                 This opinion is subject to revision before final
                      publication in the Pacific Reporter

                                 2019 UT 41


                                    IN THE

        SUPREME COURT OF THE STATE OF UTAH

                  ESTATE OF HELEN M. FAUCHEAUX,
                            Respondent,
                                       v.
                             CITY OF PROVO,1
                                Petitioner.

                              No. 20180812
                          Filed August 6, 2019

             On Certiorari to the Utah Court of Appeals

                       Fourth District, Provo
                   The Honorable Fred D. Howard
                          No. 100401999

                                 Attorneys:
Sara Pfrommer, North Salt Lake, Ron D. Wilkinson, Nathan S. Shill,
                     Orem, for respondent

       Robert D. West, J. Brian Jones, Gary D. Millward, Provo,
                             for petitioner


 ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in
which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, JUSTICE PEARCE, and
                     JUSTICE PETERSEN joined.




_____________________________________________________________
   1  We have left the caption as it stood when the case was filed in
the district court. We do so recognizing that there is a dispute over
the identity of the plaintiff, and despite the fact that the court of
appeals altered the caption to list Kevin Faucheaux as the plaintiff,
for reasons explained further in our opinion.
                    FAUCHEAUX v. CITY OF PROVO
                         Opinion of the Court

   ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:
    ¶1 Helen M. Faucheaux died of a drug overdose in 2009, in an
incident in which Provo City police officers were dispatched to her
home. Her heirs sought damages through a wrongful death suit.
That suit was captioned as “Estate of Helen M. Faucheaux v. City of
Provo.” Six years after the case was filed, Provo City moved to
dismiss the case on the ground that an estate lacks the legal capacity
to assert a claim sounding in wrongful death. The district court
granted the motion, and the heirs appealed. The court of appeals
reversed. It concluded that a lack of capacity is an affirmative
defense and held that Provo City had forfeited this defense by
waiting to raise it until a motion filed six years into the litigation.
    ¶2 We affirm the court of appeals on two alternative grounds.
First we conclude that there was no capacity defect in the complaint
when it was initially filed. The district court correctly indicated that
an estate is not a proper plaintiff in a wrongful death case and
rightly noted that the caption of the complaint identified the
Faucheaux estate as the plaintiff. But the caption of a complaint has
no controlling significance, and the complaint in this case otherwise
made clear that the action was being pursued by the personal
representative on behalf of the heirs. And for that reason, the district
court erred in dismissing the case on the basis of a lack of capacity.
    ¶3 We also identify a second basis for our decision. We
conclude that even if this action had been initiated by the estate, the
estate’s lack of capacity could properly have been corrected by
substitution under rule 17(a) of the Utah Rules of Civil Procedure. In
so holding we overrule the court of appeals’ decision in Haro v. Haro,
887 P.2d 878 (Utah Ct. App. 1994), which states that a wrongful
death action initiated by an estate is void. Id. at 880. We conclude
that this kind of defect merely renders the action voidable and thus
subject to correction under rule 17(a). And we hold that such a
correction could have properly resolved any arguable lack of
capacity problem in this case.
                                   I
   ¶4 In 2009 Helen Faucheaux died of a fatal drug overdose. Prior
to her death, her husband, Kevin Faucheaux, called the Provo City
Police Department for help. He explained that he feared that his
wife, who had a history of drug abuse, had overdosed. Provo City
police officers were dispatched to the home. Once there, the officers




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                        Opinion of the Court

concluded that Ms. Faucheaux was intoxicated but did not need
additional help. They told Mr. Faucheaux that they thought his wife
just needed to “sleep it off.”2 And they left the house without
offering any further assistance. Two hours later, Mr. Faucheaux went
to check on Ms. Faucheaux and found her dead.
    ¶5 In 2010 Mr. Faucheaux, in his capacity as personal
representative of Ms. Faucheaux’s estate, filed a wrongful death
action against Provo City, claiming that Provo City police officers
had “negligently failed to protect” her. The caption of the complaint
listed “The Estate of Helen M. Faucheaux” as the plaintiff. Provo
City filed a timely answer to the complaint—a pleading that failed to
challenge the capacity of the plaintiff to sue the City. Almost three
years later, the City filed a motion for summary judgment. In that
motion the City asserted that “its police officers had no legal duty to
take [Ms. Faucheaux] into custody against her will and deliver her
for involuntary commitment.” The City also claimed that the officers
had acted within their discretion and thus had governmental
immunity. The district court granted Provo City’s motion. Mr.
Faucheaux appealed.
    ¶6 The court of appeals reversed. Faucheaux v. Provo City, 2015
UT App 3, ¶ 37, 343 P.3d 288 (Faucheaux I). It held that the district
court had erred in concluding that “the public-duty doctrine shields
Provo from liability.” Id. And it concluded that “the Governmental
Immunity Act does not immunize Provo from [responsibility for] the
officers’ actions and omissions.” Id. The court of appeals thus
remanded for further proceedings in the district court. Id.
   ¶7 On remand Provo City asserted a new ground for
challenging Mr. Faucheaux’s claims. In a motion filed more than six
years after the case was initiated, the City sought dismissal of the
complaint on the ground that “the Estate of Helen M. Faucheaux had
no capacity to sue for wrongful death, and no real party in interest
may be substituted” in its place. In response Mr. Faucheaux asserted
that he was bringing the suit as the personal representative of
Ms. Faucheaux’s estate, and insisted that the caption’s listing of the
Faucheaux estate was a mere technical error subject to correction.


_____________________________________________________________
   2We make no assessment of the officers’ actions in this case. The
merits of the wrongful death claim have not been assessed by any
court and are not before us on this appeal.


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                     FAUCHEAUX v. CITY OF PROVO
                         Opinion of the Court

The district court granted Provo City’s motion and dismissed the
case.
   ¶8 Mr. Faucheaux appealed. And the court of appeals again
reversed. “Because the error of which Provo City now complains
was evident on the face of Faucheaux’s complaint,” the court of
appeals held that “Provo City . . . should have presented the issue as
an affirmative defense in its answer or in an early motion to
dismiss.” Faucheaux v. Provo City, 2018 UT App 150, ¶ 12, 436 P.3d
104. In light of its failure to do so, the court of appeals held that
Provo City had waived the defense that the Faucheaux estate did not
have the capacity to sue.
    ¶9 Provo City filed a petition for writ of certiorari. We granted
the petition and now proceed to consider the important questions
presented in this case. In so doing we review the decision of the
court of appeals. “Our certiorari review of the court of appeals’
decision is de novo . . . .” State v. Ramirez, 2012 UT 59, ¶ 7, 289 P.3d
444. In reviewing the court of appeals’ decision we apply the same
standard of review that it would apply in reviewing the decision of
the district court. See State v. Dean, 2004 UT 63, ¶ 7, 95 P.3d 276 (“The
correctness of the court of appeals’ decision turns on whether that
court correctly reviewed the trial court’s decision under the
appropriate standard of review.”). And the standard of review of a
district court’s “decision on a motion to dismiss [is] de novo.” State v.
Ririe, 2015 UT 37, ¶ 5, 345 P.3d 1261.
                                   II
    ¶10 “[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 . . . .” UTAH CODE § 78B-3-106(1). 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.
    ¶11 Estates are not excluded from the statutory list by mistake.
Damages in a wrongful death suit include “financial support
furnished; loss of affection, counsel, and advice; loss of 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.” Switzer v. Reynolds, 606 P.2d 244, 246 (Utah 1980). The
estate is not an intact entity at the time of the act giving rise to the
wrongful death. So the estate could not have suffered damages at the
time of the wrongful death. With this in mind, our law holds that the


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                         Opinion of the Court

estate, acting on its own behalf, cannot claim the types of damages
available in a wrongful death suit.
    ¶12 The estate itself could conceivably suffer damages of some
sort. Such damages could include medical expenses or other
expenses incurred by the decedent that the estate is now responsible
for. But the cause of action for these damages is separate and distinct
from the wrongful death cause of action. See In re Behm’s Estate, 213
P.2d 657, 660–61 (Utah 1950). A wrongful death claim is “a separate
and independent cause of action and is not a continuation of the
right of action of the injured party for personal injuries.” Id. “The
death creates a new cause of action for the loss suffered by the heirs
by reason of [the] death,” which “comes into existence” only after
the decedent’s death. Id. at 661. And this difference precludes an
estate from bringing a wrongful death claim on its own behalf.
     ¶13 There is another reason why estates are precluded from
filing wrongful death actions: “[T]he legislature intended that the
proceeds obtained from the wrongdoer would not be intermingled
with other assets of the estate of the deceased . . . [and] subjected to
administration by [the personal representative] in the same manner
as other estate assets.” Id. at 660; see also Switzer, 606 P.2d at 246
(“[T]he wrongful death statute created a new cause of action, which
ran directly to the heirs. This action is for the loss suffered by the
heirs by reason of death.”).
    ¶14 It is therefore clear, under both the language of
section 78B-3-106(1) and under our precedent, that an estate cannot
initiate a wrongful death action. Such a claim should be filed by the
heirs of the decedent or by a personal representative of an estate on
the heirs’ behalf.
    ¶15 The district court dismissed the complaint in this action on
the ground that it was initiated by the Faucheaux estate, which
lacked capacity to sue for wrongful death. That court relied on Haro
v. Haro, 887 P.2d 878 (Utah Ct. App. 1994), for the proposition that a
wrongful death action initiated by an estate is void. Id. at 880. The
court of appeals reversed on the ground that an objection to the
estate’s capacity to sue was an affirmative defense subject to
forfeiture, and which was forfeited by the City. Faucheaux v. Provo
City, 2018 UT App 150, ¶¶ 12–13, 436 P.3d 104. And that court
sought to distinguish Haro. Id. ¶ 11 n.5.
   ¶16 We now affirm on alternative grounds. In the paragraphs
below we first conclude that there was no capacity to sue problem to
begin with because the suit in this action was initiated by Kevin
Faucheaux as the personal representative of the estate on behalf of
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                     FAUCHEAUX v. CITY OF PROVO
                          Opinion of the Court

the heirs. Second, we identify a potential pitfall in the court of
appeals’ analysis of waiver—specifically, that the capacity to sue
problem at issue could amount to a standing problem, which could
make the defect at issue a matter beyond the law of forfeiture or
waiver. In light of this concern, we vacate the court of appeals’
waiver analysis. Finally, we consider the Haro opinion and the
question of the availability of substitution in a case like this one. We
conclude that the capacity to sue problem presented here makes the
case merely voidable (not void), and thus subject to correction
through substitution. And we overrule Haro to the extent it is
inconsistent with this opinion.
                                    A
   ¶17 Provo City contends that the estate is the plaintiff in this suit
and lacks the capacity to sue for wrongful death. We disagree. There
is no genuine lack of capacity problem here. The body of the
complaint shows that the suit was brought by Kevin Faucheaux on
behalf of Helen M. Faucheaux’s heirs. Mr. Faucheaux is the personal
representative of the Faucheaux estate. And as such he is a proper
party.
    ¶18 The “Estate of Helen M. Faucheaux” is the sole party listed
in the caption of the complaint in this case. And the lower courts in
this matter, relying on the caption, determined that the estate lacked
the capacity to sue. But captions alone are not determinative. In
identifying the parties to an action, courts must look to the entirety
of the pleadings.3
_____________________________________________________________
   3 See, e.g., Comparelli v. Republica Bolivariana de Venezuela, 891 F.3d
1311, 1318 (11th Cir. 2018) (“[A]lthough captions provide helpful
guidance to the court, they are not determinative as to the parties to
the action or the court’s jurisdiction.” (citation omitted) (internal
quotation marks omitted)); Williams v. Bradshaw, 459 F.3d 846, 849
(8th Cir. 2006) (“While a caption is not determinative as to who is a
party to a suit, we think that it is entitled to considerable
weight . . . .” (citation omitted)); N. Alamo Water Supply Corp. v. City
of San Juan, Tex., 90 F.3d 910, 918 (5th Cir. 1996) (“As a general
matter, the caption on a pleading does not constrain the court’s
treatment of a pleading.”); Jenkins v. Pullman Co., 96 F.2d 405, 408
(9th Cir. 1938) (“[A] defective caption, or no caption at all, is merely
a formal defect and not fatal . . . .”); EEOC v. Int’l Ass’n of Bridge,
Structural, & Ornamental Ironworkers, Local 580, 139 F. Supp. 2d 512,
525 (S.D.N.Y. 2001) (“[T]he caption itself is normally not
                                                          (continued . . .)
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                          Opinion of the Court

    ¶19 And here, the caption is the only place where the plaintiff is
identified as the “Estate of Helen M. Faucheaux.” The first allegation
in the complaint asserts that “Kevin Faucheaux is 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.” Later the complaint states that “Mr. Faucheaux is entitled to
bring this cause of action and . . . may maintain this cause of action
for the damages incurred as a result of the Defendant(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 of Helen Faucheaux is a party to this action. And nothing
suggests that the Estate of Helen Faucheaux is seeking to initiate this
suit on its own behalf.4

_____________________________________________________________
determinative of the identity of the parties or of the pleader’s
statement of claim.” (citation omitted) (internal quotation marks
omitted)); see also 5A FED. PRAC. & PROC. CIV. Requirement That
Pleadings Be Captioned § 1321 (4th ed. 2019) (“[A] caption is not
determinative as to the identity of the parties to the action, the
district court’s personal jurisdiction over the defendant, or its subject
matter jurisdiction over the claims. A very common defect in the
caption is a misnomer regarding a party or an erroneous designation
of the capacity in which a party is suing or being sued . . . .”
(citations omitted)).
   4  The court of appeals thought that it was “clear . . . from the
complaint and the record as a whole that [Mr.] Faucheaux
purportedly brought this suit on behalf of the estate . . . .” Faucheaux
v. Provo City, 2018 UT App 150, ¶ 7 n.3, 436 P.3d 104. But this
conclusion is contrary to (a) the body of the complaint, which clearly
states Kevin Faucheaux is bringing the claim on behalf of the heirs;
(b) the court of appeals opinion itself, which later distinguishes
between bringing an action on an estate’s behalf and on behalf of the
heirs, id. (stating that Mr. Faucheaux “brought the action as personal
representative of the estate, albeit expressly for the benefit of Helen’s
heirs”); and (c) the court of appeals opinion in Faucheaux I, which
states that Mr. Faucheaux “sued Provo City in his capacity as the
personal representative of Helen’s Estate.” Faucheaux v. Provo City,
2015 UT App 3, ¶ 10, 343 P.3d 288. We owe no deference to the court
of appeals’ conclusion that “it is clear” that this suit was brought on
the estate’s behalf. See Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600
                                                          (continued . . .)
                                    7
                      FAUCHEAUX v. CITY OF PROVO
                           Opinion of the Court

    ¶20 In identifying the parties with capacity to sue for wrongful
death, our law is focused on identifying the party who is entitled to
collect the damages inherent in a wrongful death action. Supra
¶¶ 10–14. The key inquiry is whether damages go to the estate for
the benefit of the decedent or to the personal representative of the
estate for the benefit of the heirs. It is clear here that this suit is of the
latter type.
    ¶21 Mr. Faucheaux could have avoided any confusion in this
case by captioning this case as “Kevin Faucheaux, as personal
representative of the Estate of Helen M. Faucheaux, by and for the
benefit of her heirs.” Or he could have filed the case in the name of
the “Estate of Helen M. Faucheaux, by and through its personal
representative, for the benefit of her heirs.”5 The difference between
these formulations is semantic. It is axiomatic that a decedent’s estate
may act only through its representative. So 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.
    ¶22 Here the caption was barebones. It identified the plaintiff as
“The Estate of Helen M. Faucheaux.” But the body of the complaint
then explained that the suit was brought by the personal
representative of the estate on behalf of the heirs. While it is surely
best practice to identify the proper party in the caption of a
complaint, failure to do so is not fatal to a case. See Jenkins v. Pullman
Co., 96 F.2d 405, 408 (9th Cir. 1938) (“[A] defective caption, or no
caption at all, is merely a formal defect and not fatal . . . .”).
   ¶23 It is clear that this action was initiated by the personal
representative of Helen M. Faucheaux’s estate for the benefit of her
heirs. Mr. Faucheaux is a proper party under our law in this
capacity. We affirm the court of appeals’ decision on this threshold
ground. We hold that there was no legal capacity problem in this
case to begin with, the caption of the complaint notwithstanding.


_____________________________________________________________
(“On certiorari review, we review the court of appeals’ decision for
correctness.”). And we reach the opposite conclusion. It is clear to us
that this suit was brought on behalf of Helen Faucheaux’s heirs by
the personal representative of her estate.
   5 Under the wrongful death statute, Kevin Faucheaux could also
have sued in his capacity simply as an heir of Helen M. Faucheaux,
entirely separate from her estate.


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                         Opinion of the Court

                                   B
   ¶24 The court of appeals concluded that a plaintiff’s lack of
capacity to sue is an affirmative defense subject to forfeiture by the
defense. Faucheaux v. Provo City, 2018 UT App 150, ¶ 12, 436 P.3d
104. Because Provo City waited six years before asserting that the
plaintiff lacked the capacity to maintain this suit, the court of appeals
held that it waived this defense. Id.
    ¶25 This conclusion may be correct as a matter of our law of civil
procedure. But we decline to endorse it because it implicates a
difficult question in the law of standing, which may raise a
jurisdictional question that would not be subject to waiver. In light of
this concern (described further below), we vacate the court of
appeals’ holding on waiver and reserve this question for a future
case.
    ¶26 The City asserts that the alleged lack of capacity problem in
this case presents a subject-matter jurisdiction problem in the form of
a standing issue. There is a sense in which that could hold. 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.6 And that
sort of defect could present both a procedural capacity problem and
also a standing question.7
    ¶27 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 cognizable injury, then that party may lack standing.




_____________________________________________________________
   6  See Switzer v. Reynolds, 606 P.2d 244, 246 (Utah 1980) (explaining
that the wrongful death statute was designed to compensate heirs
for specific loses, not injuries suffered by the estate); In re Behm’s
Estate, 213 P.2d 657, 660 (Utah 1950) (explaining that wrongful death
is a separate and distinct cause of action for the benefit of the heirs,
not the benefit of the estate); id. (explaining that the proceeds of
wrongful death action cannot go to the estate or be comingled with
the estate’s funds).
   7 See Jenkins v. Swan, 675 P.2d 1145, 1150 (Utah 1983) (establishing
traceability and redressability as elements of standing).


                                   9
                     FAUCHEAUX v. CITY OF PROVO
                         Opinion of the Court

And such a lack of standing may not be cured by forfeiture or waiver
by the parties.8
    ¶28 We need not and do not resolve this question conclusively.
We flag it as a matter potentially worthy of further attention in a case
in which it is squarely presented. But we do not decide it here, as it is
unnecessary to resolve it in light of our conclusion that the claim in
this case was properly initiated by the real party in interest (the
personal representative on behalf of the heirs).
                                   C
    ¶29 We also identify a second basis for our decision to affirm the
court of appeals. Even if we assume that there was a capacity
problem in this case and that Provo City’s motion to dismiss was
timely, dismissal would still be improper. 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.
    ¶30 The district court based its contrary conclusion on a decision
of the court of appeals—Haro v. Haro, 887 P.2d 878 (Utah Ct. App.
1994). In Haro the plaintiff, the “Estate of Martin Haro,” brought a
wrongful death action against defendants. Id. at 879. The defendants
moved to dismiss on the ground that Utah’s wrongful death statute
permits only “heirs” or “personal representatives for the benefit of
heirs” to file suit. Id. And “Martin Haro’s estate was neither an heir
nor [a] personal representative.” Id. In response, Haro’s estate
moved to substitute a real party in interest under rule 17(a) of the
Utah Rules of Civil Procedure. Id. at 879–80. The district court did
not allow this substitution. Id. It dismissed the case on the ground
that the estate lacked capacity. Id.
    ¶31 The court of appeals affirmed. Id. It first concluded that the
plaintiff estate lacked capacity to sue because “[s]ection 78-11-7
clearly delineates that the decedent’s heirs or his or her personal
representative (on behalf of the heirs) are the only parties that may



_____________________________________________________________
   8 See Living Rivers v. Exec. Dir. of the Utah Dep’t of Envtl. Quality,
2017 UT 64, ¶ 27, 417 P.3d 57 (explaining standing is an issue that
can be raised sua sponte by the court and is not subject to waiver);
Alpine Homes, Inc. v. City of W. Jordan, 2017 UT 45, ¶ 2, 424 P.3d 95
(same); State v. Tuttle, 780 P.2d 1203, 1207 (Utah 1989) (same).


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                        Opinion of the Court

maintain an action for wrongful death.” Id. at 879.9 And it affirmed
the district court’s decision disallowing substitution. Id. at 880. It
concluded that rule 17 “contemplates that the party bringing suit has
the capacity to sue on behalf of the ‘real party in interest.’” Id. And
because the court concluded that the estate had no capacity to sue, it
held that “the complaint was a nullity and there remained no cause
of action in which to substitute parties.” Id.

_____________________________________________________________
   9 Unlike the case presented to us today, the plaintiff in Haro was
consistently referred to as the estate throughout the complaint. The
complaint read, “As a result of the Defendant’s negligence The Estate
of Martin A. Haro has incurred medical bills and expenses in excess of
Eighty Thousand ($80,000) Dollars.” (emphasis added) This is a
notable difference. Unlike here, where the complaint is brought on
behalf of heirs, it appears that the action in Haro was brought on
behalf of the estate. And in that sense there was a genuine capacity
to sue problem in Haro.
    There is another difference between this case and Haro. The
complaint in Haro asserted claims for damages to the estate itself—
“medical bills” and expenses. Yet the estate sought to recover these
damages under a cause of action for wrongful death. This was an
independent problem with the wrongful death action in Haro: the
estate was seeking damages it may have been entitled to recover, but
under a cause of action that did not encompass such damages. See
Switzer v. Reynolds, 606 P.2d 244, 247 (Utah 1980) (“In Utah, . . . the
wrongful death statute creates a new cause of action which runs
directly to the heirs to compensate each for the individual loss
suffered by the death.”); id. at 246 (explaining that wrongful death
damages include “loss of affection, counsel, and advice; loss of
deceased’s care and solicitude for the welfare of the family; and loss
of the comfort and pleasure the family of deceased would have
received”); In re Behm’s Estate, 213 P.2d 657, 661 (Utah 1950)
(explaining that “[t]he death creates a new cause of action for the
loss suffered by the heirs by reason of death, and only comes into
existence upon the happening of death” (citation omitted) (internal
quotation marks omitted)). Perhaps this is part of the reason the Haro
court said that the defect at issue rendered the case void, and not
subject to correction through substitution. But the court’s statement
of its holding, at least, was too broad. For reasons described below, a
lack of capacity does not generally render a case void and beyond
correction under a rule 17(a) substitution.


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                     FAUCHEAUX v. CITY OF PROVO
                         Opinion of the Court

    ¶32 The Haro opinion’s premise is half right. Our wrongful death
statute does state “that the decedent’s heirs or his or her personal
representative (on behalf of the heirs) are the only parties that may
maintain an action for wrongful death.” Id. at 879 (citing UTAH CODE
§ 78-11-7). But Haro takes this point a problematic step further in
concluding that suits filed by a plaintiff lacking capacity are a nullity
and cannot be corrected. We disagree with this conclusion and
accordingly overrule Haro.10
   ¶33 Lack of capacity does not make a case a nullity; it just makes
a case voidable.11 A case is a nullity if there “remain[s] no cause of
_____________________________________________________________
   10 It appears that the court of appeals now disagrees with Haro’s
conclusion as well. In its opinion in this case that court said that “the
lack of capacity to sue makes an action voidable, not void.”
Faucheaux v. Provo City, 2018 UT App 150, ¶ 11 n.5, 436 P.3d 104. Yet
rather than overrule Haro, the court of appeals attempted to
distinguish that case from this one factually. It stated that in Haro
“the motion to dismiss was timely” because it was brought “soon
after the amended complaint was filed.” Id. In contrast, the court
said that the motion to dismiss in this case was filed years after the
complaint was filed—“and only after summary judgment on an
unrelated ground had been entered, the judgment reversed on
appeal, and the case remanded.” Id.
   While the court of appeals identified a factual difference in the
two cases, it did not explain how this difference has any effect on the
question whether a lack of capacity renders a case void or simply
voidable. And we see no logical basis for a distinction. Where a
plaintiff lacks capacity, the case is voidable, not void. We overrule
Haro to the extent it announced a contrary standard.
   11 See, e.g., Covino v. Alside Aluminum Supply Co., 345 N.Y.S.2d 721,
725 (N.Y. App. Div. 1973) (“Mistakes relating to the name of a party
involving a misnomer or misdescription of the legal status of a party
surely fall within the category of those irregularities which are
subject to correction by amendment, particularly when the other
party is not prejudiced and should have been well aware from the
outset that a misdescription was involved.” (citations omitted));
M&M Constr. Co. v. Great Am. Ins. Co., 747 S.W.2d 552, 555 (Tex. App.
1988) (holding that the trial court should have allowed appellant a
reasonable opportunity to amend its pleadings to cure its lack of
capacity); Develo-cepts, Inc. v. City of Galveston, 668 S.W.2d 790, 793
(Tex. App. 1984) (explaining that lack of capacity can be cured by
                                                         (continued . . .)
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                         Opinion of the Court

action in which to substitute parties.” Id. at 880. A nullity or void
case arises when the court lacks subject-matter jurisdiction over a
claim. “[W]hen a court determines it lacks subject matter jurisdiction,
it retains only the authority to dismiss the action.” Ramsay v. Kane
Cty. Human Res. Special Serv. Dist., 2014 UT 5, ¶ 17, 322 P.3d 1163
(citation omitted) (internal quotation marks omitted). Many
subject-matter defects cannot be cured by substitution. If a case is of
a class that is beyond the capacity of the court to hear, no
substitution can cure it. Such a case would be void.
    ¶34 But that does not hold for the sort of problem at issue here.
The alleged problem here, as noted above, is either a mere lack of
legal capacity or a species of a standing problem—a problem arising
from the fact that the injury alleged, though quite particularized, is
not cognizable because it does not belong to the party asserting it.
See supra ¶ 26. Either way, the problem is that the wrong party
initiated the suit. And that kind of defect is merely voidable, and
curable through substitution under rule 17(a).
    ¶35 Rule 17(a) requires that “[e]very action shall be prosecuted
in the name of the real party in interest.” But it also provides that
“[n]o action shall be dismissed on the ground that it is not
prosecuted in the name of the real party in interest until a reasonable
time has been allowed after objection for ratification of
commencement of the action by, or joinder or substitution of, the real
party in interest.” UTAH R. CIV. P. 17(a).12 Thus, rule 17 does more
than just permit substitution when a case is not prosecuted in the
name of the real party in interest; it also forecloses dismissal of an
action until “reasonable time has been allowed after objection for . . .
substitution of[] the real party in interest.” Id. If a party is unwilling
or unable to substitute a real party in interest then the court can
dismiss the suit. Yet under rule 17 the court must wait “a reasonable
time” for a proper party to be substituted. So if a lower court

_____________________________________________________________
amending the pleadings, and a proper response to a challenge to
capacity is to afford the party challenged with an opportunity to
amend).
   12 A real party in interest is “the person entitled under the
substantive law to enforce the right 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
omitted) (internal quotation marks omitted).


                                   13
                     FAUCHEAUX v. CITY OF PROVO
                         Opinion of the Court

determines that a party lacks the legal capacity to sue, it should
permit substitution under rule 17.13
   ¶36 Haro was wrong to the extent it reached a contrary
conclusion. We overrule Haro to the extent it holds that a capacity to
sue defect renders a case void, and beyond correction under
rule 17(a).
                                   III
    ¶37 We affirm the court of appeals’ decision to reverse the
district court’s dismissal of Mr. Faucheaux’s complaint. Our
threshold ground for affirmance is our conclusion that there was
never a problem of legal capacity—Mr. Faucheaux brought this suit
in his capacity as personal representative of the estate on behalf of
the heirs. But we also hold that a capacity defect merely renders an
action voidable and subject to correction by substitution under
rule 17(a).




_____________________________________________________________
   13   Mr. Faucheaux did not ask the district court to permit
substitution under rule 17. And under an ordinary application of our
rules of preservation we may be precluded from reaching this issue
on appeal. Patterson v. Patterson, 2011 UT 68, ¶ 12, 266 P.3d 828 (“An
issue is preserved for appeal when it has been presented to the
district court in such a way that the court has an opportunity to rule
on [it].” (alteration in original) (citation omitted) (internal quotation
marks omitted)). But this is no ordinary case, as the argument raised
on appeal would have been entirely futile if raised below. As Provo
City made clear in its motion, the district court was bound to dismiss
the case and prohibit substitution under Haro. The lower court could
not have overturned Haro or permitted substitution even if Mr.
Faucheaux had asked. And we generally do not require parties to
spend time and resources making futile arguments below. This is not
to say that it is not a best practice to raise all possible arguments
below, if only just to preserve and create a record of the arguments
for a potential appeal. But we do not fault Mr. Faucheaux for not
moving for substitution under rule 17, an avenue that was
specifically foreclosed to him by binding case law. Nor do we fault
the district court in this case for following the binding command of
Haro.


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