2026 UT App 142
THE UTAH COURT OF APPEALS
THE ESTATE OF DOREEN JO CAREY, Appellee,
v.
TERRY R. SPENCER AND TR SPENCER & ASSOCIATES, INC., 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. LUTHY authored this Opinion, in which JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN FORSTER 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 Spencer 2) 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…)
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.
20250147-CA 2 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,
20250147-CA 3 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.
20250147-CA 4 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
20250147-CA 5 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.
20250147-CA 6 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
20250147-CA 7 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
20250147-CA 8 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
20250147-CA 9 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
20250147-CA 10 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.
20250147-CA 11 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
20250147-CA 12 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.
20250147-CA 13 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
20250147-CA 14 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
20250147-CA 15 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.
20250147-CA 16 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,
20250147-CA 17 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
20250147-CA 18 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
20250147-CA 19 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
20250147-CA 20 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
20250147-CA 21 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
20250147-CA 22 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
20250147-CA 23 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.
20250147-CA 24 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).
20250147-CA 25 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
20250147-CA 26 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.
20250147-CA 27 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
20250147-CA 28 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.
20250147-CA 29 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.
20250147-CA 30 2026 UT App 142