an
attorney’s lien; a dentist who repaired a patient’s
crowns 	would 	have 	no 	basis 	for 	recording 	a
mechanic’s lien against the patient’s residence.
Id. ¶ 12 (cleaned up).

Estate of Carey v. Spencer
20250147-CA 	26 	2026 UT App 142
¶49 	Given the foregoing, the question Judge Faust should have
answered in the instant case is whether TR Spencer had “a good-
faith basis for claiming a statutory lien.” Id. Only if TR Spencer
alleged “no plausible claim to the property that [was] the subject
of [its] lien” would it have been correct to grant judgment on the
pleadings in favor of the Estate on its wrongful lien claim. Id. We
conclude that TR Spencer alleged “a sufficiently plausible good-
faith claim that [its] lien complied with the requirements of the
attorney’s lien statute” to preclude the granting of judgment on
the pleadings against TR Spencer on the Estate’s wrongful lien
claim. Id. ¶ 13.
¶50 	Utah Code section 38-2-7 states, “An attorney shall have a
lien for the balance of compensation due from a client on any
money or property owned by the client that is the subject of or
connected with work performed for the client.” Utah Code § 38-
2-7(2). TR Spencer has repeatedly affirmed that its client was
Gibbons, acting in his capacity as personal representative of the
Estate. The Estate asserts that this renders TR Spencer’s lien
wrongful because “the attorney[’s] lien statute does not allow
attorney[’s] liens to be filed on the property of a non-client,” by
which it means the Estate. The district court agreed, ruling, “[T]he
attorney[’s] lien statute provides no authority for [TR Spencer] to
lien the Estate’s [p]roperty. . . . [TR Spencer’s] ability to lien
property is limited to any property owned by Gibbons, the person
that [TR Spencer] state[s] was [its] client.”
¶51 	However, this position overlooks TR Spencer’s claim to
represent Gibbons in his capacity as personal representative of the
Estate. As personal representative, Gibbons was authorized to
take control of the property of the Estate, holding title to the
property in a fiduciary capacity. See id. § 75-3-708 (“[E]very
personal representative has a right to, and shall take possession
or control of, the decedent’s property . . . .”); id. § 75-3-703(1)(a)
(“A personal representative is a fiduciary who shall observe the
standard of care applicable to trustees . . . .”). And “[u]ntil

Estate of Carey v. Spencer
20250147-CA 	27 	2026 UT App 142
termination of his appointment a personal representative has the
same power over the title to property of the estate that an absolute
owner would have, in trust, however, for the benefit of the
creditors and others interested in the estate.” Id. § 75-3-710(1). In
other words, during the time that Gibbons acted as personal
representative of the Estate, he was authorized to hold title to the
property of the Estate in his representative role.
¶52 	And TR Spencer’s answer to the Complaint suggests that
Gibbons did just that, saying, “[TR Spencer] affirmatively alleges
that Mr. Gibbons acted consistently with the language of the
parties’ [s]ettlement [a]greement and the language set forth in
Utah Code Ann. [section] 75-3-710 which states ‘. . . a personal
representative has the same power over title to property of an estate as
an absolute owner would have . . . .’” Because TR Spencer alleges that
it represented Gibbons in his role as personal representative of the
Estate, and because TR Spencer asserts that Gibbons exercised his
power over title in this role, TR Spencer has pleaded a good-faith
basis for claiming that the Estate’s property on which it placed its
lien was “owned by the client.” Id. § 38-2-7(2).
¶53 	The Estate contended in the Complaint that TR Spencer’s
attorney’s lien was wrongful for the additional reason that it
“improperly [sought] payment from the Estate for legal services
rendered 	to 	Gibbons 	personally 	(a) 	for 	[TR 	Spencer’s]
representation of Gibbons prior to his appointment as personal
representative; (b) for [TR Spencer’s] representation of Gibbons in
the 	Marriage 	Case; 	(c) 	for 	[TR 	Spencer’s] 	representation 	of
Gibbons in the Contract Case; and (d) for [TR Spencer’s] failed
defense of Gibbons in the action to remove Gibbons as personal
representative.” But in its answer, TR Spencer denied that the fees
associated with the lien “knowingly contained” any amounts for
work solely related to the Marriage Case or the Contract Case, and
it asserted that fees incurred in the course of Gibbons seeking
appointment 	as 	personal 	representative 	and 	in 	defending
Gibbons in that role were appropriately included in the lien.

Estate of Carey v. Spencer
20250147-CA 	28 	2026 UT App 142
Additionally, 	TR 	Spencer 	asserted 	a 	statutory 	basis 	for 	its
argument that fees incurred while representing Gibbons before
his appointment and in defending against his removal were
chargeable to the Estate. See id. § 75-3-701 (“The powers of a
personal representative relate back in time to give acts by the
person appointed which are beneficial to the estate occurring
prior 	to 	appointment 	the 	same 	effect 	as 	those 	occurring
thereafter.”); Pierucci v. Pierucci, 2014 UT App 163, ¶ 31, 331 P.3d
7 (“A personal representative’s authority commences with his or
her appointment and the issuance of letters of administration, but
the powers relate back in time to the decedent’s death.”); see also
Utah Code § 75-3-710(1) (“Until termination of his appointment a
personal representative has the same power over the title to
property of the estate that an absolute owner would have, in trust,
however, for the benefit of the creditors and others interested in
the estate.” (emphasis added)).
¶54 	“On appeal from the grant of a motion for judgment on the
pleadings, we take the factual allegations of the nonmoving party
as true, considering such facts and all reasonable inferences
drawn therefrom in a light most favorable to the nonmoving
party.” Straley v. Halliday, 2000 UT App 38, ¶ 2, 997 P.2d 338
(cleaned up). Accordingly, at this stage of the proceedings, we
must assume that TR Spencer had a good-faith basis for claiming
that the lien amount was based on work performed for Gibbons
in connection with Gibbons’s work on behalf of the Estate,
therefore connecting TR Spencer’s work to the property on which
it placed its lien.
¶55 	Because TR Spencer has sufficiently pleaded a good-faith
basis for believing that its attorney’s lien was “for the balance of
compensation due from a client,” that it was placed “on . . .
property owned by the client,” and that it was for work that was
“connected with” the property upon which the lien was placed,
Utah Code § 38-2-7(2), the district court erred by granting
judgment on the pleadings in favor of the Estate on its wrongful

Estate of Carey v. Spencer
20250147-CA 	29 	2026 UT App 142
lien claim. We therefore reverse the Order and vacate that portion
of the Judgment that was in favor of the Estate on its wrongful
lien claim.7
7. In identifying the issues on appeal, TR Spencer suggests that
Judge Faust erred in granting judgment on the pleadings for the
additional reason that he based his ruling “on the conclusion that
the . . . Estate did not owe TR Spencer for the legal services TR
Spencer performed for the Estate’s personal representative (acting
in his representative capacity).” We note that this argument
misreads the Order. In the Order, Judge Faust concluded:
[T]he attorney[’s] lien statute provides no authority
for [TR Spencer] to lien the Estate’s [p]roperty.
Moreover, Gibbons lacks the authority to authorize
[TR 	Spencer] 	to 	place 	a 	lien 	on 	the 	Estate’s
[p]roperty, and such 	action would 	be voidable
under Utah statute due to a conflict of interest. [TR
Spencer’s] ability to lien property is limited to any
property owned by Gibbons, the person that [TR
Spencer] state[s] was [its] client.
This ruling did not mean that TR Spencer could not collect fees
from the Estate. Instead, it expressed Judge Faust’s view that TR
Spencer could not do so through a lien on the Estate’s property.
Judge Faust expressly recognized that the issue of what attorney
fees the Estate owed TR Spencer was an issue for Judge Pettit to
decide upon TR Spencer petitioning for fees in the Probate Case:
“[Y]ou not having submitted your fees for approval for the
probate judge, that determination isn’t made and can’t be made
until she does make that determination or approves the fees”; “I
don’t feel that I have the ability to step in on Judge Pettit’s roles
and make a determination as to the validity and the scope of the
work that was performed on behalf of the Estate”; and “Judge
Pettit will determine and approve any appropriate fees that
should be paid by the [E]state.” As we have noted, that issue
remains pending before Judge Pettit in the Probate Case.

Estate of Carey v. Spencer
20250147-CA 	30 	2026 UT App 142
CONCLUSION
¶56 	The Estate has standing in this case, and we therefore have
jurisdiction. TR Spencer’s arguments regarding standing and
mootness really raise an issue regarding the Estate’s capacity to
sue. Because that issue is unpreserved, we do not reach it.
¶57 	As to the Estate’s wrongful lien claim, Judge Faust’s
decision was not barred by the doctrine of issue preclusion, and
TR Spencer’s arguments based on the probate court’s exclusive
authority 	over 	the 	Estate’s 	property 	and 	on 	comity 	were
unpreserved. However, Judge Faust’s grant of judgment on the
pleadings in favor of the Estate on its wrongful lien claim was in
error because TR Spencer pleaded a good-faith basis for claiming
a statutory attorney’s lien. We therefore reverse the Order and
vacate that portion of the Judgment that was in favor of the Estate
on its wrongful lien claim.