Faucheaux v. Provo City, 2019 UT 41 (Aug. 6, 2019)

On a petition for writ of certiorari, the supreme court affirmed the court of appeals’ reversal of a dismissal of a case against Provo City, but on alternative grounds.  The court of appeals had held that although a wrongful death claim brought by the estate of a decedent is void, an objection to the capacity of the estate to bring suit is an affirmative defense that can be waived.  The supreme court held this case does not actually present a capacity issue, because the substance of the complaint revealed the claims were asserted by the personal representative of the estate for the benefit of the heirs of the decedent.  The court noted that a true capacity challenge may present a question of standing, which would not be subject to waiver.  Without resolving this issue, the court offered a second basis for affirming the court of appeals’ reversal.  It held, “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.”