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Estate of Faucheaux v. City of Provo

Supreme Court of Utah

August 6, 2019

Estate of Helen M. Faucheaux, Respondent,
City of Provo, [1] Petitioner.

          On Certiorari to the Utah Court of Appeals Fourth District, Provo The Honorable Fred D. Howard No. 100401999

          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 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.


         ¶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 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. 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.


         ¶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 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 ...

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