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

2

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

3

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. 

_____________________________________________________________

2 We 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.
FAUCHEAUX v. CITY OF PROVO

Opinion of the Court

4

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

5

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 
FAUCHEAUX v. CITY OF PROVO

Opinion of the Court

6

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

7

¶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 . . .)
FAUCHEAUX v. CITY OF PROVO

Opinion of the Court

8

¶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

9

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).
FAUCHEAUX v. CITY OF PROVO

Opinion of the Court

10

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

11

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.
FAUCHEAUX v. CITY OF PROVO

Opinion of the Court

12

¶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

13

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).
FAUCHEAUX v. CITY OF PROVO

Opinion of the Court

14

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).

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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.